Constitutional Law Commons^™

The Unabridged Fifteenth Amendment, Travis Crum

Scholarship@WashULaw

In the legal histories of Reconstruction, the Fifteenth Amendment’s drafting and ratification is an afterthought compared to the Fourteenth Amendment. This oversight is perplexing given that the Fifteenth Amendment ushered in a brief period of multi-racial democracy and laid the constitutional foundation for the Voting Rights Act of 1965. This Article helps to complete the historical record and provides a thorough accounting of the Fifteenth Amendment’s text, history, and purpose.

This Article situates the Fifteenth Amendment within the broad array of constitutional provisions, federal statutes, fundamental conditions, and state laws that enfranchised—and disenfranchised—Black men during Reconstruction. This Article then performs …

The Right To (Unbiased) Counsel, Peter A. Joy, Kevin C. Mcmunigal

Scholarship@WashULaw

Whether a defense lawyer being biased against the accused on the basis of race and religion renders assistance of counsel ineffective is an unanswered question. One court will decide that issue when the Massachusetts Supreme Judicial Court renders a decision in Commonwealth of Massachusetts v. Dew. In this case, a court-appointed attorney, Richard Doyle, made over 20 bigoted and racist social media posts while representing his Black Muslim client, Anthony Dew. These public postings, made from 2014 through 2017, contained highly disparaging references to Muslims and Black people, including comments about Doyle’s own Black clients as “[a]ssorted thugs and bad …

Constructing The Supreme Court: How Race, Ethnicity, And Gender Have Affected Presidential Selection And Senate Confirmation Hearings, Christina L. Boyd, Paul M. Collins Jr., Lori A. Ringhand, Karson A. Pennington

Scholarship@WashULaw

In February 2022, President Joseph Biden announced his nomination of Ketanji Brown Jackson to serve as an associate justice on the U.S. Supreme Court. In doing so, he said this: “For too long, our government, our courts haven’t looked like America. And I believe it’s time that we have a Court that reflects the full talents and greatness of our nation with a nominee of extraordinary qualifications and that we inspire all young people to believe that they can one day serve their country at the highest level.” In the following days, Jackson’s nomination was discussed with enthusiasm, much like …

Reasonable Classification Versus Equality Under The Indian Constitution, Jahnavi Sindhu, Vikram Aditya Narayan

National Law School Journal

This article critiques the standard of review most prominently applied in cases involving claims of violations of Article 14 of the Constitution: the reasonable classification test. We argue that this test is woefully inadequate in appreciating and protecting the wide-ranging nature of the right to equality. Through an examination of the origins of the reasonable classification test, we demonstrate the weak justifications initially advanced by the Indian judiciary to import it from dated United States (US) case law. Further, we highlight the substantial weaknesses of the test and explain how it precludes the judiciary from safeguarding the content of substantive …

A Prophylactic Approach To Compact Constitutionality, Katherine Mims Crocker

Faculty Publications

From COVID-19 to climate change, immigration to health insurance, firearms control to electoral reform: state politicians have sought to address all these hot-button issues by joining forces with other states. The U.S. Constitution, however, forbids states to “enter into any Agreement or Compact” with each other “without the Consent of Congress,” a requirement that proponents of much interstate action, especially around controversial topics, would hope to circumvent.

The Supreme Court lets them do just that. By interpreting “any Agreement or Compact” so narrowly that it is difficult to see what besides otherwise unlawful coordination qualifies, the Court has essentially read …

Reconsidering The Public Square, Helen L. Norton

Publications

No abstract provided.

Electoral Maintenance, Douglas M. Spencer

Publications

According to the U.S. Supreme Court, the right to vote is fundamental because it is preservative of all rights, and yet in many cases legal protections for the right to vote fall short of protections for the other rights that voting is meant to preserve. Redefining the right to vote cannot solve this problem alone. Election administration has at least as much consequence on the right to vote as any particular definition or legal theory. In Democracy’s Bureaucracy, Michael Morse draws our attention to one of the most important yet understudied issues of election administration: voter list maintenance. In addition …

Constitutional Norms And State Judicial Confirmations, Adam B. Sopko

Publications

No abstract provided.

Catalyzing Judicial Federalism, Adam B. Sopko

Publications

No abstract provided.

Towards A Monist Constitutional Ideology? In Re: Article 370 Of The Constitution, Subordination Of Jammu And Kashmir, And The Supra-Constitutional Presidential Power, Zaid Deva

National Law School Journal

This case comment shows how the fascination for a certain form of a monist constitutional order, first articulated by the opposition during the Nehru years, was institutionalised in the form of a judicial discourse, culminating in the Article 370 judgement. At the heart of this discourse lay two imaginaries: (i) a subordinated Jammu and Kashmir (J&K) and (ii) an unbounded or supra-constitutional power vested in the Indian president to deal with J&K, freed of the express conditions precedent laid down in the proviso to Clause 3 of Article 370. In this case comment, I trace the continuities between these monist …

Editorial

National Law School Journal

This editorial contextualises the articles in Issue 17(2), which treat matters of public discourse primarily through the lens of public law.

Life After Dobbs, Gerard V. Bradley

Journal Articles

The article begins, "The  Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now over rule those decisions and return that authority to the people and their elected representatives." It is now one year, and one full election cycle, since the Supreme Court closed its opinion in Dobbs v. Jackson Women's Health Organization with those words. That is time enough to gauge how the "people and their elected representatives" have used the authority "return[ed]" to them.

The Impact Of Post-Dobbs Abortion Bans On Prenatal Tort Claims, Aviva K. Diamond

Michigan Law Review

In June 2022, the Supreme Court revoked Americans’ fundamental right to abortion in Dobbs v. Jackson Women’s Health Organization. However, the Court said nothing about how its decision would impact tort claims related to reproductive care. Many states have since adopted near-total or early-gestational- age abortion bans, which has not only diminished access to reproductive care, but has also incidentally impaired the ability of plaintiffs to bring long-recognized prenatal tort claims. Prenatal tort claims—wrongful pregnancy, birth, and life—allow victims to recover when a medical professional negligently performs reproductive or prenatal care. This Note identifies the impact that post-Dobbs …

Allow Me To Transform: A Black Guy’S Guide To A New Constitution, Brandon Hasbrouck

Michigan Law Review

A Review of Allow Me to Retort: A Black Guy’s Guide to the Constitution. By Elie Mystal.

Status Manipulation In Chae Chan Ping V. United States, Sam Erman

Michigan Law Review

A Review of Chae Chan Ping v. United States. By Rose Cuison-Villazor in Critical Race Judgments: Rewritten U.S. Court Opinions on Race and the Law 74, 84. Edited by Bennett Capers, Devon W. Carbado, R.A. Lenhardt and Angela Onwuachi-Willig.

Akhil Amar’S Unusable Past, Gregory Ablavsky

Michigan Law Review

A Review of The Words That Made Us: America’s Constitutional Conversation, 1760–1840. By Akhil Reed Amar.

Constitutional Losses And (Some) Statutory Wins For Criminal Defendants: Select Criminal Law And Procedure Cases From The Supreme Court's 2022-2023 Term., Eve Brensike Primus, Mark Rucci

Articles

The Supreme Court’s 2022–23 Term included a number of important statutory interpretation rulings, as well as significant cases concerning the scope of the Confrontation Clause; the Venue, Vicinage, and Double Jeopardy Clauses; the federal courts’ ability to entertain claims of legal innocence; and the contours of the adequate and independent state ground doctrine. It also was the first term for Justice Ketanji Brown Jackson—the first former public defender and first Black woman to join the centuries-old institution. Although Justice Jackson joined a Court ruptured along ideological lines and confronting serious challenges to its legitimacy and ethical standards, she quickly proved …

Zab V. R.I. Dep’T Of Corrs., 269 A.3d 741 (R.I. 2022)., Michaela A. Conley

Roger Williams University Law Review

No abstract provided.

The Originalist Jurisprudence Of Justice Samuel Alito, J. Joel Alicea

Scholarly Articles

Since Justice Alito’s appointment to the Supreme Court in 2006, constitutional theorists have struggled with how to characterize his approach to constitutional adjudication. Many scholars have argued that “Justice Alito is not to any significant extent an originalist” but is, instead, “a methodological pluralist” who uses both originalist and non-originalist tools of constitutional adjudication. Others have contended that “Justice Alito’s jurisprudence is originali[st], though not in the traditional sense.”

U.S. Trustee Fee Increase That Is Not Applicable Uniformly Violates The U.S. Constitution, Malorie Ruggeri

Bankruptcy Research Library

(Excerpt)

Article I, Section 8, Clause 4 of the United States Constitution contains the “Bankruptcy Clause,” which vests Congress with the power to establish “uniform Laws on the subject of Bankruptcies throughout the United States.” The clause’s requirement that the bankruptcy laws be “uniform” is not a strictly construed requirement as Congress reserves the right to draft legislation depending on different regional issues that arise within the bankruptcy system.

Congress created the United States Trustee Program (USTP) to, among other things, oversee the administration of bankruptcy cases and promote the integrity and efficiency of bankruptcy system for the benefit of …

Uncertainty Surrounding Takings Claimants’ Rights In Municipal Bankruptcies, Gillian Deery

Bankruptcy Research Library

(Excerpt)

Governments in the United States and its territories have the power to exercise eminent domain so long as they provide property owners with the constitutionally guaranteed “just compensation.” The Fifth Amendment’s Takings Clause specifically prescribes this remedy for parties whose property has been subject to a government taking. “Just compensation” has proven to be an issue in the context of bankruptcy, as bankruptcy law inherently allows debtors to alter their obligations to their creditors.

In response to Puerto Rico’s financial crisis, Congress enacted the Puerto Rico Oversight, Management, and Economic Stability Act (“PROMESA”), which created a modified version of …

The Indian Child Welfare Act In The Multiverse (Review Of Adoptive Couple V. Baby Girl By Matthew L.M. Fletcher And Kathryn E. Fort, In Critical Race Judgements: Rewritten U.S. Court Opinions On Race And The Law)), M. Alexander Pearl

Other Faculty Publications

No abstract provided.

Extreme Risk Protection Orders In The Post-Bruen Age: Weighing Evidence, Scholarship, And Rights For A Promising Gun Violence Prevention Tool, Andrew Willinger, Shannon Frattaroli

Faculty Scholarship

Extreme Risk Protection Orders (ERPOs) are civil court orders that temporarily prohibit gun purchase and possession by people who are behaving dangerously and at risk of committing imminent violence. As of September 2023, ERPOs are available in 21 states and the District of Columbia. This Article presents an overview of ERPO laws, the rationale behind their development, and a review and analysis that considers emerging constitutional challenges to these laws (under both the Second Amendment and due process protections) in the post-Bruen era. This Article notes that the presence of multiple constitutional challenges in many ERPO-related cases has confused judicial …

Easing The Burden Of Survivors Of Domestic Violence Through The "One Family, One Judge" Court Model: Why Integrated Domestic Violence ("Idv") Courts Should Be Instituted Throughout The United States, Elka B. Blonder

Cardozo Journal of Equal Rights & Social Justice

The note advocates for the implementation of Integrated Domestic Violence (IDV) Courts nationwide, arguing that these courts provide a more efficient and supportive system for survivors of domestic violence by consolidating criminal, civil, and family cases under a single judge. This "one family, one judge" model aims to reduce the fragmentation and trauma survivors face in traditional court systems, offering a holistic approach that enhances survivor safety and offender accountability.

A Manageable Constitution, Michael Gentithes

Akron Law Faculty Publications

Federal judges frequently avoid constitutional cases that raise difficult issues of public policy, using doctrines like standing and political questions as shields against judicial overreach. But a new and dangerous sword that allows judges to declare constitutional cases nonjusticiable is emerging in federal courts: a manageability prerequisite. The manageability prerequisite that emerged first in the Supreme Court’s gerrymandering jurisprudence and has since spread virulently throughout the circuit and district courts threatens to close the courthouse doors to a wide swath of litigants. Left unchecked, manageability could both significantly weaken the weakest branch and provide judges unbounded discretion to preserve any …

Firearms Law And Scholarship Beyond Bullets And Bodies, Joseph Blocher, Jacob D. Charles, Darrell A. H. Miller

Faculty Scholarship

Academic work is increasingly important to court rulings on the Second Amendment and firearms law more generally. This article highlights two recent trends in social science research that supplement the traditional focus on guns and physical harm. The first strand of research focuses on the changing ways that gun owners connect with firearms, with personal security, status, identity, and cultural markers being key reasons people offer for possessing firearms. The second strand focuses on broadening our understanding of the impact of guns on the public sphere beyond just physical safety. This research surfaces the ways that guns can create fear, …

The Income Tax, The Constitution, And The Unrealized Importance Of Helvering V. Griffiths, Lawrence Zelenak

Faculty Scholarship

The Supreme Court recently granted certiorari in Moore v. United States, for the purpose of deciding whether the realization doctrine remains a constitutional limitation on Congress's ability to impose an unapportioned income tax, as the Court held in its famous 1920 decision in Eisner v. Macomber. Although it is natural to look to 1920 and Macomber as the cause of today's uncertain scope of the congressional power to tax income, what did not happen in the Court's 1943 decision in Helvering v. Griffiths is as significant as what did happen in 1920. the presence of Moore on the Court's docket …

Becoming The Administrator-In-Chief: Myers And The Progressive Presidency, Andrea Scoseria Katz, Noah A. Roseblum

Scholarship@WashULaw

In a series of recent cases, the Supreme Court has mounted an assault on the administrative state, guided by a particular vision of Article II. According to the Court’s scheme, known as the theory of the unitary executive, all of government’s operations must be housed under one of three branches, with the single head of the executive branch shouldering a unique and personal responsibility for the administration of federal law. The Constitution is thus said to require that the President have expansive authority to supervise or control the government’s many agencies.

Guiding each of the Court’s recent decisions is Myers …

Alito Versus Roe V. Wade: Dobbs As A Means Of Circumvention, Avoidance, Attenuation And Betrayal Of The Constitution, Antony Hilton

American University Journal of Gender, Social Policy & the Law

There can be no argument that Justice Alito is a learned justice of great knowledge and reason, and has a superb grasp of the law. As such, despite any opposition to or disagreement with his legal opinions, he is deserving of respect for his intellectual prowess, in general and as it relates to the Constitution. Notwithstanding all the aforementioned, wrong is wrong.

Unlocking The Beauty From Within Title Vii: Arguing For An Expansive Interpretation Of Title Vii To Protect Against Attractiveness Discrimination, Michael Conklin

American University Journal of Gender, Social Policy & the Law

Beauty may only be skin deep, but discrimination against the unattractive runs far deeper. Research emphatically demonstrates that attractiveness discrimination affects nearly every aspect of life, including hiring and promotion decisions. For example, personal injury attorneys utilize economists as expert witnesses for how their clients’ reduced attractiveness will negatively affect their future earnings. Attractiveness discrimination is just as prevalent as discrimination based on ethnicity. Unfortunately, current interpretations of federal antidiscrimination legislation do not offer protections from attractiveness discrimination. This Article offers a comprehensive framework for providing such protections under an expansive interpretation of Title VII.