Constitutional Law Commons^™

Charles Reich, New Dealer, John Q. Barrett

Faculty Publications

(Excerpt)

My encounters with Charles Reich began long before I had any personal contact with him. I read his 1970 bestseller The Greening of America late in that decade, when I was in high school. From then on, I always owned a copy of that book, until it would disappear in a move or on "loan" to some friend.

Luckily so many copies of Greening are in print that I easily would find it anew in used bookstores. So, I often restocked, reread in the book, and got to feel afresh the lift of Reich's spirit and his words.

Consider, …

Addressing Racial Inequities In The Criminal Justice System Through A Reconstruction Sentencing Approach, Jelani Jefferson Exum

Faculty Publications

(Excerpt)

Justice reform is having a moment. Across the nation and in the federal government, legislation has passed “to reduce the scale of incarceration and the impact of collateral consequences of a felony conviction.” While some of these reforms were the result of fiscal concerns over mass incarceration, others were in response to the criminal justice reckoning brought on by events of 2020 and intensified calls for racial justice. In the summer of 2020 media attention on the police killings of George Floyd and Breonna Taylor sparked nationwide and global protests and accompanying antiracism pledges by individuals and institutions. This …

That Is Enough Punishment: Situating Defunding The Police Within Antiracist Sentencing Reform, Jalila S. Jefferson-Bullock, Jelani Jefferson Exum

Faculty Publications

(Excerpt)

During the summer of 2020, the police killings of George Floyd, Breonna Taylor, and others created a movement that unearthed a reality that Black people in the United States have always been aware of: systemic racism, in the form of police brutality, is alive and well. While the blatant brutality of George Floyd’s murder at the hands of police is the flame, the spark was ignited long ago. One need only review the record of recent years — the killings of Eric Garner, Michael Brown, Tamir Rice, Antwon Rose, Alton Sterling, Philando Castile, Breonna Taylor, and countless other souls …

Rejecting Honorary Whiteness: Asian Americans And The Attack On Race-Conscious Admissions, Philip Lee

Faculty Publications

Since the 1960s, Asian Americans have been labeled by the dominant society as the “model minority.” This status is commonly juxtaposed against so-called “problem” minorities such as African Americans and Latinx Americans. In theory, the model minority narrative serves as living proof that racial barriers to social and economic development no longer exist in America. If Asians can succeed against all odds, the reasoning goes, so can everyone else. Further, if a member of a minority group fails, it is because of their own lack of diligence and ambition, and not some supposed systemic unfairness. However, the model minority narrative …

Presumed Punishable: Sentencing On The Streets And The Need To Protect Black Lives Through A Reinvigoration Of The Presumption Of Innocence, Jelani Jefferson Exum

Faculty Publications

(Excerpt)

Following the police killing of George Floyd in the summer of 2020, there has been a renewed focus on protecting Black people in America from excessive police violence. While the images of George Floyd were shocking to the public, that level of extreme violence and disregard for life has been a common aspect of the lives of Black Americans throughout history. In America, Black people are "pre­sumed punishable." Due to the historical and persistent biases against Black people, Black people find themselves subject to false assumptions about their criminality and presumptions that they are deserving of punishment. This stands …

Inherent Powers And The Limits Of Public Health Fake News, Michael Goodyear

Articles & Chapters

The world has changed dramatically over the past year. The COVID-19 pandemic has presented unprecedented challenges and has caused a catastrophic loss of over 300,000 U.S. lives. This crisis has been compounded by an infodemic, an effusion of misinformation and fake news about COVID-19. This incorrect information has flooded social media and online platforms, confusing and misleading the American public. Yet U.S. constitutional law largely upholds fake news as protected free speech under the First Amendment. This legal reality has significantly compounded the COVID-19 crisis.

But U.S. law is not limited to only constitutional enumerated powers. An underexamined approach to …

Equality, Animus, And Expressive And Religious Freedom Under The American Constitution: Masterpiece Cakeshop And Beyond, Daniel O. Conkle

Books & Book Chapters by Maurer Faculty

Professor Conkle's contribution to this volume, pre-print attached, is the chapter "Equality, Animus, and Expressive and Religious Freedom Under the American Constitution: Masterpiece Cakeshop and Beyond."

CHAPTER ABSTRACT: Does the First Amendment protect religious wedding vendors from anti-discrimination laws that require them to provide goods or services for same-sex weddings? The fundamental question is whether equality or religious freedom should prevail in this setting, but the complexities of American free speech and free exercise law—exacerbated by the Supreme Court’s decision in Masterpiece Cakeshop—have obscured the debate with dubious distinctions and highly contentious rationales and arguments. In this Essay, I present …

Proving The Constitution: Burdens Of Proof And The Confrontation Clause, Enrique Schaerer

University of Richmond Law Review

In law, we never prove anything to 100% certainty. For factual propositions, the proponent has the burden of proving them to the satisfaction of a standard: a preponderance of the evidence at the low end; clear and convincing evidence in the middle; proof beyond a reasonable doubt at the high end. The standards are often explicit. Yet, for legal propositions, standards are often implicit or lacking altogether. This Article argues that, to decide legal issues, courts may look to similar burdens of proof that they use to decide factual issues. They should do so informally, using burdens of proof just …

The Dangers Of Free Speech In The Modern World, Katie Yoak

Williams Honors College, Honors Research Projects

In our modern day individuals often feel safe being able to say whatever they want from behind a computer. The ability to say whatever we want online has both positive and negative effects. This digital form of communication can bring out both the best and worst in us. Many people in our modern age take this technology and use it to engage in aggressive behavior that may not normally occur or be seen by as many people. In this modern day of internet aggression I wish to explore how the ability to speak freely online and through social media services …

Amicus Curiae Brief: Private For Profit Incarceration Violates The 13th Amendment Of The United States Constitution, André Douglas Pond Cummings, Zoë Harris, Casey Bates, Natasha Cornell

Law Faculty Scholarship

The Thirteenth Amendment to the United States Constitution outlawed chattel slavery in the United States following a violent Civil War and a chilling era of slavery conducted primarily in the nation’s southern states. In passing this Amendment, Congress included a clause that excepted a certain population from this general prohibition, namely, prisoners. In what has become known as the “punishment clause,” Section I of the Thirteenth Amendment states explicitly “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their …

Communities Of Interest In Colorado Redistricting, David Willner

University of Colorado Law Review

Part I of this Article will provide background on redistricting in Colorado, including an overview of recent developments regarding the establishment of an independent commission. Part II will describe the two federal constitutional requirements for redistricting and then explore the state-specific redistricting criteria used in Colorado. Part III includes a geographic profile of the distinct regions of Colorado and then delves into an examination of how communities of interest have been increasingly used in Colorado redistricting during three of the past four redistricting cycles. Part IV of this Article will critique the use of communities of interest and focus on …

Expanding The Administrative Record: Using Pretext To Show "Bad Faith Or Improper Behavior", Laura Boyer

University of Colorado Law Review

This Comment argues that courts should more readily permit extra-record discovery when preliminary signs of pretext strongly suggest "bad faith and improper behavior" by agency decision-makers. 3 1 Section L.A sets the scene by describing the basic mechanics of litigation challenging agency decisions. Section I.B shifts focus by examining two recent Supreme Court decisions that illustrate the Court's struggle to review executive action where an agency seems to have offered a pretextual justification. Part II then shows how agencies' reliance on pretextual justifications is becoming a growing and serious problem-especially within the Trump Administration-and describes a 2017 decision by the …

"Make The Map All White": The Meaning Of Maps In The Prohibition And Suffrage Campaigns, Susan Schulten

University of Colorado Law Review

Maps.have long been deployed as instruments of power, protest, and reform in American history. In the antebellum era, Northerners used maps to galvanize opposition to the expansion of slavery beyond the South. These dramatic and urgent anti-slavery maps served as powerful models for two of the most ambitious challenges to American law in the twentieth century: prohibition and woman's suffrage. Both movements began with regional strengths-suffrage in the West, prohibition in the South. Suffragists and prohibitionists widely circulated maps to highlight those legislative achievements and thereby generate further momentum for their respective causes. After 1913, both the suffrage and prohibition …

The Fourth Amendment’S Forgotten Free-Speech Dimensions, Aya Gruber

Publications

No abstract provided.

China's Comparative Constitution, Bui Ngoc Son

Vanderbilt Journal of Transnational Law

The academic field of comparative constitutional law has recently had greater engagements with China's constitution. This Article explains the modes, conditions, and factors of these engagements. The country-studies of China's constitution echo and complicate recent comparative debates on transnational constitution making and the varieties of constitutionalism. Comparative constitutional scholarship formulates new concepts, such as constitutional entrepreneurship and constitutional dissonance, to understand China's constitution. Additionally, it explains China's constitutional divergence from the most similar case, namely Vietnam, and its unexpected constitutional similarities with the most different cases, such as the United States and the United Kingdom. Finally, this scholarship discusses China's …

Litigating Socio-Economic And Women’S Rights In Benin’S Constitutional Court, Alice J. Kang, Susanna D. Wing

Department of Political Science: Faculty Publications

Scholars debate the role of legal institutions in promoting human rights in Africa. Much of the discussion focuses on Anglophone countries and does not examine the gender of litigants. We propose a constitutionalism constrained perspective that argues that which and whose rights are adjudicated are shaped by the context of constitutional reform. Where reformists are primarily concerned with safeguarding civil and political rights, high courts may protect civil and political rights claims more often than socio-economic ones. Examining hundreds of human rights decisions issued by Benin’s Constitutional Court, we ask, which and whose rights does the court protect? We find …

The Role Of Opposition In A Democracy: A Bibliometric Analysis, Abhinav Shrivastava Mr., Richa Dwivedi Ms.

Library Philosophy and Practice (e-journal)

Globally, democracy is under threat with the prevalence of authoritarian regime all over the world and the role of opposition in a democracy is an under studied subject and has not received adequate importance by researchers all over the world. The present study focuses on the bibliometrics analysis of the role of opposition in democratic system in order to understand the research status of the subject globally using SCOPUS and Web of Science databases.

The analysis shows that research has been undertaken by various organisations and researchers however, the present time demands more attention on the role of opposition so …

California's Autonomy Under The Clean Air Act: Does Epa Have The Authority To Withdraw An Emissions Standards Waiver?, Ethan Siegel

Cardozo International & Comparative Law Review

The note argues that the EPA lacks the authority to unilaterally revoke the 2013 Clean Air Act (CAA) waiver granted to California. It contends that the EPA must rely on preemption under the Energy Policy and Conservation Act (EPCA) rather than asserting inherent authority or reinterpretation of the CAA text to justify revocation.

Constitutional Foundations For Public Health Practice: Key Terms And Principles, Fazal Khan, Marice Ashe

Scholarly Works

This chapter introduces the structure of the government in the United States and the concept of “separation of powers" among the federal, state, and local governments. It introduces core legal principles from the U.S. Constitution that frame the authority of the government to enact and enforce laws to protect and promote the public's health. These Constitutional principles are essential for the health advocate and leader to understand because every federal, state, and local law must comply with them. The core principles include the enumerated powers of the federal government and the broad plenary powers of state and local governments—which we …

From Property Rights To Liberty Rights: We The Corporations, A Review Essay, Laura Phillips-Sawyer

Scholarly Works

A long-standing, and deeply controversial, question in constitutional law is whether or not the Constitution's protections for “persons” and “people” extend to corporations. Law professor Adam Winkler's We the Corporations chronicles the most important legal battles launched by corporations to “win their constitutional rights,” by which he means both civil rights against discriminatory state action and civil liberties enshrined in the Bill of Rights and the Constitution (p. xvii). Today, we think of the former as the right to be free from unequal treatment, often protected by statutory laws, and the latter as liberties that affect the ability to live …

Privacy-As-Property: A New Fundamental Approach To The Right To Privacy And The Impact This Will Have On The Law And Corporations, Sevion Dacosta

CMC Senior Theses

The most popular conception of the right to privacy stems from Warren and Brandeis’s description of privacy as “the right to be left alone.” This theory ultimately points to a more fundamental approach to the right to privacy rooted in property rights. This fundamental approach - which I call privacy-as-property - is what I establish in this paper. I argue that the Lockean concept of property that “every man has a property in his own person” provides the foundation for the right to privacy. Privacy-as-property begins with the fundamental right to control oneself. Because of this intrinsic right, your property …

Wrongful Extradition: Reforming The Committal Phase Of Canada’S Extradition Law, Robert Currie

Articles, Book Chapters, & Popular Press

There has recently been an upswing in interest around extradition in Canada, particularly in light of the high-profile and troubling case of Hassan Diab who was extradited to France on the basis of what turned out to be an ill-founded case. Diab’s case highlights some of the problems with Canada’s Extradition Act and proceedings thereunder. This paper argues that the “committal stage” of extradition proceedings, involving a judicial hearing into the basis of the requesting state’s case, is unfair and may not be compliant with the Charter and that the manner in which the Crown conducts these proceedings contributes to …

An Abortion Law Preformed, Joanna Erdman

Articles, Book Chapters, & Popular Press

This article engages the transcribed testimony of Carolyn Egan and Janice Patricia Tripp in R v Morgentaler as a critical moment of lawmaking. There is something revealing, often amusing, and sometimes devastating, when a lawyer asks a non-lawyer, in this case, a social worker: “What is the law?” The article focuses on those moments in their testimony when Egan and Tripp answered questions about the 1969 abortion law that made the law itself, its rules and procedures, the subject of examination, and in doing so, constructed new meanings of the law and social action in relation to it in the …

Private Records, Sexual Activity Evidence, And The Charter Of Rights And Freedoms, Elaine Craig

Articles, Book Chapters, & Popular Press

In December 2018, Parliament amended the Criminal Code to add a new regime dictating the process and admissibility criteria for private records in the possession of an accused in a sexual assault proceedings. The legislation also includes new procedural requirements for applications to introduce evidence of a complainant’s other sexual activity under section 276 of the Criminal Code. Several courts have concluded that various parts of these new provisions – which some have nicknamed the Ghomeshi Rules – are unconstitutional. The problem with these decisions is that, in each one, the court has failed to properly balance the competing …

Originalism From The Soft Southern Strategy To The New Right: The Constitutional Politics Of Sam Ervin Jr, Logan E. Sawyer Iii

Scholarly Works

Although originalism’s emergence as an important theory of constitutional interpretation is usually attributed to efforts by the Reagan administration, the role the theory played in the South’s determined resistance to civil rights legislation in the 1960s actually helped create the Reagan coalition in the first place. North Carolina Senator Sam Ervin Jr., the constitutional theorist of the Southern Caucus, developed and deployed originalism because he saw its potential to stymie civil rights legislation and stabilize a Democratic coalition under significant stress. Ervin failed in those efforts, but his turn to originalism had lasting effects. The theory helped Ervin and other …

Congress And Universal Injunctions, Howard M. Wasserman

Cardozo Law Review de•novo

As the judicial and scholarly debate rages over the power of federal courts to issue universal or non-particularized injunctions, this paper explores the role of Congress in ending this controversy. It considers the details, wisdom, and efficacy of five legislative proposals to eliminate or limit universal/non-particularized injunctions; it concludes that one approach resolves the problem—a flat and unequivocal prohibition on injunctions that protect anyone other than the plaintiffs.

Environmental Indifference, Anthony L. Moffa

Faculty Publications

An incarcerated American underclass, disproportionately comprised of minority citizens, has been compelled to live in an unconstitutionally polluted environment. Exposure to radon gas in indoor air is just one example of that pollution. Fortunately, the legal effort to address that particular condition of confinement has already begun; the theoretical and practical discussion in this work strives to both highlight the importance of the issue and inform the doctrinal development. The Eighth Amendment precedent created on the specific issue of radon exposure will very likely control the courts’ treatment of other environmental harms ignored by prison officials. This work, using radon …

Oversight Riders, Kevin Stack, Michael P. Vandenbergh

Vanderbilt Law School Faculty Publications

Congress has a constitutionally critical duty to gather information about how the executive branch implements the powers Congress has granted it and the funds Congress has appropriated. Yet in recent years the executive branch has systematically thwarted Congress’s powers and duties of oversight. Congressional subpoenas for testimony and documents have met with blanket refusals to comply, frequently backed by advice from the Department of Justice that executive privilege justifies withholding the information. Even when Congress holds an official in contempt for failure to comply with a congressional subpoena, the Department of Justice often does not initiate criminal sanctions. As a …

Leverage, Randy J. Kozel

Journal Articles

Sometimes government operates by inducement rather than order. Congress distributes money to the states. A state grants funds to nonprofit organizations. An administrative agency offers wages and professional opportunities to its staff. A high school provides instruction to its students. In each situation, the government furnishes something of value. And in each situation, it asks something in return-whether implementation of a government program, forbearance from activities deemed inconsistent with operational goals, conduct in pursuit of an employment mission, or compliance with standards of academic discipline. Though they arise in different contexts, these varied forms of government action present the same …

Moral Constitutionalism, Gerard V. Bradley

Journal Articles

The author holds that originalism remains the correct principle for interpreting our Constitution.