Constitutional Law Commons^™

Homelessness, Criminal Responsibility, And The Pathologies Of Policy: Triangulating On A Constitutional Right To Housing, R. George Wright

St. John's Law Review

(Excerpt)

The importance of a roof over one’s head seems clear to most of us. But private charity, the insurance markets, and the regulatory state offer no guarantees that this most elemental need will be even minimally met. This Article focuses on the continuing denial of any federal constitutional right to even minimal housing, despite the sense that basic values such as meaningful liberty, equality, community, fundamental human flourishing, and basic capacity development seem to suggest a right.

Unlimited Data Search Plan: Warrantless Border Search Of Mobile Device Data Likely Unconstitutional For Violating The Fundamental Right To Informational Privacy, Atanu Das

St. John's Law Review

(Excerpt)

Part I of this Article discusses a case in which a United States citizen was subject to an unconstitutional warrantless border search of his mobile device data. Part II explains the history and current state of Supreme Court jurisprudence of the border search exception doctrine. Part III explains the way in which Supreme Court jurisprudence finds the right to informational privacy for mobile device data to be a fundamental right. Part IV discusses the reluctance of some legal commentators to find that a governmental intrusion on the right to informational privacy is subject to strict scrutiny. Part V finds …

Why A Wealth Tax Is Definitely Constitutional, John R. Brooks, David Gamage

Georgetown Law Faculty Publications and Other Works

Wealth tax reform proposals are playing a major role in the 2020 presidential campaign. However, some opponents of these wealth tax reform proposals have claimed that a wealth tax would be unconstitutional. Other prominent critics have argued that wealth tax reforms are probably unconstitutional, so that, after review by the courts, the “likeliest outcome is that a wealth tax will raise exactly zero dollars.”

These claims are wrong. More precisely, these claims are wrong conditioned on wealth tax legislation being carefully drafted so as to ensure its constitutionality. As we will explain in this essay, properly drafted, wealth tax reform …

Why Law Of Evidence Supports The Verdict That The President Is Guilty, Edward A. Purcell Jr.

Other Publications

This post originally appeared on https://thehill.com/opinion/judiciary/477186-why-law-of-evidence-supports-the-verdict-that-the-president-is-guilty

Reasonable Doubt And Relativity, Michael D. Cicchini

Washington and Lee Law Review

In theory, the Constitution protects us against criminal conviction unless the state can prove guilt beyond a reasonable doubt. In reality, this lofty standard is only as strong as the words used to explain it to the jury.

Unfortunately, attempts to explain reasonable doubt often create confusion, and sometimes even diminish the burden of proof. Many courts therefore believe that the better practice is not to attempt a definition. However, empirical studies demonstrate that reasonable doubt is not self-defining, i.e., when it is not explained to the jury, it offers defendants no greater protection against conviction than the two lower, …

January 4, 2020: David, It Was Already Done--It's Called Hallowed Secularism, Bruce Ledewitz

Hallowed Secularism

Blog post, “David, It Was Already Done--It's Called Hallowed Secularism“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Saving Judicial Independence From The Nihilism Of Court-Packing, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals.

Asylum Under Attack: Is It Time For A Constitutional Right?, Stephen Meili

Buffalo Human Rights Law Review

No abstract provided.

Brief For New Ways Ministry Et Al. As Amici Curiae Supporting Plaintiff, Koenke V. Saint Joseph University, Leslie C. Griffin

Supreme Court Briefs

No abstract provided.

Brief For Child Usa Et Al. As Amici Curiae Supporting Respondents, Our Lady Of Guadalupe School V. Morrissey-Berru, Leslie C. Griffin

Court Briefs

No abstract provided.

Democracy, Federalism, And The Guarantee Clause, Carolyn Shapiro

All Faculty Scholarship

The Guarantee Clause of the Constitution promises that “[t]he United States shall guarantee to every State in this Union a Republican form of Government . . . .” The Supreme Court has long held this Clause to be nonjusticiable, and as a result, many see the Clause as purely vestigial. But nonjusticiable does not mean toothless, and this view fails to recognize the Clause’s grant of power to Congress. The Guarantee Clause provides Congress with the authority to ensure that each state’s internal governance meets a minimum standard of republicanism. The Framers included this promise because they feared that some …

Docket Control, Mandatory Jurisdiction, And The Supreme Court's Failure In Rucho V. Common Cause, Carolyn Shapiro

All Faculty Scholarship

This paper, part of a Symposium on Andrew Coan's book, Rationing the Constitution: How Judicial Capacity Shapes Supreme Court Decision-Making, traces congressional changes to Supreme Court jurisdiction over more than a century, noting that those changes were regularly made in response to concerns about the Court's caseload. To the extent that Coan, and the Court, turn to doctrinal methods of controlling caseloads, such as deferential standards of review, they are overlooking the important congressional role in setting the Court's jurisdiction. The paper concludes by criticizing the recent decision of Rucho v. Common Cause in which the Court held that extreme …

Courts, Culture, And The Lethal Injection Stalemate, Eric Berger

Nebraska College of Law: Faculty Publications

The Supreme Court's 2019 decision in Bucklew v. Precythe reiterated the Court's great deference to states in Eighth Amendment lethal injection cases. The takeaway is that when it comes to execution protocols, states can do what they want. Events on the ground tell a very different story. Notwithstanding courts' deference, executions have ground to a halt in numerous states, often due to lethal injection problems. State officials and the Court's conservative Justices have blamed this development on "anti-death penalty activists" waging ''guerilla war" on capital punishment. In reality, though, a variety of mostly uncoordinated actors motivated by a range of …

Comparative Constitutional Democracy Colloquium

Maryland Carey Law

No abstract provided.

Brief For Miguel H. Diaz Et A. As Amici Curiae Supporting Respondents, Fulton V. City Of Philadelphia, Leslie C. Griffin, Marci A. Hamilton

Supreme Court Briefs

No abstract provided.

Brief For Child Usa Et Al. As Amici Curiae Supporting Respondents, Little Sisters Of The Poor Saints Peter And Paul Home V. Pennsylvania, Leslie C. Griffin

Court Briefs

No abstract provided.

Abolishing Racist Policing With The Thirteenth Amendment, Brandon Hasbrouck

Scholarly Articles

This Essay was also published online at 67 UCLA L. Rev. Disc. 200 (2020).

Policing in America has always been about controlling the Black body. Indeed, modern policing was birthed and nurtured by white supremacy; its roots are found in slavery. Policing today continues to protect and serve the racial hierarchy blessed by the Constitution itself. But a string of U.S. Supreme Court rulings involving the Thirteenth Amendment offers Congress a tool with which to target institutions that have preserved social, political, and official norms associated with slavery. In those cases, the Supreme Court held that Congress has broad enforcement …

The Constitutionality Of Nationwide Injunctions, Alan M. Trammell

Scholarly Articles

Opponents of nationwide injunctions have advanced cogent reasons why courts should be skeptical of this sweeping remedy, but one of the arguments is a red herring: the constitutional objection. This Essay focuses on the narrow question of whether the Article III judicial power prohibits nationwide injunctions. It doesn’t.

This Essay confronts and dispels the two most plausible arguments that nationwide injunctions run afoul of Article III. First, it shows that standing jurisprudence does not actually speak to the scope-of-remedy questions that nationwide injunctions present. Second, it demonstrates that the Article III judicial power is not narrowly defined in terms of …

Book Review Essay: Jewish And American Law: A Comparative Study. (Vols. 1 And 2) By Samuel J. Levine, Marie A. Failinger

Touro Law Review

No abstract provided.

La Constitución De Los Estados Unidos Y Su Dinámica Actual, Robert S. Barker

Barker Books

A collection of conference papers and other publications authored by Professor Robert Barker on various issues of American Constitutionalism. The book also contains three appendices: two are authored by other contributors, and the third and last appendix contains the 1787 U.S. Constitution.

How Actions Affirm: Reflections On The Question Of Affirmative Action, Doron Menashe

Touro Law Review

No abstract provided.

A Literary Lens Into Constitutional Interpretation And A Possible Synthesis Of Natural And Positive Law: The Silmarillion, Charles Edward Andrew Lincoln Iv

Mitchell Hamline Law Journal of Public Policy and Practice

The nature of identity in the United States lies in the Constitution. Perhaps this is due to “veneration” of the document. It has also been argued that the Declaration of Independence holds a seminal role in the American identity.

The rift seems to occur with the concept of a “living constitution,” whereby the concept of an ever-evolving jurisprudence allows for an evolving interpretation of the Constitution as society changes.

This rift can be demonstrated by the world of J.R.R. Tolkien. In The Lord of the Rings and Silmarillion, the various languages of groups of Middle Earth represent and have distinct …

Holistic Review In Race-Conscious University Admissions, Hal Arkes, George W. Dent Jr.

Faculty Publications

The Supreme Court has held that race may be considered as “a factor of a factor of a factor” within a “holistic” program of university admissions if the university can satisfy a heavy burden of proving that the program is “narrowly tailored” to achieve the educational benefits of diversity. The Court has listed the desired benefits of racial diversity, but it has not discussed what evidence a university needs to prove that its program is “narrowly tailored” to achieve those benefits.

This article addresses that issue. The field of psychology offers abundant research about the process of judgment and decision-making …

Some First Amendment Implications Of The Trademark Registration Decisions, Marc Rohr

Marquette Intellectual Property Law Review

No abstract provided.

Leviathan Goes To Washington: How To Assert The Separation Of Powers In Defense Of Future Generations

Florida A & M University Law Review

The separation of powers was originally drawn from the common law of England, vindicated during the American Revolution as a fundamental bulwark against tyranny, and constitutionalized in the first three articles of the U.S. Constitution. It was adopted as an assurance that the present generation would not assert dead-hand control over the future of American society for mere efficiency, vanity, or greed. The separation of powers, therefore, exists to empower future generations to contend for their rights of life, liberty, and property. Both the long history of the separation of powers and the recent, controversial practices of multinational government contractors …

Keeping Faith With Nomos, Steven L. Winter

Law Faculty Research Publications

No abstract provided.

A New State Registration Act: Legislating A Longer Arm For Personal Jurisdiction, Charles W. (Rocky) Rhodes, Cassandra Burke Robertson

Faculty Publications

In a sextet of recent decisions, the Roberts Court upended the longstanding framework for general and specific contacts-based personal jurisdiction. The Court's new approach has engendered uncertainty and erected insurmountable obstacles for some plaintiffs in locating an effective forum to vindicate their rights. We propose a novel solution to the injustices and unpredictability unleashed by these decisions: a new model corporate registration act that would require, as a condition of doing business in a state, the corporation's consent to personal jurisdiction in defined circumstances that implicate state sovereign regulatory, protective, and prescriptive interests.

Registration-based consent to jurisdiction has a long …

Preserving The Nationwide National Government Injunction To Stop Illegal Executive Branch Activity, Doug Rendleman

Scholarly Articles

The Trump Administration’s extravagant claims of executive power have focused the federal courts’ attention on separation of powers, judicial review, and equitable jurisdiction to grant broad injunctions that forbid the administration’s violations of the Constitution and federal statutes. Critics question the federal courts’ power to grant broad injunctions that are effective everywhere. These critics maintain, among other things, that the federal courts lack jurisdiction and that broad injunctions improperly affect nonparties and militate against “percolation” of issues in a variety of courts.

This Article examines the critics’ arguments and finds them unconvincing. Accepting the critics’ arguments would rebalance the separation …

Women, Democracy, And The Nineteenth Amendment, Paula A. Monopoli

Faculty Scholarship

This paper explores the status of women’s participation in our democracy, in response to both the commemoration of the Nineteenth Amendment’s centennial and the deep misogyny aimed at women holding formal political power during the current pandemic. The paper explores the connection between constitutional design and the level of women's participation in democratic governance. It suggests that the robust participation of women in our democracy is not only morally right, but that such parity is central to both the legitimacy of the state and its continued existence. The paper begins by describing the state of women’s participation in formal and …

The Fourth Amendment Inventory As A Check On Digital Searches, Laurent Sacharoff

Sturm College of Law: Faculty Scholarship

Police and federal agents generally must obtain a warrant to search the tens of thousands of devices they seize each year. But once they have a warrant, courts afford these officers broad leeway to search the entire device, every file and folder, all metadata and deleted data, even if in search of only one incriminating file. Courts avow great reverence for the privacy of personal information under the Fourth Amendment but then claim there is no way to limit where an officer might find the target files, or know where the suspect may have hidden them.

These courts have a …