Constitutional Law Commons^™

Disparate Impact, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

There has been a lot of talk about post-racialism since the 2008 election of Barack Obama as the first black President of the United States. Some have argued that the Obama election illustrates the evolution of the United States from its unfortunate racist past to a more admirable post-racial present in which the problem of invidious racial discrimination has largely been overcome. Others have argued that the Obama election illustrates only that an extraordinarily gifted, mixed-race, multiple Ivy League graduate, Harvard Law Review President was able to overcome the persistent discriminatory racial practices that continue to disadvantage the bulk of …

Converging Trajectories: Interest Convergence, Justice Kennedy, And Jeannie Suk's "The Trajectory Of Trauma", Jennifer S. Hendricks

Publications

This essay responds to Jeannie Suk's recent article in the Columbia Law Review, The Trajectory of Trauma: Bodies and Minds of Abortion Discourse. Suk argues that feminists are responsible for legitimizing a paternalistic attitude towards women that came home to roost in Gonzales v. Carhart. This essay argues that Suk's critique of feminist paternalism needs to be supplemented with a discussion of traditional paternalism and its influence on how feminist advocacy enters the law. In particular, it suggests that Derrick Bell's theory of interest convergence provides a useful framework for understanding the cultural, legal, and rhetorical evidence adduced …

Lessons Learned From The Evolution Of Evolving Standards, Corinna Barrett Lain

Law Faculty Publications

In the discussion that follows, I explore the evolution of the "evolving standards" doctrine to make a point about its legitimacy and Supreme Court decisionmaking under the Cruel and Unusual Punishments Clause more generally. In Part I, I trace the origins of the doctrine to its present state. In Part II, I turn to lessons learned from the evolution of "evolving standards," questioning the textual defense of the doctrine and the constraining power of law itself. I conclude that while the "evolving standards" doctrine is problematic, it is not the crux of the problem. Supreme Court decisionmaking in the death …

Resurrecting The Promise Of Brown: Understanding And Remedying How The Supreme Court Reconstitutionalized Segregated Schools, Kimberly J. Robinson

Law Faculty Publications

The Supreme Court's decision in Brown v. Board of Education held that separate educational facilities were "inherently unequal." After tolerating substantial delay and evasion of the requirements of Brown, the Court eventually required school districts to dismantle the dual systems by eliminating all traces of separate schools and creating integrated schools. In contrast to numerous scholars that have contended that many of the Court's later school desegregation decisions withdrew from or grew weary of school desegregation, this Article argues that the effect of many of the Court's leading school desegregation decisions was to reconstitutionalize segregated schools. Furthermore, the Court's …

A Popular Approach To Popular Constitutionalism: The First Amendment, Civic Education, And Constitutional Change, Thomas G. Donnelly

Law Faculty Publications

Popular constitutionalists fear that our constitutional culture is becoming less popular. At the same time, these scholars often ignore key popular sources of constitutional meaning. Their accounts focus,  instead, on the elite conflicts that give rise to constitutional change, particularly the ongoing debates between elected officials, movement leaders, and the Supreme Court. Although these studies are essential to understanding the pathways for promoting non-Article V constitutional change, they are "popular" only in the sense that they focus on non-judicial actors and politically salient controversies. The constitutional life of the average citizen is generally ignored. If legal scholars are serious about …

Who Judges? Who Cares? History Now And Then, Barbara Aronstein Black

Faculty Scholarship

There are two strands of history: Call them strand A and strand B. A: "How independent are those who judge?" B: "Where is the judicial power located?" At a high enough level of abstraction the strands merge (as, at a high enough level of abstraction, what does not?). The issue then becomes whether in a given society all judging is in the hands of independent judges. And the point is that there are two ways of avoiding the decision of cases by independent judges, corresponding, naturally, to the two strands of history:

[A] Through the judges: Punish them, reward them, …

October 16, 2009: Higher Law In The Public Square Meets The High School Cheerleader, Bruce Ledewitz

Hallowed Secularism

Blog post, “Higher Law in the Public Square Meets the High School Cheerleader“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

October 12, 2009: Steve Waldman Doesn't Get The Cross, Bruce Ledewitz

Hallowed Secularism

Blog post, “Steve Waldman Doesn't Get the Cross“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

October 7, 2009: The Temptations Of Standing, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Temptations of Standing“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

October 2, 2009: Higher Law In The Public Square, Bruce Ledewitz

Hallowed Secularism

Blog post, “Higher Law in the Public Square“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

In Defense Of Ideology: A Principled Approach To The Supreme Court Confirmation Process, Lori A. Ringhand

Scholarly Works

In this paper, Professor Ringhand offers a principled defense of an ideological approach to the Supreme Court justice confirmation process. In constructing her argument, she does three things. First, she explores how the insights provided by recent empirical legal scholarship have created a need to re-think the role of the Supreme Court and, consequently, the process by which we select Supreme Court justices. In doing so, Professor Ringhand explains how these insights have called into question much of our conventional constitutional narrative, and how this failure of the conventional narrative has in turn undermined traditional objections to an ideologically-based confirmation …

September 9, 2009: How Did Corporations Get Constitutional Rights?, Bruce Ledewitz

Hallowed Secularism

Blog post, “How Did Corporations Get Constitutional Rights?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

August 4, 2009: Posting The Declaration Of Independence In Public School Classrooms, Bruce Ledewitz

Hallowed Secularism

Blog post, “Posting the Declaration of Independence in Public School Classrooms“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

July 30, 2009: Jesus Is Back In The Legislature, Thank God, Bruce Ledewitz

Hallowed Secularism

Blog post, “Jesus is Back in the Legislature, Thank God“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

July 19, 2009: Getting Jesus Out Of The Legislature, Bruce Ledewitz

Hallowed Secularism

Blog post, “Getting Jesus Out of the Legislature“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

July 9, 2009: How Is The Constitution Interpreted?, Bruce Ledewitz

Hallowed Secularism

Blog post, “How is the Constitution Interpreted?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

The United States Supreme Court And The Freedom Of Expression, Elisabeth Zoller

Indiana Law Journal

Symposium: An Ocean Apart? Freedom of Expression in Europe and the United States. This Article was originally written in French and delivered as a conference paper at a symposium held by the Center for American Law of the University of Paris II (Panthèon-Assas) on January 18-19, 2008.

Ink Blot Or Not: The Meaning Of Privileges And/Or Immunities, Richard Aynes

Akron Law Faculty Publications

This article examines the meaning of the terms privileges and immunities as used in Article IV of the U.S. Constitution and the Fourteenth Amendment. It begins by tracing the American use of the terms to April 10, 1606 in the first Charter of Virginia. Building upon the work of other scholars and citing original documents, it concludes that these words has a well-established meaning as “rights” well before the Fourteenth Amendment was adopted. The article notes that in Justice Miller’s decision in the Slaughter-House Cases he refers to the privileges and immunities of Corfield v. Coryell as “those rights which …

May 27, 2009: Judge Sonia Sotomayor And Judicial Activism, Bruce Ledewitz

Hallowed Secularism

Blog post, “Judge Sonia Sotomayor and Judicial Activism“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

May 24, 2009: President Barack Obama’S Criteria For Justice Of The Supreme Court, Bruce Ledewitz

Hallowed Secularism

Blog post, “ President Barack Obama’s Criteria for Justice of the Supreme Court“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

May 21, 2009: Tom Krattenmaker On The Rights Of Religious Students At High School Graduations, Bruce Ledewitz

Hallowed Secularism

Blog post, “Tom Krattenmaker on the Rights of Religious Students at High School Graduations“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

May 6, 2009: Judicial Pragmatism And Justice Souter's Replacement, Bruce Ledewitz

Hallowed Secularism

Blog post, “Judicial Pragmatism and Justice Souter's Replacement“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

May 3, 2009: Justice Souter’S Replacement And The Future Of The Establishment Clause, Bruce Ledewitz

Hallowed Secularism

Blog post, “Justice Souter’s Replacement and the Future of the Establishment Clause“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

April 16, 2009: What Can The Courts Do About Gay Marriage?, Bruce Ledewitz

Hallowed Secularism

Blog post, “What Can the Courts Do About Gay Marriage?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

April 2, 2009: The Secular Mind On The Huffington Post, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Secular Mind on the Huffington Post“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

The Partially Prudential Doctrine Of Mootness, Matthew I. Hall

Scholarly Works

The conventional understanding of mootness doctrine is that it operates as a mandatory bar to federal court jurisdiction, derived from the "cases or controversies" clause of the United States Constitution, Article III. In two crucial respects, however, this Constitutional model - which was first adopted by the Supreme Court less than 45 years ago - fails to account for the manner in which courts actually address contentions of mootness. First, the commonly-applied exceptions to the mootness bar are not derived from the "cases or controversies" clause and cannot be reconciled with the Constitutional account of mootness. Second, courts regularly consider …

March 22, 2009: A Restatement Of The Establishment Clause, Bruce Ledewitz

Hallowed Secularism

Blog post, “A Restatement of the Establishment Clause“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

March 16, 2009: Proposition 8 And The Threat Of, And To, Religious Liberty, Bruce Ledewitz

Hallowed Secularism

Blog post, “Proposition 8 and the Threat of, and to, Religious Liberty“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

March 1, 2009: Imagine The Court Being Helpful, Bruce Ledewitz

Hallowed Secularism

Blog post, “Imagine the Court Being Helpful“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

January 22, 2009: Rick Warren's Prayer, Bruce Ledewitz

Hallowed Secularism

Blog post, “Rick Warren's Prayer“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.