Constitutional Law Commons^™

The Marriage Protection Act: A Lesson In Congressional Over-Reaching, Sarah Kroll-Rosenbaum

NYLS Law Review

No abstract provided.

Political Advocacy On The Supreme Court: The Damaging Rhetoric Of Antonin Scalia, Stephen A. Newman

NYLS Law Review

No abstract provided.

The Rise, Development And Future Directions Of Critical Race Theory And Related Scholarship, Athena D. Mutua

Journal Articles

This essay tells the story of the rise, development and future directions of critical race theory and related scholarship. In telling the story, I suggest that critical race theory (CRT) rises, in part, as a challenge to the emergence of colorblind ideology in law, a major theme of the scholarship. I also contend that conflict, as a process of intellectual and institutional growth, marks the development of critical race theory and provides concrete and experiential examples of some of its key insights and themes. These conflicts are waged in various institutional settings over the structural and discursive meanings of race …

William H. Rehnquist: A Life Lived Greatly, And Well, Richard W. Garnett

Journal Articles

Chief Justice Rehnquist leaves behind a formidable and important legacy in constitutional law. His work on the Court was animated and guided by the view that We the People, through our Constitution, have authorized our federal courts, legislators, and administrators to do many things - but not everything. Because the Nation's powers are few and defined, Congress may not pursue every good idea or smart policy, nor should courts invalidate every foolish or immoral one. However, for those of us who knew, worked with, learned from, and cared about William Rehnquist, it is his unassuming manner, the care he took …

A Theory In Search Of A Court, And Itself: Judicial Minimalism At The Supreme Court Bar, Neil S. Siegel

Faculty Scholarship

Cass Sunstein has prominently and provocatively advocated a theory of judicial minimalism. He has claimed that minimalism provides both an accurate descriptive account of how the Supreme Court decides constitutional cases and a persuasive normative theory of how the Justices should exercise their power of judicial review. In fact, he has written that the October 2003 Term demonstrates the Court's commitment to judicial minimalism.

In this Article, I demonstrate a deep tension between Professor Sunstein's aspiration that minimalism serve as an empirically testable (and thus descriptively accurate) account of the Supreme Court's work, and his ambition that minimalism provide a …

Supreme Court Watch, Reginald Oh

Law Faculty Articles and Essays

Discusses the March 1, 2005 U.S. Supreme Court decision regarding the constitutionality of the death penalty in Roper v. Simmons, 125 S. Ct. 1183 (2005). The Court held that the death penalty cannot be applied to individuals under the age of eighteen at the time the crime was committed without violating the Eighth Amendment's prohibition against cruel and unusual punishment.

Supreme Court Watch, Reginald Oh

Law Faculty Articles and Essays

Discusses the case in the 2004-05 U.S. Supreme Court Term which decided a constitutional challenge to the State of California's practice of temporarily racially segregating its prisoners. On November 2, 2004, the Court heard oral arguments in Johnson v. California, a lawsuit brought by an African-American prison inmate in the California Department of Corrections. The petitioner contends that the state's longstanding policy of racially segregating prisoners for sixty days violates the Equal Protection Clause. On February 23, 2005, the Court issued its opinion in ]ohnson v. California, 125 S. Ct. 1141 (2005), and held that the policy of …

Michigan Supreme Court Overturns Landmark Eminent Domain Case, Patricia E. Salkin

Scholarly Works

No abstract provided.

The Judicial Nominations Wars, William P. Marshall

University of Richmond Law Review

No abstract provided.

Bork Was The Beginning: Constitutional Moralism And The Politics Of Federal Judicial Selection, Gary L. Mcdowell

University of Richmond Law Review

No abstract provided.

Judicial Selection As . . . Talk Radio, Michael J. Gerhardt

University of Richmond Law Review

No abstract provided.

“Testimonial” And The Formalistic Definition: The Case For An “Accusatorial” Fix, Robert P. Mosteller

Faculty Scholarship

The definition that the Supreme Court ultimately gives to the concept of testimonial statements will obviously be of critical importance in determining whether the new Confrontation Clause analysis adopted by Crawford affects only a few core statements or applies to a broader group of accusatorial statements knowingly made to government officials and perhaps private individuals at arm's length from the speaker. I contend that the broader definition is more consistent with the anti-inquisitorial roots of the Confrontation Clause when that provision is applied in the modern world. If my sense of the proper scope of the clause is roughly correct, …

Reflections On The Teaching Of Constitutional Law, William W. Van Alstyne

Faculty Scholarship

No abstract provided.

Ten Commandments, Nine Judges, And Five Versions Of One Amendment - The First. (“Now What?”), William W. Van Alstyne

Faculty Scholarship

This article explores the variety of opinions expressed by the Justices in the two “Ten Commandments” cases, specifically Justice O’Connor’s dissent and Justice Breyer’s concurrence in Van Orden v. Perry.

Discussion: A Focus On Federalism, Jeffrey B. Morris

Scholarly Works

No abstract provided.

Supreme Court 2003-2004 Term: The § 1983 Decisions, Martin A. Schwartz

Touro Law Review

No abstract provided.

Revenge Of Mullaney V. Wilbur: United States V. Booker And The Reassertion Of Judicial Limits On Legislative Power To Define Crimes, The, Ian Weinstein

Faculty Scholarship

This article offers a historically grounded account of the twists and turns in the Supreme Court's sentencing jurisprudence from the end of World War II to the Court's stunning rejection of the Federal Sentencing Guidelines. The doctrinal shifts that have roiled this area of the law can best be understood as the Court's effort to respond to the changing political and social landscape of crime in America. In the mid 1970's, legislative activity in the criminal law was largely focused on Model Penal Code influenced recodification. In that era, the Supreme Court took power from an ascendant judiciary and gave …

The Impact Of International Human Rights Developments On Sexual Minority Rights, Arthur S. Leonard

NYLS Law Review

No abstract provided.

Unconstitutional Courses, Frederic M. Bloom

Publications

By now, we almost expect Congress to fail. Nearly every time the federal courts announce a controversial decision, Congress issues a call to rein in "runaway" federal judges. And nearly every time Congress makes a "jurisdiction-stripping" threat, it comes to nothing.

But if Congress's threats possess little fire, we have still been distracted by their smoke. This Article argues that Congress's noisy calls have obscured another potent threat to the "judicial Power": the Supreme Court itself. On occasion, this Article asserts, the Court reshapes and abuses the "judicial Power"--not through bold pronouncements or obvious doctrinal revisions, but through something more …

The Supreme Court, Democracy And Institutional Reform Litigation, Ross Sandler, David Schoenbrod

NYLS Law Review

No abstract provided.

Congress's Power To Enforce Fourteenth Amendment Rights: Lessons From Federal Remedies The Framers Enacted , Robert J. Kaczorowski

Faculty Scholarship

Professor Robert Kaczorowski argues for an expansive originalist interpretation of Congressional power under the Fourteenth Amendment. Before the Civil War Congress actually exercised, and the Supreme Court repeatedly upheld plenary Congressional power to enforce the constitutional rights of slaveholders. After the Civil War, the framers of the Fourteenth Amendment copied the antebellum statutes and exercised plenary power to enforce the constitutional rights of all American citizens when they enacted the Civil Rights Act of 1866 and then incorporated the Act into the Fourteenth Amendment. The framers of the Fourteenth Amendment thereby exercised the plenary power the Rehnquist Court claims the …

Judicial Review Before Marbury, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

While scholars have long probed the original understanding of judicial review and the early judicial review case law, this article presents a study of the judicial review case law in the United States before Marbury v. Madison that is dramatically more complete than prior work and that challenges previous scholarship on the original understanding of judicial review on the two most critical dimensions: how well judicial review was established at the time of the Founding and when it was exercised. Where prior work argues that judicial review was rarely exercised before Marbury (or that it was created in Marbury), …

Crawford V. Washington: Encouraging And Ensuring The Confrontation Of Witness, Robert P. Mosteller

University of Richmond Law Review

No abstract provided.

Constitutionalization, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

Students of constitutional law tend to suspect pretty early on that the Constitution simply means whatever the Supreme Court says that it means. Rather than fight that intuition, I think it is best to treat the student insight as one of the basic starting assumptions when teaching a course in Constitutional Law. The goal then becomes to help students figure out how best to maneuver and feel comfortable in a legal universe where the Constitution has only contingent meaning.

What the Supreme Court does when it clothes its political policy preferences in the garb of constitutional law can be described …

Medellin V. Dretke: Federalism And International Law, Curtis A. Bradley, Lori Fisler Damrosch, Martin Flaherty

Faculty Scholarship

This is an edited version of a debate held at Columbia Law School on February 21, 2005.

Originalism, Stare Decisis And The Promotion Of Judicial Restraint, Thomas W. Merrill

Faculty Scholarship

If we consider constitutional law as a practice, it is clear that both originalism and precedent play an important role. Neither one is going to vanquish the other, at least not any time soon. We can engage in academic debate about originalism versus stare decisis, as if they were rival modes of interpretation that could operate to the exclusion of the other. But the question of practical importance is one of degree and emphasis: in cases where these two sources of authority arguably point in different directions, which one should have a greater claim to our allegiance?

Originalism – interpreting …

Virginia's Next Challenge: Economic And Educational Opportunity, Mark R. Warner

University of Richmond Law Review

No abstract provided.

The Promise Of Equality: Reflections On The Post-Brown Era In Virginia, Robert R. Mehrige Jr.

University of Richmond Law Review

No abstract provided.

Constitutional Crisis Over The Proposed Supreme Court For The United Kingdom, Peter L. Fitzgerald

ExpressO

No abstract provided.

The Rehnquist Revolution, Erwin Chemerinsky

The University of New Hampshire Law Review

[Excerpt] "When historians look back at the Rehnquist Court, without a doubt they will say that its greatest changes in constitutional law were in the area of federalism. Over the past decade, and particularly over the last five years, the Supreme Court has dramatically limited the scope of Congress’ powers and has greatly expanded the protection of state Sovereign Immunity. Virtually every area of law, criminal and civil, is touched by these changes. Since I began teaching constitutional law in 1980, the most significant differences in constitutional law are a result of the Supreme Court’s revival of federalism as a …