Constitutional Law Commons^™

The Fourteenth Amendment And The Heart Of The Constitution, Guy Chet

SLU Law Journal Online

Since the nineteenth century, Americans have worked consistently to liberate their national government from the Constitutional constraints placed on it by Madison and his colleagues. This effort has transformed the United States from a federated republic in which local communities governed themselves into a modern managerial nation-state that is governed from the center. In this article, Dr. Guy Chet argues that the key to this transformation – of the Constitution and of the United States – was the Fourteenth Amendment.

Quantitative Literacy And Guns, William Briggs

Numeracy

Briggs, William. 2017. How America Got Its Guns: A History of the Gun Violence Crisis; (Albuquerque, University of New Mexico Press). 352 pp. Paperback: ISBN 978-0-8263-5813-4. E-book ISBN 978-0-8263-5814-1.

Quantitative literacy and statistics are just two of many disciplines required to understand the problem of gun violence in America. However, it’s also useful to appreciate their limitations in an issue that is so complex.

July 10, 2021: How To Raise A Secular Or A Religious Child, Bruce Ledewitz

Hallowed Secularism

Blog post, “How to Raise a Secular or a Religious Child“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Evaluating Emergency Takings: Flattening The Economic Curve, Robert H. Thomas

William & Mary Bill of Rights Journal

Desperate times may breed desperate measures, but when do desperate measures undertaken as a response to an emergency trigger the Fifth Amendment’s requirement that the government provides just compensation when it takes private property for public use? The answer to that question has commonly been posed as a choice between the “police power”—a sovereign government’s power to regulate property’s use in order to further the public health, safety, and welfare—and the eminent domain power, the authority to seize private property for public use with the corresponding requirement to pay compensation. But that should not be the question. After all, emergencies …

Fixing False Truths: Rethinking Truth Assumptions And Free-Expression Rationales In The Networked Era, Jared Schroeder

William & Mary Bill of Rights Journal

The First Amendment makes no mention of truth. Assumptions about truth, however, have become the foundations for free-expression rationales, the very bases for such freedoms in a democratic society. The Supreme Court gradually, over time, wedded Enlightenment assumptions about truth to the marketplace of ideas rationale for free expression. This Article examines, in light of massive, widespread adoption of networked technologies and AI and Supreme Court decisions that have undermined the distinctive role of truth, whether truth should be removed or replaced as a crucial, justifying concept in freedom of expression. The Article examines the marketplace approach’s history and assumptions, …

No Aid, No Agency, Steven K. Green

William & Mary Bill of Rights Journal

Over the past three decades, members of the Supreme Court have demonstrated increasing hostility to the Establishment Clause’s rule against funding religion, first enunciated in 1947. Over the years, the Court has not only narrowed the rule to allow for government aid to flow to religious schools and faith-based charities, it has more recently declared that to enforce that rule may amount to discrimination against religion. This Article argues that a key reason for the decline in the no-aid principle rests on the weakness of the rationale underlying that rule: that funding of religion coerces the conscience of taxpayers. The …

Yes, Allegheny Co. Da Zappala Should Resign Or Be Impeached. No, He Shouldn't Be The Target Of Legal Discipline, Bruce Ledewitz

Newspaper Columns

Collected biweekly contributions to the Pennsylvania Capital-Star, a nonpartisan, nonprofit news site.

July 8, 2021: Yes, Da Zappala Should Go But Not By A Legal Ethics Probe, Bruce Ledewitz

Hallowed Secularism

Blog post, “Yes, DA Zappala should go but not by a legal ethics probe“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Law School News: Logan Article Central To Scotus Dissent, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

July 5, 2021: The Greatest Column Ross Douthat Ever Wrote, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Greatest Column Ross Douthat Ever Wrote“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

July 4, 2021: Better Than July 4, 2020, Bruce Ledewitz

Hallowed Secularism

Blog post, “Better Than July 4, 2020“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

July 3, 2021: Follow Up Column In The Pittsburgh Jewish Chronicle, Bruce Ledewitz

Hallowed Secularism

Blog post, “Follow up column in the Pittsburgh Jewish Chronicle“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Masthead

UC Law Constitutional Quarterly

No abstract provided.

This Toothless Court: Judicial Review In Wisconsin Post-Mayo, Jay Mcdivitt

Marquette Law Review

None.

American Punishment And Pandemic, Danielle C. Jefferis

Faculty Scholarship

Many of the sites of the worst outbreaks of the disease caused by the novel coronavirus (COVID-19) are America’s prisons and jails. As of March 2021, the virus has infected hundreds of thousands of incarcerated people and well over two thousand have died as a result contracting the disease caused by the virus. Prisons and jails have been on perpetual lockdowns since the onset of the pandemic, with family visits suspended and some facilities resorting to solitary confinement to mitigate the virus’s spread, thereby exacerbating the punitiveness and harmfulness of incarceration. With the majority of the 2.3 million people incarcerated …

Covid-19 And Business Interruption Insurance: The Constitutionality Of Legislatively Mandated Coverage, William G. Arnold

South Carolina Law Review

No abstract provided.

Foreword, Richelle Joy Gernan

UC Law Constitutional Quarterly

No abstract provided.

Presidential Impunity And The Mueller Report: How The Department Of Justice’S Failure To Subject The Special Counsel Regulations To Notice And Comment Undermined The Rule Of Law, M. Akram Faizer

UC Law Constitutional Quarterly

Department of Justice (“DOJ”) Special Counsel, Robert S. Mueller, III’s two-volume, 448-page Report on the Investigation into Russian Interference in the 2016 Presidential Election (“the Report”), did an outstanding job in evidencing that President Trump’s actions in office satisfied the federal obstruction of justice standards. However, due to Mueller’s limited brief and his concern for maintaining the proper separation of powers, the Report, submitted confidentially to former Attorney General Barr as required by Department of Justice Regulations, abjured a determination as to Presidential criminality. This regulatory confidentiality requirement in conjunction with the requirement that Barr disclose an unverifiable Report summary …

Disability Rights And The Louisiana Constitution, Derek Warden

UC Law Constitutional Quarterly

The Louisiana Constitution contains three Equal Protection Clauses. Article I, section 3 prohibits discriminatory laws; but, as an original matter, should prohibit both discriminatory laws and government conduct. Article I, section 12 prohibits discrimination by individuals (government or private) in regard to access to public places. Finally, article I, section 2, the Due Process Clause, also contains an Equal Protection component. Each clause prohibits discrimination on the basis of “physical condition,” which contains a general “disability” component. Based upon statements from the Louisiana Constitutional Convention and other modalities of constitutional argument, this article concludes that these clauses—individually and in conjunction— …

Presidential Removal: Impeachment As A Tool To Promote Democracy In Haïti, Brynna Bolt

UC Law Constitutional Quarterly

No abstract provided.

The Other Ordinary Persons, Fred O. Smith, Jr.

Washington and Lee Law Review

If originalism aims to center the original public meaning of text, who constitutes “the public”? Are we doing enough to capture historically excluded voices: impoverished white planters; dispossessed Natives; silenced women; and the enslaved? If not, what more is required? And for those who are not originalists, how do we ensure that, as American law consults the wisdom of the ages, we do not sever entire sources of wisdom?

This brief symposium Article engages these themes, offering two modest, interrelated claims. The first is that important informational, ethical, and democratic benefits accrue when American legal doctrine includes the voices and …

Antiracism In Action, Daniel Harawa, Brandon Hasbrouck

Washington and Lee Law Review

Racism pervades the criminal legal system, influencing everything from who police stop and search, to who prosecutors charge, to what punishments courts apply. The Supreme Court’s fixation on colorblind application of the Constitution gives judges license to disregard the role race plays in the criminal legal system, and all too often, they do. Yet Chief Judge Roger L. Gregory challenges the facially race-neutral reasoning of criminal justice actors, often applying ostensibly colorblind scrutiny to achieve a color-conscious jurisprudence. Nor is he afraid of engaging directly in a frank discussion of the racial realities of America, rebuking those within the system …

Judges As Superheroes: The Danger Of Confusing Constitutional Decisions With Cosmic Battles, H. Jefferson Powell

South Carolina Law Review

No abstract provided.

Separation, Supremacy, And The Unconstitutional Rational Basis Test, Joseph S. Diedrich

Villanova Law Review (1956 - )

No abstract provided.

Common Law Baselines And Current Free Speech Doctrine, Erica Goldberg

Villanova Law Review (1956 - )

No abstract provided.

Seila Law As Separation-Of-Powers Posturing, Edward Cantu

Faculty Works

The Court rarely decides separation-of-powers cases, and when it does, academics usually scramble to fit such decisions into a broader doctrinal narrative. Such was the case when in June of 2020 the Supreme Court decided Seila Law LLC v. Consumer Financial Protection Bureau. In short, the Court ruled that it is unconstitutional for Congress to restrict the President’s removal power of an agency head if that agency is headed by a single person. For some reason, the Court concluded that such removal restrictions are permissible when applied to multi-headed agencies but not single-headed agencies. This Article argues that an attempt …

The Inadequacy Of The Impossible: Obtaining Post-Conviction Dna Testing In Alabama, Trena Riley

Cardozo Law Review

No abstract provided.

Legal History Repeats Itself On Climate Change: The Commerce Clause And Renewable Energy, Steven Ferrey

Suffolk University Law School Faculty Works

Discrimination and power: Federal courts found that some state renewable power laws violate the U.S. Constitution Commerce Clause by discriminating against out-of-state renewable energy. At stake is climate change and the near-term future of the Planet. After warned almost a decade ago about their Constitutional violation, which states conformed their laws as the Earth has warmed? This article analyzes which of 22 U.S. states flagged as to having potentially unconstitutional discriminatory renewable energy laws a decade ago have conformed their discriminatory renewable energy laws and which have allowed legal history to repeat itself?
/="/">/="/">Scrutinized technically rather than legally, …

Dissent: Not Popular Enough, Robert L. Tsai

Faculty Scholarship

The draft constitution does a nice job of reducing existing institutional obstacles to effective government. Yet there is one persistent manner in which the draft repeats the Framers’ error and, indeed, doubles down on it: by replicating the elitist part of the republican tradition at the expense of the plebeian one. In that sense, the proposal doesn’t do nearly enough to rebuild the frayed bonds between citizen and government. More effective policymaking is the technocrat’s solution, but multiple methods of exercising power is the populist’s response to a metastasizing sense of dislocation.

اختصاص المحكمة الدستورية العليا بالتفسير وفقاً للتشريع الفلسطيني والمصري دراسة مقارنة في ضوء اجتهادات القضاء الدستوري, محمد عبدالله أبو مطر استاذ مساعد

Journal of Al-Azhar University – Gaza (Humanities)

الملخص:

يتناول هذا البحث كيفية معالجة المشرع الفلسطيني لاختصاص المحكمة الدستورية العليا بالتفسير مقارنة بالمشرع المصري، وحدود اجتهاد المحكمة بشأن مباشرتها لهذا الاختصاص وفق النصوص والأحكام المنظمة له في التشريع الفلسطيني والمصري، سواء فيما يتعلق بتحديد التشريعات التي تختص بتفسيرها المحكمة الدستورية العليا، أو شروط تقديم طلب التفسير وإجراءات الفصل في هذا الطلب وطبيعة القرار الصادر فيه وآثاره وحجيته، وهي موضوعات تم مقاربتها في هذا البحث بالدراسة والتحليل المقارن للإجابة عن إشكالية البحث المتمثلة في: مدى كفاية التنظيم القانوني لاختصاص المحكمة الدستورية العليا بالتفسير في التشريع الفلسطيني والمصري، وحدود اجتهاد هذه المحكمة في ممارستها لذلك الاختصاص؟، خاصةً وأن المشرع …