Constitutional Law Commons^™

We Have Lost Our Minds: Bioethics After Dobbs, Teneille R. Brown

Utah Law Faculty Scholarship

This article examines the paradoxical treatment of autonomy in American healthcare law. While autonomy has become the dominant principle in medical ethics and neoliberal market philosophies, pregnant people have been systematically denied this same autonomy through increasingly restrictive abortion statutes. Using the rhetoric of “informed consent,” abortion-restrictive statutes ironically pervert the animating principles behind the doctrine—rendering it almost meaningless.  I argue that this contradiction stems from the dehumanization of pregnant people who seek abortions, particularly through the denial of their capacity to have individual, complex mental states and feelings. Drawing on moral psychology, the article demonstrates how pregnant people are …

Constitutional And Administrative Innovation Through State Labor Law, Kate Andrias

Faculty Scholarship

This Essay explores recent efforts by worker organizations to transform labor policy in states, as well as countermobilizations by business and conservative groups. It focuses on two particularly promising efforts: the development of worker standards boards and pro-labor changes to state constitutional law. It shows why, as a matter of political economy, such reforms have been achievable at the state and local levels, but not the federal level, and explores the potential of state reforms to build greater economic and political power for working people, notwithstanding limits imposed by federal preemption doctrine. Ultimately, this Essay argues that these recent innovations …

School Choice & Religious Discrimination: A Story Of The Illusory "Wall Of Separation," Sour "Lemon Tests," And Overgrown "Baby Blaines", Keren Kendil

Touro Law Review

The significance of elementary school education in shaping a child's future, and the success of society, is immeasurable. The free public school system is built on the premise that every child deserves to have the equal opportunity to learn and succeed. However, this system overlooks the millions of children attending private schools due to their religious and moral convictions. This note delves into the imperative of ensuring universal access to quality elementary education for every child, irrespective of their family's religious affiliations or preferences for private schooling, highlighting the constitutional imperatives of ensuring that every child has the opportunity to …

Breaching The Walls Of The Inviolable Citadel: The Supreme Court's Treatment Of The Lemon Test And Its Progeny, Christopher C. Spinosa Jr.

Touro Law Review

The Supreme Court in Kennedy v. Bremerton finally laid the three-pronged Lemon test to rest. Instead of Lemon and its progeny, Establishment Clause cases are now to be decided based upon the historical practices and understandings of our Founding Fathers. Subsequently, the Eleventh Circuit instructed the Middle District of Florida to its analysis in Rojas v. City of Ocala. In Rojas, a prayer vigil occurred in the City's public square and featured uniformed police chaplains singing and engaging in Christian prayers. After this Note was written and submitted for publication, the district court issued its decision in Rojas …

Adjudication Of Presidential Term Limits In Zambia: A Comment On Michelo Chizombe V. Edgar Chagwa Lungu And Others 2023/Ccz/0021, O'Brien Kaaba

SAIPAR Case Review

This piece examines the Zambian Constitutional Court's decision on former President Edgar Lungu's eligibility to contest future presidential elections. The Court ruled Lungu ineligible, based on the application of Article 35 of the Constitution of Zambia, which was in force during his first term. The authors highlight the national significance of this case, particularly its impact on the 2026 presidential elections and its potential to reshape opposition politics. The commentary further explores the power of an apex court to depart from its own precedents, affirming the Constitutional Court's inherent jurisdiction to do so under exceptional circumstances, aligning with practices in …

Innocence Lost: The Dangers Of Life Imprisonment For Children At Whose Pleasure: D.B. (A Juvenile) V. The People [2024] Zmca 339 (18 December 2024), Samantha Smit, Louis Koen

SAIPAR Case Review

This piece examines the Zambian Court of Appeal's decision to overturn a life imprisonment sentence imposed on juvenile offenders, replacing it with detention ‘at the President's pleasure.’ The commentary explores the legal implications of this discretionary sentence, drawing parallels with similar controversies in other African jurisdictions, particularly Kenya, where such sentences have been criticized for undermining constitutional rights and the doctrine of separation of powers. The authors argue that ‘detention at the President's pleasure’ can effectively amount to an indefinite sentence, raising concerns about the uncertainty of imprisonment duration for child offenders. They suggest that the Zambian court missed an …

Genealogy In Constitutional Law, Charles W. Tyler

Vanderbilt Law Review

Genealogy is a form of argument that seeks to discredit social phenomena by exposing their pernicious ancestry. In recent years, the U.S. Supreme Court has used genealogy to undermine key provisions of written law, doctrinal rules, longstanding practices, and private conduct in cases involving a wide range of constitutional issues.

After comprehensively documenting this development, this Article contends that genealogy can advance conclusions within several widely recognized modalities of constitutional interpretation. More specifically, genealogy can be used to undermine assertions of authority implicit in arguments from precedent, tradition, and ethos. And it can be used to reveal its object’s function …

Second Amendment: Incompatible Methodologies And The Bruen And Heller Opinions' Underlying Misalignment, Henry H. Robinson

Touro Law Review

In its 2022 Bruen opinion, the Supreme Court characterized the Heller opinion as having applied a “methodological approach” for interpretation of the Second Amendment. However, Bruen’s description and summary partially omitted, and was materially misaligned with, Heller’s actual reasoning. In Heller’s first step of constitutional interpretation, which addressed the first clause of the sentence comprising the Second Amendment, the opinion had selectively not applied the methodological approach described in Bruen; Heller’s first step had applied a different, incompatible methodological approach. Bruen’s description was aligned only with the second step of Heller’s constitutional reasoning, which had addressed the sentence’s second clause. …

Constitutional Federalism And The Nature Of The Union, Anthony J. Bellia Jr., Bradford R. Clark

William & Mary Law Review

Federalism is an essential feature of the Constitution’s design and structure, but the Constitution does not spell out every respective authority of the federal government and the States in precise detail. This omission has led some observers to embrace broad—if not unlimited—federal power and reject certain longstanding federalism doctrines—such as state sovereign immunity, the anti-commandeering doctrine, and the equal sovereignty of the States. The objection to such doctrines is that the Constitution does not affirmatively grant States these sovereign rights and powers. This charge overlooks long-forgotten background context essential to faithful interpretation of the Constitution. The former British Colonies in …

A Republic Of Spending, Jonathan S. Gould

Michigan Law Review

Large-scale spending measures make up many of Congress’s most important recent contributions to national policymaking. Congress has appropriated trillions of dollars to respond to emergencies, fight climate change, expand social safety net programs, spur technological innovation, and strengthen national infrastructure. While the contemporary Congress’s failure to enact landmark regulatory statutes causes many to characterize it as dysfunctional, Congress in fact remains quite active—its policymaking energy is simply concentrated in the spending domain.

Congress’s use of spending rather than regulatory legislation as its primary way of shaping national policy marks a significant shift in American governance. This Article examines the causes …

The Power Of All: Tort In The Age Of Constitution, Cristina Carmody Tilley

Faculty Publications

Life in a multicultural nation can be fraught. The United States is a case in point, with hostile tension between members of competing identity groups playing out today on streets, in offices, and across the media. Modern Americans assume that bridging race, gender, and class inequity is the stuff of public—constitutional—law. This assumption follows the lead of modern American lawyers, who migrated to this body of law just as historians, sociologists, and economists began to insist that the private law of tort was exclusively concerned with the accidental physical harms inevitable in a modern economy. According to this econostory, tort …

Affirmative Action’S Asian American Problem, Huyen Pham, Joseph Thai

Faculty Scholarship

Asian American opponents of affirmative action have received both credit and blame for their pivotal role in toppling racial preferences in university admissions in Students for Fair Admissions v. Harvard (SFFA). Allied conservatives highlighted evidence of discrimination against Asian American applicants as a compelling reason to dismantle affirmative action; liberals either denied this discrimination existed or tolerated it as an acceptable cost of helping other minority applicants. But largely unacknowledged is the precipitating history of the Supreme Court’s marginalization of Asian American applicants and its decades of tacit approval of their exclusion from affirmative action programs. This unwritten …

Reconstructing Citizenship, Jenny E. Carroll, James Jeter

Faculty Scholarship

In our republican democracy, voting is a central right of citizenship. Yet millions of voters are routinely disenfranchised as a result of convictions or because their carceral status creates barriers to voting. In the past decade, academic scholarship has focused on the impact of disenfranchisement based on conviction. This work has mapped the legal and social implications of policies that deny voting rights to over five million otherwise eligible voters nationwide. Yet this work has some gaps. First, by focusing solely on conviction-based disenfranchisement, the existing scholarship has largely ignored fatal barriers to voting created (and at times perpetuated) by …

Transcript: Structural Racism, The Healthcare System And Health Justice, Ruquaiijah Yearby

Journal of Law and Health

The following is a transcript from Racial Disparities and Outcomes presented at Cleveland State University College of Law by the Journal of Law and Health on Friday, February 9, 2024. This transcript has been lightly edited for clarity and to reflect updates in the relevant law since the time of transcription.

Transcript: Rethinking Federalism In Health Care, Allison Whelan

Journal of Law and Health

The following is a transcript from Racial Disparities and Outcomes presented at Cleveland State University College of Law by the Journal of Law and Health on Friday, February 9, 2024. This transcript has been lightly edited for clarity and to reflect updates in the relevant law since the time of transcription.

Florida’S Privacy Paradox, Emily Grady

University of Miami Law Review

For almost half a century, Floridians have enjoyed a right to privacy specially guaranteed to them by the Florida constitution. This broad right to privacy, pre-Dobbs, guaranteed several specific rights like the right to have an abortion, the right to be left alone in one’s own home, and the right to be able to direct the upbringing of one’s children, amongst other rights. Despite the fact that these specific rights were nestled in the same broad right to privacy, their treatment has been far from similar in recent years in Florida.

This Note examines the evolution of Florida’s …

The Three Elements Of 303 Creative And How They Limit The Decision’S Impact, Dillon J. Richards

University of Miami Law Review

In 303 Creative LLC v. Elenis, the Supreme Court held that a state could not use a public accommodation law to require a wedding website business to create websites for gay weddings. As the Court saw it, the First Amendment shielded the company because its owner did not want to express speech supporting same-sex marriage—and being forced to create websites for same-sex weddings would compel just that.

Some public reaction to the Court’s opinion—perhaps understandably—construed the case as a full-on attack on gay rights, giving businesses a so-called license to discriminate that could not be limited to the wedding …

A Take On "Special Solicitude" In State Standing: Reconciling The Unreconcilable, Audrey M. Woodward

University of Cincinnati Law Review

No abstract provided.

The Major Question: Who Wants A Functioning Government?, Christian Thompson

University of Cincinnati Law Review

No abstract provided.

Lawyers, Guns, And Marijuana: How N.Y. State Rifle And Pistol Ass'n V. Bruen Is Shaping Federal Marijuana Law, Mia Cordle

University of Cincinnati Law Review

No abstract provided.

The Legal Landscape After Roe's Reversal, Rachel Rebouché

University of Cincinnati Law Review

No abstract provided.

Confronting The War On International Law In The United States, Rebecca Ingber

Online Publications

Harold Hongju Koh’s The National Security Constitution in the 21st Century is a code red threat assessment of the state of public law in America today. True to Koh’s nature, he does not leave us without hope; rather he devotes a sizeable portion of the book to calls for reform, from the legal frameworks governing war powers and intelligence to the division of labor in the national security legal bureaucracy plodding away within the deepest (secure) chambers of the executive branch itself.

Fighting For Abortion Access In Canada: A Constitutional Analysis, Jordana Borzellino

Dalhousie Journal of Legal Studies

Access to abortion is a controversial matter that creates a labyrinth of polarizing issues. Perspectives on abortion range from anathema to overzealous support, with stakeholders occasionally resorting to legal avenues to control access one way or another. This paper will explore the possibility of protecting and expanding access to abortion through constitutional mechanisms in the Canadian legal landscape. By analyzing Canada's current degree of access, this paper will explain that abortion services for those in need are inadequate. In order to advocate for greater access, this paper examines a multitude of legal tools and doctrines to constitutionally protect access to …

The Potential Impact Of Charter Section 28 On Quebec's Controversial Secularism Law And The Pursuit Of Gender-Equality In Canadian Courts, Nywani Albert

Dalhousie Journal of Legal Studies

The Western liberal democratic order, anchored in respect for individual rights and constitutional norms, faces a critical challenge as Quebec follows the pattern of several European nations in enacting laws restricting religious attire. While the Quebec Law 21, “An Act Respecting the Laicity of the State,” is ostensibly neutral, it particularly restricts Muslim women's rights. This paper explores an ongoing, novel legal strategy challenging Quebec's secularism law, focusing on Section 28 of Canada's Charter of Rights and Freedoms. While Section 28 mandates gender equality in Charter implementation, its potential remains largely unexplored in the decades since Charter enactment. Drawing …

Mutual Recognitions Across Generations, Steven L. Winter Walter S. Gibbs Distinguished Professor Of Constitutional Law

Law Faculty Research Publications

“Sovereignty,” Arendt says, “is contradictory to” the human condition. It is not, in any event, the kind of thing that can be shared across generations. Subsequent generations lack sovereignty to the precise degree that they are bound by the decisions of their predecessors. It is no answer to say that contemporary citizens participate in the sovereignty of a whole, transgenerational people. To paraphrase de Tocqueville, later generations are not free because they are not entirely equal, and they are not equal because they are not entirely free.

Where “sovereignty” is a metaphysical concept that transcends time, recognition is an act …

In Re Misty Lee H.: Application Of The Best Interests Standard In Parental Rights Terminations, William L. Dawson Jr.

Maine Law Review

The family unit is perhaps America's most deeply rooted social institution. The integrity of the family unit has been repeatedly recognized by the United States Supreme Court as warranting constitutional protection. As a means of protecting family autonomy, natural parents possess a fourteenth amendment liberty interest in the care and custody of their children. The parental liberty interest encompasses a wide range of rights. Although substantial, these parental rights are not absolute. By virtue of the parens patriae power, the state may interfere with parental rights in order to preserve and promote the welfare of the child. The most extreme …

A Defendant's Right To Counsel In Commitment Hearings For Nonpayment Of A Criminal Fine, Barbara A. Appleby

Maine Law Review

The federal constitutional right of an indigent defendant to appointed counsel in state court proceedings derives from two constitutional provisions. First, the sixth amendment, as incorporated by the due process clause of the fourteenth amendment, provides the basis for an absolute right to counsel in criminal prosecutions leading to actual imprisonment. Second, the due process clause, as an independent source of individual rights, provides the basis for the right to counsel in civil proceedings. Both the sixth amendment and the due process rights may be implicated in a hearing for non-payment of a criminal fine. Title 17-A, section 1304 of …

Separation Of Powers Restrictions On Judicial Rulemaking: A Case Study Of Federal Rule 4, Ralph U. Whitten

Maine Law Review

Debates over the validity of Federal Rules of Civil Procedure have historically centered on the "substantive rights" restriction of the Rules Enabling Act of 1934. While Supreme Court decisions from Sibbach v. Wilson & Co. through Hanna v. Plumer and beyond have arguably deprived the restriction of any practical force, scholars have consistently favored a more rigorous interpretation of the directive that federal rules not "abridge, enlarge, or modify any substantive rights." Despite the historic impotence of the substantive rights restriction, discussions of the validity of the Federal Rules of Civil Procedure continue, even today, to center on the substantive …

City Of Portland V. Depaolo: Defining The Role Of Stare Decisis In State Constitutional Decisionmaking, Thad B. Zmistowski

Maine Law Review

Five years ago, the Maine Supreme Judicial Court, sitting as the Law Court, aligned itself with a growing number of states by adopting the primacy method of state constitutional decisionmaking. Under the primacy method, a state court decides an issue of constitutional law by first looking to that state's own constitution; if the issue is resolvable on state constitutional grounds, the federal constitutional grounds are not reached. Adoption of the primacy method by numerous state courts has generated considerable debate concerning issues of state constitutional law. Little discussion, however, has focused on the methodology of state constitutional adjudication. As a …

Taxpayer Standing And The Preventive-Remedial Distinction: A Call For Reform, Alicia E. Flaherty

Maine Law Review

The Maine Law Court has observed that, "a central function of American courts [is] to protect and relieve the individual from injurious unconstitutional conduct by government officials." Apart from the political process, the judicial process is the only means through which citizens can ensure that government conforms to the law. The courts provide a forum for citizens to challenge the legality of official acts, and serve as a "means of correcting illegal practices of government officials which would otherwise be irreparable." The question of standing is a critical element of the court's task of balancing the individual's right to challenge …