Constitutional Law Commons^™

Reconstructing An Administrative Republic, Jeffrey A. Pojanowski

Journal Articles

The book Constitutional Coup, by Professor Jon D. Michaels, offers a learned, lucid, and important argument about the relationship between privatization, constitutional structure, and public values in administrative governance. In particular, Michaels argues that the press toward privatization in this domain poses a serious threat to the United States' separation of powers and the public interest. This review essay introduces readers to Michaels' argument and then raises two questions: First, it asks whether Michaels’ method of constitutional interpretation and doctrinal analysis accelerate the trend toward privatization and consolidation of power in agency heads, the very evils he seeks to avoid. …

A Prudential Take On A Prudential Takings Doctrine, Katherine Mims Crocker

Faculty Scholarship

The Supreme Court is set to decide a case requesting reconsideration of a doctrine that has long bedeviled constitutional litigants and commentators. The case is Knick v. Township of Scott, and the doctrine is the “ripeness” rule from Williamson County Regional Planning Commission v. Hamilton Bank that plaintiffs seeking to raise takings claims under the Fifth Amendment must pursue state-created remedies first — the so-called “compensation prong” (as distinguished from a separate “takings prong”). This Essay argues that to put the compensation prong in the best light possible, the Court should view the requirement as a “prudential” rule rather than …

The “New” District Court Activism In Criminal Justice Reform, Jessica A. Roth

Articles

Historically, the debate over the judicial role has centered on the constitutional and administrative law decisions of the United States Supreme Court, with an occasional glance at the Federal Courts of Appeals. It has, moreover, been concerned solely with the “in-court” behavior of Article III appellate judges as they carry out their power and duty “to say what the law is” in the context of resolving “cases and controversies.” This Article seeks to deepen the discussion of the appropriate role of Article III judges by broadening it to trial, as well as appellate, judges; and by distinguishing between an Article …

Regulatory Cooperation In International Trade And Its Transformative Effects On Executive Power, Elizabeth Trujillo

Faculty Scholarship

As international trade receives the brunt of local discontent with globalization trends and recent changes by the Trump administration have put into question the viability of such trade arrangements moving forward, there has been a clear trend in using international trade fora for managing regulatory barriers on economic development. This paper will discuss this recent trend in international trade toward increased regulatory cooperation through the creation of formalized transnational regulatory bodies, such as the U.S.-EU Regulatory Cooperation Body that was being discussed in the TTIP negotiations and comparable ones in the Canadian-EU Trade Agreement as well as U.S.-Mexico and U.S.- …

Constitutional Conflict And The Development Of Canadian Aboriginal Law, Guy Charlton, Xiang Gao

The University of Notre Dame Australia Law Review

This paper argues that aboriginal rights in Canada have been greatly affected by 19 th century governmental and social conflicts within the Canadian colonial state. These conflicts, largely over the ownership of land and regulatory authority between the federal government and the provinces necessarily impacted the First Nations on the ground while affecting how their legal claims were recognized and implemented. In particular they impacted the legal efficacy of treaty rights, the scope of rights recognised by the courts and an expansive legally protected notion of indigenous sovereignty. As a result, the rights now protected under sec. 25 and 35 …

Joseph Weiler, Eric Stein, And The Transformation Of Constitutional Law, Daniel Halberstam

Book Chapters

This chapter pursues that idea in three parts. Part I reviews the key contributions of The Transformation of Europe. Part II takes us back for a critical analysis of the idea of ‘constitutionalism’ as first developed by Eric Stein and then deployed by Joseph Weiler. On closer inspection, we shall see here that The Transformation of Europe may have neglected a core element of constitutional law, something this chapter terms a ‘generative space’ for law and politics. As this part further explains, recognising this generative element of constitutionalism lies at the heart of the struggle to make sense both practically …

A Look At The Fourth Amendment Implications Of Drone Surveillance By Law Enforcement Today, Mary Mara

ConLawNOW

This paper will examine the current state of drone technology and its increasing prevalence in private and public settings. As police agencies seek to incorporate this new technology into their crime-fighting arsenal, serious Fourth Amendment privacy considerations arise. Although a national debate rages in this country about the impact of modern technology on privacy rights, Congress, the Federal Aviation Authority (FAA), and the Supreme Court have yet to weigh in on the Fourth Amendment implications of warrantless drone surveillance by law enforcement. Furthermore, while some states have attempted to step into the breach by passing legislation which limits the use …

Paliotta V. State Dep’T Of Corrections, 133 Nev. Adv. Op. 58 (Sept. 14, 2017), Anna Sichting

Nevada Supreme Court Summaries

The Court determined it must consider the sincere religious beliefs of the individual when evaluating claims under the Free Exercise Clause and the Religious Land Use and Institutionalized Persons Act (RLUIPA). It is improper to evaluate those claims under the centrality test, which attempts to determine if the individual’s beliefs are central to a tenant of the religion in question. Once the sincere belief is shown, the courts must then fully examine the remaining considerations under the Free Exercise Clause and the RLUIPA.

The Abraham Lincoln Lecture On Constitutional Law, Steven G. Calabresi

Northwestern University Law Review

These introductory remarks to the Inaugural Abraham Lincoln Lecture on Constitutional Law were delivered at Northwestern Pritzker School of Law on April 6, 2017.

The Inaugural Abraham Lincoln Lecture On Constitutional Law: Electoral College Reform, Lincoln-Style, Akhil Reed Amar

Northwestern University Law Review

This Inaugural Abraham Lincoln Lecture was delivered at Northwestern Pritzker School of Law on April 6, 2017.

The Constitutional Constant, Richard A. Primus

Articles

According to a conventional view of the Constitution as a precommitment strategy, constitutional rules must remain fixed over time in order for the Constitution to do its work. In practice, however, constitutional rules regularly change over time, even without formal amendment. What is actually constant over time in the American constitutional system is not the content of constitutional law: it is the correspondence between the content of constitutional law and the American people’s (or at least the decision-making class’s) most powerful intuitions about issues of structure and ethos in American government. At any given time, constitutional law reflects those intuitions. …

Originalism And The Criminal Law: Vindicating Justice Scalia's Jurisprudence - And The Constitution, Adam Lamparello, Charles E. Maclean

Akron Law Review

Justice Scalia was not perfect—no one is—but he was not a dishonest jurist. As one commentator explains, “[i]f Scalia was a champion of those rights [for criminal defendants, arrestees], he was an accidental champion, a jurist with a deeper objective—namely, fidelity to what he dubbed the ‘original meaning’ reflected in the text of the Constitution—that happened to intersect with the interests of the accused at some points in the constellation of criminal law and procedure.” Indeed, Justice Scalia is more easily remembered not as a champion of the little guy, the voiceless, and the downtrodden, but rather, as Texas Gov. …

A Diverse Student Body Without Student Bodies?: Online Classrooms And Affirmative Action, Ryan H. Nelson

Pepperdine Law Review

America’s public universities engage students in myriad classroom environments that range from traditional, entirely-in-person classroom environments to entirely-online, virtual classrooms, with every shade of grey in between. These varied learning environments pose a fascinating question with respect to the ways such universities use affirmative action in admissions. In Grutter v. Bollinger, the United States Supreme Court held that “student body diversity is a compelling state interest that can justify the use of race in university admissions.” Indeed, student body diversity remains one of the few “compelling interests” that the Court has held satisfies the constitutional imperative that the “government may …

2016-2017 Georgia State University Law Review Symposium: Exploring The Right To Die In The U.S., Margaret Pabst Battin

Georgia State University Law Review

This transcript is a reproduction of the Keynote Presentation at the 2016–2017 Georgia State University Law Review Symposium on November 11, 2016. Margaret Battin, is a Distinguished Professor of Philosophy and Adjunct Professor of Internal Medicine at the University of Utah.

Distinctive Factors Affecting The Legal Context Of End-Of-Life Medical Care For Older Persons, Marshall B. Kapp

Georgia State University Law Review

Current legal regulation of medical care for individuals approaching the end of life in the United States is predicated essentially on a factual model emanating from a series of high-profile judicial opinions concerning the rights of adults who become either permanently unconscious or are clearly going to die soon with or without aggressive attempts of curative therapy.

The need for a flexible, adaptable approach to medically treating people approaching the end of their lives, and a similar openness to possible modification of the legal framework within which treatment choices are made and implemented, are particularly important when older individuals are …

Qualitative Diversity: Affirmative Action's New Reframe, Eang L. Ngov

Faculty Scholarship

No abstract provided.

Constitutionalism And Democracy Dataset, Version 1.0, Todd A. Eisenstadt, Carl Levan, Tofigh Maboudi

Political Science: Faculty Publications and Other Works

The main objective of the CDD is to quantify the process of constitution-making since 1974. This is the first public release of any data on the process of constitution-making. This release includes data on 144 national constitutions promulgated in 119 countries from 1974 to 2014. The unit of analysis in the data is national constitutions. The data in this release includes only “new” constitutions and does not include suspended, re-installed, amended, or interim constitutions. In this release, only countries with a population larger than 500,000 are included. The authors intend to update the data by including all countries, expanding the …

A Promise Unfulfilled: Challenges To Georgia’S Death Penalty Statute Post-Furman, William Cody Newsome

Georgia State University Law Review

In Furman v. Georgia, the U.S. Supreme Court agreed with Furman’s counsel. Three Justices agreed that Georgia law, as applied, was arbitrary and potentially discriminatory. Moreover, one Justice challenged the value of the death penalty and doubted it served any of the alleged purposes for which it was employed.

Although many challenges subsequent to Furman have been raised and arguably resolved by the Court, the underlying challenges raised by Furman appear to remain prevalent with the Court. Justice Breyer recently echoed the concurring opinions of Furman in his dissenting opinion from Glossip v. Gross, when he stated: “In …

Semantic Vagueness And Extrajudicial Constitutional Decisionmaking, Anthony O'Rourke

William & Mary Bill of Rights Journal

This Article integrates two scholarly conversations to shed light on the divergent ways in which courts and legislatures implement constitutional texts. First, there is a vast literature examining the different ways in which courts and extrajudicial institutions, including legislatures, implement the Constitution’s textually vague expressions. Second, in recent years legal philosophers have begun to use philosophy of language to elucidate the relationship between vague legal texts and the content of laws. There is little scholarship, however, that uses philosophy of language to analyze the divergent ways in which legislatures and courts implement vague constitutional provisions. This Article argues that many …

The Vice Presidency In The Twenty-First Century, Jody C. Baumgartner

Pepperdine Law Review

The vice presidency has undergone almost revolutionary change since its inception 227 years ago. Conceived as a convenient solution to a problem created by the Electoral College, the Vice President has only two constitutional functions—to serve as a successor to the President and as the President of the Senate. However, over the past sixty years, vice presidents have become increasingly part of and integral to American governance, and the last three (Al Gore, Dick Cheney, and Joe Biden) have been exceptionally active executive actors. What was once an all-but forgotten office is now an essential part of a president’s administration. …

The Vice President-More Than An Afterthought?, Richard B. Cheney, Edwin Meese Iii, Douglas W. Kmiec

Pepperdine Law Review

A round-table discussion among former U.S. Vice President Richard B. Cheney, Caruso Family Professor of Law and retired U.S. Ambassador Douglas Kmiec, and former U.S. Attorney General Edwin Meese III considered the practical implications of conceiving the Vice President as a legislative officer, an executive officer, or both. It was noted that until the second half of the twentieth century, the Office of the Vice President was conceived as legislative. Funding for the Office appeared in budget lines relating to Congress and physically, the Vice President’s office was in the Capitol. Beginning with Walter Mondale’s service as Vice President, presidents …

A Constitutional Afterthought: The Origins Of The Vice Presidency, 1787 To 1804, Edward J. Larson

Pepperdine Law Review

At the origins of the office, even though the Vice President was, as its first occupant John Adams declared, “only one breath” away from the presidency, the Office of the Vice President was an afterthought of the Constitutional Convention. Never discussed during the first three months of the four-month long Convention, the Committee of Eleven introduced the vice presidency as a byproduct of how it resolved to fix the presidential selection process. Under this process, the Electoral College emerged, with each state assigned the same number of electors as its members in the House of Representatives and Senate. Each elector …

Perspectives From The Bench On Feminist Judgments, Elinore Marsh Stormer

ConLawNOW

Judge Elinore Marsh Stormer, probate judge in Summit County, Ohio, gave these remarks as part of a panel discussion on feminist judging. The discussion took place at a conference sponsored by the Center for Constitutional Law at the University of Akron in October 2016. Judge Stormer offered insights on her own experience as a woman judge and on the role of judges addressing issues of gender equality in their courts.

A Meaningful Opportunity For Release: Resentencing Hearings For Juvenile Offenders Sentenced To Life Without Parole Following Aiken V. Byars, Robert M. Dudek

South Carolina Law Review

No abstract provided.

Aviram V. Minister Of Justice, Neal Hendel, Isaac Amit, Uzi Vogelman

Translated Opinions

A petition concerning whether the Knesset is required to ensure that a member of the opposition serves on the Judicial Selection Committee (hereinafter: the Committee) at all times. Background: The two Members of Knesset sitting on the Committee are elected by the Knesset by secret ballot. Since 1990, the Knesset has elected at least one Committee member from the ranks of the opposition. This was also the case in the last elections, with the election of MK Ilatov to the Committee. MK Ilatov was a meber of Yisrael Beitenu, which then sat in the opposition. Shortly thereafter, Yisrael Beitenu joined …

Protecting America’S Children: Why An Executive Order Banning Juvenile Solitary Confinement Is Not Enough, Carina Muir

Pepperdine Law Review

Despite its devastating psychological, physical, and developmental effects on juveniles, solitary confinement is used in juvenile correctional facilities across the United States. This Comment posits that such treatment violates the Eighth Amendment’s Cruel and Unusual Punishment Clause, the United Nations’ Convention on the Rights of the Child, and the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment. It likewise argues that that President Obama’s recent Executive Order banning juvenile solitary confinement is simply not a powerful enough remedy and discusses why it must be paired with Congressional legislation or Supreme Court jurisprudence if it is to …

The Contract Clause: A Constitutional History By James W. Ely (Review), Jay D. Wexler

Shorter Faculty Works

If the Constitution were a zoo, what resident animal would the Contract Clause be? The clause, which is found in Article I, section 10 of our founding document, reads: “No state shall . . . pass any . . . Law impairing the Obligation of Contracts.” It certainly would not be one of the zoo’s star attractions; the Contract Clause is no First Amendment lion or Fourth Amendment tiger. But it is no bat-eared fox (the Letters of Marque Clause?) or Eurasian water shrew (the Third Amendment?) either. Based on reading Ely’s comprehensive history of the Contract Clause, perhaps it …

The Strange Life Of Stanley V. Illinois: A Case Study In Parent Representation And Law Reform, Josh Gupta-Kagan

Faculty Publications

This Article helps describe the growth of parent representation through an analysis of Stanley v. Illinois—the foundational Supreme Court case that established parental fitness as the constitutional lynchpin of any child protection case. The Article begins with Stanley’s trial court litigation, which illustrates the importance of vigorous parental representation and an effort by the court to prevent Stanley from obtaining an attorney. It proceeds to analyze how family courts applied it (or not) in the years following the Supreme Court’s decision and what factors have led to a recent resurgence of Stanley’s fitness focus.

Despite Stanley’s requirement that states prove …

God And State Preambles, Peter J. Smith, Robert W. Tuttle

Marquette Law Review

Those who question the permissibility of official acknowledgements of God might be surprised to learn that the preambles of forty-five of the fifty state constitutions expressly invoke God. The practice is common in both liberal and conservative states and is equally prevalent in all regions of the country. Virtually all of those preambles give thanks to God, and many also seek God's blessing n the state's endeavors. Yet there has been no detailed assessment of the preambles' history or significance. This paper seeks to remedy that gap.

The preambles complicate the claim that official acknowledgements of God are incompatible with …

Obama's Conversion On Same-Sex Marriage, Robert Tsai

Scholarly Articles in Law Reviews & Journals

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 …