Constitutional Law Commons^™

"Questions Involving National Peace And Harmony" Or "Injured Plaintiff Litigation"? The Original Meaning Of "Cases" In Article Iii Of The Constitution, Haoshan Ren, Margaret Wood, Clark D. Cunningham, Noor Abbady, Ute Römer, Heather Kuhn, Jesse Egbert

Georgia State University Law Review

If a federal official is deliberately violating the Constitution, is it possible no federal court has the power to halt that conduct? Federal judges have been answering “yes” for more than a century— dismissing certain kinds of lawsuits alleging unconstitutional conduct by ruling the lawsuits were not “cases” as meant in the phrase “[t]he Judicial Power shall extend to all Cases” in Article III, Section Two, of the Constitution.

For example, in July 2019, the U.S. Court of Appeals for the Fourth Circuit dismissed a lawsuit that the State of Maryland and the District of Columbia brought against President Donald …

Using Empirical Data To Investigate The Original Meaning Of "Emolument" In The Constitution., Clark D. Cunningham, Jesse Egbert

Georgia State University Law Review

The United States Constitution prohibits federal officials from receiving any “present, Emolument, Office or Title” from a foreign state without the consent of Congress. In interpreting the Constitution’s text, we are to be guided “by the principle that ‘[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.’" However, in trying to determine the “normal” meaning of “emolument” in the Founding Era we are confronted with a term that might as well be a foreign word from an unknown language. The word emolument has …

"We The Citizens?": A Corpus Linguistic Inquiry Into The Use Of "People" And "Citizens" In The Founding Era, Abigail Stout, Diana Coetzee, Ute Römer

Georgia State University Law Review

The last Amendment included in the Bill of Rights, the Tenth Amendment, states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”1 Employed as a tool to invalidate statutes2 and also interpreted as a “truism,”3 ultimately the Tenth Amendment has largely been regarded as an Amendment which explicitly secures what the Constitution sets forth in its structural framework: that the United States government is a federalist system, meaning that it is one of shared powers between the national government and state …

Reconstructing The Congressional Guarantee Of Republican Government, David S. Louk

Vanderbilt Law Review

This Article considers whether the Clause might serve as an additional constitutional basis for federal legislation and explores the interpretive arguments Congress might raise to justify the power to reform electoral processes in the states under the Clause. This Article also questions the prevailing view that the Supreme Court has always treated the Clause as functionally nonjusticiable. It argues that even following established precedents, the contemporary Court might well engage with the merits of legislation and litigation commenced under the Clause, given the Court’s recent penchant for enhanced scrutiny of congressional enforcement powers under the Reconstruction Amendments. Such challenges would …

Racialized Tax Inequity: Wealth, Racism, And The U.S. System Of Taxation, Palma Joy Strand, Nicholas A. Mirkay

Northwestern Journal of Law & Social Policy

This Article describes the connection between wealth inequality and the increasing structural racism in the U.S. tax system since the 1980s. A long-term sociological view (the why) reveals the historical racialization of wealth and a shift in the tax system overall beginning around 1980 to protect and exacerbate wealth inequality, which has been fueled by racial animus and anxiety. A critical tax view (the how) highlights a shift over the same time period at both federal and state levels from taxes on wealth, to taxes on income, and then to taxes on consumption—from greater to less progressivity. Both of these …

Debt Bondage: How Private Collection Agencies Keep The Formerly Incarcerated Tethered To The Criminal Justice System, Bryan L. Adamson

Northwestern Journal of Law & Social Policy

This Article examines the constitutionality of statutes which allow courts to transfer outstanding legal financial obligations to private debt collection agencies. In Washington State, the clerk of courts can transfer the legal financial obligation of a formerly incarcerated person if he or she is only thirty days late making a payment. Upon transfer, the debt collection agencies can assess a “collection fee” of up to 50% of the first $100.000 of the unpaid legal financial obligation, and up to 35% of the unpaid debt over $100,000. This fee becomes part of the LFO debt imposed at sentencing, and like that …

The Census, Citizenship, And Improved Legislation: A Constitutional Compromise, Kaitlyn A. Marquis

Brigham Young University Prelaw Review

Why should the census avoid asking a question concerning citizenship?

Are there alternatives in providing information to aid government

functions while still protecting the rights of residents? In

early 2019, the Trump administration requested that the 2020 census

include an inquiry concerning the citizenship status of residents, for

claimed reasons of better legislation (i.e. the allocation of government

funds to the states and the drawing of electoral districts). The

Supreme Court considered this issue in Dept. of Commerce v. New

York. In sum, their opinion was, “not yet.” The Supreme Court did

not definitively conclude that it was unconstitutional to …

Foreword, Wendy Melissa Hernandez

UC Law Constitutional Quarterly

No abstract provided.

Weeding Out Injustice: Amnesty For Pot Offenders, Mitchell F. Crusto

UC Law Constitutional Quarterly

There are a growing number of States that have legalized marijuana, challenging the view that marijuana is a dangerous drug. These States are taking positions relative to both the retroactivity of the new laws and to amelioration of past offenses, which arguably contradict United States Supreme Court decisions on the retroactivity of changes in substantive criminal standards. And, many States recognize that past marijuana laws have greatly contributed to the problems related to a broken criminal justice system, including mass incarceration and racial disparities, particularly to the devastation of communities of color.

In response to these legal developments, this Article …

Effective But Limited: A Corpus Linguistic Analysis Of The Original Public Meaning Of Executive Power, Eleanor Miller, Heather Obelgoner

Georgia State University Law Review

This paper will engage linguistic and historical analysis in an effort to discern the original public meaning of the phrase executive power as used in Article II of the United States Constitution. In light of significant modern controversy surrounding the proper limits of executive authority, an original meaning interpretation of this critical phrase will illuminate the executive’s function as it was commonly understood at the time of constitutional ratification. Part I will engage in a linguistic analysis of the phrase executive power, drawing primarily on corpus linguistic methodology surrounding the phrase’s Founding Era usage. Part II will analyze the history …

Reflections On The Effects Of Federalism On Opioid Policy, Matthew B. Lawrence

Dickinson Law Review (2017-Present)

No abstract provided.

Mhpaea & Marble Cake: Parity & The Forgotten Frame Of Federalism, Taleed El-Sabawi

Dickinson Law Review (2017-Present)

No abstract provided.

State Regulatory Responses To The Prescription Opioid Crisis: Too Much To Bear?, Lars Noah

Dickinson Law Review (2017-Present)

In order to prevent further overuse of prescription opioids, states have adopted a variety of strategies. This article summarizes the growing use of prescription drug monitoring programs, crackdowns on “pill mills,” prohibitions on the use of particularly hazardous opioids, limitations on the duration and dosage of prescribed opioids, excise taxes, physician education and patient disclosure requirements, public awareness campaigns, and drug take-back programs. Although occasionally challenged on constitutional grounds, including claims of federal preemption under the Supremacy Clause, discrimination against out-of-state businesses under the dormant Commerce Clause doctrine, and interference with rights of commercial free speech, this article evaluates the …

The Opioid Litigation: The Fda Is Mia, Catherine M. Sharkey

Dickinson Law Review (2017-Present)

It is readily agreed that federal preemption of state tort law alters the balance between federal and state power. Federal preemption is a high-profile defense in almost all modern products liability cases. It is thus surprising to see how little attention has been given to federal preemption by courts and commentators in the opioid litigation. Opioid litigation provides a lens through which I explore the role of state and federal courts and the Food and Drug Administration (FDA) in striking the right balance of power. My purpose here is not to resolve the divide among the few courts that have …

Safe Consumption Sites And The Perverse Dynamics Of Federalism In The Aftermath Of The War On Drugs, Deborah Ahrens

Dickinson Law Review (2017-Present)

In this Article, I explore the complicated regulatory and federalism issues posed by creating safe consumption sites for drug users—an effort which would regulate drugs through use of a public health paradigm. This Article details the difficulties that localities pursuing such sites and other non-criminal-law responses have faced as a result of both federal and state interference. It contrasts those difficulties with the carte blanche local and state officials typically receive from federal regulators when creatively adopting new punitive policies to combat drugs. In so doing, this Article identifies systemic asymmetries of federalism that threaten drug policy reform. While traditional …

Compelling Freedom On Campus: A Free Speech Paradox, Jamie Cameron

Articles & Book Chapters

The provincial governments in Ontario and Alberta have directed colleges and universities to adopt and comply with a mandatory, state-prescribed free speech policy modelled on the US-based Chicago Statement on Principles of Free Speech. Compelling a campus free speech code is as serious a violation of s.2(b) of the Charter of Rights and Freedoms as a prohibition would be. Apart from and in addition to their consequences for university governance and autonomy, these mandatory free speech policies are part of a rise in mechanisms – like Bill 21’s compelled secularity, Ontario’s mandatory gas pump stickers, the Law Society of Ontario’s …

Clark Memorandum: Spring 2020, J. Reuben Clark Law School, Byu Law School Alumni Association, J. Reuben Clark Law Society

The Clark Memorandum

• Of Rights and Responsibilities: The Social Ecosystem of Religious Freedom
• I am the Woman Who Can
• Flashes of Light: Thoughts on Circumstantial Evidence
• Capital Markets and Human Flourishing

Read on Issuu

Gerrymandering Justiciability, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

As illustrated by its 2019 decision in Rucho v. Common Cause, the Supreme Court has gerrymandered its justiciability doctrines in a way that protects the political power of white voters. Comparing the Court’s willingness to find racial gerrymanders justiciable with its refusal to find partisan gerrymanders justiciable reveals a lack of doctrinal constraint. That gives the Court the discretionary power to uphold or strike down particular gerrymanders by deeming them racial or partisan in nature. Such discretion is problematic because, when the Supreme Court has exercised discretion in a racial context, it has historically done so to protect the …

A Clarion Call For Strengthening The Rule Of Law, Penelope Andrews

Articles & Chapters

No abstract provided.

The Superfluous Fifteenth Amendment?, Travis Crum

Northwestern University Law Review

This Article starts a conversation about reorienting voting rights doctrine toward the Fifteenth Amendment. In advancing this claim, I explore an unappreciated debate—the “Article V debate”—in the Fortieth Congress about whether nationwide black suffrage could and should be achieved through a statute, a constitutional amendment, or both. As the first significant post-ratification discussion of the Fourteenth Amendment, the Article V debate provides valuable insights about the original public understandings of the Fourteenth and Fifteenth Amendments and the distinction between civil and political rights.

The Article V debate reveals that the Radical Republicans’ initial proposal for nationwide black suffrage included both …

Associations And Cities As (Forbidden) Pure Private Attorneys General, Heather Elliott

William & Mary Law Review

The Supreme Court interprets Article III’s case-or-controversy language to require a plaintiff to show injury in fact, causation, and redressability. A plaintiff who meets that tripartite test has standing to sue and thus a personal stake in pursuing the litigation. Accordingly, in Sierra Club v. Morton, the Supreme Court prohibited pure private attorneys general: litigants who would sue without the requisite personal stake. This limitation extends to organizations. They, too, must show standing on their own account or, under Hunt v. Washington Apple Advertising Commission, identify a member with Article III standing and show how the lawsuit is germane to …

State Intent Under International Law, Stephen Townley

Cardozo International & Comparative Law Review

The question of legislative intent has long been a topic of intense scholarly focus in the United States. There has also been a recent uptick in discussion of executive branch intent with the filing of highprofile lawsuits predicated upon allegations of improper motives. However, there has been no corollary effort to unpack the concept of state intent at the international level, where it arises with respect to such varied questions as how to understand the scope of a state's consent, whether a state should be deemed to be negotiating in good faith, and whether a state has engaged in genocide. …

Return Of The King: Corruption Backsliding In America, Pedro Gerson

Cardozo International & Comparative Law Review

The United States appears to be going through a crisis of corruption. However, it is hard to know whether this is a matter of appearance or if the country is at risk of high levels of corruption making a comeback. The Article applies the equilibrium model of corruptionthe leading social science account of how corruption operates-to the current U.S. system, and shows that the United States may indeed be backsliding. The potential for corruption to creep back up is due to more than the political moment. Rather, it is the result ofpolitics combined with the relatively powerless institutional controls for …

Addressing The Supreme Court’S ‘Constitutional Orphan’: Determining The Scope Of The Second Amendment In Public, Along With Its Need To Be Regulated, Eli Zlotowitz

Cardozo International & Comparative Law Review

No abstract provided.

Abolishing Ice Is Not Enough: Using Conservative Judicial Principles To Protect Unauthorized Immigrants From A "Tyrannical Bureaucracy", Ashley Dylenski

Cardozo Journal of Equal Rights & Social Justice

The note argues that abolishing ICE alone will not resolve the systemic issues plaguing the U.S. immigration system, as the root problem lies in Congress's overdelegation of authority to executive agencies. These agencies, operating under doctrines like plenary power and Chevron deference, wield broad discretion with minimal judicial oversight, leading to inhumane and unpredictable enforcement practices. The analysis advocates for resurrecting the nondelegation doctrine and reasserting congressional authority to restore separation of powers and ensure a more humane and transparent immigration system.

The Political Development Of Capital Punishment In The Modern Moroccan State, Mia Barr

Independent Study Project (ISP) Collection

The modern Moroccan state seen today is very young. Having only been independent from France since 1956, the country has spent the last sixty-four years crafting its post-colonial statehood. What has emerged is a hybrid political system with powers split, however unequally, between the King and his inner circle, known as the makhzen, and the Parliament. Not only is the monarchy constitutional—meaning that its legitimacy is literally written into the primary governing document of Morocco, which had its last referendum in 2011—but it is also self-sustaining and self-legitimizing, for the monarchy uses its constitutional powers to grant itself further powers …

Brief Of First Amendment Scholars As Amici Curiae In Support Of Petitioner, Tabatha Abu El-Haj, Timothy Zick, Hyland Hunt

Briefs

No abstract provided.

A Constitutional Wealth Tax, Ari Glogower

Michigan Law Review

Policymakers and scholars are giving serious consideration to a federal wealth tax. Wealth taxation could address the harms from rising economic inequality, promote equality of social and economic opportunity, and raise the revenue needed to fund critical government programs. These reasons for taxing wealth may not matter, however, if a federal wealth tax is unconstitutional.

Scholars debate whether a tax on a wealth base (a “traditional wealth tax”) would be a “direct tax” subject to apportionment among the states by population. This Article argues, in contrast, that this possible constitutional restriction on a traditional wealth tax may not matter. If …

Representing Veterans, Jennifer D. Oliva

SMU Law Review Forum

Federal law has long deprived American veterans of certain fundamental legal rights enjoyed by non-veterans and attributable to veteran sacrifice. Federal case law, for example, denies veterans the right to bring an action in tort against the federal government to vindicate in-service injuries. And the United States Code deprives veterans of their right to robust judicial oversight of Department of Veterans Affairs (VA) service-connected benefit decisions. This pair of due process deprivations is compounded by the federal statute that prohibits veterans from exercising the fundamental right to counsel during the initial stage of the VA claims process. This Article examines …

Patents As Property: Oil States And Its Implications On The Takings Clause, Jordan T. Owens

Cardozo Law Review

No abstract provided.