Constitutional Law Commons^™

When Constitutional Rights Clash: Masterpiece Cakeshop's Potential Legacy, Ken Hyle

ConLawNOW

The narrow question presented to the U.S. Supreme Court in Masterpiece Cakeshop is undoubtedly one of great national importance. The decision will likely yield a framework for courts to resolve conflicts that specifically involve religious freedom, artistic expression, and anti-discrimination laws in the context of public accommodations. However, my essay suggests that Masterpiece Cakeshop is an appropriate vehicle for the Court to expound upon a broader, more fundamental constitutional issue: what is the optimal framework for resolving direct conflicts between constitutional rights? The essay begins by exploring the inherent flaw in a framework grounded in the traditional levels of judicial …

Remedies Symposium: Reexamining Bivens After Ziglar V. Abbasi, Bernard W. Bell

ConLawNOW

In Ziglar v. Abbasi, the U.S. Supreme Court revisited Bivens doctrine, suggesting that courts recognize constitutional tort actions only in cases closely analogous to one of the cases comprising the 1970s/1980s era Bivens trilogy, namely Bivens v. Six Unknown Named Agents, Davis v. Passman, and Carlson v. Green. In doing so the Court set forth several factors that might make a case distinguishable from those 1970s/1980s cases. This essay argues that the key to Ziglar v. Abbasi is not the analogical exercise the Court imposed, but the Court’s concern that Bivens actions could become a mechanism for …

Remedies Symposium: Remedies And The Government's Constitutionally Harmful Speech, Helen Norton

ConLawNOW

Although governments have engaged in expression from their inception, only recently have we begun to consider the ways in which the government’s speech sometimes threatens our constitutional rights. In my contribution to this symposium, I seek to show that although the search for constitutional remedies for the government’s harmful expression is challenging, it is far from futile. This search is also increasingly important at a time when the government’s expressive powers continue to grow—along with its willingness to use these powers for disturbing purposes and with troubling consequences.

More specifically, in certain circumstances, injunctive relief, declaratory relief, or damages can …

A Call For Consistency: State V. Caouette Is No Longer Viable In Light Of Colorado V. Connelly And State V. Eastman, Donald W. Macomber

Maine Law Review

This Article challenges the Law Court's expansive interpretation in State v. Caouette of the scope of the privilege against self-incrimination embodied in Article I, section 6 of the Maine Constitution in the context of reviewing claims of the involuntariness of a confession. The court's declaration that a reliable confession must be suppressed on state constitutional grounds based solely on a suspect's internal factors, and in the absence of any police overreaching in obtaining the confession, contradicted two centuries of constitutional jurisprudence requiring some form of government action to implicate the protections of the Bill of Rights and the Declaration of …

Issue 3: Table Of Contents

University of Richmond Law Review

No abstract provided.

Acknowledgments, Andrew E. Hemby

University of Richmond Law Review

No abstract provided.

The Fortification Of Inequality: Constitutional Doctrine And The Political Economy, Kate Andrias

Articles

As Parts I and II of this Essay elaborate, the examination yields three observations of relevance to constitutional law more generally: First, judge-made constitutional doctrine, though by no means the primary cause of rising inequality, has played an important role in reinforcing and exacerbating it. Judges have acquiesced to legislatively structured economic inequality, while also restricting the ability of legislatures to remedy it. Second, while economic inequality has become a cause célèbre only in the last few years, much of the constitutional doctrine that has contributed to its flourishing is longstanding. Moreover, for several decades, even the Court’s more liberal …

Searching For Cliven Bundy: The Constitution And Public Lands, Ian Bartrum

Nevada Law Journal Forum

On April 5th, 2014, BLM temporarily closed over 500,000 acres of public land in Clark and Lincoln Counties in order to impound cattle grazing there in violation of a federal district court order. These cattle belonged, principally, to Cliven Bundy and his family—ranchers from Bunkerville, Nevada—who had stopped paying BLM permitting fees in the early 1990s. In anticipation of the roundup, the Bundys put out a distress call to militia-like groups around the country, and seven days later, an armed crowd confronted federal and state officers in the desert near Gold Butte. Another week later, federal authorities backed down, citing …

“Frankly Unthinkable”: The Constitutional Failings Of President Trump’S Proposed Muslim Registry, A. Reid Monroe-Sheridan

Maine Law Review

On several occasions during the 2016 presidential campaign, Donald Trump endorsed the creation of a mandatory government registry for Muslims in the United States— not just visitors from abroad, but American citizens as well. This astonishing proposal has received little attention in legal scholarship to date, even though Trump has refused to renounce the idea following his election to the presidency. In this Article, I attempt to address President Trump’ s proposal in several ways. First, I aim to provide a thorough analysis demonstrating unequivocally that such a “ Muslim registry,” with the characteristics President Trump has endorsed, would violate …

Newsroom: Interrogation Expert Warns Against Use Of Torture 2-2-2018, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Executive Power And National Security Power, Julian Davis Mortenson, Andrew Kent

Book Chapters

The constitutional text governing national security law is full of gaps, oversights, and omissions. In combination with the authorization principle -- which requires all federal actors to identify particularized authority for their actions -- these gaps have often presented an acute dilemma for Presidents charged with defending the nation. Focusing on three periods in American history, this chapter sketches the historical evolution of how the political branches have responded.

First, the early republic. During this period, presidents responded to the authorization dilemma by seeking highly particularized authorization from the two other constitutional branches of government. Throughout the era, presidents’ claims …

How The United States Supreme Court Diminished Constitutional Protections Of The Right To Vote And What Congress Can Do About It, Henry Rose

Faculty Publications & Other Works

No abstract provided.

Constitutional Law: Protecting Our Youth: A Necessary Limit On The First Amendment—State V. Muccio, Richard A. Podvin

Mitchell Hamline Law Review

No abstract provided.

Law Library Blog (January 2018): Legal Beagle's Blog Archive, Roger Williams University School Of Law

Law Library Newsletters/Blog

No abstract provided.

Why Federal Courts Apply The Law Of Nations Even Though It Is Not The Supreme Law Of The Land, Anthony J. Bellia Jr., Bradford R. Clark

Journal Articles

We are grateful to the judges and scholars who participated in this Symposium examining our book, The Law of Nations and the United States Constitution. One of our goals in writing this book was to reinvigorate and advance the debate over the role of customary international law in U.S. courts. The papers in this Symposium advance this debate by deepening understandings of how the Constitution interacts with customary international law. Our goal in this Article is to address two questions raised by this Symposium that go to the heart of the status of the law of nations under the Constitution. …

Remedies And The Government's Constitutionally Harmful Speech, Helen Norton

Publications

Although governments have engaged in expression from their inception, only recently have we begun to consider the ways in which the government’s speech sometimes threatens our constitutional rights. In my contribution to this symposium, I seek to show that although the search for constitutional remedies for the government’s harmful expression is challenging, it is far from futile. This search is also increasingly important at a time when the government’s expressive powers continue to grow—along with its willingness to use these powers for disturbing purposes and with troubling consequences.

More specifically, in certain circumstances, injunctive relief, declaratory relief, or damages can …

State Action And The Constitution's Middle Band, Louis Michael Seidman

Michigan Law Review

On conventional accounts, the state action doctrine is dichotomous. When the government acts, constitutional limits take hold and the government action is invalid if those limits are exceeded. When the government fails to act, the state action doctrine leaves decisions to individuals, who are permitted to violate what would otherwise be constitutional constraints.

It turns out though that the modern state action doctrine creates three rather than two domains. There is indeed a private, inner band where there is thought to be insufficient government action to trigger constitutional constraints, but often there is also a public, outer band where there …

Profound Sophistication Or Legal Sophistry, Ediberto Román, Katryna Santa Cruz, Melissa Gonzalez, Dianet Torres

Faculty Publications

No abstract provided.

Obama's Conversion On Same-Sex Marriage: The Social Foundations Of Individual Rights, Robert L. Tsai

Faculty Scholarship

This essay explores how presidents who wish to seize a leadership role over the development of rights must tend to the social foundations of those rights. Broad cultural changes alone do not guarantee success, nor do they dictate the substance of constitutional ideas. Rather, presidential aides must actively re-characterize the social conditions in which rights are made, disseminated, and enforced. An administration must articulate a strategically plausible theory of a particular right, ensure there is cultural and institutional support for that right, and work to minimize blowback. Executive branch officials must seek to transform and popularize legal concepts while working …

Constitutional Legal Bases Of Formation And Functioning Of System "E-Government" In Uzbekistan, S. Sadikov

Review of law sciences

the article is devoted to the topical problem of IKT Constitution legal development of legislation by formation and activity of e-government. The authors considers acceptance of the Law about e-government has become a progressive step in improving the legislation of the country. The article review the features of the new Law about e-government.

Is ‘Military Necessity’ Enough? Lincoln’S Conception Of Executive Power In Suspending Habeas Corpus In 1861, Evan Mclaughlin

Seton Hall University Dissertations and Theses (ETDs)

In May 1861, President Abraham Lincoln's decision to suspend habeas corpus in Baltimore following an attack on Federal troops as they marched through Baltimore on April 19th to answer Lincoln’s call to defend the Capitol. To complicate matters further, Congress was still in recess, so they could not legislate a solution to the growing insurgency. In order to check these actions, Abraham Lincoln authorized General Scott to suspend Habeas Corpus between Baltimore and Philadelphia. When John Merryman was arrested, detained, and denied habeas corpus, Chief Justice Roger B. Taney issued an in-chambers decision, Ex Parte Merryman, to voice his …

Inseparable: Perspective Of Senator Daniel Webster, Ernest M. Oleksy

The Downtown Review: An Interdisciplinary Journal Written and Peer-Reviewed by Mandel Honors College Students at Cleveland State University

Considering the hypersensitivity that their nation has towards race relations, it is often ineffable to contemporary Americans as to how anyone could have argued against abolition in the 19th century. However, by taking the perspective of Senator Daniel Webster speaking to an audience of disunionist-abolitionists, proslaveryites, and various shades of moderates, numerous points of contention will be brought to light as to why chattel slavery persisted so long in the U.S. Focal points of dialogue will include the Narrative of Frederick Douglass, the "positive good" claims of Senator John C. Calhoun, the disunionism of William Lloyd Garrison, and the defense …

A Constitutional Critique On The Criminalization Of Panhandling In Washington State, Drew Sena

Seattle University Law Review

Individuals who have lost everything—their homes, jobs, and dignity—are often forced to live on the street. Those with no reasonable alternative can find themselves relying on the generosity of others just to survive. In response, citizens petition, legislatures enact, and officers enforce laws that criminalize signs of visible poverty. Municipalities have made considerable attempts to remove visible poverty from their cities by drafting legislation that disproportionately punishes people experiencing homelessness. This Note focuses on a particular subset of such legislation, laws that criminalize panhandling. Section I of this Note provides an overview of the First Amendment and the protection of …

Report And Recommendations Concerning Environmental Aspects Of The New York State Constitution, New York State Bar Association Environmental And Energy Law Section

Pace Law Review

The purpose of the Report is to inform and enrich understanding of environmental issues which may be considered at a Constitutional Convention (should one occur) or with respect to proposals to amend the Constitution through the legislative process.

Updating New York’S Constitutional Environmental Rights, Nicholas A. Robinson

Pace Law Review

The stakes are high as New York State considers whether to amend the constitution. The electorate contemplates the gathering crises of sea level rise, disruption of weather patterns, intensified summer heat waves, and other climate change impacts. New York also faces escalating environmental problems, which the newly perceived climate impacts in turn exacerbate. It is timely to debate whether or not New York should recognize the right to the environment to its constitution. In 2016, the House of Delegates of the New York State Bar Association adopted the report of its committee on the constitution, regarding the environmental conservation article …

Subnational Environmental Constitutionalism And Reform In New York State, James R. May

Pace Law Review

The State of New York’s constitution was perhaps the first in the world to embody environmental constitutionalism, most directly in what is known as its “Forever Wild” mandate from 1894. In contrast to many subnational environmental provisions, courts in New York have regularly enforced Forever Wild. New York’s Constitution also contains a remarkable mandate that every twenty years voters decide whether to hold elections for delegates to convene a convention to amend the state’s constitution, with the next such opportunity on November 7, 2017. This article explores how subnational constitutionalism from around the world informs discussions about whether and how …

Home Rule In New York: The Need For A Change, Michael A. Cardozo, Zachary W. Klinger

Pace Law Review

This article is intended to provide a practical lens into how Home Rule issues unfold in complex matters involving the City, and to suggest how a much-needed Home Rule constitutional amendment could re-shape or, at the very least, clarify Home Rule standards. Section II will provide some historical and legal background on Home Rule; Section III will analyze some of the more well-known Home Rule cases that the Law Department litigated during the Bloomberg Administration; and Section IV will discuss insights gleaned with respect to, and will offer several recommendations for, the future of Home Rule in New York.

The Constitutional Convention And Court Merger In New York State, Jay C. Carlisle, Matthew J. Shock

Pace Law Review

In November 2017, voters in New York, for the first time in twenty years, will be asked to decide whether there “[s]hall be a convention to revise the constitution and amend the same?” If it is decided by the electorate to call a convention, “delegates will be elected in November 2018, and the convention will convene in April 2019.” One of the significant goals of a convention would be the achievement of court merger in the Empire State. The purpose of this perspective is to discuss the pros and cons of a constitutional convention with an emphasis on court merger.

The Road To A Constitutional Convention: Reforming The New York State Unified Court System And Expanding Access To Civil Justice, Jonathan Lippman

Pace Law Review

This article will focus on the judiciary reforms and access to justice—starting with reforms to the structure of the Unified Court System and discussing other ways that a constitutional convention might serve to improve the operation of the courts. The article will then explore the state’s deficiency in providing its low-income citizens access to justice in civil matters relating to housing, family safety and security, and subsistence income, and how a convention can highlight these issues.

Constitutionalizing Ethics, Bennett L. Gershman

Pace Law Review

The purpose of this essay is not to weigh in the wisdom or utility in revising New York’s Constitution. However, in my opinion, one of the most compelling reasons to amend New York’s Constitution is the need to incorporate into the fundamental charter a meaningful code of ethics, including procedures for its enforcement, and sanctions for violations. New York over the past fifteen years has experienced more scandals, criminal prosecutions, and convictions of lawmakers and other government officials for corruption than any state in the nation. It is certainly arguable that the extent of New York’s corruption, and the widespread …