Constitutional Law Commons^™

The Absurd Reach Of A "Colorblind" Constitution, David Hinojosa, Genevieve Bonadies Torres

American University Law Review

Affirmative action has long spurred debates over whether the Equal Protection Clause and subsequent civil rights legislation were intended to permit policies aimed at disrupting racial hierarchies, dismantling systemic discrimination, and ensuring equal opportunity for Black people and other historically marginalized groups. The current lawsuits pending before the Supreme Court challenging affirmative action admissions programs at the University of North Carolina at Chapel Hill (UNC) and Harvard College are no exception. Like prior lawsuits, the plaintiff in both cases—Students for Fair Admissions (“SFFA”)—and its amici seek to turn back the clock on racial diversity at selective universities by urging the …

Disability Reproductive Justice During Covid-19 And Beyond, Robyn M. Powell

American University Law Review

The United States is experiencing the convergence of two crises threatening the reproductive freedom of people with disabilities and other historically marginalized groups: the COVID-19 pandemic and a rising assault on reproductive rights, including the U.S. Supreme Court’s recent Dobbs v. Jackson Women’s Health Organization decision. This convergence has created a perfect storm, revealing the depth of existing reproductive injustices endured by disabled people and forcing a reckoning with the consequences of permitting such inequities to persist. As such, urgent attention by activists, scholars, legal professionals, and policymakers is necessary.

This Article proposes a vision for addressing the deeply entrenched …

Buck As (Anti) Canon: The Misuse Of Eugenics Rhetoric In Selective-Abortion Jurisprudence And The Dangers For Tort Law, Samantha C. Smith

American University Law Review

America’s notorious eugenics case Buck v. Bell is being resurrected as anticanon in abortion jurisprudence. Buck became one of the Court’s worst decisions by upholding eugenic practices, but these recent anticanonical citations also prove harmful by misidentifying eugenics. This Article joins critics of this misuse of “eugenics” labeling and warns that the rhetorical use of Buck in abortion cases has dangerous implications for reproductive medicine. It draws on Buck as the leading precedent for eugenics under the law and demonstrates that selective-abortion cases are distinguishable because of two failures of the Buck Court: the failure to recognize state interference with …

Fault Lines Of Immigration Federalism: United States V. Texas And The Reverse-Commandeering Of Immigration Enforcement Power, Kristine Quint

Lewis & Clark Law Review

Federal supremacy over immigration enforcement is a primary tenet of U.S. immigration law. Despite this, states are now routinely, and often successfully, blocking executive immigration policy in federal court. One such case is United States v. Texas, in which the states argue that the Biden administration’s enforcement priority guidelines inflict significant injury on the states while also violating statutory mandates and the Administrative Procedure Act. This Note analyzes United States v. Texas and concludes that the states’ arguments constitute an act of reverse-commandeering that usurps executive enforcement and policymaking power. The result is a state-held de facto veto, wielded through …

Situating Structural Challenges To Agency Authority Within The Framework Of The Finality Principle, Harold J. Krent

Indiana Law Journal

No abstract provided.

State Constitutional Rights, State Courts, And The Future Of Substantive Due Process Protections, Jonathan L. Marshfield

UF Law Faculty Publications

By most accounts, the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization signaled a broader stagnation (and perhaps retrenchment) of federal substantive due process protections. As a result, there is now great interest in the role that state constitutions and courts might play in protecting and expanding reproductive and privacy rights. This Article aims to place this moment in state constitutional development in broader context. It makes two core claims in this regard. First, although state courts are free to interpret state constitutions as providing broader individual rights protections than those contained in the Federal Constitution, state constitutions …

America's Other Separation Of Powers Tradition, Jonathan L. Marshfield

UF Law Faculty Publications

As the Supreme Court returns many critical issues to the states, the structure of state government is increasingly significant to the American constitutional order. From redistricting to reproductive rights, battles are raging over which state institutions should decide these important issues. Yet there is surprisingly little scholarship dedicated to the separation of powers under state constitutions. Instead, state doctrine and commentary tend to mimic themes in federal constitutional law and parrot Madisonian ideas of constitutional design. On this view, the separation of powers is based on carefully balanced intra-government rivalries fueled by the private ambition of the officers that staff …

Deities’ Rights?, Deepa Das Acevedo

Faculty Articles

A brief commotion arose during the hearings for one of twenty-first-century India’s most widely discussed legal disputes, when a dynamic young attorney suggested that deities, too, had constitutional rights. The suggestion was not absurd. Like a human being or a corporation, Hindu temple deities can participate in litigation, incur financial obligations, and own property. There was nothing to suggest, said the attorney, that the same deity who enjoyed many of the rights and obligations accorded to human persons could not also lay claim to some of their constitutional freedoms. The lone justice to consider this claim blandly and briefly observed …

The Law Enforcement Lobby, Stephen Rushin, Zoe Robinson

Faculty Publications & Other Works

The law enforcement lobby represents one of the most important and undertheorized barriers to criminal justice reform. We define the law enforcement lobby as the constellation of entrenched actors within the justice system—particularly police unions, correctional officer unions, and prosecutor associations—that exert an outsized role in policy development. The law enforcement lobby operates largely without coordinated opposition, resulting in capture of criminal justice policymaking and skewed policy outcomes that often institutionalize injustice and subordination. The strength of the law enforcement lobby also presents a challenge to the growing defunding and abolition movements. Nevertheless, the law enforcement lobby remains at the …

Levels Of Generality & Originalism: Proposing A New Way Forward As Originalism Continues To Expand, Marquan Robertson

Mitchell Hamline Law Review

No abstract provided.

Lessons Of The Plague Years, Barry Sullivan

Faculty Publications & Other Works

The COVID-19 pandemic has challenged governments of every description across the globe, and it surely would have tested the mettle of any American administration. But the pandemic appeared in the United States at a particularly inopportune time. January 2020 marked the beginning of a presidential election year in a deeply polarized country. President Donald Trump was a controversial figure, beginning the fourth year of a highly idiosyncratic administration. He was both a candidate for re-election and the subject of an ongoing impeachment proceeding. In these circumstances, the pandemic quickly became politicized. President Trump's response to the COVID-19 pandemic has often …

Gouverneur Morris And The Drafting Of The Federalist Constitution, William M. Treanor

Georgetown Law Faculty Publications and Other Works

The Salmon P. Chase Colloquium series has had two themes: One is great moments in constitutional law, and the other is people who have been forgotten but should not have been. This colloquium is primarily in the latter category—it is about a forgotten founder of the Constitution. But the Constitution has more than one forgotten founder. I did a Google search this afternoon for “Forgotten Founder” and there are a whole series of books on various people who are the Constitution’s Forgotten Founder. So the Chase Colloquium series has another decade of subjects: Luther Martin, George Mason, Charles Pinckney, Roger …

A State Within A State: Re-Examining The Federal Lands Question And Its Effect On State Sovereignty, David Wilde

William & Mary Environmental Law and Policy Review

Though the path of the public lands debate is well-trodden, this Note will seek to answer the question in novel ways. First, it uses the Corpus of Founding Era American English to perform an objective linguistic analysis of the phrase “dispose of” in the Property Clause. Through this analysis, it appears that an ordinary person at the time the Constitution was adopted would most likely have read the phrase “dispose of” in the Property Clause to mean sell, give away, bestow, or put into another’s hand or power.

Next, this Note investigates the historical and philosophical understandings of state sovereignty …

Arbitrating Executive Privilege, Todd David Peterson

American University Law Review

This Article addresses the dramatic collapse in effective congressional oversight that took place during the Trump Administration. For decades, persistent congressional committees had been able to pry documents and testimony from a recalcitrant executive branch despite the absence of legally enforceable remedies. The media typically regarded executive-privilege claims as attempts to cover up executive wrongdoing, which prompted voter suspicion that damaged the President’s approval ratings. Eventually, the political cost of asserting executive privilege would become so high that the Department of Justice would work out a negotiated settlement, which allowed Congress to obtain most of the documents and testimony it …

Constitutional Limits On The Imposition And Revocation Of Probation, Parole, And Supervised Release After Haymond, Nancy J. King

Vanderbilt Law Review

In its Apprendi line of cases, the Supreme Court has held that any fact found at sentencing (other than prior conviction) that aggravates the punishment range otherwise authorized by the conviction is an “element” that must be proved beyond a reasonable doubt to a jury. Whether Apprendi controls factfinding for the imposition and revocation of probation, parole, and supervised release is critically important. Seven of ten adults under correctional control in the United States are serving terms of state probation and post-confinement supervision, and roughly half of all prison admissions result from revocations of such terms. But scholars have yet …

Search And Seizure Budgets, Kiel Brennan-Marquez, Stephen E. Henderson

Faculty Articles

This article proposes a new means of restraining police power: quantitative limits on the number of law enforcement intrusions—searches and seizures—that may occur over a given period of time. Like monetary constraints, search and seizure budgets would aim to curb abusive policing and improve democratic oversight. But unlike their monetary counterparts, budgets would be indexed directly to the specific police activities that most enable escalation and abuse. What is more, budgets are a tool that finds support, conceptually, in the American framing experience. The Fourth Amendment has long been understood to require procedural limits, such as probable cause, on specific …

Living Traditionalism, Sherif Girgis

Journal Articles

From the Article

This Article offers the first comprehensive analysis of the Court’s living traditionalism, which turns out to include scores of cases spanning every subject and Justices of every stripe. Next, the Article identifies a fundamental but previously unrecognized tension in the method itself: If the Court gives living-traditionalist cases full weight as precedent, it defeats the reasons for using the method at all. Put another way, it is incoherent to treat political practices as a ratchet: capable of moving law in one direction (e.g., against a right in 2022) but not the other (in favor of the right …

Voting Justice: Why The Attack On Voting Rights Is Best Understood As A "Justice" Issue, Yalda Nia

University of San Francisco Law Review

No abstract provided.

Notes On Continental Constitutional Identities, Benjamen F. Gussen

Vanderbilt Journal of Transnational Law

Geo-constitutional analysis examines the reciprocal effect of geography on constitutions. Within this analysis, a continental constitutional identity focuses on the intersection between institutional geographies and institutional identities, where constitutions are understood as meta-institutions. In some constitutions, belonging to a continent is part of the national identity, while other constitutions only signal a non-geographic, usually an ethnic, identity. The US Constitution is an example of the former. The quintessential example of a non-geographic constitution is the Constitution of the Russian Federation. A similar disregard of continental identities can be found in Israel and the Arab League countries east of the Sinai …

American Religious Liberty Without (Much) Theory: A Review Of Religion And The American Constitutional Experiment, 5th Edition, Nathan S. Chapman

Scholarly Works

Book review of Religion and the American Constitutional Experiment, 5th ed. By John Witte Jr., Joel A. Nichols, and Richard W. Garnett. Oxford: Oxford University Press, 2022. Pp. 464. $150.00 (cloth); $39.95 (paper); $26.99 (digital). ISBN: 9780197587614.

National Federation Of Independent Business V. Sebelius, 567 U.S. 519 (2012), Elizabeth Weeks, Mary Ann Chirba, Alice A. Noble

Scholarly Works

In National Federation of Independent Business v. Sebelius, decided in 2012, twenty-six states as well as private individuals and an organization of independent businesses challenged the constitutionality of two key components of the Affordable Care Act. The Court upheld the individual mandate but converted the Medicaid eligibility expansion from mandatory to optional for states. Elizabeth Weeks’ feminist rewrite breaks down the public law-private law distinction to get beyond the traditional view of health insurance as a commercial product providing individual financial protection against risk and instead to view it as effecting a risk pool premised on cross-subsidization of the health-care …

Reevaluating Regional Law Reform Strategies After Dobbs, Jamie Abrams

Scholarly Articles in Law Reviews & Journals

This article studies the triad of 2016 social media campaigns known as “#AskDr.Kasich,” “#askbevinaboutmyvag,” and “#PeriodsforPence.” While these campaigns, each located in the regional mid-South, were motivated by restrictive state abortion bills, they uniquely positioned menstruation and women’s bodies at the center of their activism—not abortion alone. They leveraged, as a political fault line, the contradiction of these states’ governors’ perceived disgust relating to basic women’s reproductive health, relative to their patriarchal assuredness in regulating and controlling women’s bodies.

In so doing, they tapped into meaningful disruptions in the geographies, religiosities, and masculinities of abortion politics. These campaigns achieved regional …

Affirmative Action After Sffa, Jonathan Feingold

Faculty Scholarship

In SFFA v. Harvard (SFFA), the Supreme Court further restricted a university’s right to consider the racial identity of individual applicants during admissions. The ruling has spawned considerable confusion regarding a university’s ongoing ability to pursue racial diversity, racial inclusion, and other equality-oriented goals—whether through “raceconscious” or “race-neutral” means. To assist institutions attempting to navigate the ruling, this article outlines a set of key legal rights and responsibilities that universities continue to possess following SFFA.

Surveillance Technologies And Constitutional Law, Christopher Slobogin, Sarah Brayne

Vanderbilt Law School Faculty Publications

This review focuses on government use of technology to observe, collect, or record potential criminal activity in real-time, as contrasted with “transaction surveillance” that involves government efforts to access already-existing records and exploit Big Data, topics that have been the focus of previous reviews (Brayne 2018, Ridgeway 2018). Even so limited, surveillance technologies come in many guises, including closed-circuit television, automated license plate and facial readers, aerial cameras, and GPS tracking. Also classifiable as surveillance technology are devices such as thermal and electromagnetic imagers that can “see” through walls and clothing. Finally, surveillance includes wiretapping and other forms of communication …

Constitutional Limits On The Imposition And Revocation Of Probation, Parole, And Supervised Release After Haymond, Nancy J. King

Vanderbilt Law School Faculty Publications

In its Apprendi line of cases, the Supreme Court has held that any fact found at sentencing (other than prior conviction) that aggravates the punishment range otherwise authorized by the conviction is an "element" that must be proved beyond a reasonable doubt to a jury. Whether Apprendi controls factfinding for the imposition and revocation of probation, parole, and supervised release is critically important. Seven of ten adults under correctional control in the United States are serving terms of state probation and post-confinement supervision, and roughly half of all prison admissions result from revocations of such terms. But scholars have yet …

Reasonable Classification Versus Equality Under The Indian Constitution, Jahnavi Sindhu, Vikram Aditya Narayan

National Law School Journal

This article critiques the standard of review most prominently applied in cases involving claims of violations of Article 14 of the Constitution: the reasonable classification test. We argue that this test is woefully inadequate in appreciating and protecting the wide-ranging nature of the right to equality. Through an examination of the origins of the reasonable classification test, we demonstrate the weak justifications initially advanced by the Indian judiciary to import it from dated United States (US) case law. Further, we highlight the substantial weaknesses of the test and explain how it precludes the judiciary from safeguarding the content of substantive …

Reconsidering The Public Square, Helen L. Norton

Publications

No abstract provided.

Alito Versus Roe V. Wade: Dobbs As A Means Of Circumvention, Avoidance, Attenuation And Betrayal Of The Constitution, Antony Hilton

American University Journal of Gender, Social Policy & the Law

There can be no argument that Justice Alito is a learned justice of great knowledge and reason, and has a superb grasp of the law. As such, despite any opposition to or disagreement with his legal opinions, he is deserving of respect for his intellectual prowess, in general and as it relates to the Constitution. Notwithstanding all the aforementioned, wrong is wrong.

Hair Me Out: Why Discrimination Against Black Hair Is Race Discrimination Under Title Vii, Alexis Boyd

American University Journal of Gender, Social Policy & the Law

In May 2010, Chastity Jones sought employment as a customer service representative at Catastrophe Management Solutions (“CMS”), a claims processing company located in Mobile, Alabama. When asked for an inperson interview, Jones, a Black woman, arrived in a suit and her hair in “short dreadlocks,” or locs, a type of natural hairstyle common in the Black community. Despite being qualified for the position, Jones would later have her offer rescinded because of her hair. CMS claimed that locs “tend to get messy” and violated the “neutral” dress code and hair policy requiring employees to be “professional and business-like.” Therefore, CMS …

The Right To Amend State Constitutions, Jessica Bulman-Pozen, Miriam Seifter

Faculty Scholarship

This Essay explores the people's right to amend state constitutions and threats to that right today. It explains how democratic proportionality review can help courts distinguish unconstitutional infringement of the right from legitimate regulation. More broadly, the Essay considers the distinctive state constitutional architecture that popular amendment illuminates.