Constitutional Law Commons^™

The Extraterritoriality Doctrine Of The Dormant Commerce Clause Is Not Dead, Susan Lorde Martin

Marquette Law Review

In 1895, the New York Court of Appeals, in refusing to enforce a Kansas statute, referred to “a principle of universal application, recognized in all civilized states, that the statutes of one state have . . . no force or effect in another.” In 1897, the Court of Appeals of Kentucky noted that “[t]he statute of another state has, of course, no extraterritorial force.” That old notion describes the extraterritoriality doctrine of the dormant Commerce Clause. In recent years, the doctrine has become problematic for several reasons. One, the line between intrastate and interstate business has become blurred with many …

Rluipa And The Limits Of Religious Institutionalism, Zachary A. Bray

Law Faculty Scholarly Articles

What special protections, if any, should religious organizations receive from local land use controls? The Religious Land Use and Institutionalized Persons Act (“RLUIPA”)—a deeply flawed statute—has been a magnet for controversy since its passage in 2000. Yet until recently, RLUIPA has played little role in debates about “religious institutionalism,” a set of ideas that suggest religious institutions play a distinctive role in developing the framework for religious liberty and that they deserve comparably distinctive deference and protection. This is starting to change: RLUIPA’s magnetic affinity for controversy has begun to connect conflicts over religious land use with larger debates about …

Black-Box Immigration Federalism, David S. Rubenstein

Michigan Law Review

In Immigration Outside the Law, Hiroshi Motomura confronts the three hardest questions in immigration today: what to do about our undocumented population, who should decide, and by what legal process. Motomura’s treatment is characteristically visionary, analytically rich, and eminently fair to competing views. The book’s intellectual arc begins with its title: “Immigration Outside the Law.” As the narrative unfolds, however, Motomura explains that undocumented immigrants are “Americans in waiting,” with moral and legal claims to societal integration.

North Carolina State Board Of Dental Examiners V. Ftc: Aligning Antitrust Law With Commerce Clause Jurisprudence Through A Natural Shift Of State-Federal Balance Of Power, Marie Forney

Indiana Law Journal

The Supreme Court’s holding in North Carolina State Board of Dental Examiners v. FTC (NC Dental)1 in February 2015 demonstrates a natural shift in the balance of power from the states to the national government. As the country’s interstate and international economy has become more integrated, federal authority has likewise expanded.2 And although the federalism dichotomy has undergone periodic back-and-forth “swings” since the nation’s founding, the end result has been a net increase in federal power. NC Dental exemplifies this trend toward increasing national au-thority through the organic development of interstate commerce.

Congress And The Reconstruction Of Foreign Affairs Federalism, Ryan Baasch, Saikrishna Bangalore Prakash

Michigan Law Review

Though the Constitution conspicuously bars some state involvement in foreign affairs, the states clearly retain some authority in foreign affairs. Correctly supposing that state participation may unnecessarily complicate or embarrass our nation’s foreign relations, the Supreme Court has embraced aggressive preemption doctrines that sporadically oust the states from discrete areas in foreign affairs. These doctrines are unprincipled, supply little guidance, and generate capricious results. Fortunately, there is a better way. While the Constitution permits the states a limited and continuing role, it never goes so far as guaranteeing them any foreign affairs authority. Furthermore, the Constitution authorizes Congress to enact …

Conflicts Originalism: The "Original Content" Of The Full Faith And Credit Clause And The Compulsory Choice Of Marriage Law, J. Sephen Clark

West Virginia Law Review

No abstract provided.

Fundamental Unenumerated Rights Under The Ninth Amendment And The Privileges Or Immunities Clause, Adam Lamparello

Akron Law Review

The failure to link the Ninth Amendment and Privileges or Immunities Clause for the purpose of creating unenumerated fundamental rights has been a persistent but rarely discussed aspect of the Court’s jurisprudence. That should change. There need not be an ongoing tension between the Court’s counter-majoritarian role and the authority of states to govern through the democratic process. If the Constitution’s text gives the Court a solid foundation upon which to recognize new rights and thereby create a more just society, then the exercise of that power is fundamentally democratic. The Ninth Amendment and Privileges or Immunities Clause provides that …

Pinholster's Hostility To Victims Of Ineffective State Habeas Counsel, Jennifer Utrecht

Michigan Law Review

Cullen v. Pinholster foreclosed federal courts from considering new evidence when reviewing 28 U.S.C. § 2254(d) petitions for claims previously adjudicated on the merits in state court. This decision has a particularly adverse effect on petitioners whose state habeas counsel left an incomplete or undeveloped record. This Note discusses strategies for victims of ineffective state habeas counsel to avoid the hostile mandate of Pinholster. It argues that, in light of Martinez v. Ryan’s recognition of the importance of counsel in initialreview collateral proceedings, courts should be wary of dismissing claims left un- or underdeveloped by ineffective state habeas counsel. It …

Taking Care Of Federal Law, Leah Litman

Articles

Article II of the Constitution vests the “executive power” in the President and directs the President to “take Care that the Laws be faithfully executed.” But do these provisions mean that only the President may execute federal law? Two lines of Supreme Court precedent suggest conflicting answers to that question. In several prominent separation-of-powers cases, the Court has suggested that only the President may execute federal law: “The Constitution requires that a President chosen by the entire Nation oversee the execution of the laws.” Therefore, the Court has reasoned, Congress may not create private rights of action that allow nonexecutive …

Federalism As A Constitutional Principle, Ernest Young

University of Cincinnati Law Review

Justice O’Connor rightly called federalism “our oldest question of constitutional law.”1 But the constitutional balance between the nation and the states is hardly what the cool kids are talking about these days. My first-year con law students show up each Fall expecting to learn about same-sex marriage, flag burning, and abortion; they’re plainly disappointed when they pick up the syllabus and see how much of the course is going to be about government structure.

The first part of my talk resists that intuition. The notion that federalism is passé is so tragically wrongheaded that I can’t bear to leave it …

Toward A Judicial Bulwark Against Constitutional Extravagance - A Proposed Constitutional Amendment For State Consent Over Judicial Appointments, Steven T. Voigt

ConLawNOW

Imagine a championship football game where one team is allowed to pick all of the referees.

Since the beginning of our nation, the line dividing federal and state power has been debated. But it has been decided in the federal courts, where judges were originally chosen by the President with the consent of a Senate that was chosen by the legislatures of the States. Federal judges are still chosen by the President with the consent of the Senate, but the Senate is no longer chosen by the States. With this constitutional change that proponents wrongly argued would not affect state …

The Reaffirmation Of Federalism As A Viable Limitation Upon The Commerce Power, Randy R. Koenders

Akron Law Review

"Throughout its history, the constitutional basis of the FLSA has remained anchored in the Commerce Clause. However, despite the legitimacy of that purpose, the FLSA has been the subject of constant attacks since its inception, the most fervent of which has been the challenge to its constitutionality on state sovereignty grounds.

"Two recent United States Supreme Court cases construing the constitutionality of the FLSA and its amendments reflect not only the changing judicial posture toward extension of the Act to matters of state concern, but also the differing attitudes toward extension of the Commerce Clause itself."

The Reaffirmation Of Federalism As A Viable Limitation Upon The Commerce Power, Randy R. Koenders

Akron Law Review

AS THE Constitution was being formulated, Article I, Section 8, clause 3, giving Congress the power "To regulate Commerce with foreign Nations, and among the several states, and with the Indian Tribes," was added because of the Framers' grave concern with the erection of trade barriers between the states, a problem which had inhibited interstate trade under the old Articles of Confederation. The federal government's regulation of commerce was meant to provide substantial equality of access to a free national market, avoiding what has been unhappily referred to as "the intolerable experience of the economic Balkanization of America

Constitutional Federalism Revisited: Garcia V. San Antonio Metropolitan Transit Authority, Leslie Ann Iams

Akron Law Review

Constitutional federalism is the basis on which the United States government was created. However, the concept of constitutional federalism has not yet been clearly defined, and as a consequence, conflicting viewpoints on federalism have arisen. These conflicting viewpoints are best illustrated by the law concerning the commerce clause.

With the recent expansion of the commerce clause, the United States Supreme Court was faced with defining constitutional federalism, in order to evaluate the legitimacy of commerce clause legislation. The task of defining constitutional federalism, however, only served to create a dispute over federalism among the Supreme Court Justices. In 1985, the …

The Use Of The Fourteenth Amendment By Salmon P. Chase In The Trial Of Jefferson Davis, C. Ellen Connally

Akron Law Review

The resulting decision in The Slaughterhouse Cases is one that is still debated and stands as a primary example of an unintended consequence of a constitutional amendment. Although historians and legal scholars have considered a number of the unintended consequences of the Fourteenth Amendment, one result, unforeseen by its proponents, has been totally overlooked... In the legal proceedings that came to be known as United States v. Jefferson Davis, a legal determination was required to determine whether or not Section 3 imposed a simple disqualification or an actual punishment...Could those who pushed for the adoption of the Fourteenth Amendment, those …

Response To Heather Gerken's Federalism And Nationalism: Time For A Détente?, Erin Ryan

Scholarly Publications

No abstract provided.

Maintaining The Balance Of Power: A Typology Of Primacy Clauses In Federal Systems, Brady Harman

Indiana Journal of Global Legal Studies

Constitutional design has become a novel and globalized legal profession. As such, practitioners in this new field-advisers and consultants of constitutional formation and reformation processesrequire practical and comparative tools to ply their trade. This Note attempts to fill a gap in constitutional design literature and provide such a tool by methodically examining "primacy clauses." By determining whether national or provincial law prevails when the two are in conflict, primacy clauses play an important role in maintaining federal balances of power. Three primacy approaches are found among the world's federal constitutions: national primacy, provincial primacy, and conditional primacy. This Note explores …

Why "Privileges Or Immunities"? An Explanation Of The Framers' Intent, William J. Rich

Akron Law Review

In the Slaughter-House Cases, Justice Field accused the majority of turning the Fourteenth Amendment’s Privileges or Immunities Clause into a “vain and idle enactment which accomplished nothing,” and Justice Swayne argued that the majority “turn[ed] . . . what was meant for bread into a stone.” Most contemporary commentators appear to agree... Did the framers of the Fourteenth Amendment make a colossal mistake? Or were Justices Field and Swayne correct when they blamed Justice Miller’s majority opinion in Slaughter-House for leading the nation astray? Answers to these questions, in the pages that follow, are “no” to the first, and a …

The Fourteenth Amendment And The Unconstitutionality Of Secession, Daniel A. Farber

Akron Law Review

To understand fully the relevance of the first two clauses of the Fourteenth Amendment to secession, we need to examine the antebellum disputes about citizenship and sovereignty, the subject of Part II below. Issues about citizenship arose in the context of specific disputes about naturalization, expatriation, and the rights of freedmen, but they implicated conflicts over the seat of allegiance and the nature of the Union. Part III turns to the Reconstruction debates and shows how they reflect a fundamentally nationalistic view of citizenship. The Reconstruction Amendments to the Constitution were connected with a powerful vision of national citizenship and …

House Of Cards: How Rediscovering Republicanism Brings It Crashing Down, Jonathan E. Maddison

Catholic University Law Review

Using Frank Underwood’s maniacal political journey in the Netflix series House of Cards as an example of what is wrong with American politics, this article argues that the Supreme Court’s misapplication of First Amendment principles in Citizens United and other key campaign finance cases plays a large and problematic role. Providing an extensive historical overview of republicanism and First Amendment jurisprudence, this article suggests that a return to republican ideals, while not perfect, is both the solution and proper tool of analysis to be used by the Supreme Court for campaign finance cases and beyond.

The Commonwealth Of Puerto Rico: Trying To Gain Dignity And Maintain Culture, Arnold Leibowitz

Georgia Journal of International & Comparative Law

No abstract provided.

A Fugitive From The Camp Of The Conquerors: The Revival Of Equal Sovereignty Doctrine In Shelby County V. Holder, Vik Kanwar

Journal of Race, Gender, and Ethnicity

No abstract provided.

Backsliding: The United States Supreme Court, Shelby County V. Holder And The Dismantling Of Voting Rights Act Of 1965, Bridgette Baldwin

Journal of Race, Gender, and Ethnicity

No abstract provided.

The Post-Shelby County Game, Steven R. Morrison

Journal of Race, Gender, and Ethnicity

No abstract provided.

One Step Forward, Two Steps Backward: How The Supreme Court’S Decision In Shelby County V. Holder Eviscerated The Voting Rights Act And What Civil Rights Advocates Should Do About It, Pamela Edwards

Journal of Race, Gender, and Ethnicity

No abstract provided.

Demography And Democracy, Phyllis Goldfarb

Journal of Race, Gender, and Ethnicity

No abstract provided.

The Roberts Court And Penumbral Federalism, Edward Cantu

Catholic University Law Review

For several decades the Court has invoked “state dignity” to animate federalism reasoning in isolated doctrinal contexts. Recent Roberts Court decisions suggest that a focus on state dignity, prestige, status, and similar ethereal concepts—which derive from a “penumbral” reading of the Tenth Amendment—represent the budding of a different doctrinal approach to federalism generally. This article terms this new approach “penumbral federalism,” an approach less concerned with delineating state from federal regulatory turf, and more concerned with maintaining the states as viable competitors for the respect and loyalty of the citizenry.

After fleshing out what “penumbral federalism” is and its …

Negotiating Federalism And The Structural Constitutionn: Navigating The Separation Of Powers Both Vertically And Horizontally, Erin Ryan

Scholarly Publications

No abstract provided.

Can The Eu Be A Constitutional System Without Universal Access To Judical Review, Brian Libgober

Michigan Journal of International Law

This Comment engages with a central dilemma about the legal order of the European Union: is the EU a constitutional system, a treaty system, or a hybrid system for which we must develop a new conceptual vocabulary? Besides intrinsic interest, resolving this categorization problem is important for deciding a number of issues in European Union law. For example, are legal strategies that are normally available to parties in international law viable in the European legal order? Should Community law be supreme over national law? If so, what limits should be placed on that supremacy, and “who should have the ultimate …

Reflections On Comity In The Law Of American Federalism, Gil Seinfeld

Articles

Comity is a nebulous concept familiar to us from the law of international relations. Roughly speaking, it describes a set of reciprocal norms among nations that call for one state to recognize, and sometimes defer to, the laws, judgments, or interests of another. Comity also features prominently in the law of American federalism, but in that context, it operates within limits that have received almost no attention from scholarly commentators. Specifically, although courts routinely describe duties that run from one state to another, or from the federal government to the states, as exercises in comity, they almost never rely on …