Constitutional Law Commons^™

The Lost Promise Of Progressive Formalism, Andrea Scoseria Katz

Scholarship@WashULaw

Today, any number of troubling government pathologies—a lawless presidency, a bloated and unaccountable administrative state, the growth of an activist bench—are associated with the emergence of a judicial philosophy that disregards the “plain meaning” of the Constitution for a loose, unprincipled “living constitutionalism.” Many trace its origins to the Progressive Era
(1890–1920), a time when Americans turned en masse to government as the solution to emerging problems of economic modernity—financial panics, industrial concentration, worsening workplace conditions, and skyrocketing unemployment and inequality—and, the argument goes, concocted a flexible, new constitutional philosophy to allow the federal government to take on vast, new …

Checks And Balances In The Criminal Law, Daniel Epps

Scholarship@WashULaw

The separation of powers is considered essential in the criminal law, where liberty and even life are at stake. Yet the reasons for separating criminal powers are surprisingly opaque, and “the separation of powers” is often used to refer to distinct, and sometimes contradictory, concepts.

This Article reexamines the justifications for the separation of powers in criminal law. It asks what is important about separating criminal powers and what values such separation serves. It concludes that in criminal justice, the traditional Madisonian approach of separating powers between functionally differentiated political institutions—legislature, executive, and judiciary—bears no necessary connection to important values …

Pure Privacy, Jeffrey Bellin

Faculty Publications

n 1890, Samuel Warren and Louis Brandeis began a storied legal tradition of trying to conceptualize privacy. Since that time, privacy's appeal has grown beyond those authors' wildest expectations, but its essence remains elusive. One of the rare points of agreement in boisterous academic privacy debates is that there is no consensus on what privacy means.

The modern trend is to embrace the ambiguity. Unable to settle on boundaries, scholars welcome a broad array of interests into an expanding theoretical framework. As a result, privacy is invoked in debates about COVID-19 contact tracing, police body cameras, marriage equality, facial recognition, …

Bivens And The Ancien Régime, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

In its most recent decision narrowly construing Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, the Supreme Court derided Bivens as the product of an “‘ancien regime,’ ... [in which] the Court assumed it to be a proper judicial function to ‘provide such remedies as are necessary to make effective’ a statute’s purpose.” This Essay considers the relevance for Bivens claims of the Court’s shift to a nouveau régime to address the implication of private rights of action under statutes. It first describes and assesses the Court’s reasons for shifting to the nouveau r …

From Parchment To Dust: The Case For Constitutional Skepticism (Introduction), Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

This is the introduction to a new book entitled "From Parchment to Dust: The Case for Constitutional Skepticism." The introduction sets out a preliminary case for constitutional skepticism and outlines the arguments contained in the rest of the book.

"The Cornerstone Of The Stability Of Our Government": The Forgotten Penalty Clause And Electoral Reform In The Aftermath Of The 2020 Election, Delaram Takyar

Publications

The 2020 presidential election, which was preceded by months of efforts by Republican party members to disenfranchise voters during a global pandemic, highlighted the United States' historic need for electoral reform. The tools for this reform might already exist in the Penalty Clause of the Fourteenth Amendment, which provides a built-in remedy—reduced representation in Congress—in cases where a state abridges the voting rights of its citizens. This Remark provides an overview of the history of the long-neglected Penalty Clause, including a discussion of how important its drafters viewed its role, as well as practical proposals for ways it could be …

Government Falsehoods, Democratic Harm, And The Constitution, Helen Norton

Publications

No abstract provided.

Catalyzing Privacy Law, Anupam Chander, Margot E. Kaminski, William Mcgeveran

Publications

The United States famously lacks a comprehensive federal data privacy law. In the past year, however, over half the states have proposed broad privacy bills or have established task forces to propose possible privacy legislation. Meanwhile, congressional committees are holding hearings on multiple privacy bills. What is catalyzing this legislative momentum? Some believe that Europe’s General Data Protection Regulation (GDPR), which came into force in 2018, is the driving factor. But with the California Consumer Privacy Act (CCPA) which took effect in January 2020, California has emerged as an alternate contender in the race to set the new standard for …

Sanctuary Cities And The Power Of The Purse: An Executive Dole Test, Douglas M. Spencer

Publications

A constitutional clash is brewing. Cities and counties are flexing their muscles to frustrate national immigration policy while the federal Executive is threatening to interfere with local law enforcement decision making and funding. Although the federal government generally has plenary authority over immigration law, the Constitution forbids the commandeering of state and local officials to enforce federal law against their will. One exception to this anti-commandeering principle is the Spending Clause of Article I that permits Congress to condition the receipt of federal funds on compliance with federal law. These conditions, according to more than 30 years of Supreme Court …

American Common Market Redux, Richard Collins

Publications

The Tennessee Wine case, decided in June of 2019, had a major effect on the path of the law for an issue not argued in it. The Supreme Court affirmed invalidity of a protectionist state liquor regulation that discriminated against interstate commerce in violation of the dormant commerce clause doctrine. Its holding rejected a vigorous defense based on the special terms of the Twenty-first Amendment that ended Prohibition—an issue of interest only to those involved in markets for alcoholic drinks. However, the Court’s opinion removed serious doubts about validity of the Doctrine itself, even though the petitioner and supporting amici …

Dignity And Discrimination, Frederick Mark Gedicks

Faculty Scholarship

Delivered as the Dignity in Law Symposium keynote address, this essay surveys uses of “dignity” in U.S. constitutional law, with a focus on conflicts between the dignities attached to citizenship and religious conscience. Parts I and II discuss dignity as state sovereignty and hierarchical status. Part III examines the collision of dignities in the Masterpiece Cakeshop decision. Part IV argues that attention to the public or private nature of the site where religious accommodation is demanded clarifies when accommodation is appropriate, using a house of worship and a government office as illustrations. Part V lists other sites of accommodation and …

Agonistic Privacy & Equitable Democracy, Scott Skinner-Thompson

Publications

This Essay argues that legal privacy protections—which enable individuals to control their visibility within public space—play a vital role in disrupting the subordinating, antidemocratic impacts of surveillance and should be at the forefront of efforts to reform the operation of both digital and physical public space. Robust privacy protections are a touchstone for empowering members of different marginalized groups with the ability to safely participate in both the physical and digital public squares, while also preserving space for vibrant subaltern counterpublics. By increasing heterogeneity within the public sphere, privacy can also help decrease polarization by breaking down echo chambers and …

The Right To Contest Ai, Margot E. Kaminski, Jennifer M. Urban

Publications

Artificial intelligence (AI) is increasingly used to make important decisions, from university admissions selections to loan determinations to the distribution of COVID-19 vaccines. These uses of AI raise a host of concerns about discrimination, accuracy, fairness, and accountability.

In the United States, recent proposals for regulating AI focus largely on ex ante and systemic governance. This Article argues instead—or really, in addition—for an individual right to contest AI decisions, modeled on due process but adapted for the digital age. The European Union, in fact, recognizes such a right, and a growing number of institutions around the world now call for …

Living The Sacred: Indigenous Peoples And Religious Freedom, Kristen A. Carpenter

Publications

No abstract provided.

Measuring State Capture, Pamela J. Clouser Mccann, Douglas M. Spencer, Abby K. Wood

Publications

How do we know when an executive branch actor is captured or is at risk of capture? And what is the risk that other branches of government could be captured? In this project, we offer a critical review of regulatory -- or industry-related -- capture that we use to build a concept of state capture that extends beyond agency-specific accounts and incorporates both the structures and processes of governing, while centering our examination on the public. We use state-level data on campaign finance, lobbying, industry size, ethics, and transparency to measure the degree to which the fifty state executive, legislative, …

Rulifying Reasonable Expectations: How Katz And Originalism Can Work Together To Create A More Determinate Fourth Amendment, Michael Gentithes

Akron Law Faculty Publications

For decades, commentators have decried the Supreme Court’s Fourth Amendment search jurisprudence as a hopelessly confusing jumble. Critics save their harshest barbs for the judicially created “reasonable expectations of privacy” test, suggesting that it provides little guidance and leaves search cases open to wide judicial discretion. Motivated by such critiques, several Justices have recently claimed that an originalist approach could replace the reasonable expectations test, limit judicial discretion, and clarify the Fourth Amendment’s meaning. This Article provides a comprehensive defense of the reasonable expectations test against originalist calls to abandon it. It notes two flaws in the originalist response. First, …

Twenty-Third Amendment Problems Confronting District Of Columbia Statehood, Derek T. Muller

Journal Articles

Proposals to make the District of Columbia a state would leave behind a new, substantially smaller District named "Capital." The Twenty-Third Amendment guarantees that the new District would have three electoral votes, no matter how few people reside in it. Proposals that would make the District of Columbia state do not adequately address this issue. Statehood, if it proceeds, should be conditioned on repeal of the Twenty-Third Amendment. Potential alternative statutory solutions to the Twenty-Third Amendment--which do not exist in recent bills that Congress has considered--present constitutional, legal, and practical problems.

In one sense, the scope of this Article is …

Wolastoqiyik And Mi’Kmaq Grandmothers - Land/Water Defenders Sharing And Learning Circle: Generating Knowledge For Action, Sherry Pictou, Janet Conway, Angela Day

Reports & Public Policy Documents

This report is a summary of the Grandmothers/Defenders’ stories and are interwoven with corresponding news articles, press releases, and other public documents. This is followed by an overview of some of the critical common issues and importantly, strategies for moving forward proposed by the Grandmothers/Defenders.

The Grandmother’s Report is a collection of stories told by Wolastoqiyik Grandmother/Defenders against the Sisson Mine in New Brunswick and Mi’kmaq Grandmothers against the Alton Gas project in Nova Scotia at the event, Indigenous Grandmothers Sharing and Learning Circle: Generating Knowledge for Action, held at the Tatamagouche Centre in Nova Scotia, January 26 to 27, …

Access Denied: How 28 U.S.C. Sec. 1915(G) Violates The First Amendment Rights Of Indigent Prisoners, Molly Guptill Manning

Articles & Chapters

No abstract provided.

Power And Possibility In The Era Of Right To Counsel, Robust Rent Laws & Covid-19, Erica Braudy, Kim Hawkins

Articles & Chapters

New York City (NYC) finds itself in an unprecedented housing crisis as the coronavirus (COVID-19) pandemic reveals with devastating force that safe, sustainable and affordable housing is both a human right and a public health necessity. The profound humanitarian and economic devastation of COVID-19 puts millions of New Yorkers at risk of eviction especially those within Black and Latinx communities. In addition, the pandemic hit just as the legal landscape for tenants was transformed through landmark legislation ensuring the Right to Counsel in eviction proceedings and sweeping reforms of New York's rent laws. The unparalleled COVID-19 pandemic, the influx of …

Freedom Of Thought At The Ethical Frontier Of Law & Science, Marcus Moore

All Faculty Publications

Some of the most compelling contemporary ethical questions surround 21st Century neuroscientific technologies. Among these, neurocognitive intervention technologies allow an unprecedented ability to alter thought. Concerns exist about their impact on individual freedom, behavior and personhood. They could also distort society, eroding core values of dignity, equality, and diversity. Potent laws are needed to anchor regulation in this rising field. The article explores how the long-neglected human right of Freedom of Thought might protect the integrity of the mind at the legal system’s highest level. Sample cases illustrate how it could be given effect ethically and legally to set boundaries …

Climate Disruption In Canadian Constitutional Law: References Re Greenhouse Gas Pollution Pricing Act, Jocelyn Stacey

All Faculty Publications

This analysis considers the Supreme Court of Canada’s decision in References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11, in which a majority of the Court upheld as constitutional national carbon pricing legislation. The decision presents an excellent illustration of the legally disruptive nature of climate change. Illustrating that nothing is static in a climate disrupted world—including constitutional law—this article identifies three shifts the Court makes in relation to climate disruption. First, the decision represents a shift away from climate denialism toward a judicial willingness to confront the environmental, social and legal implications of climate change for Canada. Second, …

Democracy, Distrust, And Presidential Immunities, Evan H. Caminker

Articles

This Essay sketches how Ely's representation-reinforcement theory of judicial interpretation might frame presidential immunity doctrines and compares that frame to the Court's current approach. To what extent might various forms of presidential immunity, or exceptions thereto, be grounded in principles of democratic accountability rather than presidential efficacy? I conclude that a plausibly constructed Elyan paradigm provides an argument for immunity in many settings but also for exceptions to that immunity in narrow but important circumstances. More specifically: immunity can protect the President's ability to focus on serving her view of the national interest, without being unduly chilled or sidetracked by …

Catalytic Courts And Enforcement Of Constitutional Education Funding Provisions, Hugh D. Spitzer, Andy Omara

Articles

It is well-recognized that it is easier for judges to enforce constitutional “negative rights” provisions than positive social and economic rights. This article focuses on the challenges of enforcing one specific positive right: the constitutional right of children to attend adequately funded schools. Our article tests on-the-ground judicial implementation of education funding provisions against the general theoretical framework of judicial interaction with the political branches developed by Katharine Young. We analyze how, in multi-year, multi-decision litigation, constitutional court judges in the three jurisdictions we studied actively experimented with the challenging task of forcing, or enticing, reluctant legislative and executive branches …

Who Determines Majorness?, Chad Squitieri

Scholarly Articles

The major questions doctrine is said to assist courts in identifying whether Congress has delegated authority to administrative agencies. A closer look at the doctrine, however, reveals that it has been used by courts to tell Congress how it can delegate authority. What is more, some textualists have proposed strengthening the major questions doctrine into a revived nondelegation doctrine, which speaks to whether Congress can delegate authority. This Article argues that the major questions doctrine, particularly in its strengthened form, runs afoul of key commitments of textualism.

Protecting The Supreme Court: Why Safeguarding The Judiciary’S Independence Is Crucial To Maintaining Its Legitimacy, Isabella Abelite, Evelyn Michalos, John Rogue

Faculty Scholarship

The stability of the Supreme Court’s size and procedures is a critical source of legitimacy, but reforms might protect the Court’s independence from politics. Perceptions among members of the public that justices are political actors harms the rule of law. This report discusses reforms to ensure that each president receives the same number of appointments to the Supreme Court. The report also considers how to guarantee each nominee a Senate hearing and reforms to the retirement stage of justices’ tenures.

Tainted Precedent, Darrell A. H. Miller

Faculty Scholarship

No abstract provided.

Mahanoy Area School District V. B.L.: The Court Protects Student Social Media But Leaves Unanswered Questions, David L. Hudson Jr.

Law Faculty Scholarship

In Mahanoy Area School District v. B.L.: The Court Protects Student Social Media but Leaves Unanswered Questions, published in the Cato Supreme Court Review, David L. Hudson Jr. analyzes the U.S. Supreme Court’s landmark decision addressing the scope of public schools’ authority over off-campus student speech on social media. Situating Mahanoy within the Court’s broader K–12 student speech jurisprudence—from Barnette and Tinker to Fraser, Hazelwood, and Morse—the Article explains how the Court declined to adopt a categorical rule excluding off-campus speech from regulation while nevertheless ruling in favor of the student. The majority recognized diminished school …

The Long History Of Feminist Legal Theory, Tracy Thomas

Con Law Center Articles and Publications

This chapter challenges the conventional idea that feminist legal theory began in the 1970s. The advent of legal feminism is usually placed in the second wave feminist movement, birthed by the political activism of the women’s liberation movement and nurtured by the intellectual leadership of women scholars newly entering legal academia. However, legal feminism has a much longer history, going back more than a century earlier. While the term “feminist” was not used in the United States until the 1910s, the foundations of feminist legal theory were first conceptualized as early as 1848 and developed over the next one hundred …

The Jurisprudence Of The First Woman Judge, Florence Allen: Challenging The Myth Of Women Judging Differently, Tracy Thomas

Con Law Center Articles and Publications

A key question for legal scholars and political scientists is whether women jurists judge differently than men. Some studies have suggested that women judges are more likely to support plaintiffs in sexual harassment, employment, and immigration cases. Other studies conclude that women are more likely to vote liberally in death penalty and obscenity cases, and more likely to convince their male colleagues to join a liberal opinion. Yet other studies have found little evidence that women judge differently from men.

This article explores the jurisprudence of the first woman judge, Judge Florence Allen, to test these claims of gender difference …