Constitutional Law Commons^™

James Baldwin And What U.S. Governments Owe Every American, Randall K. Johnson

Faculty Works

This book review looks at the life, work and impact of James Baldwin, a famous writer and civil rights activist that was born one hundred (100) years ago. It does so, for one of the first times in the field of law, by examining Baldwin’s influence on the legal system. The book review carries out its work by identifying Baldwin’s impacts upon U.S. law: before, during and after his public service career. In the process, this book review describes how governments can build on Baldwin's writings and advocacy work.

Hate Groups And The Charitable Tax Exemption, Miriam Galston

UC Law Constitutional Quarterly

No abstract provided.

The Misapplication Of Legal Standards In Fischer: Analyzing The True Intent Of 18 U.S.C. § 1512(C), Jeremiah Baltimore

University of the District of Columbia Law Review

Fischer stems from the events of Jan 6, ultimately appealed to the Supreme Court. This comment critiques the decision as flawed on both textual and policy grounds.

Anti-Abortion Law Or Illegal Human Life Support Conscription?, Jennifer Ann Drobac

UC Law Constitutional Quarterly

This Article introduces the idea that forced fetal life support in a state that bans abortion is unpaid state-conscripted human life support (“USCHLS”) by the hosts. It reviews how the Dobbs decision resulted in USCHLS, unpaid work, which violates the U.S. Constitution’s Thirteenth Amendment protection against “involuntary servitude.” Additionally, USCHLS constitutes a per se taking which violates the “Takings Clause” of the Fifth Amendment. This Article suggests sexual activity insurance might alleviate some of the problems with USCHLS, but not all of them.

To date, no U.S. federal or state government offers the G.I. bill, a state equivalent, or service …

Originalism’S Stare Decisis Problem: The Place Of Precedent In Theories Of Interpretation, Arjan S. Heir

UC Law Constitutional Quarterly

Originalism is a prevalent approach to legal interpretation, and stare decisis is a prevalent legal doctrine. Yet, the two do not happily coexist. This article explores the role that stare decisis plays in originalism and living constitutionalism, with a focus on the doctrine’s impact on each theory’s integrity in both academic and lay circles.

Originalism runs into trouble on two levels. First, it is self-defeating in theoretical terms, as it treats stare decisis as a “pragmatic exception” to an interpretive theory premised on excluding policy considerations from legal analysis. Second, it undermines judicial legitimacy by failing to provide the public …

The Waiting Is The Hardest Part: The Constitutionality Of Firearm Waiting Periods, F. Lee Francis

Dickinson Law Review (2017-Present)

This Article examines the constitutionality of firearm waiting period laws through the lens of the Supreme Court’s evolving Second Amendment jurisprudence. Although such laws are frequently defended as prudent public safety measures, their validity turns not on legislative purpose but on constitutional principle, particularly as framed in District of Columbia v. Heller and New York State Rifle & Pistol Ass’n v. Bruen.

Under those decisions, the scope of the Second Amendment is determined not by judicial balancing of contemporary interests, but by reference to the Nation’s historical tradition of firearm regulation. The Article surveys that tradition and finds no …

When Rights Require Permission: The Discriminatory History Of Licensing Laws For Firearm Possession, Bob Barr, Joseph G.S. Greenlee

Dickinson Law Review (2017-Present)

No abstract provided.

The Wrongly Read Right: Insurrection And The Second Amendment Right To Bear Arms, Aman Mcleod, Jacob M. Jones

Dickinson Law Review (2017-Present)

Several judges and scholars have interpreted the Second Amendment as creating a right to bear arms to facilitate armed resistance against the government whenever it threatens to impose tyranny. These arguments have been made in books, scholarly articles, and court decisions. Many of the proponents of the pro-armed insurrection interpretation of the Second Amendment root this point of view in the history of the right to bear arms in the Anglo-American legal tradition. This Article argues that the Second Amendment does not create a right to bear arms to resist government authority because such a right is inconsistent with several …

Familial Fairness: Guaranteeing The Right To Counsel For Indigent Parents In Juvenile Dependency Proceedings, Jake Toth

Dickinson Law Review (2017-Present)

Fairness principles enumerated in the seminal case Gideon v. Wainwright stand for the proposition that fundamental fairness and due process require appointment of counsel for indigent litigants. However, this principle has been constrained to criminal contexts. Many other types of litigation are just as impactful as a criminal proceeding, including juvenile dependency proceedings. Nevertheless, indigent parents do not enjoy an unqualified representation right.

This Comment traces the history of the representation right and how it has been treated in a juvenile dependency context, beginning with Gideon itself and examining other cases such as Eldridge and Lassiter. It then examines …

Big Business As Gun Control, David B. Kopel, George A. Mocsary, Bhav Ninder Singh

Dickinson Law Review (2017-Present)

Gun control increasingly bypasses direct legislative enactments by co-opting the commercial marketplace. Financial institutions and insurers often face regulatory pressures, frequently articulated through vague notions of “reputational risk,” to terminate or restrict services for lawful firearms businesses and advocacy groups. The debanking tactic, seen in initiatives such as Operation Choke Point, can deny essential financial products to firearm owners, merchants, and organizations, curtailing the practical exercise of constitutionally protected rights. Simultaneously, government agencies sometimes pursue warrantless data collection from bank records and merchant category codes, building profiles of lawful purchasers and eroding privacy and due-process norms.

Social media platforms compound …

Dangerous And Unusual: How Heller’S Ahistorical Assumption Violates The Founders’ Original Intent, Oliver Krawczyk, Gilbert Ambler

Dickinson Law Review (2017-Present)

When the U.S. Supreme Court ended its generational silence on the Second Amendment in District of Columbia v. Heller, the Court held that “a prohibition of an entire class of ‘arms’ that is overwhelmingly chosen by American society” is “invalid.” In so holding, the Court suggested that the Constitution protects only those weapons “in common use at the time,” a limitation thought to be “fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’” The Court defined none of these terms then, and it has not since.

Over a decade of constitutional infidelity ensued. …

Her Fundamentals: Justice Abella And Section 2(B) Of The Charter, Jamie Cameron

Articles & Book Chapters

Justice Abella’s legendary aspirations for human rights all but defined her jurisprudence, and under s,2 she earned praise elsewhere for her opinions on religious freedom (s.2(a) of the Charter) and the right to strike under s.2(d)’s guarantee of associational freedom. Apart from Doré v. Barreau de Québec, her s.2(b) jurisprudence on freedom of expression has attracted less scholarly attention. This article highlights Justice Abella’s leadership under s.2(b) in protecting expressive freedom’s democratic values, developing a more robust form of proportionality balancing under s.1, and advocating for doctrinal recognition of freedom of the press and media as an independent …

Just To Be Safe, Let’S Keep Ignoring What “Arms” Meant In 1791, Jack Thorlin

Dickinson Law Review (2017-Present)

The Supreme Court held in District of Columbia v. Heller and reaffirmed in New York State Rifle & Pistol Ass’n v. Bruen that “arms,” referred to in the Second Amendment, are common weapons useful for lawful purposes. The majority argued that militiamen fought with whatever common weapons they had on hand for civilian purposes, such as self-defense and hunting. Therefore, under Heller, only those weapons are covered by the Second Amendment. However, Heller did little to ground the “self-defense” theory of “arms” in original public meaning or even actual history. Commonality and lawful purpose have proved difficult for lower …

Unfinished Liberties, Inevitable Balancing, Sherif Girgis

Journal Articles

From the Article

In constitutional liberties cases, the Supreme Court has tried to reduce balancing, understood loosely to mean determining a right’s contours based on sweeping political-moral considerations, not just text and history. It fears that today’s balancing would displace a balance struck by the Founders. Balancing is indeed problematic—but this campaign to end it is bound to fail. Though avoidable for many constitutional rights, balancing is inevitable for general liberties like religion, the Second Amendment, and speech. This inevitability arises not from gaps in text or history but from these liberties’ special role.

General liberties are irreducibly open-ended—not reducible …

Brennan And State Constitutions, Stephen Wermiel

Scholarly Articles in Law Reviews & Journals

The former Great Gorge Playboy Resort in New Jersey seems an unlikely place to help form a jurisprudential movement toward reliance on state constitutions to protect civil rights and liberties.

One need only turn back the clock to 1976 to find the story of one of the most significant moments in the rise of state constitutions. Anyone who is steeped in this movement is likely familiar with the lead article in the January 1977 issue of the Harvard Law Review, “State Constitutions and the Protection of Individual Rights.” The author was U.S. Supreme Court Justice William J. Brennan Jr.

Lessons For The Trump Administration From The Biden U.S. National Strategy To Counter Antisemitism, Lili Levi

Articles

In May 2023, the Biden Administration issued the first-ever U.S. National Strategy to Counter Antisemitism [hereinafter National Strategy] with a goal of hindering further normalization of antisemitism by increasing public awareness of antisemitism and highlighting positive Jewish contributions to America. Recent events, however-particularly the social and political upheaval over protests of the war in Gaza-have led to public contestation over Israel, increased instances of antisemitism, and the partisan politicization of Jewish issues. Now, the Trump Administration explicitly purports to fight antisemitism by widespread attacks on universities over antisemitism on campus. Does this mean that the National Strategy has become anachronistic, …

Put Me In, Coach: Constitutional Concerns Of Judicial Activism And Legislating From The Bench, Jacob M. Elliott

Senior Honors Theses

Unrestrained judicial activism and legislating from the bench at the Supreme Court level place federalism and freedom in jeopardy. By ignoring crucial doctrines like jurisdiction, deference, and independence, the Supreme Court has demonstrated a tendency toward reinterpreting existing Constitutional precedent as they see fit, basing judgments on extra-legal influences, and supplanting Constitutional principles with their own personal policy preferences.

Numerous cases demonstrate the looming threat of judicial overreach; these cases are often considered some of the most damaging and injurious decisions in the history of the American federal judiciary. One potential solution is to appoint justices who will operate …

Democratizing Constitutional Memory, Reva B. Siegel

Michigan Law Review

The Court regularly makes claims on the past—claims that have grown in prominence since conservatives on the Roberts Court invoked “history and tradition” to overrule longstanding case law on religious free exercise, the right to bear arms, and the right to abortion in its 2021 term and to threaten other rights since. The Court claims its historically based approach constrains judges by focusing interpretation on objective and impersonal facts in the past.

Constitutional Iconoclasm, Andrew J. Lanham

Michigan Law Review

A review of The Constitutional Bind: How Americans Came to Idolize a Document That Fails Them. By Aziz Rana.

Some Realism About Originalism, William J. Novak

Michigan Law Review

A review of Memory and Authority: The Uses of History in Constitutional Interpretation. By Jack M. Balkin.

Constitutional Failure, Erwin Chemerinsky

Michigan Law Review

A review of The Constitution of the War on Drugs. By David Pozen.

Exorcising Hobbes’S Ghost: A Future For Constitutional And International Law, Monica Hakimi

Michigan Law Review

A review of Law for Leviathan: Constitutional Law, International Law, and the State. By Daryl Levinson.

Conservative Caution V. Progressive Originalism: How Justices Barrett And Jackson Are Paving Their Own Paths On The Court, David Rudenstine, Michael Waldman, Eric Freedman, Haiyun Damon-Feng, William D. Araiza, Mark Anthony Frassetto, Jake Meiseles, Michael Pollack, Linda Greenhouse, Earl M. Maltz

Cardozo Journal of Equal Rights & Social Justice

The Conservative Caution v. Progressive Originalism symposium, hosted by the Cardozo Journal of Equal Rights and Social Justice on March 7, 2025, brings together leading constitutional scholars to examine the emerging judicial philosophies of Justices Amy Coney Barrett and Ketanji Brown Jackson. Through three expert panels—presidential immunity, gun rights, and judicial ideology—the symposium analyzes how both Justices are shaping contemporary originalist discourse from opposing ends of the ideological spectrum. Panelists explore the Supreme Court’s watershed decision in Trump v. United States (2024), emphasizing its unprecedented expansion of presidential immunity and its implications for separation of powers and democratic accountability. Discussions …

Graphic Design Is (Not) My Passion: How A Hypothetical Wedding Website Upended Lgbtq+ Public Accommodations Law And Where We Go From Here, Skylar Corby

Cardozo Journal of Equal Rights & Social Justice

The note examines the implications of the Supreme Court's decision in 303 Creative LLC v. Elenis, which upheld the First Amendment protection for a website designer refusing to create designs contrary to her beliefs, thereby invalidating part of Colorado's antidiscrimination law. This ruling undermines LGBTQ+ public accommodations protections, highlighting the need for federal legislation, such as the Equality Act, to safeguard these rights and address First Amendment concerns.

Interesting Intersections Of Immigration And First Amendment Law, David L. Hudson Jr., Maximiliano Gluzman

Law Faculty Scholarship

This article examines the complex and evolving intersections between immigration law and the First Amendment, identifying four doctrinal areas in which free speech claims arise prominently. First, it analyzes historical and contemporary grounds of inadmissibility and deportability based on speech, including ideological exclusions targeting anarchists and communists, and considers the continuing influence of the plenary power doctrine. Second, it explores retaliatory deportation claims, in which noncitizens allege that removal proceedings were initiated or accelerated in response to protected political advocacy, highlighting the chilling effects such actions may impose on core political speech. Third, the article evaluates constitutional challenges to federal …

Beyond Non-Recognition: U.S.–Taiwan Trade Agreements In Indo-Pacific Dynamics, Pasha L. Hsieh

Research Collection Yong Pung How School Of Law

At the core of U.S.-China tensions and the Indo-Pacific strategy, the evolving legal frameworks that govern U.S.-Taiwan relations present legal intricacies under American and international law. The Article provides the first comprehensive analysis of the groundbreaking U.S.-Taiwan Initiative on 21st-Century Trade, the only Congress-approved trade agreement during the Biden administration. It argues that within the space of non-recognition, the United States has accorded Taiwan diverse and incremental forms of legal recognition, which culminated in the Initiative and its Implementation Act. Through an interdisciplinary lens, the Article develops a theoretical framework that bridges recognition theories under international law and international relations. …

Disabled And Disenfranchised: The Fight For Reproductive Freedom And Democracy Post-Dobbs, Robyn M. Powell

Cardozo Law Review

The Supreme Court has thrust abortion onto ballots nationwide, transforming fundamental rights into political battlegrounds. In the aftermath of Dobbs v. Jackson Women's Health Organization, people with disabilities face a perfect storm of eroded reproductive freedoms and persistent barriers to democratic participation. This Article exposes the hollow promise of the Court's purported deference to "the people's elected representatives," revealing instead a landscape where those most affected by abortion restrictions struggle to have their voices heard. The Court's invocation of democracy is arguably disingenuous, serving more as a rhetorical device than agenuine commitment to democratic principles. Nevertheless, engaging with this …

Property And Prejudice, Fatma E. Marouf, Vanessa Casado Pérez

Faculty Scholarship

“Alien land laws”—laws restricting noncitizens from owning real property—are back. A dozen states have enacted such laws during the past year, and over thirty states have considered such bills. These new bills are rooted in xenophobia, much like their predecessors, but they also have unique characteristics. They single out governments, citizens, and corporations of specific countries perceived to pose a threat; they impose ownership restrictions based on arbitrary distances to U.S. military bases and critical infrastructure; they inflict particularly harsh penalties; and they try to ferret out foreign control in complex corporate structures. The purported justifications are national defense, food …

U.S. Territories And The Criminal Law Curriculum, Emmanuel H. Arnaud

Articles

No abstract provided.

Springboard To Article V (Or Electoral Democracy And The End Of Constitutional Amendment In The Nation And States), Wilfred U. Codrington Iii

Articles

Drafted in exceedingly sparing terms and notoriously difficult to amend, the U S. Constitution is falling short in one of the most important functions of a government charter: establishing and maintaining a fair and just electoral framework-marked by rules that promote the values of equality, participation, competition, and transparency in elections. That is, the Constitution increasingly fails to preserve electoral democracy even as the nation's systems for voting and elections are plagued by a cascade of problems. State constitutions, though not uniform, are uniformly easier to amend than the national charter and tend to be better stewards of electoral democracy. …