Constitutional Law Commons^™

The Problem Of Qualified Immunity In K-12 Schools, Sarah Smith

Arkansas Law Review

When thirteen-year-old Savana Redding arrived at school one autumn day in 2003, she was not expecting to be pulled out of her math class and strip searched. But, that is exactly what happened after the assistant principal suspected her of possessing and distributing “prescription-strength ibuprofen” and “over-the-counter. . .naproxen” after receiving information from another student. After Savana consented to a search of her backpack and other belongings—a search which turned up no evidence of drug possession—the assistant principal asked the school nurse and administrative assistant to search Savana’s clothes. To do this, the school officials asked Savana “to remove her …

Big Bad Roe, B. Jessie Hill

Faculty Publications

Now that Roe v. Wade is gone, what should replace it? This moment presents a rare opportunity to re-imagine the right to reproductive autonomy, given that the longstanding constitutional framework governing that right has been tossed out the window. For the most part, constitutional litigation over the right to abortion has shifted to state courts and is brought under state constitutions. Thus, as state courts begin to recognize the existence of a constitutional right to reproductive autonomy under state constitutions, they must decide what the right looks like. In several cases currently being litigated in state courts, advocates have argued …

Democracy At Risk: Domestic Terrorism And Attack On The U.S. Capitol, Lawrence J. Trautman

Seattle University Law Review

The year 2022 begins with democracy hanging in the balance. On February 13, 2021, Donald John Trump becomes the only American president to be impeached and acquitted twice. His acquittal for the second time follows a violent mob, having been incited by the lame-duck president, into marching down Pennsylvania Avenue to break into and vandalize the Capitol Building. It is now known that at least 138 law enforcement officers suffered from or received burns, concussions, rib fractures, heart attack—and at least five deaths are attributed to this insurrection. More than 725 individuals are subsequently charged for their role in this …

Presidential Election Reform: A Current National Imperative, Mark Bohnerst, Reed Hundt, Kate E. Morrow, Aviam Soifer

Lewis & Clark Law Review

This Article suggests several important practical reforms in how we choose our President and Vice President. It first identifies problems with the Electoral College system, and proposes solutions that would not require a constitutional amendment. The Article also discusses how the long-forgotten provisions of Section 2 of the Fourteenth Amendment authorize reduction in the electoral votes from states whose legislatures deprive or abridge the right of the people to vote for their presidential electors. By exploring the history and language of Section 2, this Article demonstrates that it was ratified with the specific purpose of preventing state legislatures from usurping …

The 'Impractical And Anomalous' Consequences Of Territorial Inequity, Jayanth K. Krishnan

Articles by Maurer Faculty

Located in the South Pacific Ocean, American Samoa is one of five populated “unincorporated territories” of the United States. It is unique, though, as those born there are not recognized as American citizens at birth and instead are deemed “noncitizen U.S. nationals.” They enjoy some, but not all, constitutional protections. Two federal appellate courts—the D.C. Circuit (in 2015) and the Tenth Circuit (in 2021)—have ruled that this classification does not violate the Fourteenth Amendment’s Citizenship Clause. Both courts have stated that it would be “impractical” and “anomalous” to extend birthright citizenship to the American Samoan community.

Drawing upon a powerful …

Banning Abortions Based On A Prenatal Diagnosis Of Down Syndrome: The Future Of Abortion Regulation, Alexandra Russo

Touro Law Review

Since the infamous Supreme Court decision, Roe v. Wade, the United States has remained divided, each side unyielding to the other regarding the legal and moral issues surrounding abortion. The issues surrounding abortion have become progressively more politicized, thus threatening a woman’s right to a safe and healthy termination of her pregnancy. Restrictions on a woman’s ability to terminate a child with a genetic disorder, such as Down syndrome, highlight this concern. State restrictions on abortion that prohibit abortions based on a diagnosis of Down syndrome seek to prevent the stigmatization of the Down syndrome community. Regulations, such as …

Reflections On Nomos: Paideic Communities And Same Sex Weddings, Marie A. Failinger

Touro Law Review

Robert Cover’s Nomos and Narrative is an instructive tale for the constitutional battle over whether religious wedding vendors must be required to serve same-sex couples. He helps us see how contending communities’ deep narratives of martyrdom and obedience to the values of their paideic communities can be silenced by the imperial community’s insistence on choosing one community’s story over another community’s in adjudication. The wedding vendor cases call for an alternative to jurispathic violence, for a constitutionally redemptive response that prizes a nomos of inclusion and respect for difference.

Malicious Prosecution As Undue Process: A Fourteenth Amendment Theory Of Malicious Prosecution, Timothy Tymkovich, Hayley Stillwell

Faculty Articles

Section 1983 is not itself a source of constitutional rights, but is instead merely a vehicle to vindicate constitutional rights that independently exist. But since the Supreme Court advised in dictum that actions pursuant to § 1983 should be read against the background of tort liability, § 1983 actions based on malicious prosecution have sparked disagreement over where, if anywhere, this cause of action fits within the Constitution. Most recently, the Supreme Court determined that malicious prosecution finds its constitutional home in the Fourth Amendment, so § 1983 claims require a showing of both a Fourth Amendment violation and the …

Yes, Alito, There Is A Right To Privacy: Why The Leaked Dobbs Opinion Is Doctrinally Unsound, Nancy C. Marcus

Faculty Scholarship

On June 24, 2022, the Supreme Court released the final Dobbs majority opinion, which is substantially identical to the draft opinion. Consequently, the critique contained in this essay applies equally to the final Dobbs opinion.

On May 2, 2022, a draft majority opinion dated February 2022 and authored by Justice Alito in Dobbs v. Jackson Women’s Health Organization was leaked to the public. This Essay addresses the doctrinal infirmities of the underlying analysis of the draft Dobbs opinion, as well as the resulting dangers posed for the protection of fundamental privacy rights and liberties in contexts even beyond abortion.

The …

The Lawfulness Of The Fifteenth Amendment, Travis Crum

Scholarship@WashULaw

One of the most provocative debates in constitutional theory concerns the lawfulness of the Reconstruction Amendments’ adoptions. Scholars have contested whether Article V permits amendments proposed by Congresses that excluded the Southern States and questioned whether those States’ ratifications were obtained through unlawful coercion. Scholars have also teased out differences in how States were counted for purposes of ratifying the Thirteenth and Fourteenth Amendments. This debate has focused exclusively on the Thirteenth and Fourteenth Amendments, dismissing the Fifteenth Amendment as a mere sequel.

As this Essay demonstrates, the unique issues raised by the Fifteenth Amendment’s ratification adds important nuance to …

Deregulated Redistricting, Travis Crum

Scholarship@WashULaw

From the civil rights movement through the Obama administration, each successive redistricting cycle involved ever-greater regulation of the mapmaking process. But in the past decade, the Supreme Court has re-written the ground rules for redistricting. For the first time in fifty years, Southern States will redistrict free of the preclearance process that long protected minorities from having their political power diminished. Political parties can now openly engage in egregious partisan gerrymandering.

The Court has withdrawn from the political thicket on every front except race. In so doing, the Court has engaged in decision-making that is both activist and restrained, but …

Federalism And Equal Citizenship: The Constitutional Case For D.C. Statehood, Jessica Bulman-Pozen, Olatunde C.A. Johnson

Faculty Scholarship

As the question of D.C. statehood commands national attention, the legal discourse remains stilted. The constitutional question we should be debating is not whether statehood is permitted but whether it is required.

Commentators have been focusing on the wrong constitutional provisions. The Founding document and the Twenty-Third Amendment do not resolve D.C.’s status. The Reconstruction Amendments — and the principle of federated, equal citizenship they articulate — do. The Fourteenth Amendment’s Citizenship Clause, as glossed by subsequent amendments, not only establishes birthright national citizenship and decouples it from race and caste but also makes state citizenship a constitutive component of …

Korematsu’S Ancestors, Mark A. Graber

Arkansas Law Review

Mark Killenbeck’s Korematsu v. United States has important affinities with Dred Scott v. Sandford. Both decisions by promoting and justifying white supremacy far beyond what was absolutely mandated by the constitutional text merit their uncontroversial inclusion in the anticanon of American constitutional law.3 Dred Scott held that former slaves and their descendants could not be citizens of the United States and that Congress could not ban slavery in American territories acquired after the Constitution was ratified.5 Korematsu held that the military could exclude all Japanese Americans from portions of the West Coast during World War II.6 Both decisions nevertheless provided …

Why The Civil Rights Cases Belong In The Anti-Canon: Black Citizenship, The Fourteenth Amendment, And Judicial Interposition, Matthew Norman, Christopher Bryant

ConLawNOW

This essay analyzes the Supreme Court’s ruling in The Civil Rights Cases (1883) and surveys both contemporary and scholarly responses to it. Citizenship should mean something, and the Court’s ruling in The Civil Rights Cases invalidated much of the Civil Rights Act of 1875, the most ambitious and progressive civil rights legislation that Congress enacted prior to 1964. When the Supreme Court issued its decision in Dred Scott, Abraham Lincoln warned of a sequel that would nationalize slavery. While the Thirteenth Amendment eliminated the possibility of such a decision, Dred Scott is widely recognized as one of the Court’s …

Freedom From Thirst: A Right To Basic Household Water, Martha F. Davis

Cardozo Law Review

No abstract provided.

Plea Bargains: Justice For The Wealthy And Fear For The Innocent, Emily Stauffer

Brigham Young University Prelaw Review

The Supreme Court has consistently recognized the hardships of the poor in the criminal justice system and has set a precedent that if a person cannot afford access to any level of the criminal justice system, the state must remove that financial barrier. Prosecutorial tactics in the plea-bargaining process coerce the poor into waiving their right to trial. The unequal access to trial between the poor and non-poor violates the Fourteenth Amendment, which requires that states remove any barrier that restricts the poor from the criminal justice system. The Court has left the states to decide which solutions will work …

Strengthening Section 14141: Using Pattern Or Practice Investigations To End Violence Between Police And Communities, Sigourney Norman

Journal of Civil Rights and Economic Development

(Excerpt)

Imagine you are on your way home from work and driving your usual route. You hear police sirens getting louder and louder. You realize you are the subject of their chase, but you cannot imagine why. You slow down and pull over, not wanting to cause confrontation. The officer beats on your car door. You roll down your window and ask why you have been pulled over. The officer informs you that your tail light is broken. Next, the officer orders you out of the car. Your heart races as the officer pats you down. You wonder if the …

Keeping Up: Walking With Justice Douglas, Charles A. Reich

Touro Law Review

No abstract provided.

Enforcement Of The Reconstruction Amendments, Alexander Tsesis

Faculty Publications & Other Works

This Article systematically analyzes the delicate balance of congressional and judicial authority granted by the Reconstruction Amendments. The Thirteenth, Fourteenth, and Fifteenth Amendments vest Congress with powers to enforce civil rights, equal treatment, and civic participation. Their reach extends significantly beyond the Rehnquist and Roberts Courts’ narrow construction of congressional authority. In recent years, the Court has struck down laws that helped secure voter rights, protect religious liberties, and punish age or disability discrimination. Those holdings encroach on the amendments’ allocated powers of enforcement.

Textual, structural, historical, and normative analyses provide profound insights into the appropriate roles of the Supreme …

Dehors The Record: A Correction Of A Final Jeopardy Question, Thomas E. Baker

FIU Law Review

No abstract provided.

Charles Reich: Due Process In The Eye Of The Receiver, Harold Hongju Koh

Touro Law Review

No abstract provided.

Addressing Racial Inequities In The Criminal Justice System Through A Reconstruction Sentencing Approach, Jelani Jefferson Exum

Faculty Publications

(Excerpt)

Justice reform is having a moment. Across the nation and in the federal government, legislation has passed “to reduce the scale of incarceration and the impact of collateral consequences of a felony conviction.” While some of these reforms were the result of fiscal concerns over mass incarceration, others were in response to the criminal justice reckoning brought on by events of 2020 and intensified calls for racial justice. In the summer of 2020 media attention on the police killings of George Floyd and Breonna Taylor sparked nationwide and global protests and accompanying antiracism pledges by individuals and institutions. This …

The Due Process Of Bail, Jenny E. Carroll

Faculty Scholarship

The Due Process Clause is a central tenet of criminal law’s constitutional canon. Yet defining precisely what process is due a defendant is a deceptively complex proposition. Nowhere is this more true than in the context of pretrial detention, where the Court has relied on due process safeguards to preserve the constitutionality of bail provisions. This Essay considers the lay of the bail due process landscape through the lens of the district court’s opinion in O’Donnell v. Harris County and the often convoluted historical description of pretrial due process. Even as the O’Donnell court failed to characterize pretrial process as …

What Is "Appropriate" Legislation?: Mcculloch V. Maryland And The Redundancy Of The Reconstruction Amendments, Franita Tolson

Arkansas Law Review

I am thankful for the opportunity to review Professor David Schwartz’s really thoughtful and incisive critique of McCulloch v. Maryland. The book is a creative and masterful reinterpretation of a decision that I thought I knew well, but I learned a lot of new and interesting facts about McCulloch and the (sometimes frosty) reception that the decision has received over the course of the last two centuries. Professor Schwartz persuasively argues that modern views of McCulloch as a straightforward nationalist decision that has always had a storied place in the American constitutional tradition are flat-out wrong. The Spirit of the …

Note: Building Blocks Of A Fundamental Right: A Thought Experiment On The Constitutional Right To A Livable Climate, Melanie Hess

Notre Dame Journal on Emerging Technologies

When civil rights lawyers sought to overturn Plessy v. Ferguson in the years leading up to Brown v. Board of Education, they faced a history of institutionalized segregation and inequality, constitutional acceptance of the “separate but equal” doctrine, and sharp social divisions on the issue. Other landmark cases of rights recognition, such as Obergefell v. Hodges and Roe v. Wade, similarly built upon years of evolution in law, precedent, and social opinion that made them inconceivable before their time. Early versions of the litigation strategies envisioning these judgments might have been tentative and vague, lacking in factual, legal, …

An Open Letter To The Ohio Supreme Court: Setting A Uniform Standard On Anders Briefs, Matthew D. Fazekas

Cleveland State Law Review

Attorneys are faced with an ethical dilemma when they represent indigent defendants who wish to appeal a criminal sentence, but that appeal would be frivolous. In 1967, the United States Supreme Court, in Anders v. California, introduced a procedure protecting the rights of indigent defendants that balanced the ethical concerns of an attorney forced to file a frivolous appeal. In 2000, the Court in Smith v. Robbins held that the states can set their own procedure for the aforementioned ethical dilemma, so long as it protects the rights of indigent defendants in compliance with the Fourteenth Amendment. This has …

Campus Sexual Assault And Due Process, Ilana Frier

Duke Journal of Constitutional Law & Public Policy Sidebar

College women experience rape and sexual assault at alarmingly high rates. One highly publicized statistic, famously asserted by President Obama, states that one in five women experience sexual assault while attending college. In 2011, the U.S. Department of Education radically expanded its involvement in campus sexual misconduct adjudications, encouraging vigorous enforcement. Sustained regulatory and public pressure effectuated some positive change for victims. However, a proliferation of litigation also followed. Students found responsible of campus sexual assault, most of whom were males, increasingly began suing their schools alleging due process violations in their adjudications. In 2018, the Trump administration's Department of …

The Census, Citizenship, And Improved Legislation: A Constitutional Compromise, Kaitlyn A. Marquis

Brigham Young University Prelaw Review

Why should the census avoid asking a question concerning citizenship?

Are there alternatives in providing information to aid government

functions while still protecting the rights of residents? In

early 2019, the Trump administration requested that the 2020 census

include an inquiry concerning the citizenship status of residents, for

claimed reasons of better legislation (i.e. the allocation of government

funds to the states and the drawing of electoral districts). The

Supreme Court considered this issue in Dept. of Commerce v. New

York. In sum, their opinion was, “not yet.” The Supreme Court did

not definitively conclude that it was unconstitutional to …

Isolation For Profit: How Privately Provided Video Visitation Services Incentivize Bans On In-Person Visitation Within American Correctional Facilities, J. Tanner Lusk

Washington and Lee Journal of Civil Rights and Social Justice

American correctional facilities are banning in-person visitation in lieu of privately provided and expensive video visitation services. This Note discusses the types of private services provided; how video visitation negatively affects inmates’ mental health and finances; and the ongoing legal battle occurring in Knox County, Tennessee, regarding whether the Knox County Jail’s ban on in-person visitation violates the Constitution. Because of the significant degree of deference courts grant correctional facilities when considering whether challenged regulations violate the Constitution, it will be difficult for the Knox County Jail inmates to successfully argue that the jail has violated their constitutional rights. There …

As Pertains To The Criminal Justice System, Is Hindsight 20/20?, Syndie G. E. Molina, Cristina Negrillo

Journal of Race, Gender, and Ethnicity

No abstract provided.