Constitutional Law Commons^™

The Wages Of Hitching Wagons, Thomas B. Bennett

Faculty Journal Articles and Book Chapters

This article examines the challenges faced by states that align their constitutions with federal doctrine through the practice of "lockstepping"—adopting federal legal standards into state law. Lockstepping binds states to federal law, regardless of its trajectory. Part I traces the evolution of standing doctrine in both federal courts under Article III and Kentucky courts under its constitution. Part II presents an originalist critique of the federal injury-in-fact requirement, highlighting emerging efforts to abandon this requirement in federal courts. Part III discusses the dilemma states like Kentucky face, balancing constitutional interpretation, federalism, and legal stability.

The Emerging Constitutional Law Of Remote Criminal Justice, Jenia I. Turner

Faculty Journal Articles and Book Chapters

The COVID-19 pandemic compelled courts to experiment with a novel mode of criminal process: conducting proceedings via video. The remote format helped protect public health during the pandemic, and its convenience has led many states to continue using it in certain circumstances. Yet questions about its desirability and constitutionality have lingered, and many are concerned that it undermines the justice and integrity of criminal proceedings. As the future of remote criminal justice is up for debate, it is important to assess to what degree it complies with fundamental constitutional principles. To that end, this Article offers a comprehensive analysis of …

Litigating Original Meaning From Heller To Rahimi: The Role Of Lawyering In The Confused Path Of Second Amendment Jurisprudence, Lawrence Rosenthal

American University Law Review

The Second Amendment is on a jurisprudential march. An individual right to “keep and bear arms” for purposes unrelated to militia or military service was not recognized until the Supreme Court’s 2008 decision, applying what it took to be the original meaning of the “right to keep and bear arms” found in the Second Amendment, in District of Columbia v. Heller. Subsequently, the Court, in New York State Rifle & Pistol Ass’n v. Bruen, invalidated a statute requiring a permit to carry concealable firearms on a showing of particularized need. Most recently, in United States v. Rahimi, …

The Repeal Of Religious Accommodations -- A Constitutional Analysis, Ronald J. Colombo

American University Law Review

Under modern Supreme Court jurisprudence, the First Amendment ordinarily imposes no heightened standard of review upon neutral laws of general applicability that coincidentally burden the free exercise of religion. To relieve or minimize this burden, however, lawmakers are generally free to promulgate exemptions from, or accommodations to, such laws for the benefit of religious adherents. Such accommodations are common.

When a law is not neutral with respect to religion, or when the law is not generally applicable, then it will be subject to the exacting test of strict scrutiny to the extent that it burdens the free exercise of religion. …

Targeting Children: Liability For Algorithmic Recommendations, Michal Lavi

American University Law Review

We live in the algorithmic society, characterized by massive digital surveillance and data collection by private companies exploiting human information vulnerabilities for profit. The infrastructure of free expression translates into an infrastructure of digital surveillance. This model, dubbed “surveillance capitalism,” includes massive personalized algorithmic targeting that departs from human speakers, allowing a level of influence never witnessed before in scale, scope, or depth.

Personalized targeting can garner many benefits, as it allows individuals to find content that interests them without needing to invest energy in seeking out that content. However, personalized targeting can also cause tremendous harm because it can …

"Background Principles" In The Law Of Takings, David A. Dana

American University Law Review

The Supreme Court appears to be on a mission to enhance the scope of liability under the Takings Clause, the result of which could be the chilling of federal, state, and local regulation. However, the Court has acknowledged that there is no takings liability when, under “background principles,” the property owner lacked the very right she is claiming the government has taken via regulation. The rationale for, and hence proper scope of, the background principles exception to takings liability is opaque in the case law. This Article offers three possible rationales for the background principles exception that could guide courts …

Constitutional Crimes, Michael L. Smith

Faculty Articles

Studies of criminal laws tend to focus on statutory, regulatory, and common law offenses. Discussions of constitutional law often revolve around abstract, concise statements, particularly those in, or which mirror, the Federal Constitution. In the interest of exploring new territory in both fields, this Article introduces and analyzes a family of crimes that has gone unanalyzed until now: criminal laws that appear in the text of the federal and state constitutions. As it turns out, there are a host of criminal laws contained in the federal and state constitutions, ranging from widespread crimes against treason, bribery, criminal contempt, and corrupt …

The Ersatz Of The Plain-Meaning Rule Of Statutory Construction In Sackett V. Epa (Ii), Dana Neacsu

Law Faculty Publications

This essay uses the United States Supreme Court second decision in Sackett v. EPA, or Sackett (II), to stress the obvious: judges are tasked with decoding the nation’s laws for everyone’s understanding. This judiciary duty is heightened when judges encounter ordinary sounding words, such as “water” or “wetlands,” especially if they are used in technical statutes like the Clean Water Act (CWA). Moreover, it is this author’s opinion that when in doubt, rather than be afraid of acknowledging ignorance, as some comedians do, judges should aspire to incorporate scientific expertise in their legal reasoning, and avoid the fiction …

Converse-Osborn: State Sovereign Immunity, Standing, And The Dog-Wagging Effect Of Article Iii, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

“[T]he legislative, executive, and judicial powers, of every well-constructed government, are co-extensive with each other . . . [T]he judicial department may receive from the Legislature the power of construing any . . . law [which the Legislature may constitutionally make].” Chief Justice Marshall relied on this axiom in Osborn v. Bank of the United States to stress the breadth of the federal judicial power: The federal courts must have the potential power to adjudicate any claim based on any law Congress has the power to enact. In recent years, however, the axiom has sometimes operated in the opposite direction: …

First Amendment Disequilibrium, Christina Koningisor, Lyrissa Barnett Lidsky

UF Law Faculty Publications

The Supreme Court has constructed key parts of First Amendment law around two underlying assumptions. The first is that the press is a powerful actor capable of obtaining government information and checking government power. The second is that the executive branch is bound by various internal and external constraints that limit its ability to keep information secret. Judges and legislators have long assumed that these twin forces—an emboldened press and a constrained executive—maintain a rough balance between the press’s desire to uncover secrets and the executive’s desire to keep information hidden. Landmark First Amendment cases such as the Pentagon Papers …

Bringing Context To Legal Battles Over Trans Rights – A Reply To Professor Yeargain, Jonathan L. Marshfield

UF Law Faculty Publications

This review looks at Professor Yeargain’s findings and analysis through the lens of three important debates in constitutional theory and design.

Why Is There No Social Citizenship In Puerto Rico? The Demise Of Section 20, Haley Powell

Indiana Journal of Law and Social Equality

Part I will define T.H. Marshall’s theory of citizenship rights and explain how that framework pertains to the denial of social welfare rights in Puerto Rico’s constitution. It will also delineate the larger context of social welfare in the United States using the contract versus charity paradigm posited by two historians, New School Professor Nancy Fraser and New York University Professor Linda Gordon. Part II will explore the legislative history of the Puerto Rican Constitution at the Puerto Rican Constitutional Convention and the U.S. Congress debates following the convention. Part III will examine the ramifications of the removal of Section …

Taking A Step Back: Have We Already Seen Judicial Takings?, Anna Sargent

American University Law Review

In Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, Justice Scalia’s plurality opinion held that the Takings Clause is not addressed to a single government actor, but rather applies to all government actions, including those effected by the judicial branch. Consequently, regardless of which branch affects the taking, just compensation is required. Despite promulgating the existence of judicial takings, the Court then went on to say that no established property right was “taken” for Fifth Amendment purposes. Without an application or a clear-cut delineation, Justice Scalia’s promulgation of judicial takings was rendered as merely advisory to …

A Health Justice Approach To Abortion, Maya Manian

Scholarly Articles in Law Reviews & Journals

The Supreme Court’s watershed decision in Dobbs v. Jackson Women’s Health Organization, overturning fifty years of precedent protecting abortion rights, has led to chaos in both the legal and public health landscapes. With Roe v. Wade eliminated, reproductive rights and justice advocates urgently need new frameworks to help regain access to comprehensive reproductive health care in the long term. Recently, a number of legal scholars have argued in favor of medicalizing civil rights—adopting the framework of health justice to talk about civil rights issues. Scholars argue that the health justice framework could be used to advance civil rights in the …

Committed To Copyright's Constitutional Role, Michael W. Carroll

Scholarly Articles in Law Reviews & Journals

Who is Pam Samuelson? She is many things to many people: scholar, teacher, mentor, leader, advocate, and friend, to name a few. One could easily add “force of nature” to the list. This Article suggests adding the term “loyalist” to argue that an important through-line in Pam’s work has been an unwavering commitment to understanding and promoting copyright law’s ability to serve its purpose in our constitutional order.

Lest We Be Lemmings, Claire Wright

Faculty Articles

Lest We Be Lemmings concerns global warming, which is the most grave threat facing humanity today. In this article, I first: (1) discuss how the U.S. Congress and the U.S. Executive Branch, for decades, have been aware of the existence of global warming and its main cause – the burning of fossil fuels and emission of CO₂ - but have consistently failed to regulate the fossil fuel industry, reduce the lucrative subsidies that they provide to the fossil fuel industry, and hold the fossil fuel industry responsible for global warming; (2) explain how the fossil fuel industry, for decades, …

The Roberts Court Revolution, Institutional Legitimacy, And The Promise (And Peril) Of Constitutional Statesmanship, Thomas G. Donnelly

Law Faculty Publications

Our nation is in the middle of a constitutional revolution. While many periods of constitutional transformation have arisen out of large-scale political realignments, the Roberts Court Revolution is a product of our nation’s long (and unusual) political interregnum. Even as neither political party has managed to secure enough support to reconstruct our nation’s politics, the Roberts Court—with its young and ambitious conservative majority—has already moved quickly to reconsider key pillars of the existing constitutional regime. This represents a challenging moment for the Roberts Court and its institutional legitimacy. To counteract this danger, the Justices might return to an old idea—one …

For Richer Or Poorer: The Warren Court's Relationship To Socioeconomic Class, Nicole Jonassen

CMC Senior Theses

The U.S. Constitution does not enshrine socioeconomic rights. Why does this matter? Many argue that socioeconomic rights have value in and of themselves because they secure certain minimum conditions of human dignity, but socioeconomic rights also have instrumental value because abject material deprivation often makes traditional political and civil rights meaningless. In this thesis, I explore the relationship between U.S. constitutional law and socioeconomic rights through an analysis of the Warren Court’s decisions regarding socioeconomic class. In Chapter 1, I present existing literature on socioeconomic rights, socioeconomic rights in the American context, and what many scholars see as the Warren …

Righteous Fury: A Natural Rights Approach To The Individual Right To Bear Arms Under The Ninth And Fourteenth Amendments, Nikhil Agarwal

CMC Senior Theses

The individual right to bear arms for self-defence has been grounded by the modern Supreme Court in the Second Amendment and incorporated against the States by the Due Process Clause of the Fourteenth Amendment. However, a close examination of both the majority and dissenting opinions in each of the three landmark gun-rights cases decided by the Supreme Court this century- DC v. Heller, McDonald v. Chicago, and New York State Rifle & Pistol Association v. Bruen- reveal how difficult is to determine the original meaning of the Second Amendment, and expose weaknesses in the Court’s current substantive due process …

Roads Not Taken On Affirmative Action, Robert L. Tsai

Faculty Scholarship

The law of affirmative action is a mess. In the short term, legal doctrine is constrained by path dependence, but its long-term future is murkier due to the many unforeseen contingencies. To regain a sense of the possible, this Article looks forward to the future of equality jurisprudence by looking backward. It recovers three roads not taken. First, the Supreme Court could have kept expectations minimal by hewing closely to the methods and rhetoric of fairness rather than ratifying a consumerist model of entitlement by deploying an individualistic vision of equality. Second, the justices might have endorsed a robust right …

Standing Without Injury, Jonathan Adler

Faculty Publications

This Article seeks to assess Judge Newsom’s proposed injury-less approach to standing in federal court. Part I of this Article provides a brief overview of current standing doctrine, the requirements of standing consolidated in Lujan, and how these requirements have been interpreted and applied by the Supreme Court. Part II describes Judge Newsom’s critique of contemporary standing doctrine and outlines the two primary components of his proposed alternative: 1) elimination of the standing requirement in favor of a simple cause-of-action requirement and 2) recognition of an external constraint on standing derived from Article II, rather than Article III.

Part …

Popular Constitutionalism Inside The Courts: The Search For Popular Meaning, Thomas G. Donnelly

Law Faculty Publications

While commentators celebrate (or lament) the rise of originalism on the Roberts Court, another theory may prove as important to the future of constitutional law: popular constitutionalism. In a range of recent cases, Justices from across the ideological spectrum have proven themselves open to using sources of popular authority to address important constitutional issues. This is especially true of the two Justices at the Roberts Court’s ideological center: John Roberts and Brett Kavanaugh. Even so, the question remains how best to make popular constitutionalism work inside the courts. This question has vexed popular constitutionalists since the theory’s inception. In my …

The Harlan Court: A Constitutional Alternate History, H. Jefferson Powell

Faculty Scholarship

Walter Dellinger shared the widespread perception that the Burger Court was characterized by “rootless activism” rather than principled constitutional adjudication, and for him this put in question the legitimacy even of decisions that reached outcomes he thought politically or morally desirable. To explain what was wrong with such decisions, he often imagined the Court as it might have been if Justice John Marshall Harlan, who died in 1971, had lived another decade, and inspired an era of constitutional decisions deeply rooted in constitutional tradition and characterized by careful adherence to legal method. This Essay seeks to explain Dellinger’s idea and …

Rules & Laws For Civil Actions: 2024 Ed., Stella Burch Elias, Derek T. Muller, Jason Rantanen, Caroline Sheerin, Maya Steinitz

Books

2024 Edition

Rules and Laws for Civil Actions is an open-access resource for law students containing the U.S. Constitution, Federal Rules of Civil Procedure, Federal Rules of Evidence, Federal Rules of Appellate Procedure, and selected federal and state statutes. The book was created by a team of faculty members at the University of Iowa College of Law to supplement the study of Civil Procedure, Evidence, Constitutional Law, and other law school courses. In addition to containing the official text, each legal source found in Rules and Laws for Civil Actions is accompanied by an introductory section written by an Iowa …

Congressional Power To Institute A Wealth Tax, Will Clark

Notre Dame Law Review Reflection

Over the last few years, several high-profile politicians have pushed to impose a federal “wealth tax.” For example, a recent bill introduced in the Senate would create a two percent tax on the value of assets between fifty million and one billion dollars, plus a higher percentage on wealth valued over one billion dollars. The proponents of the tax argue that it would reduce the growing wealth inequality in the United States, while opponents say that it would disincentivize investment in the American economy.

Policy arguments, however, are only relevant if the federal government has the authority to institute such …

An Originalist Approach To Prospective Overruling, John O. Mcginnis, Michael Rappaport

Notre Dame Law Review

Originalism has become a dominant jurisprudential theory on the Supreme Court. But a large number of precedents are inconsistent with the Constitution’s original meaning and overturning them risks creating enormous disruption to the legal order. This article defends a prospective overruling approach that would harmonize precedent with originalism’s rise and reduce the disruption from overrulings. Under prospective overruling, the Court declares that an existing statute violates the original meaning but will continue to be enforced because declaring it unconstitutional would produce enormous costs; however, future statutes of this type will be voided as unconstitutional. Under our approach, the Court would …

Unleashing The Guarantee Clause Against The Spirit Of Innovation, Ricardo N. Cordova

William & Mary Bill of Rights Journal

[...] Of special significance is Madison’s defense of the Guarantee Clause in Federalist 43, in which he argued that the Clause is intended to prevent “aristocratic or monarchical innovations” by the states. This phrase is a critical clue to uncovering the full meaning of the Guarantee Clause. Yet scholars have mentioned it only in passing and divorced from its historical context, as part of apocryphal claims that the Clause supports radical modern causes. This is unfortunate because Madison’s phrase, properly construed, speaks volumes.

Preliminarily, the phrase shows that the Guarantee Clause was originally understood to prevent changes of a …

Historians Wear Robes Now? Applying The History And Tradition Standard: A Practical Guide For Lower Courts, Alexandra Michalak

William & Mary Bill of Rights Journal

Never before has the Supreme Court relied on the history and tradition standard to such a magnitude as in the 2021 term to determine the scope of a range of constitutional rights. [...] In reaffirming this standard, the Supreme Court provided no guidance to lower courts on how to apply and analyze the history and tradition standard. Along with balancing the lack of resources in deciding cases with the history and tradition framework, lower courts must face the reality that this standard presents ample opportunity for one-sided historical analysis. To combat the temptation of conducting unbalanced and cursory reviews of …

"There's A New Sheriff In Town": Why Granting Qualified Immunity To Local Officials Acting Outside Their Authority Erodes Constitutional Rights And Further Deteriorates The Doctrine, Josephine Mcguire

William & Mary Bill of Rights Journal

Part I traces the history of qualified immunity and the doctrine’s analytical changes over time, detailing the twofold test as it currently stands. Part II considers Large and Sweetin, comparing the courts’ approaches to essentially similar scenarios and evaluating the differences in outcome. Part III addresses the Supreme Court’s denial of the Large plaintiffs’ petition for certiorari and explicates the “scope of authority” question the Court declined to address. Part IV breaks down the decision in Large and conducts the qualified immunity analysis anew, determining that the court misapplied the doctrine regardless of its failure to consider the scope …

The Philosophy Of Ai: Learning From History, Shaping Our Future. Hearing Before The Committee On Homeland Security And Government Affairs, Senate, One Hundred Eighteenth Congress, First Session., Margaret Hu

Congressional Testimony

No abstract provided.