Constitutional Law Commons^™

The Costs Of The Punishment Clause, Cortney E. Lollar

Law Faculty Scholarly Articles

Criminal punishment pursuant to a facially valid conviction in a court of law is an uncontested exception to the Thirteenth Amendment’s prohibition on slavery and involuntary servitude. After all, the Constitutional text reads, “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.” And yet, beginning almost immediately after the Thirteenth Amendment was adopted, states regularly employed criminal statutes to limit the movement and behaviors of those previously enslaved and subject them to slavery-type labor camps in conditions that closely mirrored slavery. Because neither the …

State Constitutions And Youth Voting Rights, Joshua A. Douglas

Law Faculty Scholarly Articles

Young voters suffer the lowest turnout rates in American elections. One study shows that younger voters face numerous barriers when attempting to cast a ballot, such as work responsibilities, not receiving an absentee ballot in time, inability to find or access their polling place, voter ID problems, or other issues. Many state election laws are a labyrinth of rules and regulations that make it more difficult to vote, especially for younger people. As one report notes, “many young voters are new voters who need to register for the first time and who may be unfamiliar with the process. Young people …

Nfib V. Osha: A Unified Separation Of Powers Doctrine And Chevron's No Show, Randolph J. May, Andrew K. Magloughlin

South Carolina Law Review

No abstract provided.

Address At The Constitution Day Convocation Of The University Of South Carolina School Of Law, J. Michael Luttig

South Carolina Law Review

This Article is a minimally edited transcript of The Honorable J. Michael Luttig’s Address given on September 15, 2022 at the University of South Carolina School of Law’s Constitution Day Convocation. Judge Luttig served on the United States Court of Appeals for the Fourth Circuit 1991–2006.

Are The Federal Rules Of Evidence Unconstitutional?, Ethan J. Leib

Faculty Scholarship

The Federal Rules of Evidence (FRE) rest on an unacceptably shaky constitutional foundation. Unlike other regimes of federal rulemaking—for Civil Procedure, for Criminal Procedure, and for Appellate Procedure—the FRE rulemaking process contemplated by the Rules Enabling Act is both formally and functionally defective because Congress enacted the FRE as a statute first but purports to permit the Supreme Court to revise, repeal, and amend those laws over time, operating as a kind of supercharged administrative agency with the authority to countermand congressional statutes. Formally, this system violates the constitutionally-delineated separation of powers as announced in Chadha, Clinton, and the non-delegation …

Clouded Precedent: Tandon V. Newsom And Its Implications For The Shadow Docket, Alexander Gouzoules

Faculty Publications

The Supreme Court’s “shadow docket”—the decisions issued outside its procedures for deciding cases on the merits—has drawn increasing attention and criticism from scholars, commentators, and elected representatives. Shadow docket decisions have been criticized on the grounds that they are made without the benefit of full briefing and argument, and because their abbreviated, per curiam opinions can be difficult for lower courts to interpret.

A spate of shadow docket decisions in the context of free-exercise challenges to COVID-19 public health orders culminated in Tandon v. Newsom, a potentially groundbreaking decision that may upend longstanding doctrines governing claims brought under the Free …

State Rejection Of Federal Law, Thomas B. Bennett

Faculty Publications

Sometimes the United States Supreme Court speaks, and states do not follow. For example, in 2003, the Arizona Supreme Court agreed to "reject" a decision of the U.S. Supreme Court, because no "sound reasons justif[ied] following" it. Similarly, in 2006, Michigan voters approved a ballot initiative that, according to the legislature that drafted it, sought "at the very least to freeze' the state's ... law to prevent" state courts from following a ruling of the U.S. Supreme Court. Surprising though this language may be, there is nothing nefarious about these cases. Cooper v. Aaron this is not. Unlike more notorious …

Vaccine Passports And The Right To Exclude: How The Court’S Holding In Cedar Point Nursery V. Hassid Could Light Fire To The Debate On The Constitutionality Of Vaccine Passport Requirements And Bans, John A. Kuzora

Campbell Law Review

The COVID-19 pandemic gave America its biggest health crisis in the last one hundred years. In efforts to resolve this crisis, several state governments have issued various types of public health measures. Three of these measures are Vaccine Mandates, Vaccine Passport Requirements, and Vaccine Passport Bans. This Comment explores the legality of these three public health measures through the unique lens of the Fifth Amendment Takings Clause. Specifically, this Comment focuses on how both Vaccine Passport Requirements and Bans infringe on property owners’ rights to include and exclude unvaccinated patrons. This, in turn, results in a physical taking under the …

The Stubborn Survival Of The Central Hudson Test For Commercial Speech, Nat Stern

Seattle University Law Review

This Article examines the persistence of the Central Hudson standard in the face of multiple challenges as well as larger implications of its survival. Part I provides a brief overview of the Court’s commercial speech doctrine and the spectrum of criticism of Central Hudson for its allegedly excessive or inadequate protection of expression. Part II surveys a series of developments, especially in the last decade, that threaten to supersede Central Hudson’s “intermediate” standard of scrutiny for commercial speech restrictions. In response, Part III explains how none of these phenomena have resulted in the abandonment of the Central Hudson regime. …

The Insidious Effect Of Soundbites: Why Fences Aren't Punishment, Theresa Gabaldon

American University Law Review

This Article was inspired by two recent Supreme Court decisions dealing with the ability of the Securities and Exchange Commission to seek disgorgement of unlawfully obtained profits. The topic, however, is not disgorgement. That is a different article, published by the author in the Cornell Lazu Reviezu in 2020, on which this one builds. This Article focuses instead on jurisprudential methodology. The Court has begun to exhibit an unfortunate penchant for jurisprudence by soundbite—the functional equivalent of Googling its ozun precedents for pithy quotes taken out of context from inapt cases. The results are, to put it politely, mischievous.

This …

The Constitutional Costs Of School Policing, Maryam Ahranjani, Natalie Saing

American University Law Review

Responding to fears of violence and liability on K-12 campuses, local school boards and superintendents have made on-site or embedded school police omnipresent in American public schools. Yet, very little attention is paid to the many costs associated with their presence. When situating law enforcement’s presence squarely in the racist history of policing and school policing, the juxtaposition with the civic purpose of public education reveals significant constitutional costs. This Article builds on existing scholarship by bringing attention to the conflict between the First, Fourth, Fifth, Eighth, and Fourteenth Amendments and the dimensions of embedded school police. Ultimately, schools must …

How To Survive The Culture Wars: Conflict Of Laws Post-Dobbs, Roger Michalski

American University Law Review

Abortion is the latest flashpoint in the culture wars. Post-Dobbs, red and blue states are hard at work codifying different approaches within their boundaries. However, pills, women, transactions, medical services, and information will cross those boundaries. Both sides already fight about who gets to regulate such boundary-crossing activity with each accusing the other of trespassing on the regulatory space of their disagreeing neighbors.

This is dangerous terrain. A house divided against itself needs tools to mediate and constructively tackle conflict. Without such tools, divisions will deepen and provide an endless stream of incidents to further divide the country. The choice …

Table Of Contents

Seattle University Law Review

Table of Contents

Text Is Not Enough, Anuj C. Desai

University of Colorado Law Review

In Bostock v. Clayton County, the Supreme Court held that Title VII of the Civil Rights Act of 1964 protects gay and lesbian individuals from employment discrimination. The three opinions in the case also provided a feast for Court watchers who study statutory interpretation. Commentators across the ideological spectrum have described the opinions as dueling examples of textualism. The conventional wisdom is thus that Bostock shows the triumph of textualism. The conventional wisdom is wrong. Instead, Bostock shows what those who have studied statutory interpretation have known for decades: judges are multimodalists, drawing from a panoply of forms of …

Domsetic Terrorism: Not Actually A Crime, But Desperately In Need Of A Federal Response, Rebecca K. Tucker

Lewis & Clark Law Review

Since the founding of the United States, the U.S. Government has dealt with national security threats, both external and internal. While there are federal laws in place to protect the nation against external actors, these instruments cannot be turned directly inward to address the rising threat of domestic terrorism. This Comment explains the issues with that approach and concludes by proposing specific solutions, focusing on the need for a coordinated response from the agencies and departments tasked with the investigation, intelligence, and prevention of domestic violent extremism and terrorism.

Immigration Detention As A Violation Of Transgender Detainees' Substantive Due Process Rights, Emily Torstveit Ngara

Lewis & Clark Law Review

Noncitizens in immigration proceedings are often subject to civil detention pending a final decision on their case. Transgender individuals in immigration detention are at high risk for physical and sexual assault, cruel and degrading treatment, denial of necessary medical care, and protective isolation. The well-documented harms caused to transgender individuals in detention violate Fifth Amendment substantive due process. This Article documents the harms of immigration detention specific to the transgender community, reviews substantive due process jurisprudence in the civil detention context, and analogizes Eighth Amendment claims for transgender prisoners to substantive due process claims. Immigration detention is predicated on the …

Crime And Excessive Punishment: How The Courts Accelerate The Race To Recidivism, Rachel Kunjummen Paulose

Lewis & Clark Law Review

Congress wants citizens to believe that it is very tough on crime. In federal statutes, as well as in the United States Sentencing Guidelines, authorities have imposed heightened penalties on criminals whose history demonstrates violence, a propensity for aggravated conduct involving guns and drugs, or a repetitive disregard for the law.

Who is an armed career criminal? What is an aggravated felony? Who is a career offender? Congress cannot be bothered with the details, but it assures an anxious public that it will lock up all these bad guys and throw away the key. Words matter in the law. By …

Zombie Laws, Howard M. Wasserman

Lewis & Clark Law Review

A judicial declaration of constitutional invalidity does not erase a challenged law. Such a law is “dead” in that enforcement efforts will not succeed in court, where judicial precedent binds and dictates the outcome in future litigation. But such a law is “alive” in that it remains on the books and may be enforced by a departmentalist executive acting on an independent constitutional judgment. Judge Gregg Costa has labeled these statutory remainders “zombie laws.”

This Article describes several principles that define constitutional litigation, how those principles produce zombie laws, and the scope and nature of zombie laws. It then describes …

Constellating History: An Investigation Into The Supreme Court’S Treatment Of Congressional Consent Under The Compact Clause, Rohan Koosha Hiatt

Lewis & Clark Law Review

The Supreme Court cases of U.S. Steel Corp. v. Multistate Tax Commission and Wharton v. Wise, decided over 80 years apart, set forth different narratives for the evolution of the nonliteral test for consent under the Compact Clause. This Note investigates these competing historical claims in order to reconcile incompatible understandings of how the test evolved, ultimately identifying a more complex origin of the test than the one articulated in U.S. Steel. In so doing, this Note sheds light on the ability of the Court to not only bring history to light, but also to obscure it.

Fixing America's Broken Democracy, Erwin Chemerinsky

Lewis & Clark Law Review

No abstract provided.

Requiring Majority Winners For Congressional Elections: Harnessing Federalism To Combat Extremism, Edward B. Foley

Lewis & Clark Law Review

Congress should enact a law requiring a candidate for a seat in Congress to receive a majority of votes in order to win the election. Congress should let states determine what particular procedure to use to determine whether a candidate wins a majority, as there are significantly different methods of identifying a majority winner. While this simple piece of legislation might seem inconsequential—many Americans assume, erroneously, that elections already require majority winners—it in fact would cause states to undertake a form of experimentation in the details of electoral system design that would have the effect of counteracting the threat that …

Undue Deference To States In The 2020 Election Litigation, Joshua A. Douglas

Lewis & Clark Law Review

This Article provides the first comprehensive analysis of the numerous election law cases that the Supreme Court and the federal appellate courts decided in the lead up to the 2020 election. The picture is bleak. Instead of protecting the constitutional right to vote, the Supreme Court and lower federal appeals courts unduly deferred to state legislatures in how to run the election, with little concern for the difficulties voters faced during a pandemic. If the courts do not alter their jurisprudence, then the only solution may be robust federal legislation or a constitutional amendment that enshrines the right to vote …

Presidential Election Reform: A Current National Imperative, Mark Bohnerst, Reed Hundt, Kate E. Morrow, Aviam Soifer

Lewis & Clark Law Review

This Article suggests several important practical reforms in how we choose our President and Vice President. It first identifies problems with the Electoral College system, and proposes solutions that would not require a constitutional amendment. The Article also discusses how the long-forgotten provisions of Section 2 of the Fourteenth Amendment authorize reduction in the electoral votes from states whose legislatures deprive or abridge the right of the people to vote for their presidential electors. By exploring the history and language of Section 2, this Article demonstrates that it was ratified with the specific purpose of preventing state legislatures from usurping …

When Police Volunteer To Kill, Alexandra L. Klein

Faculty Articles

The Supreme Court has upheld the constitutionality of lethal injection, yet states continue to struggle with drug shortages and botched executions. Some states have authorized alternative methods of execution, including the firing squad. Utah, which has consistently carried out firing squad executions throughout its history, relies on police officers from the jurisdiction where the crime took place to volunteer to carry out these executions. This represents a plausible-and probable method for other states in conducting firing squad executions.

Public and academic discussion of the firing squad has centered on questions of pain and suffering. It has not engaged with the …

The Third Amendment In 2020, Michael L. Smith

Faculty Articles

Compared with other Amendments in the Bill of Rights, the Third Amendment does not get much attention. Its prohibition on the quartering of soldiers in houses during peacetime, along with its prohibition on similar quartering during times of war absent legal prescription, is rarely the subject of litigation or scholarship. Indeed, most people—and likely most attorneys—probably cannot tell you what the Third Amendment covers if put on the spot. This Article aims to fix this by giving the Third Amendment the respect that one of the Constitution's original amendments deserves. This Article surveys and analyzes caselaw, scholarship, and popular media …

Originalism And The Inseparability Of Decision Procedures From Interpretive Standards, Michael L. Smith

Faculty Articles

In his article, Originalism: Standard and Procedure, Professor Stephen E. Sachs describes a never-ending debate between originalism's advocates and critics. Originalists argue that certain historical facts determine the Constitution's meaning. But determining these facts is difficult, if not impossible for judges, attorneys, and the public. Sachs seeks to rise above this debate, arguing that the legal community should not expect originalism to offer a procedure for interpreting the Constitution. Instead, the legal community should treat originalism as a

standard to judge interpretations.

This Article takes issue with this approach. Originalism is not like other instances in law where statutes or …

Intentional Discrimination And Haredi Jews, Michael Lewyn

Scholarly Works

No abstract provided.

Doe V. Brown University, 253 A.3d 389 (R.I. 2021), Katie Gradowski

Roger Williams University Law Review

No abstract provided.

Reproductive Privacy In The World: Critical Examination Of June Medical Services, L.L.C. V. Russo And Buck V. Bell, Kumiko Kitaoka

Washington and Lee Journal of Civil Rights and Social Justice

Using insights from Professor Stephen A. Simon’s Universal Rights and the Constitution, this Article argues that national courts should continue to assume an active role in the protection of privacy rights by giving due consideration to the nature of the privacy right in combination with the merits of the universal right theory. This Article then demonstrates that both foreign national courts and domestic state courts have recognized the right to procreate and key aspects of the right to abortion as fundamental rights.

Part II introduces the universal right theory, explaining why the theory is particularly relevant to the protection …

Why Arkansas Act 710 Was Upheld, And Will Be Again, Mark Goldfeder

Scholarly Works

The recent Eighth Circuit ruling in Arkansas Times, LP v. Waldrip, a lawsuit revolving around an Arkansas state anti-discrimination bill, has been widely misreported and generally misunderstood. While the decision was actually very narrow, case-specific, and ripe for review, the misleading information presented to the public has led to speculation and fear that similar anti-discrimination legislation in dozens of other states might somehow be constitutionally deficient. This essay will clarify what actually happened in the Arkansas case, and explain why legislators and advocates around the country do not have to worry about this very limited opinion affecting the legality of …