Constitutional Law Commons^™

Indigenous Governance And The Charter: What Can Indigenous Constitutionalism Offer?, Karen Drake

All Papers

The question of whether the Charter should apply to Indigenous governance is often presented in terms of a contest between Indigenous self-determination and protections for vulnerable individuals. The two judgments applying the Charter in the Supreme Court of Canada’s decision in Dickson v. Vuntut Gwitchin First Nation exemplify this dichotomy. This approach, however, reflects a false dilemma; it overlooks Indigenous constitutionalism’s ability to resolve the kinds of issues that the Charter aims to resolve, but without sacrificing Indigenous self-determination. To illustrate this point, this article applies one form of Indigenous constitutionalism— Anishinaabe constitutionalism grounded within an Anishinaabe lifeworld—to the fact …

Status, Conduct, Belief, And Message: The Wedding Vendor Cases, Mark L. Movsesian

Faculty Publications

(Excerpt)

I’d like to speak today about one of the more neuralgic episodes in the United States’s ongoing culture wars: the wedding vendor cases. These are cases in which small business owners decline, from religious conviction, to provide services for same-sex weddings. A baker declines to bake a wedding cake for a gay couple because, as a Christian, he opposes same-sex marriage and doesn’t want to participate in sinful behavior. A Christian web designer declines to create websites for same-sex weddings, since doing so would express her support for such weddings, which she doesn’t want to do. Other examples involve …

Sffa V. Harvard: Racial Triangulation And The Invidious Myth Of Colorblindness, Philip Lee

Faculty Publications

(Excerpt)

In Students for Fair Admissions, Inc. (SFFA) v. President and Fellows of Harvard College, a case in which the Supreme Court ended the longstanding practice of race-conscious admissions in higher education, Asian Americans were used as a wedge between White people and non-Asian minorities to eradicate a mechanism that fostered greater racial diversity in student bodies in many highly selective institutions across the country. A majority of Supreme Court justices justified their decision in the name of “colorblindness.” However, the way the justices positioned Asian Americans against other people of color was not colorblind. It was consistent with …

Family Regulation's Consent Problem, Anna Arons

Faculty Publications

The home is the most protected space in constitutional law. But family regulation investigators conduct millions of home searches a year. Under pressure, parents nearly always consent to these state agents’ entry into the most private areas of their lives.

This Article identifies the coercive forces—not least the threat of family separation—that drive parents to consent to home searches. Drawing on primary sources and case law examining consent in criminal cases, it shows that common family regulation investigation tactics render consent involuntary and the ensuing searches unconstitutional. And yet, it argues, the Constitution is not enough. Though constitutional litigation could …

Student Protests And “Fighting Words”: Critical Race Theory And The Evolution Of Hate Speech Codes On College Campuses, Mark C. Niles

Faculty Publications

Devastating Hamas attacks on Israeli civilians and military personnel in October 2023, and the Israeli military response to those attacks in Gaza, have given rise to protests around the world, notably on college campuses in the United States. These protests (on more than fifty campuses in all parts of the country) have in turn generated multiple allegations of antisemitic statements and conduct by protestors. Many high-profile university donors and board members, portions of the media, and some elected officials responded to these allegations by identifying perceived deficiencies in campus administrative responses to these complaints and to calls for more robust …

Restoring Unanimity To The Alabama Death Penalty, Daniel Butler Friedman

Articles & Chapters

In Alabama, one of the jurisdictions most responsible for executions in the United States, the death penalty statute contains a very unusual provision: juries can sentence defendants to death even if they are not unanimous. This is a surprising fact to many people, including lawyers, who largely believe that the U.S. Supreme Court eliminated non-unanimous juries in 2020. That provision is enormously important to the capital punishment regime in Alabama, where 80% of people on death row were sentenced non-unanimously. The law's history, however, is poorly understood. This article lays out that history, showing it to be part of the …

The Great Unsettling: Administrative Governance After Loper Bright, Cary Coglianese, Daniel E. Walters

Faculty Scholarship

“Chevron is overruled.” These three words surely captured more attention than any others in the U.S. Supreme Court’s thirty-five-page opinion in Loper Bright Enterprises v. Raimondo. For forty years, the Chevron doctrine had been virtually synonymous with administrative law. Now that the Court has taken a step that many scholars thought unfathomable even just a few years ago, speculation abounds about the possible downstream impacts of Loper Bright on both what agencies will be able to do in the future and how lower courts will respond when reviewing agency action. The vast majority of early expert commentaries suggest …

When Is Free Speech “Beyond” The Constitution?, Abner S. Greene

Faculty Scholarship

The constitution of a nation without a state action doctrine might limit private restriction or compulsion of speech just as it limits the state. In such a nation, “free speech beyond the constitution” might not be a particularly meaningful concept. In the United States, however, the First Amendment’s free speech clause limits only what the federal, state, and local governments may do. As a nonconstitutional policy matter, it might or might not be a good idea for the government to impose First Amendment- like restrictions on private actors or for private actors to voluntarily impose First Amendment-like restrictions on themselves. …

The Abuses Of History In Constitutional Interpretation, Sherif Girgis

Journal Articles

From the Article

Jack Balkin’s Memory and Authority powerfully describes the kaleidoscopic quality of historical arguments in constitutional law. The book also moves easily between description and prescription. This Essay explores whether it moves too easily from one to the other. I consider whether the book’s analysis is so keen to capture our actual practices that it leaves itself too few resources for evaluating them—whether its account of history’s uses, made expansive by a zeal to fit how lawyers actually reason, crowds out any robust account of how they ought not to reason. While I am inclined to think so, …

An Analysis Of The Constitutionality Of Florida's 2024 Hb 3: “Online Protections For Minors,” Comparative To Other State Regulations Of The Internet, Evan J. Siegel

Honors Undergraduate Theses

This thesis examines the constitutionality of the Florida House of Representatives’ 2024 priority bill, HB 3: “Online Protections for Minors,” through its ongoing litigation in North Florida. The broad nature of the bill, which is now Florida law, and its burden on accessing constitutionality protected speech and/or expression may not be consistent with the First and Fourteenth Amendments to the United States Constitution. How the law defines and shapes what material may be accessible to people on the Internet, or the means they would need to use to create a social media account, are questions many other courts have begun …

Video Analytics And Fourth Amendment Vision, Andrew Guthrie Ferguson

Scholarly Articles in Law Reviews & Journals

What does the Fourth Amendment have to say about video analytics running on citywide camera systems? Video analytics (also known as computer vision) involves hardware and software in cameras that turns video surveillance streams into useful data, identifying, categorizing, matching, and alerting police about objects, people, and incidents. Video analytics can identify objects (e.g., hat, backpack, person, car) and track that person or thing back in time and through the streets using video surveillance footage. For police officers conducting virtual patrols or retrospective investigations, video analytics lets police scan thousands of linked cameras for suspicious behavior or a particular suspect, …

You Had One Job: The Supreme Court's New Chance To Fix The Constitutional Law Of Sentencing Factfinding, Benjamin J. Priester

Faculty Articles

Four decades after the enactment of the federal Sentencing Reform Act, one might expect a settled consensus to have emerged addressing the constitutional constraints on implementing norms such as predictability, consistency, and uniformity in the imposition of criminal punishment in the United States. In reality, the United States Supreme Court has failed to provide stability or clarity in the doctrinal principles implicated in millions of criminal cases nationwide. Spanning a quarter century, the Apprendi v. New Jersey line of cases has featured narrow or fragmented majorities, significant concurring opinions, and multiple instances of individual justices either overtly admitting to changing …

Historical Tradition, The Second Amendment, And Marrying Gun Rights And Regulation: Examining The Proposals In Gavin Newsom's Twenty-Eighth Amendment And Their Place In Second Amendment Jurisprudence, Guy Cheatham

American University Journal of Gender, Social Policy & the Law

In September 2017, Stephen Paddock checked into rooms 32-134 and 32- 135 at the Mandalay Bay Hotel in Las Vegas. Both rooms looked over the Route 91 Festival in Las Vegas Village. Over the course of five days, Paddock brought twenty-two suitcases into his room: five on September 25th, seven on the 26th, two on the 28th, six on the 30th, and two on October 1st. On September 30th, Paddock placed “Do Not Disturb” signs on the doors of rooms 32-134 and 32-135. Paddock considered booking the high level suites for weeks; Google searches from May to September 2017 reveal …

Professors And Company Law: Implications For Academic Freedom, Salar Ghahramani J.D.

American University Journal of Gender, Social Policy & the Law

This Article examines the intersection of company law and academic freedom, specifically exploring how nonprofit universities might invoke corporate and agency law principles to assert breach of fiduciary duty claims when a university could view a professor’s handling of controversial topics or facilitation of provocative class discussions as detrimental to its financial interests or public reputation. Such allegations might arise when universities perceive that these discussions alienate donors, provoke public backlash, or otherwise harm the institution’s standing, thereby framing the professor’s academic choices as potentially disloyal or harmful to the university. While public university professors might argue that the First …

How Does The Modern Supreme Court Treat The Idea Of Retribution In The Context Of Capital Punishment?, Paige Forsberg

Honors Undergraduate Theses

This thesis explores the modern U.S. Supreme Court's treatment of retribution in the context of capital punishment, analyzing how justices have framed and justified the death penalty as a form of justice. Through the examination of key Supreme Court rulings and legal arguments, this study evaluates the evolving role of retribution in the Court’s decisions on death penalty cases, highlighting how judicial reasoning has shifted over time in response to legal, philosophical, and societal developments.

Retribution, long considered one of the primary justifications for capital punishment, is examined through a nuanced lens in this study. While historically viewed as a …

The Practice Of Executive Constitutionalism, Conor Clarke, Daniel Epps

Scholarship@WashULaw

The Executive Branch must inevitably interpret the Constitution. Although departmentalists and judicial supremacists disagree about the scope of the Executive’s constitutional authority, few believe the Constitution is only for the courts. But what are the practices through which the Executive Branch interprets the Constitution and translates those interpretations into concrete decisions? What is their history? And what, if anything, is distinctive about them? While a rich and growing literature has examined some aspects of these questions, scholars have not broadly canvased the most central tools by which the Executive Branch shapes and implements constitutional law, or considered what makes them …

Brief Of Amicus Curiae Professor Corinna Barrett Lain In Support Of Neither Party, Corinna Lain

Law Faculty Publications

“I don’t think it’s a secret that we inherited one of the worst, most incompetent and most ill-funded Department of Corrections in the country. . . [a]nd I don’t think it takes a leap to suggest that we should understand whether they are capable of carrying out the death penalty before we do it.” That is how Attorney General Kris Mayes described Arizona’s Department of Corrections, Rehabilitation & Reentry (“ADCRR”) less than two years ago. Ryan Thornell, director of the ADCRR, agreed, attesting in a declaration in 2023 that the ADCRR lacked “the necessary institutional knowledge and expertise to conduct …

Perfecting Our Submission? Mann And Trump, Ruffin And Roberts, Joseph S. Miller

Scholarly Works

Presidential power is vast, both under law and in practice. Who holds presidents accountable, and by what means? Courts wrestle with these intertwined questions of power and accountability. The majority opinion in the 2024 presidential immunity case, Trump v. United States, is eerily resonant, rhetorically, with a notorious judgment enhancing one person’s power over others by shielding that power utterly from criminal-law accountability. That judgment, from 1829, is Judge Thomas Ruffin’s infamous slavery-law opinion for the North Carolina Supreme Court in State v. Mann. I juxtapose the two opinions, which share jarringly similar claims about the nature of power, rule, …

Resisting Federal Preemption, Desiree Leclercq

Scholarly Works

One of the most pressing issues in constitutional law is how states may—and should—resist federal preempting laws and policies with which they disagree. It’s a problem faced by red and blue states alike in an age of extreme political polarization. Despite having legitimate reasons to resist the federal government on matters that affect local citizens and interests, states seem to have few options. Conventional wisdom is that they engage in either direct resistance through litigation that challenges the constitutionality of preempting laws, or evasion by quietly enacting arguably non-compliant laws hoping to avoid enforcement. Both strategies adopt a belligerent stance …

The Sword, The Purse, And The Pen: The Constitutional Conundrum Of Impoundment, William N. Chance

CMC Senior Theses

This Thesis explores the constitutional conundrum of executive impoundment, the practice by which the President of the United States withholds or delays the expenditure of funds appropriated by Congress. Although impoundment has deep historical roots dating back to the Constitution’s Framers, its modern use raises profound questions regarding our separation of powers. This Thesis establishes a functional framework that distinguishes between “routine” impoundments, which promote administrative efficiency, and “policy” impoundments, which may undermine congressional intent. Furthermore, after tracing the development of impoundment from the early Republic through the Nixon Administration and the passage of the Impoundment Control Act of 1974, …

Sentencing Vulnerability: Conceptualizing The Incorporation Of Personal Characteristics And Experiences At Sentencing, Adelina Iftene

Articles, Book Chapters, & Popular Press

Social inequalities that lead to criminal conduct are often not considered in sentencing; individuals subject to structural inequities receive the same formal sentence as those convicted of like crimes irrespective of the latter’s social advantage. Individual characteristics may also affect how a sentence will be experienced by an individual. While Characteristics and Experience-Sensitive Sentencing (CESS) already exists in various forms and to various degrees in sentencing theory and praxis, a more cohesive, comprehensive, and principled CESS remains wanting. Building on existing approaches, this article locates CESS as a necessary response to equality-based concerns arising from current mainstream sentencing practice. Thus, …

Correcting Course: How Congress Can Streamline U.S. Engagement With The International Criminal Court, Sophia N. Ramcharitar

Cardozo Law Review de•novo

Since its participation in the 1998 Rome Conference, the United States has vocalized opposition to key components of the International Criminal Court’s (ICC) jurisdiction. This opposition has informed longstanding positions taken by the executive branch and motivated anti-ICC legislation passed by Congress. Support for the ICC’s investigation in Ukraine challenged these narratives across the legislative and executive branches, but the ICC’s arrest warrants of Israeli officials in 2024 renewed Congress’s heightened skepticism of the court and sowed political divisions on efforts to sanction the ICC. Congress’s oscillation on the ICC within the past several years prompts a larger question of …

Remedying Unconstitutional Immigration Enforcement, Guha Krishnamurthi

Cardozo Law Review de•novo

Fearmongering about “illegal immigration” has reached a fever pitch. There is a nearing bipartisan consensus among politicians that “stopping illegal immigration and securing the border” is a paramount priority. The fact that many politicians and institutional actors have displayed animus in discussing immigration enforcement portends that many perils lie ahead. It is precisely during this time that constitutional rights must serve as a bulwark against government overreach. This Essay contends that our constitutional rights framework, specifically its principal remedies for rights violations, are inadequate to protect against government malfeasance. In particular, I demonstrate that there are plausible scenarios where the …

Shoot The Messenger: Why Section 230 Does Not Shield Suggestive Content Delivery, Alexander Heinkele

Cardozo Law Review de•novo

Internet companies have frequently relied on Section 230 of the Communications Decency Act of 1996 to avoid liability for third-party content hosted on their platforms. However, over time, companies began to take advantage of the broad cover of Section 230 in circumstances outside the statute’s original scope. This Note advocates for a more nuanced interpretation of the statute as it applies to suggestive algorithms and offers a proposal for amending Section 230 to better reflect the modern digital landscape.

The Score Act Is Unconstitutional: Private Nondelegation Problems With Congress’S Latest Attempt To Regulate College Sports, Sam C. Ehrlich, Ryan M. Rodenberg

Cardozo Law Review de•novo

The Student Compensation and Opportunity through Rights and Endorsements Act (“SCORE Act”) is Congress’s most ambitious effort yet to bring stability to college sports, codifying the recent House settlement while granting sweeping regulatory power to private athletic associations such as the National Collegiate Athletic Association (“NCAA”) and the College Sports Commission (“CSC”). However, by delegating policymaking authority to these private, self-interested entities without any sort of public oversight, the bill raises serious constitutional concerns under the private nondelegation doctrine. Drawing on parallels to a string of litigation involving the Horseracing Integrity and Safety Act (“HISA”) and recent Supreme Court signals, …

In Defense Of Pro Se Parents, Matthew F. Gillam

Fordham Law Review

Who gets to represent children in federal court? Adults have long been permitted to represent themselves in federal court under the plain meaning of 28 U.S.C. § 1654. And, many adults do just that every year. But what if the real party in interest is a minor child? Who, if anyone, can exercise that child’s right to proceed pro se?

This Note argues that the correct reading of 28 U.S.C. § 1654 would permit parents to litigate pro se in federal court where the real party in interest is their minor child. This is based on a straightforward, grammatically correct …

Populist Primacy, Jacob Eisler

Brooklyn Law Review

Critics of the Roberts Court assert that the conservative justices are remaking American democracy to implement a corrupt Republican agenda. Conversely, the justices claim to be following originalism, with democratic transformation as an incidental side effect. These views share no common ground, and there is little space left for fruitful dialogue. This Article breaks this impasse by identifying the functional democratic theory driving the Court: populist primacy. Populist primacy allocates power to the rank-and-file constituency and sweeps away institutions that moderate popular will. By positing that democracy consists of conflict between self-motivating actors, populist primacy adopts a structurally minimalist vision …

Fearless Speech Ignores History To Make A Point, Robert Corn-Revere

Brooklyn Law Review

Professor Mary Anne Franks’ book Fearless Speech: Breaking Free from the First Amendment purports to offer a bold reimagining of free speech doctrine that “takes power, harm, and history seriously.” However, as this review essay demonstrates, Fearless Speech neither breaks free from familiar critiques of the First Amendment nor engages seriously with the historical and doctrinal record. The review illustrates how Professor Franks’ claim that “First Amendment norms have perpetuated and maintained a neo-Confederate ideology of white male supremacy” is entirely unsupported and is based on a series of strawman arguments that mischaracterize both the historical record and free speech …

The Grass Is Always Grayer: Analyzing Field Preemption Challenges In New York Environmental Law, Dylan Misisco

Brooklyn Law Review

This Note addresses a growing tension in environmental law between state and local authorities, focusing on the doctrine of field preemption as applied to New York environmental law. Using the Glen Oaks litigation as a case study, this Note argues that field preemption—where laws from a higher government authority implicitly nullify lower-level ones—threatens the effectiveness of environmental governance at the state and local levels. To mitigate future field preemption conflicts, this Note proposes a two-pronged solution: (1) New York courts should adopt a clearer and more structured framework for evaluating field preemption claims, specifically in the environmental context; and (2) …

The Comstock Act’S Equal Protection Problem, Danny Y. Li

Michigan Law Review Online

Following its victory in Dobbs, the antiabortion movement has set its sights on a national abortion ban. Affiliates of the second Trump Admin- istration—including the vice president-elect—have endorsed the re- newed enforcement of the 1873 Comstock Act as one avenue for implementing such a ban. This Essay argues that contemporary enforce- ment of the Comstock Act as a national abortion ban would be unconsti- tutional. The Act violates the Fifth Amendment’s equal protection guarantee because it was enacted with the discriminatory purpose of in- hibiting illicit sex to promote women’s sexual purity. Only contemporary reenactment of the law without constitutionally …