Constitutional Law Commons^™

"Fighting Words" And The First Amendment In Maine: State V. John W., Deborah J. Ross

Maine Law Review

On April 1, 1979, John W. was driving his car, accompanied by his sister Maria. The car was stopped by a police officer who requested John's license and registration. Maria asked the officer why they had been stopped. When the officer remained silent, Maria became abusive and was arrested for disorderly conduct. John demanded to know what was going on. Ordered to get back into his car, John began shouting at the police: "Hey, turn around and come back here;" "Hey, you fucking pig, you fuckin' kangaroo;" "Fuck you." John was arrested and convicted in a juvenile proceeding of disorderly …

The Constitutional Law Of Defamation—Recent Developments And Suggested State Court Responses, Susan Gail Shorey

Maine Law Review

Prior to the 1964 decision in New York Times Co. v. Sullivan, defamation law in the United States was controlled by common law principles developed in the state courts. In New York Times the United States Supreme Court staked out an area of first amendment privilege, which limited the states' power to permit recovery in defamation actions brought by public officials. Later extensions of this constitutional privilege made it appear for a time that constitutional requirements would produce a unified nation-wide body of defamation law to replace the various common law rules followed in the fifty states. In view of …

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 …

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 …

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.

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. …

Criminal Contempt In Maine: Constitutionally Protected Or Neglected?, Christopher D. Hardy

Maine Law Review

The power to punish contempt of court is an ancient power justified as inherent and necessary for the effective administration of justice. Because criminal contempts are willful challenges to the power of a court to maintain control over its proceedings, contempts are acts which serve to lessen the dignity and authority of the court. Certainly, the maintenance of decorum in the courtrooms is of paramount importance. Absent the ability to sanction willful disobedience, a court is powerless to enforce its decrees or control its proceedings. Yet it is a power readily open to abuse; application of this power must be …

Legislative Reforms To End Lawfare By State And Local Prosecutors, Elizabeth Beske

Legislative Testimony & Comments

WASHINGTON, D.C. - The House Judiciary Subcommittee on the Constitution and Limited Government will hold a hearing on Tuesday, March 4, 2025, at 2:00 p.m. ET. The hearing, "Legislative Reforms to End Lawfare by State and Local Prosecutors," will examine the use of lawfare tactics by the Biden-Harris Administration to weaponize the rule of law against political opponents. It will further highlight legislative reforms to end politically motivated state and local prosecutions.

The Relationship Between Religion And The State “Islam And The Constitution As A Model”, Ahmad Hosni Ashqar, Majed Abbadi

An-Najah University Journal for Research - B (Humanities)

Objective: This study aims to investigate the relationship between religion and the state within its constitutional framework when constitutional texts include a specific religion for the state, which makes this - when applied legislatively - a thorny and ambiguous issue. Methodology: This study, through the descriptive analytical approach, examines the different forms of possible relations between religion and the state to develop democratic constitutions. Results: The study concluded several results, the most prominent of which is that considering Islam the official religion of the state involves respecting the rights of Muslims to practice their duties and organize …

The Ideational Dimension Of Judicial Power, Allen C. Sumrall

Marquette Law Review

The judiciary dominates contemporary American politics. In the United States, courts have overcome their humble origins to act as central figures in nearly every major policy dispute and separation of powers dispute. To explain this development, scholars have documented the increase in the federal judiciary’s institutional capacity and resources. Most accounts of the judiciary’s changing role in American constitutional politics focus on the courts’ expanded jurisdiction, the statutes that channel judicial review, the courts’ material resources, or changes to how politicians harness or respond to the judiciary. But focusing on these more formal institutional changes only gets us so far. …

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 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 …

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 …

Life, The Universe, And The Judicial Power, Gary Lawson

UF Law Faculty Publications

In figuring out the role of the federal courts in the constitutional structure, the obvious place to start is with the Constitution. But what does the Constitution tell us about the federal courts and the judicial power vested in them?

Surprisingly little—perhaps even shockingly little—when one reflects on it. The “judicial Power” is one of the three governmental powers regarded by the founding generation as having “an unalterable foundation in nature.” The Constitution, however, does not define that power, instead taking for granted that everyone will simply know what “judicial Power” involves. History has proven that assumption to be false. …

Defeating Antisemitism In The World’S First Democratic Republic: The American Revolution And Jewish Legal And Political Equality, Paul Finkelman, Lance J. Sussman

Touro Law Review

At a moment when antisemitism is on the rise in the United States, we believe it is useful to consider how the American Revolution led to the first nation in the world where antisemitism was fundamentally contrary to the national constitution and Jews were entitled to full rights as citizens of the national government. As we explain in this article, during and after the Revolution, Jews were free to participate in all professions and general civic life, naturalize (if immigrants), vote, serve on juries, become lawyers and judges, become military officers, and attend universities. Jews had almost none of these …

Hallows Lecture: Resorting To Courts Or To Community Conversations? Article Iii Standing As The Guardian Of Free Speech And Democratic Self-Governance, Michael Y. Scudder

Marquette Law Review

None.

Family Regulation's Consent Problem, Anna Arons

Faculty Publications

The home is the most protected space in constitutional law. But family regulation investigators conduct millions of home searches a year. Under pressure, parents nearly always consent to these state agents’ entry into the most private areas of their lives.

This Article identifies the coercive forces—not least the threat of family separation—that drive parents to consent to home searches. Drawing on primary sources and case law examining consent in criminal cases, it shows that common family regulation investigation tactics render consent involuntary and the ensuing searches unconstitutional. And yet, it argues, the Constitution is not enough. Though constitutional litigation could …

Historical Tradition, The Second Amendment, And Marrying Gun Rights And Regulation: Examining The Proposals In Gavin Newsom's Twenty-Eighth Amendment And Their Place In Second Amendment Jurisprudence, Guy Cheatham

American University Journal of Gender, Social Policy & the Law

In September 2017, Stephen Paddock checked into rooms 32-134 and 32- 135 at the Mandalay Bay Hotel in Las Vegas. Both rooms looked over the Route 91 Festival in Las Vegas Village. Over the course of five days, Paddock brought twenty-two suitcases into his room: five on September 25th, seven on the 26th, two on the 28th, six on the 30th, and two on October 1st. On September 30th, Paddock placed “Do Not Disturb” signs on the doors of rooms 32-134 and 32-135. Paddock considered booking the high level suites for weeks; Google searches from May to September 2017 reveal …

The Sword, The Purse, And The Pen: The Constitutional Conundrum Of Impoundment, William N. Chance

CMC Senior Theses

This Thesis explores the constitutional conundrum of executive impoundment, the practice by which the President of the United States withholds or delays the expenditure of funds appropriated by Congress. Although impoundment has deep historical roots dating back to the Constitution’s Framers, its modern use raises profound questions regarding our separation of powers. This Thesis establishes a functional framework that distinguishes between “routine” impoundments, which promote administrative efficiency, and “policy” impoundments, which may undermine congressional intent. Furthermore, after tracing the development of impoundment from the early Republic through the Nixon Administration and the passage of the Impoundment Control Act of 1974, …

Pozen And The Puzzle Of Counterfactuals, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

The Constitution and the War on Drugs, David Pozen’s carefully researched and brilliantly argued book, is both illuminating and disturbing: illuminating because it unearths forgotten moments when judicially formulated constitutional doctrine that could have ended or sharply restricted the War on Drugs were well within the Overton Window, and disturbing because it surfaces hard questions about historical contingency and the scope of the change that might have occurred in a counterfactual world. In this review, the author argues that the failure to specify both the nature of the counterfactual and the breadth of the alternative possibility have confused discussions …

Confession And Confrontation, William Ortman

Scholarly Works

The constitutional law of confessions has a critical blind spot. In theory, the law serves two interests. First, it protects the autonomy of suspects by stipulating that they can be questioned while in custody only with their consent. Second, it restrains official misconduct by forbidding interrogation methods that overbear a suspect's will. Even if the law adequately safeguards those interests, something is missing: reliability. As false confessions emerge as a major source of wrongful convictions and as social scientists expose how standard interrogation tactics prompt innocent people to confess, the Supreme Court and conventional wisdom insist that the reliability of …

Book Review: Robert J. Jarvis, The Neglected Amendments Of The U.S. Constitution: Text, History, And Interpretation, Jonathan E. Moore

Akron Law Faculty Publications

This essay offers an engaging review of the casebook, The Neglected Amendments of the U.S. Constitution, by Professor Robert Jarvis. While most lawyers, and many nonlawyers, could readily identify many of the “big twelve” constitutional amendments, few are familiar with the other fifteen. This book focuses on the neglected fifteen, arguing they deserve sustained attention as historically and politically important today. Topics include several amendments potentially going in play, such as the Twenty-second limiting the president to two terms, Twenty-fifth on presidential succession and disability, Twenty-seventh on congressional pay raises, and the Ninth on rights retained by the people. …

Under What Circumstances Is "Caste" Likely To Be Useful As An Analytic Concept (And Should We Care)?, Sanford V. Levinson, Robert L. Tsai

Faculty Scholarship

This Essay is the product of the 2025 “Constitutional Law Schmooze,” where academics from a variety of disciplines and from all over the country meet to discuss a common topic of constitutional law chosen by the moderator. This year’s topic was “caste.” The two of us, having written independent “tickets” of admission for the schmooze—i.e., short essays setting out our tentative thoughts about “caste”—turned out to be relative skeptics about the value of the term for lawyers. We are certainly not hostile to those who differ with us. This should be regarded as a “friendly dissent,” as distinguished, say, from …

Per Se Non-Takings, Nestor M. Davidson, Timothy M. Mulvaney

Faculty Scholarship

In the discourse on the Takings Clause, disputes over methodology have long formed a kind of proxy war, with per se rules ordinarily underwriting strong constitutional protection for property rights and ad hoc standards more often vindicating public interests. At a moment when the Supreme Court is increasingly embracing the rules end of this rules–standards spectrum, this Article offers a novel perspective to challenge the conventional link between categorical reasoning and classical liberal conceptions of constitutional property.

To do so, the Article excavates a vast body of law denying takings liability through rule-like reasoning, an approach the Article calls per …

Race, The Academy, And The Constitution Of The War On Drugs, I. Bennett Capers, Jeffrey Bellin

Faculty Scholarship

The war on drugs is widely viewed as a policy failure. Despite massive government intrusions on personal liberty, drug addiction, overdoses, and drug-related violence have only increased since the war was declared in 1971. David Pozen’s new book, The Constitution of the War on Drugs, reveals a constitutional failure as well. Pozen chronicles a host of constitutional arguments that American litigants deployed to protect a “right” to use drugs with surprising, if fleeting, success. Pozen asks what might have been, exploring why the courts backtracked and effectively removed the Constitution as a meaningful obstacle to drug prohibitions. 

This Review …

The Inadequacy Of Perpetuating Vestiges Of Segregation In K-12 Curriculum: The Justiciability Of Reviewing Duties To Adequacy In Florida's Education Clause, Soumya Sreerama

American University Journal of Gender, Social Policy & the Law

Although the Supreme Court declared segregation the most abusive affront to education and ruled to eliminate vestiges of segregation “root and branch,” those same roots have grown unchecked to remain prominent today. One of the undercurrents of state-sponsored discrimination that has escaped desegregation remedies is the skewed, whitewashed curriculum that permeated K-12 classrooms in Jim Crow America. More troubling, is that those vestiges of an inadequately biased curriculum are still slithering in students’ courses today. Although student movements and education reformists have attempted to counter skewed curricula by supplementing them with separate ethnic studies courses, states like Florida recently passed …

The Constitution At Sea, Louis Henkin

Maine Law Review

Time was when it was assumed that the United States Constitution, like a deity of old, ruled only in its territory and did not apply outside the United States. Since 1957 we know that the Constitution applies wherever the United States exercises authority. If, as the Supreme Court then held, the Constitution governs the acts of the United States in the territory of a foreign state, where the Constitution might be deemed a foreign "intruder" on local sovereignty, it would seem to apply also — indeed a fortiori — to acts of the United States on the high seas, where …