Constitutional Law Commons^™

Dobbs V. Jackson Women's Health Organization And The Likely End Of The Roe V. Wade Era, Jeffrey Hannan

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.

Right Of Self, Mitchell F. Crusto

Washington and Lee Law Review

The exercise of free will against tyranny is the single principle that defines the American spirit, our history, and our culture. From the American Revolution through the Civil War, the two World Wars, the Civil Rights Movement, and up to today, Americans have embraced the fundamental rights of the individual against wrongful governmental intrusion. This is reflected in our foundational principles, including the Magna Carta, the Bill of Rights to the United States Constitution, the Reconstruction Amendments, the Nineteenth Amendment, and, more recently, in the Supreme Court’s recognition of fundamental individual rights within the Constitution’s penumbras. However, there is no …

The Party Respectfully Requests A Jury Trial On All Issues So Triable: What Issues Are Triable To A Jury And What Issues Should Be Triable To A Jury? A Comment On The Right To A Jury Trial, With A Focus On Civil Trials, And When The Right Exists, Michael Downing

Mercer Law Review

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed . . . .” But what about civil prosecutions? What about prosecutions under state law, not federal? What does the universally expected “right to a jury trial” really mean or afford the parties to a trial?

Under federal law and the United States Constitution, by the time the Bill of Rights was drafted, the ideal of an accused’s right to a jury trial was already deeply rooted within …

Human Dignity As A Chameleon, Ariel L. Bendor, Michal Tamir

Cardozo International & Comparative Law Review

This article offers an innovative argument, according to which courts do not interpret human dignity according to an abstract theoretical position on the nature of the value only, nor subordinate themselves to the subjective purpose of the drafters of a constitution. Thus, courts-whether in the United States, where human dignity is not explicitly mentioned in the Constitution, or in countries where the right is constitutionally enshrined, such as Germany, South Africa, and Israel-interpret and apply human dignity on the basis of the entirety of the provisions of the particular constitution. Human dignity serves as a constitutional chameleon in the sense …

Second Chances: Why Michigan Should Categorically Prohibit The Sentence Of Juvenile Life Without Parole, Richard Zhao

University of Michigan Journal of Law Reform

The United States is the only country in the world that sentences children to die in prison. This practice, known as juvenile life without parole (JLWOP), is condemned by the United Nations Convention on the Rights of the Child. Yet twenty-five states still permit the sentence, and Michigan houses one of the nation’s largest JLWOP populations. Despite the U.S. Supreme Court’s ban on some forms of JLWOP, more must be done to further limit the use of this sentence. The current JLWOP sentencing scheme is untenable, imposes a significant financial burden on taxpayers, and perpetuates racial inequality. This Note explores …

The Ghost Of John Hart Ely, Ryan D. Doerfler, Samuel Moyn

Vanderbilt Law Review

The ghost of John Hart Ely haunts the American liberal constitutional imagination. Despite the failure long ago of any progressive constitutional vision in an increasingly conservative Supreme Court, Ely’s conjectures about the superiority of judges relative to legislatures in the protection of minorities and the policing of the democratic process remain second nature. Indeed, they have been credible enough among liberals to underwrite an anxious or even hostile attitude toward judicial reform. In order to exorcise Ely’s ghost and lay it to rest, this Article challenges his twin conjectures. First, the Article argues that there is little historical and no …

Leveling The Playing Field In Custody Proceedings In New York City Family Court: Enforcing The Rights Of All Parents To Notice And An Unbiased Opportunity To Enforce Their Fundamental Right To Parent Their Child, Dana Gambardella

Cardozo Journal of Equal Rights & Social Justice

The note argues that the Administration for Children's Services (ACS) in New York City systematically fails to notify non-respondent fathers, particularly Black fathers, of their rights and opportunities to participate in child welfare proceedings. This practice violates their fundamental constitutional right to parent and disproportionately affects low-income Black families, perpetuating racial and economic disparities in the child welfare system. The note advocates for systemic reforms, including increased accountability for ACS and the establishment of a private right of action for aggrieved parents.

The Political And Social Change Driven By Protest: The Need To Reform The Anti-Riot Act And Examine Anti-Riot Provisions, Ronald E. Britt Ii

Fordham Law Review

The right to join in peaceful assembly and petition is critical to an effective democracy and is at the core of the First Amendment. The assault of peaceful protestors in the pursuit of racial justice is not a new phenomenon, and legislators at the federal and state levels have drafted anti-riot provisions as a measure to target protestors they deem an existential threat to American society. As these provisions have become increasingly prevalent in light of the protests following the murders of Breonna Taylor and George Floyd, they have the likelihood of severely chilling the effect on protestors’ right to …

Teacher Prayer In Public Schools, Maya Syngal Mcgrath

Fordham Law Review

When American citizens elect to work in government positions, they relinquish certain free speech rights granted by the First Amendment. In Garcetti v. Ceballos, the U.S. Supreme Court ruled that when public employees make statements pursuant to their government job duties, they do not speak as citizens for First Amendment purposes. As such, they are not constitutionally insulated from employer discipline. Determining whether public employees speak as a result of, or in accordance with, their official responsibilities can be difficult, and one government job has proven more challenging than most: the public school teacher. In 2021, the Ninth Circuit …

Llegaron Los Federales: The Federal Government’S Prosecution Of Local Criminal Activity In Puerto Rico, Emmanuel Hiram Arnaud

Faculty Scholarship

In the midst of a debilitating humanitarian crisis in Puerto Rico and high-profile litigation concerning other U.S. territories, scholars, political leaders, and activists have elevated conversations of constitutionally sanctioned inequality into the public spotlight. With respect to Puerto Rico, these conversations focus on its current economic morass and relation to the debate over decolonization. Absent from these important discussions is the role that federal criminal law plays in manifesting Congress’ continued plenary power over U.S. territories. This Article breaks from that pattern and highlights an ignored part of federal criminal jurisprudence: the federal prosecution of local criminal activity in Puerto …

"Insanity Is Smashing Up Against My Soul": The Fifth Circuit And Competency To Be Executed Cases After Panetti V. Quarterman, Michael L. Perlin, Talia Roitberg Harmon

Articles & Chapters

One of the open secrets of death penalty law and policy is the astonishingly high percentage of individuals on death row with serious mental disabilities. This is well known to lawyers who represent this cohort (and presumably, equally well known to the district attorneys who nevertheless prosecute them and the judges who try and sentence them), but is not generally discussed in the press nor, certainly, in political discourse. In the aggregate, this is far beneath society’s radar.

It is now over 14 years since the US Supreme Court decided a case that clarified the underlying issues. In Panetti v. …

Deep-State Constitutionalism, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

In this review, I explain how "Common Good Constitutionalism" taps into a deficiency of the conservative legal movement: namely, its exclusive focus on the law "as it is" at the expense of the underlying abstract normative principles that justify the positive law of our written Constitution. Due to this deficiency, the conservative legal movement gives short shrift to the Declaration of Independence and the Ninth Amendment and the natural rights to which both refer. This deficiency is in need of correction. But any such correction does not justify the jettisoning of originalism as Vermeule proposes. Nor does Vermeule defend his …

No Child Left Behind Bars: Applying The Principles Of Strict Scrutiny When Sentencing Juveniles Tried As Adults, Max Chu

William & Mary Law Review

The Commonwealth of Virginia was the first in the nation to pass legislation that provides judges with the discretion to veer away from the mandatory minimum sentence and to impose trauma-informed and age-appropriate sentences for juvenile offenders convicted of felonies and tried as adults. Although Virginia’s new law, House Bill 744 (HB 744), is a pioneering step in the right direction, this Note argues that the law may now provide judges with too much discretion. In other words, HB 744 alone, without more guidance, does not go far enough to protect the rights of juvenile offenders.

Therefore, this Note proposes …

Fourth Amendment Infringement Is Afoot: Revitalizing Particularized Reasonable Suspicion For Terry Stops Based On Vague Or Discrepant Suspect Descriptions, Caroline E. Lewis

William & Mary Law Review

In Terry v. Ohio, the Supreme Court granted law enforcement broad power to perform a limited stop and search of someone when an officer has reasonable suspicion that the person is engaged in criminal activity. The resulting “Terry stop” created a way for police officers to investigate a suspicious person without requiring full probable cause for an arrest. The officer need only have “reasonable suspicion supported by articulable facts” based on the circumstances and the officer’s policing “experience that criminal activity may be afoot.” Reasonable suspicion is—by design—a broad standard, deferential to police officers’ judgment. Law enforcement officers …

The Politics Of Proportionality, Nelson Tebbe, Micah Schwartzman

Michigan Law Review

A Review of How Rights Went Wrong: Why Our Obsession With Rights Is Tearing America Apart. By Jamal Greene.

The Current Status Of Women In Morocco And How It Can Be Improved, Amanda Maia

Independent Study Project (ISP) Collection

My paper will explore the conditions of gender minorities in Morocco through representation, NGOs, social structures, and resources therein to support the progress of acquiring more rights for these demographics. With an emphasis on the status of women in Morocco. My main questions as it stands are: What are the living conditions for women in Morocco and how can they be improved? What progress has been and still can be made to improve the quality of life and foster joy for these demographics in Morocco? Since the 1990s, there has been significant progress in Morocco to improve Family Law and …

Hostile Shores: Racial Exclusion Laws And The West Coast, Brendan Williams

Cardozo Journal of Equal Rights & Social Justice

The article examines the historical and ongoing racial exclusion laws on the West Coast, focusing on California, Oregon, and Washington. It argues that despite their progressive reputation, these states have a legacy of discriminatory laws targeting Chinese, Black, and Japanese populations, which has led to enduring racial inequities that persist today.

Fundamental First Amendment Principles, David L. Hudson Jr.

Law Faculty Scholarship

In Fundamental First Amendment Principles, published in the Northern Illinois University Law Review, David L. Hudson Jr. and Jacob David Glenn distill the complexity of modern free-speech jurisprudence into ten foundational principles that structure First Amendment analysis. The Article emphasizes that the core of the First Amendment lies in protecting criticism of government and prohibiting viewpoint discrimination, while also safeguarding symbolic expression, offensive and unpopular speech, and the right not to speak. At the same time, the authors underscore that not all speech is protected, identifying historically recognized categorical exceptions such as incitement, true threats, obscenity, and defamation. The …

Are People In Federal Territories Part Of “We The People Of The United States”?, Gary S. Lawson, Guy Seidman

Faculty Scholarship

In 1820, a unanimous Supreme Court proclaimed: “The United States is the name given to our great republic, which is composed of states and territories.” While that key point is simple, and perhaps even obvious, the constitutional implications of such a construction of “the United States” as including federal territories are potentially far reaching. In particular, the Constitution’s Preamble announces that the Constitution is authored by “We the People of the United States” and that the document is designed to “secure the Blessings of Liberty” to the author and its “Posterity.” If inhabitants of federal territory are among “We the …

The False Allure Of The Anti-Accumulation Principle, Michael E. Herz, Kevin M. Stack

Articles

Today the executive branch is generally seen as the most dangerous branch. Many worry that the executive branch now defies or subsumes the separation of powers. In response, several Supreme Court Justices and prominent scholars assert that the very separation-of-powers principles that determine the structure of the federal government as a whole apply with full force within the executive branch. In particular, they argue that constitutional law prohibits the accumulation of more than one type of power—legislative, executive, and judicial—in the same executive official or government entity. We refer to this as the anti-accumulation principle. The consequences of this principle, …

Student Speech Online: A Matter Of Public Concern, Eric Hogrefe

Northwestern Journal of Technology and Intellectual Property

The Supreme Court’s recent decision in Mahanoy Area School District v. B. L. ex rel. Levy partially answered the long-standing question of when schools can police student speech that takes place online. But Mahanoy largely ignored decades of scholarship, and opinions by lower courts, all of which assumed online speech was governed by the Court’s earlier student speech cases—especially the seminal Tinker v. Des Moines Independent Community School District.

This Note argues that Mahanoy and Tinker are consistent with each other, and both are consistent with the Court’s decisions governing another distinctive kind of speech: public employee speech. It …

"A Mystifying And Distorting Factor": The Electoral College And American Democracy, Katherine A. Shaw

Articles

A Review of Let the People Pick the President: The Case for Abolishing the Electoral College. By Jesse Wegman.

The Best Of Both Worlds: Reconciling Tradition With Evolution Under The Ohio And Federal Right To A Civil Jury Trial, Jacob Hoback

University of Cincinnati Law Review

No abstract provided.

Trauma: Community Of Color Exposure To The Criminal Justice System As An Adverse Childhood Experience, André Douglas Pond Cummings, Todd J. Clark, Caleb Gregory Conrad, Amy Dunn Johnson

University of Cincinnati Law Review

No abstract provided.

Lochner's Revenge: Tiered Scrutiny And The Acceptance Of Judicial Subjectivity, Phillip J. Closius

University of Cincinnati Law Review

No abstract provided.

The Territorial And District Representation Amendment: A Proposal, Colin P.A. Jones

Brigham Young University Journal of Public Law

This article will propose and explain a draft amendment to the United States Constitution that would secure an intermediate degree of political representation for Americans living in U.S. territories. While concerned principally with U.S. territories, the amendment would also address Congressional representation for the District of Columbia.

Informal Governance Of The United States, Edward Lee

Brigham Young University Journal of Public Law

No abstract provided.

A Study Of The Origin, Acceptance, And International Spread Of The ‘Symbol’ Within The Constitution Of Japan: Japan’S Approach To Restoring The Separation Of Authority And Power, Yoshiaki Shimojo

Japanese Society and Culture

Article 1 of the Constitution of Japan stipulates a symbolic emperor system based on popular sovereignty, stating that “The Emperor shall be the symbol of the State and of the unity of the People, deriving his position from the will of the people with whom resides sovereign power.” In the post-war period, the symbolic emperor system of the Constitution of Japan developed in its own way through shrewd adaptation and harmonization with popular sovereignty, within the context of Japan’s particular political climate. Nineteenth-century European monarchies comprised several types of constitutional monarchy, such as the German-style “constitutional monarchy,” the British-style “parliamentary …

Kebijakan Countercyclical Sebagai Upaya Kesejahteraan Masyarakat, Made Cinthya Puspita Shara

Jurnal Hukum & Pembangunan

The high level of economic growth in Indonesia is in line with the development of businesses that increase capital by making credit agreements with financial institutions. The state of the spread of the co-19 pandemic case has been declared a national disaster, impacting on the implementation of credit agreements between the debtor and financial institutions. Economic problems make it difficult for people to carry out their obligations. Countercyclical buffer policy is a buffer that is carried out by providing additional capital to replace losses if excessive credit growth occurs which has the potential to disrupt financial stability. Bank Indonesia Policy …

Restrictions Of Human Rights On The Basis Of Public Welfare, Thomas Makoto Naruse

Japanese Society and Culture

One of the basic principles of Japanese Constitution is respect for human rights. However, the Constitution stipulates “public welfare” in 4 Articles, and recognizes restrictions on human rights. From its text, it appears that human rights restrictions are widely recognized. The debate over public welfare has gone through several stages, and understanding has changed. The aim of this article is to introduce the meaning of “public welfare” in Japanese Constitution, and how it works. After introducing the flow of the theory, this article will examine how it functions as a basis for restrictions on human rights.