Constitutional Law Commons^™

A Major Question For Administrative Law: How Are Courts Applying The Major Questions Doctrine Post West Virginia V. Epa?, Christopher Eckhardt

Catholic University Law Review

On June 30, 2022, judicial deference toward actions of administrative agencies took a significant hit. In West Virginia v. EPA, the Court formally recognized—for the first time—the major questions doctrine, which requires agencies to identify clear congressional authorization when claiming the authority to make decisions of vast economic and political significance. Since June 30, 2022, the Supreme Court has utilized the major questions doctrine in decisions of national importance, including topics ranging from environmental protection efforts to cancelling student debt. This note offers a snapshot of how the major questions doctrine has been applied by federal courts across the country …

Sustaining America's Non-Jurisdictional Wetlands Post-Sackett Through Conservation, Shawna Bligh

UMKC Law Review

Part I of this Article discusses the functional role of wetlands in meeting the intended purpose of the Clean Water Act (“CWA”). The intended purpose of the CWA is to "restore and maintain the chemical, physical and biological integrity of the Nation's waters." The Court's decision in Sackett undermines the intended purpose of the CWA. Wetlands play an essential role in meeting this objective. Wetlands are hydrologically connected to and an embedded part of the overall aquatic ecosystem. The Sackett decision leaves wetlands subject to further degradation.

Part II of this Article provides an overview of the CWA, how we …

Sowing Seeds Of Restriction: Cultivating Insight Into Foreign Agricultural Holdings And Equal Protection Concerns, Payton R. Flower

Arkansas Law Review

Twenty-four states have enacted laws to restrict foreign land ownership, with many placing an emphasis on agricultural land in some capacity. This Comment will argue that state restrictions on foreign land ownership should be vulnerable to equal protection violations when presented squarely to the Supreme Court. Additionally, it will explore the specific implications for agricultural land given its increasing value and economic importance. This analysis is illustrated by the issue presented in Shen v. Simpson, a recent constitutional challenge to Florida’s land ownership restrictions. Part II will discuss the pertinent history and legal landscape that frames the issue. Part III …

Brief For Amici Curiae New York State Legal Scholars In Support Of Defendants-Respondents, Wilfred U. Codrington Iii, Michael Pollack

Amicus Briefs

This document presents a legal brief submitted by amici curiae in a case involving prominent Republican plaintiffs challenging the constitutionality of New York State's absentee voting provisions. The brief emphasizes the fundamental importance of voting as enshrined in the New York Constitution, particularly Article II, which guarantees suffrage to all qualified citizens. It argues that the Constitution's democracy principle supports broad access to the electoral process, countering the plaintiffs' claims that the absentee voting provisions are overly restrictive. The amici curiae assert that the legislative authority to expand voting access is consistent with the overarching democratic commitments of the Constitution. …

Masthead

UC Law Constitutional Quarterly

No abstract provided.

A Government Branch Of Its Own: Reining In The Power Of The Regents Of The University Of California, Veronica Gray

UC Law Constitutional Quarterly

The University of California system is the crown jewel of American public universities. However, Californians have virtually no say over University of California policies. At the University of California’s inception, the drafters of the 1879 California Constitution envisioned a school system controlled by a Board of Regents who are largely insulated from politics. The autonomy from elected officials and the public allows the Regents to have nearly full control over a public good. The Regents’ autonomy and control over the University of California system has led to conflict between the Regents, the public, and state legislators regarding land use, labor, …

The Spy In Your Pocket: Montana’S Tiktok Ban And The Federalism Limits Of State-Level Foreign Policy, Wei Luo

UC Law Constitutional Quarterly

In May 2023, Montana became the first state in America to ban the social media app TikTok. This article proposes a two-prong analytical framework for evaluating the federalism limits of Montana’s TikTok ban (SB 419) and similar laws that other states might enact in the future. The first prong is a mandatory constitutional analysis of whether the state law runs afoul of restrictions on states’ foreign policy powers. These limits are threefold— Article I, Section 10, preemption, and the dormant Commerce Clause. This article focuses on federalism limits that only the states face and does not explore other constraints that …

The Undignified First Amendment, Douglas E. Edlin

UC Law Constitutional Quarterly

Many commonly understand the constitutional right of free speech as an individual right of expression. One reason for this is the ascendance of the dignitarian or autonomy theory of free speech, which has supplanted the marketplace and democratic conceptions as the predominant theory of speech rights in the United States. As a result, scholars, judges, and citizens usually focus on the rights of speakers. But the United States Constitution does not describe a right to speak; the First Amendment protects a right to speech. This article argues that the preoccupation with the dignitarian basis for speech as expression has distorted …

The Death Of "Hey Ump!": New Rules In Pennsylvania And New Jersey Could Get You Locked Up Or Kicked Out For Heckling The Umpire, Hanna Lambert

Jeffrey S. Moorad Sports Law Journal (1994 - )

No abstract provided.

Judicial Power And Potential Unconstitutionality: A Scholastic Perspective, Kevin C. Walsh

Catholic University Law Review

This essay is an exercise in constructive retrieval of the traditional American understanding of judicial power with respect to judicial disregard of potentially unconstitutional laws when identifying rules of decision in constitutional adjudication.

This retrieval makes use of the act/potency distinction from Scholastic philosophy, Thomas Aquinas’s distinction between ius and lex, and John Marshall’s canonical account of the judicial application of the Constitution as a rule of decision in Marbury v. Madison to diagnose the cause of contemporary severability doctrine’s problems and to identify a basic framework for replacement doctrine.

I contend that the doctrinal pieces for the replacement …

Confrontation, The Legacy Of Crawford, And Important Unanswered Questions, Paul F. Rothstein, Ronald J. Coleman

Georgetown Law Faculty Publications and Other Works

The right to confront has a long history. In the United States, the Confrontation Clause provides: “In all criminal prosecutions, the accused shall enjoy the right… to be confronted with the witnesses against him[.]” One of the most troublesome areas of Confrontation Clause jurisprudence has been the Clause’s application to “hearsay statements offered against a criminal defendant pursuant to a hearsay exception or exemption[.]” The Supreme Court’s confrontation analysis in this situation once hinged on the statement’s reliability, with the traditional hearsay rule and its exceptions and exemptions as a guide. But in Crawford v. Washington, the Court considered …

Editor-In-Chief’S Forward, Zoë Grimaldi

UC Law Constitutional Quarterly

No abstract provided.

“It’S Not Ok To Not Be Ok”: Suicide, California’S Lanterman-Petris-Short Act, And The Constitution, Christina Strohmann

UC Law Constitutional Quarterly

Individuals who commit suicide are not incompetent or even making an irrational decision. Yet state laws, such as the Lanterman-Petris-Short Act in California, continue to allow mental health professionals to lock up suicidal patients in psychiatric facilities against the patient’s will. These commitments, however, are not always beneficial, and in many instances are detrimental to both the patient and the mental health professional. Patients can be traumatized from the experience, feel more suicidal from lack of hope and feelings of betrayal. Mental health professionals cannot effectively treat suicidal patients when providers are fearful of liability or when their patients refuse …

Dobbs And Sterilization Decision-Making: Understanding The Coercive Spillover Effects In Reproductive Choice, Thomas Williams

Scholarly Articles in Law Reviews & Journals

The Supreme Court majority in Dobbs v. Jackson Women’s Health Organization argued their decision would have limited impact beyond abortion rights. This Article examines how Dobbs and subsequent state abortion restrictions are likely to increase women’s reliance on permanent sterilization procedures, particularly among already marginalized populations. Drawing on emerging data and historical context, I argue that some post-Dobbs sterilizations should be understood as effectively coerced by state policies, implicating reproductive justice concerns and potentially undermining fundamental rights established in Skinner v. Oklahoma. Then, I demonstrate how interdisciplinary bioethics frameworks and methodologies can help courts better understand the full implications of …

Race Against The Clock: A Comparative Analysis Of New York State's And Germany's Ambitious High-Voltage Transmission Sitting Laws And What New York Can Adopt From The German Model, Andrew Leahy

Cardozo International & Comparative Law Review

The note argues that New York should adopt elements of Germany's centralized regulatory model to streamline the approval and construction of high-voltage transmission lines, which are critical for meeting renewable energy goals. While both New York and Germany face similar challenges in expanding their grids, Germany's centralized approach, including federal oversight and coordinated planning, has proven more efficient. The note critiques New York's decentralized and uncoordinated process, suggesting that adopting Germany's methods could help New York meet its ambitious renewable energy targets and reduce reliance on peaker plants.

Editorial, Nlsj Editorial Board

National Law School Journal

Drawing on select papers from the Pluralist Agreement and Constitutional Transformation (PACT) Conference, this first part of the PACT Special Issue recovers forgotten and unrecorded constitutional histories. The articles reflect on the constitutional archives as a source of historical writing and ask how they are constituted, studied, and challenged. In doing this, they explore the documentary record of India’s constitutional founding, question prevalent narratives, and uncover marginalised perspectives. This comprehensive engagement goes beyond orthodox legal scholarship and illustrates the university’s commitment to multidisciplinary research, with the first issue bringing together contributions from scholars of law, English literature, and political science.

Understanding 303 Creative Llc In A Polycentric Constitutional World, Meg Penrose

Faculty Scholarship

The evolution of rights following Obergefell is not over. Creative 303 LLC marked a new phase in the ongoing legal challenges over the rights and ceremonies attending same-sex marriage. This Essay addresses the anticipated limits of 303 Creative LLC.

The Essay proceeds in three parts. First, how does 303 Creative LLC impact government employees? What rights, if any, should government employees be able to raise in light of 303 Creative LLC? Second, what does 303 Creative LLC mean for private marketplace vendors engaging in expressive commerce? Vendors, particularly wedding vendors, often create unique items for weddings. Will the law focus …

Implementasi Hukum Tata Negara Darurat Dalam Kondisi Darurat Moneter Tahun 1998 Di Indonesia, Rahmadhona Rahmadhona, Ayyub Leonardo, Alifia Ridianti Darmawan

Jurnal Konstitusi & Demokrasi

In the process of transitioning the leadership of the Republic of Indonesia from President Soeharto to the leadership of President B.J. Habibie, there was a massive mass movement in mid-1997 to 1998. The impact of this monetary crisis on Indonesia was considered quite bad, because this monetary crisis also triggered other crises such as political crises and social economic crises so that the stability of the country was threatened from all fields. This study aims to map the condition of Indonesia during the 1998 monetary crisis, analyze the causes and impacts of the 1998 monetary crisis, and discuss the emergency …

Kebebasan Beragama Dan Berkeyakinan Dalam Negara Hukum Indonesia: Dualisme Tafsir Konseptual Dan Putusan Mahkamah Konstitusi, Dixon Sanjaya, Akhlish Aulia Rahim

Jurnal Konstitusi & Demokrasi

Religious life in Indonesian state of law is still faced with friction and instability. This is due to dualism of interpretation of constitutional norms, differences in human rights perspectives on the freedom of religion and belief, and conflicts over statutory regulations. This research analyzes the concept of freedom of religion and belief (Religious Freedom) by conceptually exploring the discourse on relationship between religion and state and mapping the Constitutional Court's decision on commitment of the Religious Freedom. Normative juridical research is carried out using case, historical, and conceptual approaches. The finding is that relationship between state and religion is conceptually …

Analisa Yuridis Independensi Komisi Pemberantasan Korupsi Sebagai Lembaga Ekstra Konstitusional Dalam Sistem Ketatanegaraan Indonesia, Alchansyah Farida

Jurnal Konstitusi & Demokrasi

The Corruption Eradication Commission (KPK) was formed as a follow-up to the mandate of Article 43 of Law Number 31 of 1999 concerning the Eradication of Corruption Crimes. The Corruption Eradication Commission exists as an answer to the less than optimal performance of the Police and Prosecutor's Office in eradicating corruption. Apart from that, the Corruption Eradication Commission exists as an independent state institution (not tied to any authority, be it executive, legislative or judiciary). However, after the enactment of Law Number 19 of 2019 concerning the Second Amendment to Law Number 30 of 2002 concerning the Corruption Eradication Commission, …

Analisis Perbandingan Pengaturan Ibu Kota Dalam Konstitusi Global: Pelajaran Bagi Ibu Kota Baru Indonesia, Akbar Arta Jaya

Jurnal Konstitusi & Demokrasi

On August 16, 2019, the President of the Republic of Indonesia, Joko Widodo, delivered a state speech ahead of Indonesia's Independence Day commemoration, in which the plan to move the national capital to Kalimantan was presented. The relocation of the capital city in a country has various motives, including the location of the previous capital city which is vulnerable to threats from other countries, the development of new cities, and increasing economic growth. This research was conducted to see how the constitutions of countries in the world, especially in 25 countries in the Asian continent (11 Southeast Asian countries, 7 …

Kompetensi Absolut Dan Aktivisme Yudisial Dalam Peran Mahkamah Agung Menguji Anggaran Dasar Partai Politik Di Indonesia, Denis Kurniawan

Jurnal Konstitusi & Demokrasi

This article examines the necessity for the Supreme Court to extend its absolute competence in conducting judicial reviews (right to judicial review) of the Articles of Association and/or Bylaws of Political Parties, which serve as the object of review (objectum litis). This article was prepared by doctrinal research methods. Political parties are institutions that are known for their existence, authority, and constitutional dissolution through the 1945 Constitution. As such, the Articles of Association and Bylaws of Political Parties can be defined as regulations that are established by a Political Party based on orders from higher legal norms, namely the law. …

New Challenges To Judicial Federalism, James A. Gardner

Journal Articles

The theory of judicial federalism holds that state constitutions are jurisprudentially independent from the U.S. Constitution, and that state supreme courts consequently may, and often should, interpret state constitutions differently from how the U.S. Supreme Court interprets the federal Constitution. As the U.S. Supreme Court increasingly turns back to the states important decisions of constitutional policy, such as the scope of reproductive rights or the nature and content of limitations on partisan gerrymandering, state constitutional law looms ever larger as a potential ground for resolution of these issues.

The conditions for a revival of judicial federalism today, however, are far …

Perubahan Paradigma Dalam Penyusunan Rencana Detail Tata Ruang Yang Berkelanjutan Dan Menjamin Kepastian Hukum Pasca Politik Hukum Cipta Kerja Di Indonesia, Maret Priyanta, Cut Sabina Anasya Zulkarnain

Jurnal Hukum & Pembangunan

The amendment to the RDTR enactment in Law Number 6 of 2023 concerning the Enactment of Government Regulations in Lieu of Law Number 2 of 2022 concerning Job Creation into Law is aimed at ensuring the essence of hierarchy and the operationalization of general plans runs in accordance with the concept of plan hierarchy. Previously, equality of enactment forms were applied by the principle of lex specialis derogat legi generalis, which essentially caused the RDTR to be able to correct RTRW content material due to the equality of the enactment forms. In practice, the synergy of the position and content …

Perlindungan Hukum Bagi Pers Dalam Melaksanakan Kebebasan Pers Di Indonesia Dan Australia, Roshita Anggun Trisnaningrum, Adhitya Widya Kartika

Jurnal Hukum & Pembangunan

The press and democratic life are two inseparable things. The existence of the press has a crucial role in conveying information, providing education to the public, and as a means of social control. Freedom of the press is not only recognized internationally, but every country is obliged to provide legal protection for it. The urgency of this research from a constitutional law perspective is that the press is the fourth pillar of democracy (the fourth of estate). This issue is discussed to discover the similarities and differences in press law provisions between Indonesia and Australia as well as to improve, …

Peran Baru Dan Kewenangan Khusus Jakarta Pasca Pemindahan Ibu Kota Negara, Rozi Beni

Jurnal Hukum & Pembangunan

After the relocation of the National Capital to the Nusantara, Jakarta has a new role as the National Economic Center and Global City. This new role also becomes the basis for maintaining Jakarta's special status as the National Capital. Jakarta's new role and special authority are outlined in the Jakarta Special Regional Law (JSR Law). As a special region, Jakarta also has special authority. At the conceptual level, the regulation and management of Jakarta's special authority apply the types of administrative decentralization, political decentralization, and fiscal decentralization. Furthermore, in addition to changing its role as the National Economic Center and …

Problematika Pemenuhan Hak Konstitusional Pekerja Migran Indonesia Yang Bekerja Sebagai Awak Kapal Perikanan Migran Dalam Pemilu 2024, Retno Damarina, Heru Susetyo

Jurnal Hukum & Pembangunan

Setiap Warga Negara Indonesia memiliki hak konstitusional sebagaimana amanat konstitusi. Hak Konstitusional menurut Pasal 51 ayat (1) jo penjelasan Pasal 51 ayat (1) UU No.24/2003 diubah dalam menjadi Undang-undang Nomor 7 Tahun 2020 UU No.7/2020, hak konstitusional adalah “hak-hak yang diatur dalam Undang-undang Dasar Negara Republik Indonesia Tahun 1945”. Membahas hak konstituional ini dimiliki oleh semua Warga Negara Indonesia baik itu yang berada dalam wilayah teritorial Indonesia maupun yang berada di luar wilayah teritorial Indonesia, dalam hal ini adalah Pekerja Migran Indonesia (PMI) yang bekerja menjadi Anak Kapal Perikanan (AKP) migran. Tahun 2024 menjadi tahun untuk peralihan kepemimpinan pemerintahan, utamanya …

Brief Amicus Curiae Of Professor Matthew Steilen In Support Of Petitioners, Tiktok Inc. V. Garland (D.C. Cir. 2024) (No. 24-1113), Matthew J. Steilen

Other Scholarship

No abstract provided.

Going Cashless: Privacy Implications For Gun Control In A Digital Economy, Liza Goldenberg

The Journal of Business, Entrepreneurship & the Law

This paper will examine how, given the United States’ shift toward a cashless economy, the country’s top credit-card companies’ potential decision to implement a new merchant code for firearm-related transactions as a method of gun control will backfire, jeopardizing consumer privacy and leading to unregulated transactions through cryptocurrencies. Since the majority of gun violence stems from firearm transactions not involving credit cards, credit-card companies should abandon the new merchant code that dissuades Americans from exercising their fundamental rights. The American economy should focus on slowing the shift toward a digital economy so that federal and state governments can implement legislation …