Constitutional Law Commons^™

States’ Duty Under The Federal Elections Clause And A Federal Right To Education, Evan Caminker

Articles

Fifty years ago, in San Antonio Independent School District v. Rodriguez, the Supreme Court failed to address one of the preeminent civil rights issues of our generation—substandard and inequitable public education—by holding that the federal Constitution does not protect a general right to education. The Court didn’t completely close the door on a narrower argument that the Constitution guarantees “an opportunity to acquire the basic minimal skills necessary for the enjoyment of the rights of speech and of full participation in the political process.” Both litigants and scholars have been trying ever since to push that door open, pressing …

Social Costs Of Dobbs' Pro-Adoption Agenda, Malinda L. Seymore

Faculty Scholarship

Abortion opponents have long claimed that women denied access to abortion can simply give their children up for adoption. Justice Alito repeated this argument in Dobbs v. Jackson Women’s Health. Of course, this claim assumes away the burdens of the pregnancy itself, which can result in economic strife, domestic violence, health risks, and potentially death in childbirth. But even on its own terms, the argument that adoption is an adequate substitute for abortion access makes normative assumptions about adoption as a social good in and of itself, ignoring the social costs of adoption for birth parents and adoptees. Idealizing adoption …

Free Exercise Of Abortion, Elizabeth Sepper

BYU Law Review

For too long, religion has been assumed to be in opposition to abortion. Abortions consistent with, motivated by, and compelled from religion have been erased from legal and political discourse. Since the fall of Roe v. Wade, free exercise claims against abortion bans have begun to correct course. Women and faith leaders in several states have filed suit, asserting their religious convictions in favor of abortion. They give form to the reality—as progressive theologians have long argued—that to have a child can be a sacred choice, but not to have a child can also be a sacred choice. And they …

Jd And Me: Exploring Hybrid Representation Of Pro Se Defendants In Capital Murder Cases, Andrew Wick

Et Cetera

The United States Constitution grants those facing the loss of life and liberty the right to due process and a fair trial under the law. What can be done to ensure criminal defendants facing the death penalty feel as though their desired argument and defense will be presented while still having the appearance of a fair trial? This Article compares a person the law says is qualified to waive counsel and represent themselves and a person qualified to be appointed to represent those facing the death penalty, what is required to waive counsel, the involvement of the trial court and …

The Myth Of The Federal Private Nondelegation Doctrine, Alexander Volokh

Notre Dame Law Review

Judges and scholars have often claimed that delegations of governmental power to private parties are constitutionally prohibited. However, such a “private nondelegation doctrine” is elusive, if not nonexistent. To understand why, first we need to realize that there are actually several distinct nondelegation doctrines. I develop a taxonomy that makes sense of these various doc-trines by focusing on the different reasons why a delegation might be problematic. A nondelegation doctrine might be “giver-based” (can Congress delegate this power?), “recipient-based” (can the recipient exercise this power?), or “application-based” (will the application of this power be unjust?). Once we distinguish these doctrines, …

Reversing Incorporation, Ilan Wurman

Notre Dame Law Review

It is originalist gospel that the Fourteenth Amendment’s Privileges or Immunities Clause was intended, at a minimum, to incorporate the Bill of Rights against the states. This Article revisits forty years of scholarship and concludes that this modern consensus is likely mistaken. Reconstructing antebellum discourse on fundamental rights reveals that the historical players assumed that every state must, as all free governments had to, guarantee and secure natural rights to their citizens. But that did not mean the states regulated these rights in the same way, nor did that dictate what the federal government’s role would be in guaranteeing and …

The "Nonministerial" Exception, Athanasius G. Sirilla

Notre Dame Law Review

In 2014, Charlotte Catholic High School declined to continue Lonnie Billard’s employment as a substitute drama teacher after he publicly announced, via Facebook, that he and his same-sex partner were getting civilly married. Billard sued the school in the Western District of North Carolina for unlawful employment discrimination under Title VII of the Civil Rights Act due to his sexual orientation. The district court granted summary judgment in favor of Billard. The court first held that the high school’s actions could constitute unlawful sex discrimination in light of the Supreme Court’s ruling in Bostock v. Clayton County. The district court …

A $53m Settlement That Will Improve Conditions In Ny Prisons And Jails, Alexander A. Reinert

Cardozo News 2023

This article appeared in the 2023 edition of Cardozo Life magazine.

Professor Alexander Reinert has seen his work bring about major changes in prison and jail conditions in New York City and New York State many times. In April 2023, he was co-counsel with lawyers of Cuti Hecker Wang LLP in a historic settlement in Miller v. City of New York, which involved detainees held in restrictive isolation at two jails on Rikers Island and one unit at what was then the Manhattan Detention Complex.

Brief Of Fourth Amendment Scholars As Amici Curiae In Support Of Defendant-Appellant On The Good Faith Exception Issue, U.S. V. Holcomb, Ninth Circuit Court Of Appeals Docket No. 23-469, David B. Owens, Rachel Nowlin-Sohl, Averill L. Aubrey, Megan Haygood, Kayleigh Mcniel, Michael C. Orehek

Court Briefs

SUMMARY OF THE ARGUMENT

When the Fourth Amendment is violated by an unconstitutional search, the suppression of wrongfully obtained evidence (the exclusionary rule) is often the only viable remedy that might deter government overreach and provide some redress for the constitutional violation. Though the Supreme Court has long treated remedial mechanisms as separate from their underlying rights, Wolf v. Colorado, 338 U.S. 25 (1949), and while limited exceptions to the suppression requirement have existed for years, recent expansion of the “good faith exception” in the digital age imposes unprecedented threats to privacy and security.

A porous or expansive view …

The Students For Admissions, Inc. V. President And Fellows Of Harvard College: The Case Against Affirmative Action From The Asian American Perspective, Annabelle Mae Sukin

Honors Projects

On June 29, 2023, the United States Supreme Court ruled that using affirmative action in college admissions is unconstitutional in the case, Students for Fair Admissions, Inc. v. President and Fellows of Harvard College. This research analyzes arguments presented by both parties to reveal the effects of this policy removal on the future of underrepresented minority students applying to college. I conduct a complex legal analysis of prior Supreme Court cases through the lens of reparation jurisprudence to expose the lucrative, and performative, system of affirmative action in higher education. Additionally, I analyze Harvard’s admission statistics through regression models …

It Is A Constitution We Are Expounding: John Marshall, Spencer Roane, And The Fundamental Conflicts Surrounding Mcculloch V. Maryland (1819), Catherine T. Meisenheimer

Compass: An Undergraduate Journal of American Political Ideas

Using a blend of primary and secondary sources, this research paper examines the lesser-known newspaper debate between Chief Justice John Marshall and Judge Spencer Roane of the Virginia Court of Appeals. The purpose of this research is to answer one question: What were the fundamental issues that divided early Americans as demonstrated by the landmark case of McCulloch v. Maryland (1819)? To contribute to the ongoing discussion of McCulloch and its significance, my paper attempts to understand the issues surrounding McCulloch within its broader, historical context. Instead of confining its importance to the Second Bank of the United States, I …

American Constitution Society Presents: Voting Rights Going Into 2024, Cardozo American Constitution Society (Acs), Katherine A. Shaw

2023–2024 Flyers

No abstract provided.

Toggle Boggle, Leah Litman

Reviews

What is sex discrimination? Or, more generally, what is discrimination?

This question has often centered around a few recurring divisions in constitutional and antidiscrimination law. One division is between intentional discrimination and disparate impact theories of liability; another break is between formal equality and substantive equality; another, related divide is between anti-classification theories of equality and anti-subordination theories.

Conduct Relating To The Practice Of Law: Aba Model Rule 8.4(G) And Its History In Light Of The Constitution, Nathan Moelker

St. Mary's Journal on Legal Malpractice & Ethics

The ABA adopted a revision to the Model Rules in 2016, prohibiting harassment and discrimination against a list of protected classes. The Rule, while well-intentioned and targeted at a serious problem, was broadly phrased to include a large category of protected speech and behavior. The Rule has already faced extensive and well-crafted challenges from the perspective of the Free Speech Clause. This article argues that two additional provisions of the First Amendment—the Free Exercise Clause and Freedom of Association—further illustrate the failure of the Rule and the alarmingly wide-ranging effects of such a prohibition on attorney conduct.

The Philosophy Of Ai: Learning From History, Shaping Our Future. Hearing Before The Committee On Homeland Security And Government Affairs, Senate, One Hundred Eighteenth Congress, First Session., Margaret Hu

Congressional Testimony

No abstract provided.

Pengembalian Fungsi Pengawasan Pemilu Kepada Masyarakat Sebagai Wujud Penyelenggaraan Pemilu Yang Demokratis, Burhan Robith Dinaka, Fitra Arsil

Jurnal Konstitusi & Demokrasi

Elections as a means of implementing people's sovereignty which are held directly, publicly, freely, confidentially, honestly and fairly within the territory of the Unitary State of the Republic of Indonesia which are based on Pancasila and the 1945 Constitution of the Republic of Indonesia also mandate a model of election supervision through Bawaslu as the election organizing institution whose task is to observe, review, inspect and assess the election implementation process so that it runs in accordance with the provisions of applicable laws and regulations. The ongoing strengthening of positions, duties, functions and authority within Bawaslu has left a number …

Symposium On Transformative Gender Law: A Roger Williams Law Review Event 11-3-2023, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

Expert Knowledge, Democratic Accountability, And The Unitary Executive, Barry Sullivan

Fordham Law Review

Proponents of the “unitary executive” theory hold that “all federal officers exercising executive power must be subject to the direct control of the President.” But how, as a constitutional matter, should such presidential control be defined, and how should it be effectuated? Unitarians are not united. Kevin H. Rhodes and Professor Steven G. Calabresi identify at least three distinct versions of the theory, which reflect a diversity of responses to those questions. The strongest or most aggressive version (which may also find the least support in the relevant jurisprudence) holds that the President may “supplant any discretionary executive action taken …

Recalibrating Bruen: The Merits Of Historical Burden-Shifting In Second Amendment Cases, Kevin G. Schascheck Ii

Belmont Law Review

After Bruen, the prevailing assumption was that the Second Amendment framework shifted radically for all gun laws. Courts throughout the country have already invalidated key gun safety statutes while applying the new test. However, such holdings fail to grapple with the full weight of Second Amendment doctrines. A proper application of the doctrine in toto will result in no significant changes to the constitutionality of the vast majority of gun laws after Bruen.

This Article explains the underdeveloped interaction between two principal Second Amendment doctrines - presumptions of legal validity and historical analyses. That interaction, framed in its simplest terms, …

Moore, The Sixteenth Amendment, And The Underpinnings Of The Deemed Repatriation Provision, Christopher H. Hanna

SMU Law Review Forum

In Moore v. United States, the U.S. Supreme Court will consider a rare Sixteenth Amendment case. On its face, the case deals with deemed repatriation, a discrete provision of the 2017 Tax Cuts and Jobs Act that included in income past accumulated earnings held abroad. This short Article seeks to contextualize the deemed repatriation provision in terms of why it was passed and how it comports with principles underlying the U.S. tax code. Drawing on firsthand experience researching and drafting the Tax Cuts and Jobs Act, the Article shows the analysis that went into enacting the provision, focusing on …

Due Process Protections For Charter School Students In Long-Term Exclusionary Discipline Proceedings, Leah E. Soloff

Fordham Law Review

Charter schools—public schools that are subject to minimal state regulation—often employ high levels of exclusionary discipline. Because charter schools in many states are exempt from state laws regulating school discipline, the U.S. Constitution provides charter school students their only source of protections during such disciplinary proceedings. However, the constitutional due process protections afforded to public school students in disciplinary proceedings remain a source of significant disagreement among courts. Although the U.S. Supreme Court has established that public school students must be afforded due process protections in exclusionary discipline proceedings, the Court has yet to determine what process is actually due …

Citizenship Outside The Courts, Catherine Y. Kim

Faculty Scholarship

No abstract provided.

Why (And How) The Constitution Should Protect Prisoners From Gratuitous Disclosure Of Their Hiv/Aids Status, Dillon Schweers

William & Mary Law Review

This Note is not the first to advocate for prisoners’ constitutional privacy rights concerning their HIV/AIDS status, but it is the first to focus on isolated incidents of disclosure rather than general policies that tend to lead to disclosure like mandatory testing or segregation based on HIV/AIDS status. This Note argues that the Fourteenth Amendment’s Due Process Clause should protect prisoners from isolated disclosures, meaning prisoners should have a § 1983 cause of action against guards or other prison officials who disclose their HIV/AIDS status in a gratuitous manner.

[...]

The proceeding section of this Note, Part I, details the …

The Diffuse Executive, Anya Bernstein, Cristina Rodriguez

Fordham Law Review

A unitary executive is an exacting ideal. It asks that all power in an administration be gathered in the person of the President, who should have full authority to determine the actions of officials and employees. Even if the President does not directly control every executive action (how could he?), when officials fail to implement presidential preferences, the unitary theory dictates that the President must have the power to remove them. The model posits a tightly organized hierarchy—every rung implementing the substantive decisions of the rung above, with orders flowing from the top: a command-and-control structure for government action. And, …

Article Iii, The Bill Of Rights, And Administrative Adjudication, John M. Golden, Thomas H. Lee

Fordham Law Review

Modern reconsideration of legal constraints on the federal administrative state has commonly focused on agency rulemaking but seems increasingly concerned with agency adjudication. In this Essay, we provide an overview of constitutional issues implicated by administrative adjudication. We specifically explain how and why the so-called public-rights doctrine generally allows federal administrative adjudication outside private-rights actions substantially linked to traditional actions in law, equity, or admiralty. We also discuss how constitutional provisions outside Article III—including Bill of Rights protections of individuals as against the federal government—may nonetheless require a role for Article III courts even in so called public rights cases, …

The Collateral Fallout From The Quest For A Unitary Executive, Harold J. Krent

Fordham Law Review

To bolster a strong “Unitary Executive,” the Roberts Court has held that Congress can neither shield a single head of an administrative agency nor an inferior officer in an independent agency from removal at will. With respect to appointments, the Roberts Court has held that adjudicative officers in many executive agencies must now be appointed either by the President or a superior officer under the President’s supervision. As a result, dissenting Justices and academics have accused the Roberts Court of expanding Article II beyond both the constitutional text—which seemingly grants Congress the discretion to structure administrative agencies as it deems …

Police Officers, Policy, And Personnel Files: Prosecutorial Disclosure Obligations Above And Beyond Brady, Lauren Giles

Fordham Law Review

Police officers play a significant role in the criminal trial process and are unlike any other witness who will take the stand. They are trained to testify, and jurors find them more credible than other witnesses, even though officers may have more incentive to lie than the ordinary witness. Despite the role of police officers in criminal proceedings, state statutes say virtually nothing about evidence used to impeach police officers, often contained in the officer’s personnel file. Worse still, the standard for disclosing information in an officer’s personnel file varies among and within states, resulting in inconsistent Brady disclosures. This …

Originalism After Dobbs, Bruen, And Kennedy: The Role Of History And Tradition, Randy E. Barnett, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

In three recent cases, the constitutional concepts of history and tradition have played important roles in the reasoning of the Supreme Court. Dobbs v. Jackson Women’s Health Organization relied on history and tradition to overrule Roe v. Wade. New York State Rifle & Pistol Ass’n v. Bruen articulated a history and tradition test for the validity of laws regulating the right to bear arms recognized by the Second Amendment. Kennedy v. Bremerton School District looked to history and tradition in formulating the test for the consistency of state action with the Establishment Clause.

These cases raise important questions about …

The Relationship Between Constitutional Equality And Substantive Review, Wei Yao, Kenny Chng

Research Collection Yong Pung How School Of Law

General equality rights in written constitutions – rights stating the ideal of equality without specifying categories of impermissible differentiation – have often been effected through the idea of equality as rationality. Equality as rationality demands that differentiations between like entities have to be rationally justifiable. Such equality rights are applicable to legislation and executive action. This presents a prima facie overlap with substantive review in common law administrative law, since substantive review is also concerned about the rational justifiability of executive action. This raises three questions: (1) Are both sets of legal principles indeed similar? (2) Have courts managed to …

Command And Control: Operationalizing The Unitary Executive, Gary S. Lawson

Faculty Scholarship

The concept of the unitary executive is written into the Constitution by virtue of Article II’s vesting of the “executive Power” in the President and not in executive officers created by Congress. Defenders and opponents alike of the “unitary executive” often equate the idea of presidential control of executive action with the power to remove executive personnel. But an unlimitable presidential removal power cannot be derived from the vesting of executive power in the President for the simple reason that it would not actually result in full presidential control of executive action, as the actions of now-fired subordinates would still …