Constitutional Law Commons^™

The Supreme Court And The Constitution, Tom Rozinski

Open Touro Created

2026

The Supreme Court and the Constitution is a casebook for undergraduate students who want to earn about the Constitutional structure of the US government. Since the Supreme Court is responsible for interpreting the Constitution, the book begins with a history of the Court before examining the processes and methods it uses to decide cases. There is also a unit on the development of judicial review and the limitations on the scope of the Court’s actions. One major unit examines the powers of the president in both foreign and domestic affairs, and includes a section on presidential immunities. Another major …

Mapping Minority Investigative Powers In Congress, David Rapallo

Georgetown Law Faculty Publications and Other Works

“Shut down the Senate . . .” “Roll over and play dead . . .” In the first hundred days of President Donald Trump’s second term, these were the rallying cries of two far ends of a debate among Democrats about how to respond to the administration’s unprecedented actions. This debate, which rages on today, has been marked by a lack of specificity about the various oversight tools available to members of the minority party in Congress, particularly when they investigate whether the Executive Branch is faithfully executing the laws Congress passes. Scholarship too has focused little on the full …

Making The Party Presentation Principle Safe For Originalism, Randy E. Barnett, Lawrence B. Solum

Faculty Scholarship

The Supreme Court sometimes adheres to what it calls the “party presentation principle”—terminology that dates back to 2008. Although judicial articulations of the principle have been inconsistent and imprecise, the gist is the familiar notion that courts should resolve cases on the basis of the issues and reasons presented by the parties to the dispute. Conversely, questions not properly raised by the parties should be avoided by the Court. Thus, the Court has on several occasions declined to address arguments outside the scope of the questions raised by the parties in their petition for certiorari.

For originalists, the importance of …

Powers V. Dist. Ct., 142 Nev. Adv. Op. 35 (May 14, 2026), Luis Dorantes

Nevada Supreme Court Summaries

NRS 629.620 is unconstitutional and of no effect to the extent that it conflicts with NRCP 35 in governing court-ordered mental and physical examinations during civil discovery.

"For Their Effectual Exclusion": Oregon, Racial Exclusion, And Citizenship In The Mid-Nineteenth Century, Riley M. Littleton

Honors Theses

In light of Oregon’s admission to the Union as the only state to receive congressional approval with a racial exclusion clause in its constitution, this project seeks to examine the constitutional and cultural thought that ultimately led to the stamp of approval on the thirty-third state. In the past, Missouri had attempted a similar maneuver, seeking to bar free Black Americans from entry; Congress had not allowed it, believing that the provision violated the U.S. Constitution’s Privileges and Immunities Clause. This project investigates what changed congressional opinion between Missouri and Oregon’s respective times.

In researching contemporary literature to understand local …

First Amendment Forum Classification: Special Use Permits, Limited Public Forums, And The “Heckler’S Veto”, Elizabeth Price Foley

University of Miami Law Review

Pride Month is an important event in many communities because it celebrates and enhances the visibility of the LGBTQ+ community. Pridefest events occurring during Pride Month are well-attended but often mired by threats of violence. Such threats are often targeted at Pridefest drag shows, which exhibit gender-bending performances by drag queens and drag kings of one biological sex, who wear extravagant costumes that exaggerate gender stereotypes of the opposite biological sex. In Naples Pride, Inc. v. City of Naples, the Eleventh Circuit addressed whether a government may impose conditions on such drag shows when threats have been levied against …

50 Years Of Constitutional Judicial Review In The United Arab Emirates: Key Features, Nisrine Abiad

Proche-Orient, Études juridiques

On the 50th anniversary of the enshrinement of judicial review within the UAE Constitution, this paper explores its main features. The analysis of the constitutional provisions and the jurisprudence of the Federal Supreme Court reveals that constitutional judicial review in the UAE is intrinsically rooted in federalism as it is mainly designed as a tool preserving the adjudication of powers between federal and local authorities. It is nevertheless also destined by the Constitution for a wider purpose of constitutional justice endorsing the individuals and the courts as key players in its process.

The Original Meaning And Understanding Of The Investigative Power Of The Grand Jury In The Constitution Of Alaska, Savannah Shoffner, Richard W. Garnett

Journal Articles

The investigatory, or reporting, power of grand juries refers to the body’s ability to issue statements on wide-ranging matters of public policy, generally aimed at exposing “inefficiency, neglect, or criminal or quasi-criminal conduct” by government officials. Grand jurors may propose an investigation themselves or respond to a request from a citizen. The reports produced by these investigations need not be tied to a specific indictment to be released.

Text, history, and tradition reveal that the grand jury has been understood as an intermediary between the government and the people, empowered to make public statements on the people’s behalf and entrusted …

Freedom Of Expression And The Right To Protection Against Defamation: Cf. Handling Of The Libel Of The Criminal Law And The Libel Of The Civil Law, Masumi Shizawa

Japanese Society and Culture

This study reviews natures of the Constitution, Civil Code, and Criminal Code of Japan in terms of the right to protection against defamation, and explores the foundations thereof. The point of it is to clarify the nature of the right to protection against defamation as indicated in the Constitution. 　The right to protection against defamation, along with the right to privacy, has long been recognized as a personal right. While the right to privacy relates to the private domain, the right to protection against defamation relates to one’s social reputation. The Constitution of Japan does not clearly stipulate the right …

Protecting Journalism From National Security In Contemporary India, Manish .

National Law School of India Review

Freedom of the press is an important element of a robust democracy. In India, press freedom lacks statutory protection, leaving constitutional protection under Article 19(1)(a) as the only remedy. In recent years, the use of anti-terror laws against journalists investigating alleged lapses or excesses by the state has posed a particular threat to press freedom, given the largely minimalist and statist interpretation that the Supreme Court of India has given to these laws. This has been compounded by the election and re-election of an autocratic populist government to Parliament, which has sought to use law as a means of ensuring …

The Untold Story Of 150 Years Of Women In State Judiciaries, Elizabeth D. Katz

UF Law Faculty Publications

A focus on the U.S. Constitution and federal judges has obscured a longer and more complex history of women serving on state benches — and how state constitutions mattered in their rise.

Federalism, Treaty Norms, And The U.N. Report On American Education, Jorge Barrera-Rojas

Notre Dame Journal of International & Comparative Law

United Nations Special Rapporteurs assess national compliance with international human rights obligations, including educational rights articulated in treaties such as the International Covenant on Economic, Social, and Cultural Rights ("ICESCR"). These evaluations typically involve treaty-bound states with explicit international commitments. However, the applicability of such assessments is less straightforward in non-ratifying federal states, such as the US, which rely on diverse state-level constitutional provisions rather than federal treaty obligations.

This Article critically examines the 2025 Report of the Special Rapporteur on the Right to Education, following the Rapporteur's first official visit specifically addressing U.S. K-12 education policy. The analysis identifies …

The Evidence Machine: Rethinking Admissibility And Privacy In India's Ai Surveillance State, Samyukta Ramaswamy

Indian Journal of Law and Technology

The proliferation of artificial intelligence (‘AI’) surveillance technologies that utilise machine learning (‘ML’) capabilities to gather and process information to derive insights about individuals has transformed the surveillance landscape by enabling governments and private entities to engage in increasingly pervasive monitoring and data-driven profiling. In India, this transformation is compounded by the presence of executive-controlled surveillance mechanisms under the legal framework of the Telecommunications Act 2023, the Telecommunications (Procedures and Safeguards for Lawful Interception of Messages) Rules 2024, and the Digital Personal Data Protection Act 2023, amongst others, which authorises wide-ranging data interception and dragnet surveillance while exempting government agencies …

Public Rights, Democracy, And The Separation Of Powers, James L. Huffman

Marquette Law Review

This Article examines the concept of public rights in the contexts of democratic governance and the constitutional separation of powers. While the concept of public rights has a long history in Anglo-American law, over the last several decades, the term is often employed with only vague reference to its historic meanings and with little or no definition. With reliance on the centrality of the concept of rights in American constitutional government, it is commonly claimed that public rights, like private rights, can be enforced in the courts as constraints on legislative and executive actions.

In American caselaw public rights have …

Reclaiming The Constitution: "For There Is Always Light, If Only We're Brave Enough To See It", Palma Joy Strand, Gregory J. O'Meara S.J.

Marquette Law Review

As citizens—and as lawyers—we are schooled to view the U.S. Constitution as what—indeed—“constitutes” us as a nation and as a people. As lawyers— and as citizens—we are also schooled to understand that the Constitution is law and that its meaning is to be ascertained through the process of law and by lawyers and judges. This Article builds on a popular constitutionalism frame to describe the profound limitations of restricting constitutional meaning-making to a legal enterprise performed primarily by judges—especially in regard to positive rights written into the Constitution but under-protected in constitutional law. In addition, litigation’s either–or mindset has come …

The First Amendment Right To Privacy, Alex Chemerinsky

Marquette Law Review

The First Amendment is often considered to be in tension with privacy. This

Article is about the contexts in which it is not.

Although freedom of speech can pose challenges for privacy governance,

privacy is a core First Amendment value. Many important First Amendment decisions were motivated more by intuitions about privacy than any other interest. For each primary First Amendment liberty—the rights to speak, listen, associate, and practice religion—the Supreme Court has recognized not only a

substantive liberty but also the right to exercise it privately.

But although expressive privacy is an important First Amendment value, it

remains underrecognized, …

Originalism As Disruption, Susan D. Carle

Scholarly Articles in Law Reviews & Journals

This Article challenges the conventional understanding of originalism as a method that promotes unchanging constitutional meanings. Drawing on four and a half decades of experience since Attorney General Edwin Meese first championed originalism as a conservative project, this Article demonstrates that originalism has generally proven destabilizing rather than stabilizing to constitutional law. Landmark cases such as New York State Rifle & Pistol Association v. Bruen, Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, and Shelby County v. Holder show that the Supreme Court frequently deploys originalism when it seeks to upend settled constitutional doctrine, contradicting claims …

Foreword: The Constitution And Public Finance—Why Now And Why Ever?, Conor Clarke, Eric Kubo

Scholarship@WashULaw

This paper introduces the Washington University Law Review’s 2026 symposium issue on “Taxing, Spending, and the Constitution.” We situate the symposium’s ten papers within three interconnected developments in public finance law: the Supreme Court’s recent decision on the Sixteenth Amendment in Moore v. United States; the Trump Administration’s assertions of executive control over appropriated funds; and the use of emergency and trade statutes to justify sweeping tariff authority.

We also step back to ask why constitutional issues in public finance—long treated as a technical backwater—have become such a central site of doctrinal and political conflict. We offer several explanations beyond …

A Rendezvous With Destiny: The President's Ftc Removals And The Rule Of Law, George Sakkopoulos

Cleveland State Law Review

In March 2025, the President removed two commissioners of the Federal Trade Commission (“FTC”). The removed commissioners called the removals unlawful and challenged them in court, citing the FTC Act’s for-cause removal protection and the Supreme Court’s decision in Humphrey’s. After President Roosevelt removed an FTC commissioner, the Supreme Court in Humphrey’s in 1935 upheld the constitutionality of the FTC Act’s removal limitation based on the FTC being expert, nonpartisan/independent, quasi-judicial, and quasi-legislative. The Court in Seila in 2020 held that the President has “unrestricted removal power” as to the executive branch unless the Humphrey’s exception for “multimember expert …

Citizen Led Initiatives - Constitutional Amendments & Statutes, Priya Baskaran

Research Reports & White Papers

50-state survey of provisions for amending state constitutions.

Rights In The Eyes Of The Beholder: The Lived Hierarchy Of Rights In India's Democracy, Sehar Abdullah, Keerthana Satheesh, Prashant Narang

Socio-Legal Review

This paper examines how citizens in India perceive and prioritise fundamental rights, with particular attention to the six freedoms under Article 19(1) and the property right. While the freedoms of Article 19(1) remain central to democratic citizenship, the Forty-Fourth Constitutional Amendment of 1978 reclassified the right to property as a constitutional right under Article 300A. This shift prompts an important question: Does the diminished constitutional rank of property correspond to its place in popular hierarchies of rights? Our in-depth interviews with 26 respondents, whose livelihoods make them especially sensitive to changes in both categories of rights, reveal that citizens continue …

Doubting Thomas And Questioning Stare Decisis Under The Roberts Court, Wilfred U. Codrington Iii

St. John's Law Review

(Excerpt)

“[S]tare decisis is ‘not an inexorable command.’ ” Frankly, every time I read these words in a judicial opinion of late, I shudder. And, in fact, it seems like I am reading these words— and shuddering—with increasing regularity.

First off, of course it is not. At times, the Supreme Court has sanctioned manifest injustices in the law. The prime example is the Court’s 1896 decision in Plessy v. Ferguson, which sustained racial segregation under the Fourteenth Amendment. With the blessing of the judiciary, this interpretation of the Reconstruction Constitution supported a regime of racial segregation until, more than …

Keynote Address: Community Over Constitution, Riddhi Mukhopadhyay

Seattle University Law Review

In this keynote address, Riddhi Mukhopadhyay challenges the veneration of the U.S. Constitution by highlighting its origins in exclusion and its continued failure to protect marginalized communities. Drawing from her experience in civil legal aid and gender justice, she argues that the Constitution was drafted to consolidate power among white, wealthy men and continues to reflect that legacy through racial, gender, and class-based inequities. While acknowledging the significance of constitutional amendments and landmark cases, Mukhopadhyay emphasizes that meaningful change has always come from community-led action, not top-down reform. Additionally, Mukhopadhyay calls on lawyers and legal advocates to center community, practice …

Constitutional Futurism As Pedagogy, Jeremiah Chin

Seattle University Law Review

Constitutional Law has transformed from a course on history to a discussion of current events. Cases like Students for Fair Admissions v. Harvard College, Dobbs v. Jackson Women’s Health Organization, and Loper Bright Enterprises v. Raimondo reveal that the study of constitutional law is not a static, or even linear, discussion of constitutional text and history. Law is a shifting, changing enterprise that reflects social constructions of power, authority, and identity. How do we teach, learn, and understand constitutional law that is so laden with history, riddled with theories of consistency and adherence to precedent, but ultimately subject …

What Are “Wartime Authorities” And When Can The President Use Them? An Expert Q&A, Tess Bridgeman, Rebecca Ingber, Scott Roehm

Online Publications

The first several months of President Donald Trump’s second administration have been marred by the chaotic and often unlawful use, or threatened use, of wartime and terrorism-related authorities for what are essentially domestic immigration or criminal law enforcement purposes. This is not the first time a president has sought to push the boundaries of his wartime powers, or outright claimed those he did not have, but it may well be the most extreme. Indeed, Trump’s reliance on wartime authorities in contexts entirely divorced from armed conflict, or even the threat of force against the United States, puts the country on …

Maine's Coastal Conveyance Of Oil Act: Jurisdictional Consideration, Maine Law Review

Maine Law Review

Maine's Coastal Conveyance of Oil Act is the most comprehensive oil discharge control law in the United States. Such broad regulatory legislation inevitably raises questions of constitutionality and, as expected, the oil industry has brought a challenge to the Maine statute. In American Oil Co. et al. v. Environmental Improvement Commission, a declaratory judgment action, the Maine act has been alleged to violate the commerce, due process, equal protection and admiralty clauses of the United States Constitution. Although each allegation of constitutional conflict raises substantial problems, the most troublesome attack is that based upon the admiralty clause. Here the basic …

Examining The Brazilian Supreme Federal Court’S Expanded Powers In The Bolsonaro Era: A Win For Democracy Or A Turn Toward Autocracy?, Théo G. De Sá-Kaye

University of Miami Inter-American Law Review

As Jair Bolsonaro rose to popularity and was elected the 38th president of Brazil in 2018, the global community grew concerned over his very public disdain for the country’s democratic institutions and admiration for Brazil’s 22-year-long military dictatorship. The Bolsonaro administration was marked by repeated attacks on the judiciary, a heavily criticized response to the COVID-19 pandemic, and, eventually, the storming of Congress and the Brazilian Supreme Court by Bolsonaro’s supporters– mirroring the January 6th insurrection in the U.S. However, the most significant aspect of the Bolsonaro presidency may not lie solely in his actions, but in the response from …

Prenatal Personhood, State Duties, And Congress’S Abortion Power Under The Fourteenth Amendment, David R. Upham

Catholic University Law Review

Many antiabortion jurists have contended that by its original meaning, the Fourteenth Amendment not only (1) recognizes the personhood of prenatal human beings, but also (2) requires states to have and enforce the antiabortion laws necessary to the equal protection of these prenatal persons, and even (3) empowers Congress to pass remedial antiabortion laws where the state fail to protect such persons.

In this essay, I will contend that the Amendment does indeed recognize the personhood of prenatal human beings, but largely leaves with the states the authority to determine the scope of the protection to be afforded such persons. …

Maine's Reception Of The Common Law, Maine Law Review

Maine Law Review

From the fledgling days of statehood, and throughout the nineteenth century, attorneys and judges frequently invoked the constitutional reception clause in defining Maine law. The clause served the valuable purpose of providing the new state with a transitional system of law. In the words of Prentiss Mellen, first Chief Justice of Maine's Supreme Judicial Court, reception "was evidently designed to prevent confusion consequent upon a suspension of law, and the injury which would thereby result to the community and individuals." After the nineteenth century, as Maine developed an indigenous body of decisional and statutory law, the reception provision increasingly fell …

Developments In The News Media Privilege: The Qualified Constitutional Approach Becoming Common Law, Lawerence J. Mullen

Maine Law Review

In late 1977 and early 1978, the Boston Globe published a series of articles about a Delaware corporation engaged in building fiberglass boats in New Hampshire. The articles reported a number of allegedly serious defects in the boats, some of which may have contributed to sinkings. Critical comments of boat owners, surveyors, Coast Guard officers, company employees and a repairman were included. The builder was given an opportunity to respond in part of one article. Provoked by this quotidien instance of investigative journalism, the boat builder brought a libel action against the Globe in federal district court. The boat builder's …