Constitutional Law Commons^™

Incarceration Reimagined: A Diversionary Option For Serious Felony Offenders, Jane Mitchell

Kentucky Law Journal

No abstract provided.

Military Service Academies: The Final Battleground For Affirmative Action, Krista Trefen

American University Law Review

The future of affirmative action in the United States military service academies faces critical uncertainty following the Supreme Court's decision in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, which ended race-conscious admissions practices in higher education. Although the Court explicitly excluded the service academies from its holding, reserving space for race-conscious practices tied to national security-the Naval Academy, Military Academy, and Air Force Academy have recently indicated they will discontinue the use of affirmative action in response to changes in Department of Defense policy.

This Comment examines the historical and statutory foundations of the military …

Beyond The Editorial Analogy: First Amendment Protections For Platform Content Moderation After Moddy V. Netchoice, Alan Rozenshtein, Kyle T. Langvardt

Articles

This Article examines the Supreme Court’s 2024 decision in Moody v. NetChoice and its implications for social media platform regulation. In Moody, which addressed state laws requiring platforms to host certain content, the Court issued a complex set of opinions that left the scope of platforms’ First Amendment rights uncertain. On the procedural question of how such laws may be challenged, the Court provided a clear holding: it rejected facial challenges to broad content-moderation laws, instead requiring case-by-case analysis of how specific regulations affect different platform features—a shift that undermines the tech industry’s longstanding litigation strategy. But on the …

Phyllis Schlafly And How Forgetting Women's Struggles For Equality Perpetuates Inequality, Jill Elaine Hasday

Articles

In a nation whose Constitution purports to speak for “We the People,” too many of the stories that powerful Americans tell about law and society include only We the Men. A long line of judges, politicians, and other influential voices have ignored women’s struggles for equality or distorted them beyond recognition by wildly exaggerating American progress. Even as sexism continues to warp constitutional law, political decisionmaking, and everyday life, prominent Americans have spent more than a century proclaiming that the United States has already left sex discrimination behind.

This symposium essay draws on my book, We the Men, to …

Free Speech And Incorporation: A Reassessment, Ilan Wurman

Articles

Many of the Supreme Court’s most controversial free speech decisions involve state laws. In Gitlow v. New York, the Court assumed that the First Amendment’s guarantee of freedom of speech applied directly against the states via the Fourteenth Amendment, a doctrine today referred to as incorporation. Yet there is reason to doubt incorporation is correct as a matter of the original meaning of the Fourteenth Amendment. Indeed, much of the historical evidence involves debates over the freedom of speech, but none of the historical actors seemed to think the First Amendment applied against the states. This short essay evaluates the …

The Right To Truth, Maureen Edobor

Scholarly Articles

This Article argues that today’s anti-CRT statutes, book bans, and “divisive concepts” laws are not isolated culture-war skirmishes but the latest chapter in a long campaign—dating back to the Lost Cause and the United Daughters of the Confederacy—to legislate white innocence as national identity. By sanitizing slavery, suppressing discussions of systemic racism, and threatening educators with punitive ambiguity, these laws flatten historical truth and convert classrooms into zones of anticipatory obedience. The result is a state-engineered amnesia that undermines the core First and Fourteenth Amendment protections the Supreme Court has recognized for more than a century, from Meyer and Barnette …

The Ivf Exception: Strengthening Free Exercise Challenges To Abortion Bans, Io Jones

UC Law Constitutional Quarterly

The fallout of the Dobbs v. Jackson Women’s Health Organization decision has included two seemingly distinct but critically related dynamics. First, religiously motivated plaintiffs are filing lawsuits challenging abortion bans on free exercise grounds. These lawsuits argue, in accordance with current free exercise doctrine, that a state’s compelling interest in protecting “fetal life” is undermined by secular exceptions to abortion bans. Second, state lawmakers have been forced to confirm that their state abortion bans do not apply to in vitro fertilization (IVF), a fertility treatment that regularly requires the discarding of embryos. This confluence of factors raises a critical question …

Our Partisan Supreme Court And An Essential First Step Toward Reclaiming What's Been Lost, Gary Simson

Articles

Partisan decision-making by even only one Supreme Court Justice in a single case is not a trivial matter. The ill effects are greatly compounded when five or more Justices of a similar partisan bent regularly deliberate about, and decide, cases in a partisan way. At that point, we’ve got what can fairly be described as a partisan Supreme Court.

I argue in this Article that, to all of our great misfortune, a partisan Supreme Court is very much what we’ve got today. On a more hopeful note, though, I also argue that although reforming the Court to be a much …

The American Oligarchy, Match Dawson

Faculty Articles

What was designed as a constitutional republic, bound by self-rule and democratic accountability, has become an oligarchy camouflaged by the illusion of public sovereignty. The corporate architects of this new world order did not seize power through conquest or force: they legislated, litigated, and purchased it into existence. Oligarchic rule is more than a simple political crisis. It is a democratic one. Just as prior generations have been called upon to preserve the republic against threats to liberty, we now face our own defining challenge and must decide whether to accept a government auctioned to the highest bidder or reclaim …

Understanding Free Speech Values At The Supreme Court, Noah C. Chauvin

Faculty Articles

This essay is a book review of The Supreme Court and the Philosopher: How John Stuart Mill Shaped US Free Speech Protections, by Professors Eric Kasper and Troy Kozma. The book argues that John Stuart Mill had an indelible impact on the Supreme Court's free speech jurisprudence, and that through the power of precedent, we have come to have a "Millian "First Amendment. As I explain in the review, Kasper and Kozma have made a compelling case. However, because Mill offered an expansive defense of freedom of expression, it is not enough to say that the Court's free speech jurisprudence …

Finding Method To Madness: The Indian Supreme Court's Dignity Jurisprudence, Aishani Gupta

National Law School of India Review

This article critically examines the Indian Supreme Court’s use of the concept of dignity in constitutional adjudication. Though the Indian Constitution references dignity only thrice, its substantive development has occurred mainly through case law. Using recent literature on dignity as well as case law between 1978 and 2023 this article categorises three main uses of dignity: (i) the constitutional status of dignity; (ii) the expansion of dignity; (iii) homage to dignity. The paper argues that while dignity is necessarily multifaceted, its application should be consistent across similar fact patterns to ensure consistency. To support this, the author analyzes nine Supreme …

Evolution Of Privacy Jurisprudence In The Supreme Court Of India: Evaluating The Impact Of Puttaswamy, Vrinda Bhandari, Rishab Bailey

National Law School of India Review

This paper studies the Supreme Court’s landmark privacy judgment in K.S. Puttaswamy v. Union of India and, through an empirical analysis of 53 judgments, analyses the record of the Supreme Court in applying, rather than simply citing, the judgment in decisions from 2017 to early 2023. Puttaswamy is widely seen as a transformative decision, as it recognised privacy as a fundamental right and tied it to dignity, autonomy, bodily integrity, consent, and choice. Yet it did not arise from a lis involving a concrete factual dispute over the application of privacy rights. The Court was therefore not dealing with a …

The Social Life Of Free Speech: Who Gets To Speak And Express?, Anurag Bhaskar

National Law School of India Review

The interdisciplinary scholarship on free speech, though developed outside the Indian context, underscores the necessity of re-examining free speech not just as an individual right against the State, but as a socially embedded phenomenon, conditioned by historical inequalities and prevailing systems of power. Building on this framework, this article advances an anti-caste perspective on freedom of speech and expression under Article 19(1)(a) of the Indian Constitution. It examines the contours of free speech in a heterogeneous and hierarchically structured society, interrogating how caste hierarchies have shaped the boundaries of acceptable speech, and determining whose speech is heard and whose is …

‘What Can A Comma Do?’: Re-Examining Victorian Criminalisation Of Obscenity Through The Flawed Interlinking Of ‘Decency Or Morality’ Under The Strain Of Modern Liberal Consciousness, Ratika Gaur

National Law School of India Review

This paper argues that the rhetorical nature of India’s post-independence obscenity jurisprudence stems from the interlinking of two distinct (behavioural v. normative) categories into the singular provision of ‘decency or morality’ under Article 19(2). This interlinking emerged amidst the socio-economic and cultural upheavals in Victorian England, wherein moral anxieties around the ‘visibility’ of obscenity reflected a crisis of political obligation within the modern liberal consciousness. Operating through the logic of deterrence, this consciousness criminalized obscenity due to its ideationally incapacity to accommodate liminal expressions—acts that were neither neatly civil, nor outright criminal, even when offensive. In this regard, one substantive …

Note By The Guest Editor, Siddharth Narrain

National Law School of India Review

Note by the Guest Editor.

Reevaluating Felon-In-Possession Laws After Bruen And The War On Drugs, Laura Ginsberg Abelson

Faculty Journal Articles and Book Chapters

The legal landscape surrounding firearm possession is evolving rapidly. In 2022, the Supreme Court accelerated its expansion of the individual right to bear arms under the Second Amendment in New York Rifle & Pistol Ass’n v. Bruen. Since Bruen, courts around the country have struck down nearly all types of firearm regulations, with a notable exception: felon-in-possession laws. This Article examines the implications of a legal landscape where those who have prior felony convictions, and especially prior drug convictions, are punished harshly for the same behavior—possession of a firearm—that is constitutionally protected for nearly everyone else. I argue …

Can Sports Leagues "Veto" Certain Online Sports Betting Wagers?, Jacob Comello

Catholic University Journal of Law and Technology

This comment will argue, in light of three Horseracing Integrity and Safety Act (HISA)-related Circuit Court cases and new guidance from the Supreme Court on the private nondelegation doctrine, that HISA provides a workable framework to resolve whether sports leagues can engage in rulemaking to prevent certain kinds of bets from taking place. Specifically, the Supreme Court and the Fifth, Sixth, and Eighth Circuits appear to have reached a large amount of common ground regarding the structure of the private nondelegation doctrine, and the Circuit Courts have found that much of HISA fits well within that structure. In light of …

At The Hart Of Immigration Reform: How Dhs’S New Biometric Database Will Infringe On The Privacy Rights Of U.S. Citizens, Permanent Residents, And Foreign Nationals, Calypso Moschochoritis

Catholic University Journal of Law and Technology

Immigration is a regular feature of American life; President Obama once described the U.S. as “a nation of immigrants.” Even as the host of more immigrants than any other nation, the American public has historically found immigration contentious. Since Congress has failed to agree on comprehensive immigration reform, this responsibility has moved to the executive and judicial branches of government. In 2016, the Department of Homeland Security (DHS) began working on the Homeland Advanced Recognition Technology (HART) Program, a new biometric information management system, to replace IDENT (Automated Biometric Identification System), DHS’s current biometrics database. HART will join other initiatives …

Is Originalism Bullshit?, Michael L. Smith

Faculty Articles

It’s finally time to answer the big question. This Article draws on the surprisingly robust literature examining the definition, essence, and significance of bullshit and evaluates whether originalist constitutional interpretation fits the bill. I begin with Harry Frankfurt’s definition of bullshit as utterances made in pursuit of the speaker’s goals without regard for their truth value. I also rely on alternate formulations, including bullshit as unclarifiable nonsense as well as contextual and audience-centric variations of bullshit.

While not all instances of originalism are bullshit, I identify those instances which are, and go on to demonstrate that originalism is uniquely prone …

Judicial Economy In The Age Of Ai, Yonathan A. Arbel

Articles

Individuals do not vindicate the majority of their legal claims because of access to justice barriers. This entrenched state of affairs is now facing a disruption. Lawyers and non-lawyers alike are adopting artificial intelligence (AI) tools to perform legal tasks tools that sharply reduce the costs of generating legal materials. There is finally hope that AI might allow many more to access justice.

Paradoxically, what we gain in access to justice we might lose in the delivery of justice. The problem is not that AI tools are ineffective. Indeed, they are even more effective than most realize affecting every stage …

Common Law Executive Privilege(S), Jonathan Shaub

Law Faculty Scholarly Articles

There are few Supreme Court cases that enjoy as much widespread support as the unanimous decision in United States v. Nixon. The recent pitched battles between Congress and the executive branch have made apparent the vast disagreement between the two branches over access to information. But that disagreement does not extend to Nixon, the unquestioned jurisprudential foundation for the doctrine of executive privilege. Closer inspection shows, however, that this foundation is not a stable one, but one constructed from unnecessary, ill-considered dicta.

As this Article demonstrates, Nixon conflated the constitutional question about one branch’s power vis-à-vis another branch with an …

Does The 25th Amendment Merit Reform?: The Challenge Of Determining Presidential Disability, Karena R. Andreassen

Honors Theses

This research project examines the persistent lack of use of the 25th Amendment to the United States Constitution in its original form, despite many calls for the reform of the language or expansion of its application as situations unfold. Adopted in 1967, the amendment was created to address the challenges of presidential succession and incapacity. However, historical events over the last few decades, such as the assassination attempt on Ronald Reagan, Reagan’s colon cancer, and the general increase in the age at which presidents assume office, have contributed to scrutiny over the amendments’ provisions. This study will explore why specifically …

A Constitutional View Of Administrative Agencies, Anthony J. Diego

Honors Undergraduate Theses

This research focuses on a nuanced area of American law and history: the constitutionality of administrative agencies. Determining their constitutionality requires a sound and fundamental understanding of administrative agencies’ history and purpose, as well as applicable constitutional principles. Reliance on core legal and historical documents founding the United States, as well as existing literature analyzing them, is essential to this determination. Administrative agencies have existed within the United States government since the Founding, though not without scrutiny and exception to government operations. Recently, Supreme Court precedent dramatically changed agency operative functions, making it now an opportune time to analyze the …

An Analysis Of Florida's Dual Enrollment Laws: How Florida's Model Is Uniquely Protected By The Fourteenth Amendment, William H. Hamman

Honors Undergraduate Theses

Florida’s dual enrollment program is an offering within the state’s basic education package, allowing secondary students to participate in postsecondary courses while simultaneously earning secondary and postsecondary credit. In Florida, around 80,000 students participate annually, and 1.5 million students are within the grade range eligible for participation in the program. This thesis analyzes how the program, and subsequently eligible students, are granted constitutional protections under the Fourteenth Amendment. The author conducted this research to highlight the expansive nature of constitutional law and demonstrate how Florida’s model is unique among state-mandated dual/concurrent enrollment programs. To conduct the necessary research, the author …

The Utmost Rights And Interests Of The Indians: Tribal Law Interpretations Of The Indian Civil Rights Act, Kekek Jason Stark

Faculty Law Review Articles

It has been more than fifty years since Congress enacted the Indian Civil Right Act (hereinafter “ICRA”) and more than forty years since the United States Supreme Court in Martinez articulated that the tribal courts are the proper forum for the adjudication of ICRA claims. In the decades since, tribal courts have developed a rich body of intertribal common law pertaining to the implementation of the ICRA. This comes after over a century of assimilative policies in which the federal government attempted to eradicate native culture and traditions and subjected Indians to the deprivation of individual rights by federal and …

Electing The Supreme Court, Dmitry Bam

Faculty Publications

There is a curious irony in how we select United States Supreme Court justices. According to basic constitutional theory, as well as the arguments made by many leading Framers at the time of the Founding, one of the Court’s primary roles is to serve as a check on the executive and legislative branches when they exceed the constitutional limits imposed by the American people. Yet, we ask those very branches to jointly select the justices responsible for enforcing these limits, leaving the American people with only an indirect (if any) role in the process. Not surprisingly, the justices nominated by …

303 Creative, Exclusive Private Enforcement, And Blue-State Revenge, Howard M. Wasserman, Charles W. “Rocky” Rhodes

Journal of Legislation

Red states have made exclusive private enforcement schemes targeting locally unpopular but constitutionally protected conduct a cornerstone of culture-war legal strategy. Laws such the Texas Heartbeat Act (“S.B. 8”) in 2021 and anti-“WOKE” laws forego public enforcement in favor of private enforcement; this forces targeted federal rights-holders to vindicate their rights by raising the law’s constitutional invalidity as a defense to liability rather than through pre-enforcement offensive litigation against the government or government officials responsible for enforcing the law. This threatens rights-holders with a wave of costly and burdensome litigation and liability.

Blue states and liberal scholars and advocates have …

Green Dividends: A Case Study In Green Dividends And The Conditions For Private Ordering Solutions, Anne M. Tucker

Seattle University Law Review

This Essay introduces a novel private ordering solution to facilitate corporate investments in pro-social and environmental initiatives: Green dividends. Green dividends are an optional increase in shareholder dividends that are returned to the company to be reinvested in environmental initiatives or kept by a shareholder.

Green dividends pose an alternative to the current gridlocked debate that corporations can’t, won’t, shouldn’t, and shouldn’t even try to act in pro-social or environmental ways. Turning the common refrains on their head converts each narrative into an element for a successful private ordering solution: authority, accountability, shareholder buy-in, and government- backed enforcement. With Green …

Does Climate Disclosure Work To Reduce Greenhouse Gas Emissions? Emerging Evidence Suggests Cautious Optimism, Cynthia A. Williams

Seattle University Law Review

Significant regulatory resources have been spent developing global, voluntary climate and sustainability disclosure standards, such as the TCFD, TNRD, and ISSB’s Sustainability and Climate Disclosure standards, or domestically required disclosures, such as in the EU and in the U.S. Thus, it is important to evaluate whether this disclosure, particularly voluntary, qualitative disclosure, will have the power to shift the allocation of capital, will have a significant effect on the management of climate risk within firms, and ultimately will reduce climate change risk and biodiversity loss.

In this Article, several interrelated questions will be discussed. First, what does the empirical evidence …

The Warrant Exception That Isn't Fisa Section 702, "Defensive" Searches, And The Fourth Amendment, Noah C. Chauvin

American University Law Review

Section 702 of the Foreign Intelligence Surveillance Act allows the government to conduct warrantless electronic surveillance of non-Americans who are located overseas. Although the surveillance targets foreigners, Americans’ communications are “incidentally” collected, too. Once the government has acquired Americans’ communications, court-approved rules allow it to conduct warrantless searches for and through them in its Section 702 databases. Intelligence agencies have used these rules to turn this foreign intelligence program into a domestic spying tool, conducting tens of thousands of warrantless “backdoor” searches for Americans’ private communications obtained under Section 702 every year.

Section 702 periodically sunsets; Congress most recently reauthorized …