Constitutional Law Commons^™

Reforming Redistricting, Nicholas Stephanopoulos

ExpressO

There are several ways in which redistricting reform could in theory be achieved. State legislatures could voluntarily cede control over district-drawing, courts could invalidate especially egregious gerrymanders, or popular initiatives could be launched to create redistricting commissions. However, thanks to the self-interest of legislators as well as the Supreme Court’s unfortunate recent decisions in Vieth v. Jubelirer and LULAC v. Perry, the redistricting initiative is now the only realistic way to curb political gerrymandering. This Article provides the first detailed empirical and normative examination of redistricting initiatives. The Article begins by making the case for the popular initiative in the …

Radicals In Robes: A Review, Dru Stevenson

ExpressO

This essay reviews and critiques Cass Sunstein’s new book about conservative activists in the federal judiciary. After a discussion of Sunstein’s (somewhat misleading) rhetorical nomenclature, this essay argues that Sunstein’s proposed “minimalist” methodology in constitutional jurisprudence is beneficial, but not for the reasons Sunstein suggests. Sunstein alternatively justifies judicial restraint or incrementalism on epistemological self-doubt (cautiousness being an outgrowth of uncertainty) and his fear that accomplishments by Progressives in the last century will be undone by conservative judges in the present. Constitutional incrementalism is more convincingly justified on classical economic grounds. While affirming Sunstein’s overall thesis, this essay offers an …

Leaving The Thicket At Last, Luis Fuentes-Rohwer

ExpressO

No abstract provided.

Separation Of Powers And The Governor's Office In West Virginia: Advocating A More Deferential Approach To The Chief Executive From The Judiciary, Jason C. Pizatella

West Virginia Law Review

No abstract provided.

For A New Order In The Court, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals

Our Sovereign Body: Narrating The Fiction Of Sovereign Immunity In The Supreme Court: Part I-A English Stories, Marc L. Roark

ExpressO

This is part I-A of a Book I am working towards on the narratives and fictions of sovereign immunity. The goal in this part is to look before the American republic and towards the background in which American Sovereignty came to be shaped by -- the feudal notion of the sovereign; the Lockean response, and the Blackstonean doctrine. The first part looks at the legal fictions surrounding the kingship, their sources and their effects. The Second part looks to the specific ways of treating the sovereign in law, namely viewing King as Property owner or patriarch, Trustee, and Constitution.

Our Sovereign Body: Narrating The Fiction Of Sovereign Immunity In The Supreme Court, Marc L. Roark

ExpressO

This is the introduction to a book I am preparing on the Normative and Narrative aspects of the U.S. Sovereign Immunity Doctrine. The introduction sets up the problem of a doctrine that is not exactly coherent with the national narrative.

Semper Disqualified: The Incongruity Between Federal And State Suffrage Protections For Certain Military Voters Seeking To Vote In State And Local Elections, And A Possible Legislative Remedy, Alexandra R. Harrington

ExpressO

It is axiomatic that members of the United States military forces at all levels and throughout the course of the nation’s history have fought for the essential freedoms which underlie the constitution – key among them the suffrage right. Over the course of its history, the suffrage right has seen controversy and change, which mirrored the social and political issues and changed realities of the country. As the right to vote has been extended to encompass more citizens, so too has the ability to serve one’s country as part of the military. In recognition of the importance of the right …

The Roberts Court: Year 1, Lori A. Ringhand

ExpressO

This paper is an empirical examination of the recently ended 2005 Supreme Court term. The paper, in addition to reviewing the work of the Court as a whole, also examines the jurisprudence of new justices Roberts and Alito. In doing so, it proposes the intriguing possibility that these two justices may share a jurisprudential approach different from the Court's more established conservatives. If correct, this raises numerous and interesting possibilities for the future of conservativism on the Supreme Court.

Religious Group Autonomy: Further Reflections About What Is At Stake, Kathleen A. Brady

Working Paper Series

This article addresses the protections afforded by the First Amendment when government regulation interferes with the internal activities or affairs of religious groups. In previous pieces, I have argued that the First Amendment should be construed to provide religious groups a broad right of autonomy over all aspects of internal group operations, those that are clearly religious in nature as well as activities that seem essentially secular. In my view, such autonomy is necessary to preserve the ability of religious groups to generate, live out and communicate their own visions for social life, including ideas that can push the norms …

Why Religion In Politics Does Not Violate La Conception Américaine De La Laïcité, Michael J. Perry

Indiana Journal of Global Legal Studies

La conception Am6ricaine de la Laĭcité consists principally of a constitutional norm-the nonestablishment norm-and of the laW that the U.S. Supreme Court has developed in the course of enforcing the norm. The nonestablishment norm forbids government-both the national government and state government-to "establish" religion. American laYcit6 also consists of what we may call "the morality of liberal democracy. " My aim in this essay is to explain why religion in politics does not violate American laYcit6; more specifically, my aim is to explain why political reliance on religiously grounded morality violates neither the nonestablishment norm nor the morality of liberal …

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

ExpressO

This brief comment suggests where the anti-eminent domain movement might be heading next.

Foundations Of Federalism: An Exchange, Randall P. Bezanson, Steven Moeller

ExpressO

Our manuscript entitled "The Foundations of Federalism: An Exchange" is occasioned by the Supreme Court's federalism jurisprudence which, in our judgment, calls for a broad ranging exploration of the constitutional concept of federalism itself. That exploration takes place in the form of a dialog between us which, while rewritten from its original form, nevertheless reflects our actual exchanges over an 18 month period. Our conclusion is that such terms as "sovereignty" generally have no place in American constitutional federalism, that the Supreme Court's efforts to enforce federalism limitations have been ineffective and, in some instances, counterproductive, and most basically that …

Review Essay: Radicals In Robes , Dru Stevenson

ExpressO

This essay reviews and critiques Cass Sunstein’s new book entitled Radicals in Robes. After a discussion of Sunstein’s (somewhat misleading) rhetorical nomenclature, this essay argues that Sunstein’s proposed “minimalist” methodology in constitutional jurisprudence is beneficial, but not for the reasons Sunstein suggests. Sunstein alternatively justifies judicial restraint or incrementalism on epistemological self-doubt (cautiousness being an outgrowth of uncertainty) and his fear that accomplishments by Progressives in the last century will be undone by conservative judges in the present. Constitutional incrementalism is more convincingly justified on classical economic grounds. While affirming Sunstein’s overall thesis, this essay offers an alternative rationale for …

Review Essay: Using All Available Information, Max Huffman

ExpressO

This is a review essay entitled “Using All Available Information,” in which I review and comment on Justice Stephen Breyer’s new book, Active Liberty: Interpreting Our Democratic Constitution, published in September 2005. Justice Breyer’s book, adapted from the Tanner Lectures given in 2005 at Harvard Law School, serves partly as a response to Justice Scalia’s 1997 volume A Matter of Interpretation: Federal Courts and the Law. I review Justice Breyer’s book in part by comparison to and contrast with Justice Scalia’s. I propose that much about Justice Breyer’s interpretive philosophy, which centers on determining the “purposes” of texts and interpreting …

Making Our Congressional Elections More Competitive: A Proposal For A Limited Number Of Statewide At Large Elections In Our More Populous States, Walter M. Frank

ExpressO

Competitive elections for the House of Representatives are at an all time low. Law professors, political scientists and political analysts all along the political spectrum believe that the current situation not only makes for unaccountable legislators and an uneducated electorate but is also slowly poisoning our politics by making government needlessly ideological and partisan. Unfortunately, most of the proposed remedies call for reforms at the state level that in any event do not hold out the prospect of changing the current pattern in the future. This article proposes federal legislation to deal with this problem through the creation of statewide …

Privacy And Access To Public Records In The Information Age, Sol Bermann

ExpressO

Online public record access brings a wealth of benefits ranging from greater government access and accountability to increased cost-savings and efficiencies. However, due to the presence of highly sensitive, personal data, an increase in public records access also brings potential dangers, including heightened risk of identity theft and frivolous snooping into the affairs of others.

Historically, public records have had some measure of public accessibility in order to empower citizens with the ability to observe the goings-on of government, leading to greater government accountability. Until the rise of the internet, citizens have had their privacy protected through practical obscurity (the …

Keep These Branches Untangled, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals

Buried Online: State Laws That Limit E-Commerce In Caskets, Jerry Ellig, Asheesh Agarwal

ExpressO

Consumers seeking to purchase caskets online could benefit from the Supreme Court’s 2005 decision that states cannot discriminate against interstate direct wine shipment. Federal courts have reached conflicting conclusions when asked whether state laws requiring casket sellers to be licensed funeral directors violate the U.S. Constitution’s Due Process Clause. In Powers v. Harris, the 10th Circuit even offered an unprecedented ruling that economic protectionism is a legitimate state interest that can justify otherwise unconstitutional policies. In Granholm v. Heald, however, the Supreme Court declared that discriminatory barriers to interstate wine shipment must be justified by a legitimate state interest, and …

The Children Of Science: Property, People, Or Something In Between?, Star Q. Lopez

ExpressO

How should states classify embryos? The war has often waged between two classifications, people versus property. But what if a state assumed something in between, finding the embryo to be a potential person entitled to special respect? If a state adopted this position, how would the law affect medical research?

Presuming embryos constitute potential persons, the debate would continue with how to define “special respect.” The status of a potential person runs along a spectrum between property and personhood. How one defines “special respect” determines where the potential person falls along this spectrum. Special respect would create a spectrum of …

Backlash To Globalization In The Form Of State Legislation: Constitutional Implications, John R. Weber

ExpressO

This paper will examine the Constitutional issues raised by the influx of state anti-outsourcing legislation using a recently enacted New Jersey statute. The New Jersey statute is very similar to, and contains many of the same features as, many other bills introduced in legislatures across the nation. Moreover, the political impetus for the introduction and enactment of the legislation reflects the struggle over the outsourcing issue that is occurring in communities nationwide.

Electoral College Reform Is Heating Up, And Posing Some Tough Choices, Robert Bennett

Public Law and Legal Theory Papers

Electoral College reform is beginning to get some attention, with two different emphases, a move to institute a nationwide popular vote without a constitutional amendment, and a move to forbid faithless electoral votes. There is no logical incompatibility between the two, but in political and public policy terms, there are tensions between them. This paper evaluates the relative merits and importance of the two efforts and explores the tensions in simultaneous pursuit of the two.

"You Can't Wear That To Vote": The Constitutionality Of State Laws Prohibiting The Wearing Of Political Message Buttons, Kimberly J. Tucker

ExpressO

My research for this article began on Election Day 2004 when I was told that I could not wear a campaign button into the polling room while voting in Virginia. The article outlines the laws of all 50 states that restrict a voter’s right to speak in and around polling places. It focuses on the 10 states that explicitly prohibit a voter from wearing “buttons” to the polls.

Protecting Posterity: Economics, Abortion, Politics, And The Law, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals

Impeachment: Advice And Dissent, Susan Low Bloch

Georgetown Law Faculty Lectures and Appearances

In this lecture, the author describes how she first met Professor William Van Alstyne at a Federalist Society debate at Wayne State Law School in Detroit. Their colleague, the late Professor Joe Grano, had invited them to discuss whether one can sue a sitting president. Of course, this debate was not merely academic. Paula Jones had begun her sexual harassment suit against President Clinton and the suit was on its way to the Supreme Court. They got together before the debate and walked around the campus. The author thought that the president could not be sued while in office. Although …

In Pittsburgh, Freedom Abridged, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals.”

Restorative Justice, Slavery And The American Soul, A Policy-Oriented Approach To The Question Of Slavery Reparations By The United States, Michael F. Blevins

ExpressO

This LL.M. Intercultural Human Rights thesis (May, 2005), awarded the best student paper prize for 2005 by the Institute of Policy Sciences at Yale University (in October, 2005), after analysing past and curent issues regarding the culture wars controversy of "reparations", proposes a specific process for establishing Truth and Reconciliation regarding the legacy of slavery in the United States. The proposal recommends commissions in each Federal judicial district under the supervision of a U.S. Slavery Justice and Reconciliation Commission (USSJRC), calling for "America's 21st Century Contract with Africa and African-Americans".

Resurrection From Babel: The Cultural, Political, And Legal Status Of Christian Communities In Lebanon And Syria And Their Prospects For The Future, Alexandra R. Harrington

ExpressO

In the well-known Biblical story, the faithful, attempting to create a place of unity for themselves, set about building the Tower of Babel, only to see the Tower implode due to linguistic differences and power assertions. Thousands of years later, the world is still plagued by sectarian strife and warfare. Indeed, the situation has only become more involved since Babel, as there are now inter-communal and intra-communal conflicts for supremacy and superiority – a notable difference in these conflicts is that the ultimate tool of getting to Heaven is no longer a tower, it is now a state. Within the …

Making Free Speech Affordable: A Discussion Of Legislation To Provide Public Funding To Candidates For The U.S. Congress, Jared S. Cram

ExpressO

This article discusses a recent attempt by the U.S. Congress to provide for public financing of campaigns for the House of Representatives. Although a good start, this legislation would not go far enough to ensure that every voice has an opportunity to be heard in federal elections. My article discusses the strengths and weaknesses of this legislation and also provides suggested amendments to make this bill more effective should it become law.

Making Free Speech Affordable provides an in-depth comparison of this proposed legislation with current law at the state level providing for public financing of campaigns. This discussion includes …

Make >Em Fess Up, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals