Constitutional Law Commons^™

Lessons From United States Supreme Court Jurisprudence For Resolving Australian Interstate Groundwater Disputes, Jack Dewinter

Emory International Law Review

No abstract provided.

The Law Enforcement Lobby, Stephen Rushin, Zoe Robinson

Faculty Publications & Other Works

The law enforcement lobby represents one of the most important and undertheorized barriers to criminal justice reform. We define the law enforcement lobby as the constellation of entrenched actors within the justice system—particularly police unions, correctional officer unions, and prosecutor associations—that exert an outsized role in policy development. The law enforcement lobby operates largely without coordinated opposition, resulting in capture of criminal justice policymaking and skewed policy outcomes that often institutionalize injustice and subordination. The strength of the law enforcement lobby also presents a challenge to the growing defunding and abolition movements. Nevertheless, the law enforcement lobby remains at the …

Levels Of Generality & Originalism: Proposing A New Way Forward As Originalism Continues To Expand, Marquan Robertson

Mitchell Hamline Law Review

No abstract provided.

A Pleasure To Burn: How First Amendment Jurisprudence On Book Banning Bolsters White Supremacy, Amy Anderson

Mitchell Hamline Law Review

No abstract provided.

Sex Offenders And Internet Speech: First Amendment Protections For America's Most Reviled Outcasts, Gabriel Aderhold

Mitchell Hamline Law Review

No abstract provided.

Lessons Of The Plague Years, Barry Sullivan

Faculty Publications & Other Works

The COVID-19 pandemic has challenged governments of every description across the globe, and it surely would have tested the mettle of any American administration. But the pandemic appeared in the United States at a particularly inopportune time. January 2020 marked the beginning of a presidential election year in a deeply polarized country. President Donald Trump was a controversial figure, beginning the fourth year of a highly idiosyncratic administration. He was both a candidate for re-election and the subject of an ongoing impeachment proceeding. In these circumstances, the pandemic quickly became politicized. President Trump's response to the COVID-19 pandemic has often …

Expert Knowledge, Democratic Accountability, And The Unitary Executive, Barry Sullivan

Faculty Publications & Other Works

This essay, which was prepared for the Fordham Law Review's February 2023 symposium on the Unitary Executive, addresses the question whether the Constitution requires that the President have absolute control over the information that those charged with executive authority may provide to Congress and the public, regardless of how technical or essential to democratic governance that information may be, and notwithstanding the existence of legislation to the contrary. For example, does the Constitution require that the President must be free to substitute their judgment for that of an expert official charged by Congress with making determinations about the likely path …

Executive Secrecy: Congress, The People, And The Courts, Barry Sullivan

Faculty Publications & Other Works

Congress enacted the Freedom of Information Act (“FOIA”) to ensure that “any person” could gain access to all the executive branch information that could safely be disclosed, without any special showing of need, thereby enhancing the ability of citizens to know what their government is doing. Writing in 1982, then-Professor Antonin Scalia ridiculed the concept of active citizenship which FOIA embodied, asserting that the statute was the product of “an obsession [with the idea] that the first line of defense against an arbitrary executive is do-it-yourself oversight by the public and . . . the press.” That was a “romantic …

Divine Intervention Or Unfair Influence? A Closer Look At Bibles In The Jury Room, Sarah E. Summa

Campbell Law Review

The Fourth Circuit allows jurors to bring Bibles into the jury room and reference them during deliberations. A seemingly innocent action actually denies the accused his right to a fair and impartial jury. When jurors put too much weight on the Bible’s passages about judgment, jurors risk overlooking the evidence and instead making decisions based on isolated verses. By generally allowing a Bible in the deliberation room, the Fourth Circuit opens the door to other religious texts coming into deliberations. Further, the Fourth Circuit blurs the line demarcating external and internal influences, risking the introduction of other external influences that …

Decolonizing Equal Sovereignty, Rosa Hayes

William & Mary Journal of Race, Gender, and Social Justice

In Shelby County v. Holder, 570 U.S. 529 (2013), the Supreme Court announced that a tradition of equal sovereignty among the states prohibits unwarranted federal intrusions into state sovereignty and invoked this newly created doctrine to strike down Section 4(b) of the Voting Rights Act. Scholarly critiques in Shelby County’s immediate aftermath debated the constitutional validity of the Court’s equal sovereignty reasoning and warned of the dire threat the VRA’s effacement posed to voting rights—concerns that recent litigation have vindicated.

But other recent litigation suggests that, abstracted from its problematic and consequential origins, equal sovereignty may be deployed …

The New Insular Cases, Willie Santana

William & Mary Journal of Race, Gender, and Social Justice

The Insular Cases is a name given to a series of cases decided by the U.S. Supreme Court dealing with the status of the territories the United States acquired at the turn of the twentieth century. The Insular Cases rely on outmoded assumptions about the peoples who live in those islands, ninety-eight percent of whom belong to racial and ethnic minorities, and extend the extraconstitutional doctrine of territorial incorporation, a Plessy-style doctrine of separate governance for these territories that is different than the territories that preceded them. These cases, and the doctrine they announced, have been universally decried as …

Gouverneur Morris And The Drafting Of The Federalist Constitution, William M. Treanor

Georgetown Law Faculty Publications and Other Works

The Salmon P. Chase Colloquium series has had two themes: One is great moments in constitutional law, and the other is people who have been forgotten but should not have been. This colloquium is primarily in the latter category—it is about a forgotten founder of the Constitution. But the Constitution has more than one forgotten founder. I did a Google search this afternoon for “Forgotten Founder” and there are a whole series of books on various people who are the Constitution’s Forgotten Founder. So the Chase Colloquium series has another decade of subjects: Luther Martin, George Mason, Charles Pinckney, Roger …

A State Within A State: Re-Examining The Federal Lands Question And Its Effect On State Sovereignty, David Wilde

William & Mary Environmental Law and Policy Review

Though the path of the public lands debate is well-trodden, this Note will seek to answer the question in novel ways. First, it uses the Corpus of Founding Era American English to perform an objective linguistic analysis of the phrase “dispose of” in the Property Clause. Through this analysis, it appears that an ordinary person at the time the Constitution was adopted would most likely have read the phrase “dispose of” in the Property Clause to mean sell, give away, bestow, or put into another’s hand or power.

Next, this Note investigates the historical and philosophical understandings of state sovereignty …

Insulating The Church: Ethiopian Orthodox Tewahedo Church Of Canada St. Mary Cathedral V. Aga And The Suppression Of Public Law In The Construction Of Religious Communities, Rabiat Akande, Faisal Bhabha

Articles & Book Chapters

In Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral v. Aga, the Supreme Court of Canada undertook to grapple with the question of whether, when, and to what extent courts should get involved in the internal decisions of religious groups where there are allegations of procedural unfairness. This paper approaches Aga with an interest in the issue of state regulation of religion through law. The paper (1) reviews and assesses the Court's judgment; (2) summarizes and analyzes the 12 intervener submissions, many of which were made by religious groups likely to be affected by the Court's eventual judgment; and …

Nestlé V. Doe: A Death Knell To Corporate Human Rights Accountability?, Phillip Ayers

Seattle University Law Review

The Supreme Court in Nestlé v. Doe held that foreign plaintiffs who claimed to be victims of overseas tortious conduct by corporate defendants had no jurisdiction to sue in federal courts using the Alien Tort Statute. This Comment looks at the history of the Alien Tort Statute, from its inspiration, long dormancy, and recent reinvigoration beginning in the 1980s. The Comment then explores the background of Nestlé and its issues with child slavery in its cocoa supply chain. From there, the Comment analyzes the Nestlé v. Doe decision, and posits an alternative outcome. Finally, this Comment looks for a new …

Walking The Line: The Politics Of Federalism And Environmental Change, Allan C. Hutchinson

Articles & Book Chapters

This short paper looks at the Greenhouse Gas Pollution Pricing Act decision through a wider and more critical jurisprudential lens. In so doing, I demonstrate that the courts are no less political than legislatures in making decisions about who has the constitutional capacity to decide on how the challenges of climate change should be met. This is not so much a criticism of the Supreme Court of Canada, but an inevitable feature of constitutional law. After introducing the traditional and received explanation of the differences between political decision-making and judicial decision-making, I delve deeper into the Court's opinions and show …

Arbitrating Executive Privilege, Todd David Peterson

American University Law Review

This Article addresses the dramatic collapse in effective congressional oversight that took place during the Trump Administration. For decades, persistent congressional committees had been able to pry documents and testimony from a recalcitrant executive branch despite the absence of legally enforceable remedies. The media typically regarded executive-privilege claims as attempts to cover up executive wrongdoing, which prompted voter suspicion that damaged the President’s approval ratings. Eventually, the political cost of asserting executive privilege would become so high that the Department of Justice would work out a negotiated settlement, which allowed Congress to obtain most of the documents and testimony it …

Making South Dakota History: An Introduction To The Special Impeachment Issue, Hannah Haksgaard, Tyler Moore, Gabrielle Unruh

Faculty Publications

In September 2020, South Dakota’s Attorney General Jason Ravnsborg was driving on a rural highway when he struck and killed a pedestrian. After pleading guilty to two criminal misdemeanors, Ravnsborg was impeached, convicted, removed from state office, and barred from holding it again. This was South Dakota’s first impeachment of a constitutional officer. To chronicle this historic first, the South Dakota Law Review is publishing a special issue containing ten essays authored by those directly involved with the impeachment. This essay introduces the special issue by describing the factual and procedural background for Ravnsborg’s impeachment, providing a brief summary of …

The Trial Of Thomas More - Robert Bolt's A Man For All Seasons, Jonathan Van Patten

Faculty Publications

The path from Magna Carta to the United States Constitution and the Bill of Rights runs through the trial of Thomas More. Robert Bolt's magnificent portrayal of that trial in A Man for All Seasons provides an opportunity to learn and reflect on how a political trial can teach us about the meaning of justice. The search for universals must be rooted in the particulars. The particulars in this case will also resonate with modern audiences who seek to understand their own politics in times of crisis.

Douglass, Lincoln, And Douglas Before Dred Scott: A Few Thoughts On Freedom, Equality, And Affirmative Action, Henry L. Chambers Jr.

Law Faculty Publications

In 1854, Senator Stephen Douglas, Abraham Lincoln, and Frederick Douglass delivered speeches about the newly passed Kansas-Nebraska Act. That law opened the Kansas and Nebraska Territories to slavery by extending popular sovereignty, the practice of letting territorial majorities decide whether to allow slavery in a territory, to them. Given before Dred Scott v. Sandford, the infamous case in which the Supreme Court ruled that Black Americans—whether freeborn, freed, or enslaved—could not be citizens of the United States absent congressional action or constitutional amendment, the speeches are worth revisiting. They focus on whether or how slavery should be limited, reflecting …

The State Citizenship Clause, Kurt T. Lash

Law Faculty Publications

The first sentence of the Fourteenth Amendment declares: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, is a citizen of the United States and of the state wherein they reside.” This opening sentence contains not one, but two citizenship clauses. The first defines national citizenship. The second defines state citizenship. Although significant historical scholarship exists regarding the other provisions in Section One of the Fourteenth Amendment, the State Citizenship Clause has been unstudied, unapplied and, quite often, unrecognized.

The Rule Of Law Under Challenge: The Enmeshment Of National And International Trends, Gregory Shaffer, Wayne Sandholtz

Georgetown Law Faculty Publications and Other Works

The goal of the rule of law is to protect individuals from the arbitrary exercise of power. Democracy and human rights depend on the rule of law. But today the rule of law is under growing threat in the United States and around the world. Trends regarding rule-of-law protections are transnational in scope. They involve shifting norms, institutions, and practices at the local, national, and international levels. This paper assesses how challenges are taking place at the international and national levels, and how these challenges are linked. It examines the ways in which international law and institutions are important for …

Immigration Enforcement Preemption, Pratheepan Gulasekaram

Publications

The Supreme Court's 2012 decision, Arizona v. United States, turned back the most robust and brazen state regulation of immigration in recent memory, striking down several provisions of Arizona's omnibus enforcement law. Notably, the Court did not limit preemption inquiries to conflicts between the state law and congressional statutes. The Court also based its decision on the tension between the state law and Executive Branch enforcement policies. The landmark decision seemed to have settled the Court's approach to immigration enforcement federalism. Yet, a scant eight years after Arizona, in Kansas v. Garcia, the Court upheld Kansas's prosecutions of noncitizens who …

The Second Amendment's "People" Problem, Pratheepan Gulasekaram

Publications

The Second Amendment has a “people” problem. In 2008, District of Columbia v. Heller expanded the scope of the Second Amendment, grounding it in an individualized right of self-protection. At the same time, Heller’s rhetoric limited “the people” of the Second Amendment to “law-abiding citizens.” In 2022, New York State Rifle & Pistol Ass’n v. Bruen doubled down on the Amendment’s self-defense rationales but, once again, framed the right as one possessed by “citizens.” In between and after the two Supreme Court cases, several lower federal courts, including eight federal courts of appeals, wrestled with the question whether the right …

Redistricting’S Ultimate Antidote, Douglas M. Spencer

Publications

No abstract provided.

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

Faculty Articles

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 …

Privacy For Student-Patients: A Call To Action, Stacey A. Tovino

Faculty Articles

Consider a law student who has a mental or reproductive health issue that the student wishes to keep private. If the student seeks care at an off-campus health clinic that is not affiliated with the student’s law school or university, the student typically has a number of federally enforceable privacy rights. For example, the federal HIPAA Privacy Rule will typically apply and prohibit the clinic from disclosing the student’s protected health information to professors, parents, and other third parties without the student’s prior written authorization. The law student also will have the right to receive a notice of privacy practices, …

Now Recording: Ensuring Accountability In Rhode Island’S Police Body-Worn Camera Legislation, Rebecca Costello

Roger Williams University Law Review

No abstract provided.

State V. Hudgen¸ 272 A.3d 1069 (R.I. 2022), Amanda Rotimi

Roger Williams University Law Review

No abstract provided.

Aba-Mandated Instruction On Racism And Recent State Legislation Banning Such Instruction In University Classrooms: “Jim Crow” Redux, Bernard K. Freamon

Roger Williams University Law Review

No abstract provided.