Constitutional Law Commons^™

Protecting A Real Or Imagined Past: Justice Samuel Alito And The First Amendment, Derigan Silver, Dan V. Kozlowski

All Faculty Scholarship

This article examines the First Amendment jurisprudence of Justice Samuel Alito. In this article, we argue that the principles behind his decision-making are not always necessarily traditional methods of constitutional analysis, and litigants should understand the frames and lenses Alito uses to make decisions when making their arguments to him. The article concludes with a discussion of Alito’s overall approach to the law and some thoughts on how he is attempting to reshape the First Amendment. We write that, above all, it is clear he is seeking to protect a real or imagined past that, in his mind, is under …

American Religious Liberty Without (Much) Theory: A Review Of Religion And The American Constitutional Experiment, 5th Edition, Nathan S. Chapman

Scholarly Works

Book review of Religion and the American Constitutional Experiment, 5th ed. By John Witte Jr., Joel A. Nichols, and Richard W. Garnett. Oxford: Oxford University Press, 2022. Pp. 464. $150.00 (cloth); $39.95 (paper); $26.99 (digital). ISBN: 9780197587614.

"The Arc Of The Moral Universe": Christian Eschatology And U.S. Constitutionalism, Nathan Chapman

Scholarly Works

At the heart of American constitutionalism is an irony. The United States is constitutionally committed to religious neutrality; the government may not take sides in religious disputes. Yet many features of constitutional law are inexplicable without their intellectual and cultural origins in religious beliefs, practices, and movements. The process of constitutionalization has been one of secularization. The most obvious example is perhaps also the most ideal of liberty of conscience that fueled religious disestablishment, free exercise, and equality was born of a Protestant view of the individual’s responsibility before God.

This Essay explores another overlooked instance of constitutional secularization. Many …

Presuming Trustworthiness, Ronnell Andersen Jones, Sonja R. West

Scholarly Works

A half-century ago, the U.S. Supreme Court often praised speakers performing the press function. While the Justices acknowledged that press reports are sometimes inaccurate and that media motivations are at times less than public-serving, their laudatory statements nonetheless embraced a baseline presumption of the value and trustworthiness of press speech in general. Speech in the exercise of the press function, they told us, is vitally important to public discourse in a democracy and therefore worthy of protection even when it falls short of the ideal in a given instance. Those days are over. Our study of every reference to the …

National Federation Of Independent Business V. Sebelius, 567 U.S. 519 (2012), Elizabeth Weeks, Mary Ann Chirba, Alice A. Noble

Scholarly Works

In National Federation of Independent Business v. Sebelius, decided in 2012, twenty-six states as well as private individuals and an organization of independent businesses challenged the constitutionality of two key components of the Affordable Care Act. The Court upheld the individual mandate but converted the Medicaid eligibility expansion from mandatory to optional for states. Elizabeth Weeks’ feminist rewrite breaks down the public law-private law distinction to get beyond the traditional view of health insurance as a commercial product providing individual financial protection against risk and instead to view it as effecting a risk pool premised on cross-subsidization of the health-care …

State Constitutional Law: Standing To Litigate Public Rights In Georgia Courts, Randy Beck

Scholarly Works

State courts interpreting state constitutions face the recurring issue of how much weight to afford Supreme Court of the United States precedent addressing comparable questions under the United States Constitution. At one end of the spectrum, many state courts routinely engage in what federal Judge Jeffrey Sutton calls “lockstepping,” importing federal doctrine wholesale into state decisional law. For a court engaged in lockstepping, concepts like freedom of speech or equal protection of the laws under a state constitution mean whatever the U.S. Supreme Court interprets them to mean under the federal Constitution, even if the state provision differs in potentially …

The Case For The Current Free Exercise Regime, Nathan Chapman

Scholarly Works

How the Supreme Court ought to implement the Free Exercise
Clause has been one of the most controversial issues in U.S. rights discourse
of the past fifty years. In Fulton v. City of Philadelphia, a majority of the
justices expressed dissatisfaction with the standard articulated in
Employment Division v. Smith, but they could not agree on what ought to
replace it. This Essay argues that focusing on whether to overrule Smith is a
distraction from the sensitive task of implementing the Free Exercise Clause.
This is not because Smith was “right,” but because (1) the history and
tradition are both …

Absolute Official Immunity In Constitutional Litigation, Michael L. Wells

Scholarly Works

Absolute official immunity blocks recovery for constitutional violations that occur in the course of legislative, judicial, prosecutorial, and testimonial functions, no matter how egregiously the officer has acted. The basic policy underlying the doctrine is that constitutional litigation will produce unacceptable social costs, mainly by discouraging officials from acting boldly and effectively in the public interest. It may be necessary to sacrifice the vindication of constitutional rights and deterrence of violations in some circumstances, but the Court’s broad function-based limits give too much weight to the costs of constitutional remedies and pays too little attention to the vindication and deterrence …

Reevaluating Regional Law Reform Strategies After Dobbs, Jamie Abrams

Scholarly Articles in Law Reviews & Journals

This article studies the triad of 2016 social media campaigns known as “#AskDr.Kasich,” “#askbevinaboutmyvag,” and “#PeriodsforPence.” While these campaigns, each located in the regional mid-South, were motivated by restrictive state abortion bills, they uniquely positioned menstruation and women’s bodies at the center of their activism—not abortion alone. They leveraged, as a political fault line, the contradiction of these states’ governors’ perceived disgust relating to basic women’s reproductive health, relative to their patriarchal assuredness in regulating and controlling women’s bodies.

In so doing, they tapped into meaningful disruptions in the geographies, religiosities, and masculinities of abortion politics. These campaigns achieved regional …

The Ripple Effects Of Dobbs On Health Care Beyond Wanted Abortion, Maya Manian

Scholarly Articles in Law Reviews & Journals

The Supreme Court’s momentous decision in Dobbs v. Jackson Women’s Health Organization to overturn fifty years of precedent on the constitutional right to abortion represents a sea of change, not only in constitutional law, but also in the public health landscape. Although state laws on abortion are still evolving after Dobbs, the decision almost immediately wreaked havoc on the delivery of medical care for both patients seeking abortion care and those not actively seeking to terminate a pregnancy.

This Article also argues that focusing the public’s attention on the deleterious consequences of abortion bans for health care beyond wanted abortion …

Connecting The Dots To Reveal A New Picture: A Report On Indian Act By-Law Enforcement Issues Faced By First Nations In Nova Scotia And Beyond, Naiomi Metallic, Roy Stewart, Ashley Hamp-Gonsalves

Reports & Public Policy Documents

This report originated as a request by the Mi’kmaq-Nova Scotia-Canada Tripartite Forum to research the challenges facing First Nations in Nova Scotia in assuming jurisdictional control through Indian Act by-laws. In undertaking this research, we identified significant uncertainty, misconceptions and confusion around Indian Act by-laws from all parties with a stake in this issue, including federal and provincial government representatives (Indigenous Services, Department of Justice, Public Safety), the police, the public and First Nations representatives. Consequently, we felt it necessary to comprehensively unpack the various issues relating to Indian Act by-laws, from their nature and legal effect, to their development, …

The President's Approval Power, Christine Kexel Chabot

Fordham Law Review

This Essay introduces the President’s approval power as it was originally understood in the United States. Leading proponents of a unitary executive President have asserted that the President’s absolute power to control subordinate officers includes power to veto or approve subordinates’ discretionary actions before they take effect. This Essay reconsiders the approval power’s purportedly unitary function and presents previously overlooked evidence of the originalist foundations of a presidential approval power. My comprehensive analysis of every public act passed by the First Congress shows that the founding generation never understood Article II to grant the President general authority to approve subordinates’ …

Beyond Removal, Jane Manners

Fordham Law Review

The contemporary debate over presidential power often assumes that removal is the primary tool through which a President exercises control over executive branch officers to fulfill the Constitutional duty to “take Care that the Laws be faithfully executed.” This must be so, the logic goes, because without this authority, “the President could not be held fully accountable for discharging his own responsibilities.” The power to remove, the U.S. Supreme Court has reasoned, also endows the President with the power to supervise. To be sure, other scholars and jurists have pointed out the ways that this fails to capture the range …

Command And Control: Operationalizing The Unitary Executive, Gary Lawson

Fordham Law Review

The concept of the unitary executive is written into the Constitution by virtue of Article II’s vesting of the “executive Power” in the President and not in executive officers created by Congress. Defenders and opponents alike of the “unitary executive” often equate the idea of presidential control of executive action with the power to remove executive personnel. But an unlimitable presidential removal power cannot be derived from the vesting of executive power in the President for the simple reason that it would not actually result in full presidential control of executive action, as the actions of now-fired subordinates would still …

Bastions Of Independence Or Shields Of Misconduct?: Increasing Transparency In Judicial Conduct Commissions, Katarina Herring-Trott

Fordham Law Review

No abstract provided.

Carceral Deference: Courts And Their Pro-Prison Propensities, Danielle C. Jefferis

Fordham Law Review

Judicial deference to nonjudicial state actors, as a general matter, is ubiquitous, both in the law and as a topic of legal scholarship. But “carceral deference”—judicial deference to prison officials on issues concerning the legality of prison conditions—has received far less attention in legal literature, and the focus has been almost entirely on its jurisprudential legitimacy. This Article contextualizes carceral deference historically, politically, and culturally, and it thus adds a piece that has been missing from the literature. Drawing on primary and secondary historical sources and anchoring the analysis in Bourdieu’s field theory, this Article is an important step to …

Interpleader As A Vehicle For Challenging The Constitutionality Of Private Citizen Action Statutes, Delia Parker

Fordham Law Review

The rise of vigilante-esque statutes creates obstacles for litigants seeking to challenge a statute’s constitutionality. State legislatures in Texas and California enacted laws regulating constitutionally protected activity (abortion and firearm possession, respectively) through statutes enforced solely by private actors. The state legislatures cleverly crafted Texas S.B. 8, as well as other copycat statutes, as bounty hunter statutes to block litigants’ usual path to pre-enforcement adjudication—filing a claim against the state to enjoin its actors from enforcing the improper provisions.

The Texas and California state legislatures attempted to forbid constitutionally protected conduct by granting enforcement power to an infinite number of …

Affirmative Action After Sffa, Jonathan Feingold

Faculty Scholarship

In SFFA v. Harvard (SFFA), the Supreme Court further restricted a university’s right to consider the racial identity of individual applicants during admissions. The ruling has spawned considerable confusion regarding a university’s ongoing ability to pursue racial diversity, racial inclusion, and other equality-oriented goals—whether through “raceconscious” or “race-neutral” means. To assist institutions attempting to navigate the ruling, this article outlines a set of key legal rights and responsibilities that universities continue to possess following SFFA.

Ordered Liberty After Dobbs, Linda C. Mcclain, James E. Fleming

Faculty Scholarship

This Essay explores the implications of Dobbs v. Jackson Women’s Health Organization for the future of substantive due process (SDP) liberties protecting personal autonomy, bodily integrity, familial relationships (including marriage), sexuality, and reproduction. We situate Dobbs in the context of prior battles on the Supreme Court over the proper interpretive approach to deciding what basic liberties the Due Process Clause (DPC) protects. As a framing device, we refer to two competing approaches as “the party of [Justice] Harlan or Casey” versus “the party of Glucksberg.” In Dobbs, the dissent co-authored by Justices Breyer, Sotomayor, and Kagan represents the party of …

The Not-So-Standard Model: Reconsidering Agency-Head Review Of Administrative Adjudication Decisions, Rebecca S. Eisenberg, Nina A. Mendelson

Articles

The Supreme Court has invalidated multiple legislative design choices for independent agency structures in recent years, citing Article II and the need for political accountability through presidential control of agencies. In United States v. Arthrex, Inc., the Court turned to administrative adjudication, finding an Appointments Clause violation in the assignment of certain final patent adjudication decisions to appellate panels of unconfirmed administrative patent judges. As a remedy, a different majority declared unenforceable a statutory provision that had insulated Patent and Trademark Office (PTO) administrative adjudication decisions from political review for almost a century. The Court thereby enabled the politically appointed …

Responding To The New Major Questions Doctrine, Christopher J. Walker

Articles

The new major questions doctrine has been a focal point in administrative law scholarship and litigation over the past year. One overarching theme is that the doctrine is a deregulatory judicial power grab from both the executive and legislative branches. It limits the president’s ability to pursue a major policy agenda through regulation. And in the current era of political polarization, Congress is unlikely to have the capacity to pass legislation to provide the judicially required clear authorization for agencies to regulate major questions. Especially considering the various “vetogates” imposed by Senate and House rules, it is fair to conclude …

Exigencies, Not Exceptions: How To Return Warrant Exceptions To Their Roots, Michael Gentithes

Akron Law Faculty Publications

When a police officer interacts with an individual, the encounter is subject to myriad exceptions to the Fourth Amendment’s warrant requirement that lack a coherent justifying theory. For instance, officers can warrantlessly search if an automobile was involved in the interaction, an arrest occurred, or a protective sweep was necessary to prevent a third- party ambush. Officers and indi viduals struggle to understand the breadth and complexity of these exceptions. The resulting confusion breeds widespread distrust and raises the tension in millions of interactions across the country. There is an easier way. The Supreme Court has recently reaffirmed its support …

Surveillance Technologies And Constitutional Law, Christopher Slobogin, Sarah Brayne

Vanderbilt Law School Faculty Publications

This review focuses on government use of technology to observe, collect, or record potential criminal activity in real-time, as contrasted with “transaction surveillance” that involves government efforts to access already-existing records and exploit Big Data, topics that have been the focus of previous reviews (Brayne 2018, Ridgeway 2018). Even so limited, surveillance technologies come in many guises, including closed-circuit television, automated license plate and facial readers, aerial cameras, and GPS tracking. Also classifiable as surveillance technology are devices such as thermal and electromagnetic imagers that can “see” through walls and clothing. Finally, surveillance includes wiretapping and other forms of communication …

Constitutional Limits On The Imposition And Revocation Of Probation, Parole, And Supervised Release After Haymond, Nancy J. King

Vanderbilt Law School Faculty Publications

In its Apprendi line of cases, the Supreme Court has held that any fact found at sentencing (other than prior conviction) that aggravates the punishment range otherwise authorized by the conviction is an "element" that must be proved beyond a reasonable doubt to a jury. Whether Apprendi controls factfinding for the imposition and revocation of probation, parole, and supervised release is critically important. Seven of ten adults under correctional control in the United States are serving terms of state probation and post-confinement supervision, and roughly half of all prison admissions result from revocations of such terms. But scholars have yet …

The Perils Of Asian-American Erasure, Matthew P. Shaw

Vanderbilt Law School Faculty Publications

Affirmative action, particularly its most well-known variant, race-conscious college admissions practices, has long occupied a precarious position in constitutional jurisprudence of equal protection and statutory antidiscrimination law. As a policy matter, affirmative action practices are necessary to reduce the impact of durable structural barriers to opportunity that have been imposed on members of identifiable racial groups because of their race. Legally, they’re on far less secure footing.

As a constitutional matter, these measures have been summarily divorced from any reparative purpose since the “diversity rationale” emerged from Regents of the University of California v. Bakke as the only compelling interest …

Removal Rehashed Legal History: Response, Andrea Scoseria Katz, Noah A. Rosenblum

Scholarship@WashULaw

We are grateful to the Harvard Law Review Forum for the chance to respond in these pages to The Executive Power of Removal. In this new piece, Professors Aditya Bamzai and Saikrishna Bangalore Prakash aim to persuade readers that the President’s power to remove executive officers is exclusive and nondefeasible; textually mandated; and a matter of common assent at the time of the Founding.

There are high hurdles to proving this argument, and this piece fails to scale them. There is little evidence for any of these separate contentions, whether we look to the Constitution’s text or the history …

What Issues Are Fair Game In Moore V. United States?, Conor Clarke

Scholarship@WashULaw

On December 5th, the Supreme Court heard oral argument in Moore v. United States, a constitutional challenge to the mandatory repatriation tax (“MRT”) in the 2017 Tax Cuts and Jobs Act. The case raises basic questions about the scope of Congress’s taxing power, and has the potential to reshape and limit federal taxation. (Ben Silver had a nice summary of the complicated constitutional and statutory background last week, and I’ve also written about the case elsewhere. Rather than rehash those details, I will assume some basic familiarity with the case in what I say below.

The Judicial Assault On The Administrative State Regulating Upheavals In The Securities Markets And Boardrooms, Joel Seligman

Scholarship@WashULaw

The most substantial change in the United States Government has been the extraordinary growth and increased complexity of the United States Government itself. George Washington initially was President of a country with a population of about four million, eleven States, and three Cabinet Departments (State, Treasury, and War). Washington’s Government had no standing army, no Social Security, Medicare or Medicaid, and no programs addressing the environment, labor, or health. In 1791, the Treasury Department had approximately 500 employees, the War Department had 12, the State Department, 8.

Today, the National Government has twenty-four Cabinet members. In 2023, there are 2.89 …

First Amendment Scrutiny: Realigning First Amendment Doctrine Around Government Interests, John D. Inazu

Scholarship@WashULaw

This Article proposes a simpler way to frame judicial analysis of First Amendment claims: a government restriction on First Amendment expression or action must advance a compelling interest through narrowly tailored means and must not excessively burden the expression or action relative to the interest advanced. The test thus has three prongs: (1) compelling interest; (2) narrow tailoring; and (3) proportionality.

Part I explores how current First Amendment doctrine too often minimizes or ignores a meaningful assessment of the government’s purported interest in limiting First Amendment liberties. Part II shows how First Amendment inquiry is further confused by threshold inquiries …

Out Of Bounds?: Abortion, Choice Of Law, And A Modest Role For Congress, Susan Frelich Appleton

Scholarship@WashULaw

This invited contribution to a symposium on the multiple intersections of family law and constitutional law grapples with the emerging problems of jurisdictional competition and choice of law in interstate abortion situations in the wake of Dobbs v. Jackson Women’s Health Organization—as abortion-hostile states seek to impose restrictions beyond their borders and welcoming states seek to become havens for abortion patients, regardless of their domicile. Grounded in a conflict-of-laws perspective, the essay lays out the interstate abortion chaos invited by Dobbs and the threat to our federal system that it presents, given Congress’s failure to codify a national right to …