Constitutional Law Commons^™

Are All Charter Rights And Freedoms Really Non-Absolute?, Brian Bird

Dalhousie Law Journal

This article challenges the conventional legal wisdom that no right or freedom in the Canadian Charter of Rights and Freedoms is absolute. Section 1 of the Charter is the most commonly cited source of this wisdom, but this provision merely sets out the standard that the state must meet to justify a limit on a Charter right or freedom. Section 1 does not provide advance confirmation that limits satisfying this standard exist for all Charter rights and freedoms. This interpretation, if correct, does not automatically render any of the rights or freedoms in the Charter absolute. Indeed, the standard in …

Withholding Judgment: In Reading The Constitution, Judges Should Consider Their Own Morals,, Bruce Ledewitz

Ledewitz Papers

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

How The Constitution Shall Not Be Construed, Lochlan F. Shelfer

BYU Law Review

The dominant historical narrative of the Ninth Amendment views the Clause as an exclusively “Federalist” provision with one purpose: to protect against the fear among Federalists that the very enumeration of any rights in a Constitution would imply that the universe of unenumerated natural rights was left unprotected, or that federal power would be expanded by implication.

This narrative of the Ninth Amendment, however, is incomplete in that it ignores the Clause’s Anti-Federalist side. This Article argues that the Ninth Amendment was proposed and ratified partly in response to the Anti-Federalist fear that particular rights-guaranteeing provisions of the Constitution could …

Penguatan Peran Majelis Permusyawaratan Rakyat Dalam Struktur Ketatanegaraan Indonesia, R. Nazriyah

Jurnal Hukum & Pembangunan

Nevertheless, the amendment (fifth) should be done with wisdom, sincerity, deliberation, and After the constitutional amendment the Assembly's role was limited only on disseminate the results of the 1945 amendment and appoint President and Vice President. Strengthening the role of the Assembly now has begun to appear with the revival of the tradition of the annual session of the Assembly, with less in this way the performance of the President and other state institutions can be controlled and serve as checks and balances. Discourse to reuse the guidelines need to consider the following matters: first, it should be clearly who …

Peremptory Challenge - Divining Rod For A Sympathetic Jury?, Gilda Mariani

The Catholic Lawyer

No abstract provided.

Individual Liberty And The Common Good - The Balance: Prayer, Capital Punishment, Abortion, Brendan F. Brown

The Catholic Lawyer

No abstract provided.

Crime And The Law: Sociologico-Legal Observations, Wenceslas J. Wagner

The Catholic Lawyer

No abstract provided.

History And Constitutional Interpretation: Some Lessons From The Vice Presidency, Joel K. Goldstein

Arkansas Law Review

In recent times, the principal demarcation in academic discussions of constitutional theory and judicial decision-making separates originalists and living constitutionalists. Both categories include a variety of approaches, but in essence originalists believe that a constitutional text means forever what it meant when it became part of the Constitution, whereas living constitutionalists believe that constitutional meaning is not fixed but evolves in response to societal changes. Living constitutionalists draw inspiration from Chief Justice John Marshall’s immortal words from McCulloch v. Maryland that the Constitution is “intended to endure for ages to come, and, consequently to be adapted to the various crises …

An Alcohol Mindset In A Drug-Crazed World: A Review Of Birchfield V. North Dakota, Devon Beeny

Duke Journal of Constitutional Law & Public Policy Sidebar

Birchfield v. North Dakota involved the ability of legislatures to criminalize a driver’s refusal to submit to a chemical test after a law enforcement officer arrested the individual for driving under the influence of alcohol or drugs. The driver’s argued this criminalized their constitutional right to refuse a warrantless search, while the governments’ argued they needed this power in order to effectively address drunk driving in their jurisdictions. The Court decided that refusing a breath test could be criminalized because requiring the test did not violate the driver’s constitutional rights, however the Court also ruled that because of the invasive …

Ditching Your Duty: When Must Private Entities Comply With Federal Antidiscrimination Law?, Tara Knapp

Duke Journal of Constitutional Law & Public Policy Sidebar

This Commentary considers how the Fifth Circuit characterizes “services, programs, and activities” of public agencies in Ivy v. Williams, in the context of determining whether a private entity is subject to federal antidiscrimination law. “Services, programs, and activities” of public agencies must comply with Title II of the Americans with Disabilities Act, whether directly distributed by a public or a private entity. This Commentary argues private driving schools in Texas that distribute a driving course necessary to obtaining a drivers’ license are subject to Title II because the providing the course functionally constitutes a program of the Texas Education …

Of Spies, Saboteurs, And Enemy Accomplices: History’S Lessons For The Constitutionality Of Wartime Military Tribunals, Martin S. Lederman

Georgetown Law Faculty Publications and Other Works

Congress has recently authorized military commissions to try enemies not only for violations of the international law of war, but also for domestic-law offenses, such as providing material support to terrorism and conspiring to commit law-of-war offenses. Moreover, President Trump has indicated support for further military trials, including trials against U.S. citizens. Such military tribunals lack the civilian jury and independent judge that Article III of the Constitution prescribes. The constitutionality of such an abrogation of Article III’s criminal trial guarantees has been debated during many of the nation’s wars without clear resolution, and the constitutional question is now at …

The Extraordinary Judicial Rebukes Of Trump's Travel Ban, John M. Greabe

Law Faculty Scholarship

[Excerpt] "President Trump's two executive orders suspending travel to the United States by refugees and foreign nationals from several Muslim-majority countries have been put on hold by a number of lower court federal judges.

Whatever might be said about the merits of these rulings, and regardless of whether they will be upheld in future appeals, they are extraordinary judicial rebukes of a sitting president."

March 26, 2017: Tom Berry Vs Tomorrowland, Bruce Ledewitz

Hallowed Secularism

Blog post, “Tom Berry vs Tomorrowland“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Motion For Leave To File Amicus Curiae Brief And Brief For The National Association For Public Defense And Kentucky Association Of Criminal Defense Lawyers As Amici Curiae In Support Of Petitioner, Sneed V. Burress (U.S. March 24, 2017) (No. 16-8047)., Janet Moore

Faculty Articles and Other Publications

No abstract provided.

Drawing Lines: Racial Gerrymandering In Bethune-Hill V. Virginia Board Of Elections, Scott Reed

Duke Journal of Constitutional Law & Public Policy Sidebar

In Bethune-Hill v. Virginia Board of Elections, the Supreme Court had to decide whether twelve Virginia challenged legislative districts, in which a one-size-fits-all 55% black voting age population floor was imposed, withstood constitutional scrutiny. The Court, though stating that the lower court misapplied precedent, declined to hold that race predominated in the formation of the districts and that strict scrutiny would be triggered, instead remanding to the lower court for reexamination. This commentary argues that the Court missed an opportunity to hold that a 55% BVAP floor prioritized above all else is per se racial predomination, and such a …

Birchfield V. North Dakota: Warrantless Breath Tests And The Fourth Amendment, Sara Jane Schlafstein

Duke Journal of Constitutional Law & Public Policy Sidebar

In Birchfield v. North Dakota, the Supreme Court explored warrantless breath tests during DUI stops and their validity under the Fourth Amendment. To determine their constitutionality, the Court adopted a balancing test, weighing the government’s interest in preventing instances of drunk driving with the intrusion on an individual’s privacy. The Court ultimately concluded that warrantless breath tests are constitutional when conducted incident to a lawful DUI arrest. This commentary explores the Court’s reasoning and holding and will argue that the Court was correct in deciding that a warrant is not necessary for conducting a breath test incident to a …

May The Best Canon Win: Lockhart V. United States And The Battle Of Statutory Interpretation, Hassan Shaikh

Duke Journal of Constitutional Law & Public Policy Sidebar

In Lockhart v. United States, the Supreme Court resolved a long-standing circuit split regarding 18 U.S.C. § 2252(b)(2), which triggered a mandatory minimum sentence for recidivists who had previously been convicted under federal or state crimes relating to “aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.” In expected fashion, the Court relied on the statute’s plain meaning to decide whether Lockhart’s previous crime had triggered the mandatory minimum. However, even with identical approaches to the text, the majority and dissent reached contrary conclusions. This commentary explores how a single approach could result in …

On The Categorical Approach To Free Speech – And The Protracted Failure To Delimit The True Threats Exception To The First Amendment, Wayne Batchis

Pace Law Review

On June 1, 2015, the Supreme Court decided Elonis v. United States on statutory rather than constitutional grounds. In doing so, it turned away an important opportunity to provide needed clarification of true threats, a category of expression relegated to a lower level of protection by the Court almost a half-century ago. The categorical approach to free speech made its first explicit appearance in Supreme Court case law in 1942. Since that time, the Court has relied heavily on this method of constitutional interpretation, carving out discrete exceptions from the seemingly absolutist mandate of the First Amendment that Congress make …

Conflict In The Courts: Obscenity Control & First Amendment Freedoms, Father Edward J. Berbysse, S.J.

The Catholic Lawyer

No abstract provided.

Obergefell’S Impact On Functional Families, Raymond C. O'Brien

Catholic University Law Review

More than forty percent of children born in America are born to unmarried parents and only half of all cohabitating adults in America are currently married. While many children are born to single parents, others are part of the two-person unmarried cohabiting functional family paradigm. What is the status of these children?

This article examines the changing paradigm of parental status, specifically vis-à-vis homosexual couples with children, and the rights of the non-biological parent after separation. This article examines the changes in law in regards to unmarried parents leading up to the Uniform Parentage Act. It describes the equitable remedies …

The Lost Due Process Doctrines, Paul J. Larkin Jr.

Catholic University Law Review

Due process jurisprudence has long been dominated by discussion of its procedural requirements and substantive limitations. Through the lens of the Constitution’s Due Process Clause, however, the Supreme Court has also considered the geographic reach and substantive exercise of legal authority, the delegation of law making to private parties, the incorporation doctrine, and the issues of fundamental fairness. These doctrines have existed for some time, but the Supreme Court has never explained how they fit into its “procedural vs. substantive” dichotomy. This article examines these Lost Due Process Doctrines and poses the question of whether they should suffer the same …

The Private Search Doctrine And The Evolution Of Fourth Amendment Jurisprudence In The Face Of New Technology: A Broad Or Narrow Exception?, Adam A. Bereston

Catholic University Law Review

The advent of new technology has presented courts with unique challenges when analyzing searches and seizures under the Fourth Amendment. Out of necessity, the application of the Fourth Amendment has evolved to address privacy issues stemming from modern technology that could not have been anticipated by the Amendment’s drafters. As part of this evolution, the Supreme Court devised the “private search” doctrine, which upholds the constitutionality of warrantless police searches of items that were previously searched by a private party, so long as the police search does not exceed the scope of the private-party search. However, courts have struggled to …

Adequate Psychiatric Treatment - A Constitutional Right

The Catholic Lawyer

No abstract provided.

Wade & Bolton: Fundamental Legal Errors And Dangerous Implications, Robert M. Byrn

The Catholic Lawyer

No abstract provided.

Cruel And Unusual Punishment: Of Straps And Strip Cells, Vincent C. Alexander, Neil A. Nowick

The Catholic Lawyer

No abstract provided.

A Human Rights Perspective To Global Battlefield Detention: Time To Reconsider Indefinite Detention, Yuval Shany

International Law Studies

This article discusses one principal challenge to detention without trial of suspected international terrorists—the international human rights law (IHRL) norm requiring the introduction of an upper limit on the duration of security detention in order to render it not indefinite in length. Part One of this article describes the “hardline” position on security detention, adopted by the United States in the immediate aftermath of the 9/11 terror attacks (followed, with certain variations, by other countries, including the United Kingdom and the State of Israel), according to which international terrorism suspects can be deprived of their liberty without trial for the …

March 20, 2017: Hypocrisy On Neil Gorsuch, Bruce Ledewitz

Hallowed Secularism

Blog post, “Hypocrisy on Neil Gorsuch“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

The Crushing Of A Dream: Daca, Dapa And The Politics Of Immigration Law Under President Obama, Robert H. Wood

Barry Law Review

No abstract provided.

March 18, 2017: The Liberal Religious Cake, Bruce Ledewitz

Hallowed Secularism

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

Justice For Noncitizens: A Case For Reforming The Immigration Legal System, Anna Paden Carson

VA Engage Journal

The immigration legal system exists as a function of the executive branch rather than the judicial branch, and many of the constitutional rights guaranteed in a judicial court do not continue into the immigration legal sphere. Noncitizen defendants in the immigration court system are not guaranteed the same due process rights or right to appointed counsel as United States citizens, which severely limits their chance of a successful outcome. Moreover, while many noncitizens await their trials in these courts, they are often placed in one of the 234 immigration detention facilities across the nation, which further exacerbates the direness of …