Constitutional Law Commons^™

Implications Within Interpretations And Legal Implementations Of The Fourteenth Amendment, Jillian Bartley

Regis University Student Publications (comprehensive collection)

The Fourteenth Amendment is not often thought about as one of the pillars of American freedom and citizenship, but it is indeed. The Fourteenth Amdendment establishes equal protections under the law, due process, and citizenship. This thesis seeks to look at how the Fourteenth Amendment and gender intersect in a way that establishes who gets what rights, and how those rights are able to be interpreted. The way in which the Fourteenth Amendement is interpreted establishes who gets protections and what equality under the law means within the context of American society. In using legal history, and the breifing of …

The Death And Resurrection Of Establishment Doctrine, Gerard V. Bradley

Duquesne Law Review

Lead Article

The biggest news of the Supreme Court's 2021-22 term was the Court's "abandonment" of Lemon v. Kurtzman as the default test for Establishment Clause jurisprudence. For a full half-century, Lemon v. Kurtzman defined what our constitutional separation of church and state meant. But now the Court has definitively laid it to rest. The important question of church-state relations stands at a strategic fork in the road that the Court has not faced since 1962, and perhaps not since 1947. Justice Gorsuch complained that Lemon demonstrably failed as law. That it was a judicial tool that flopped by every …

Foreword: New Supreme Court Cases: Duquesne Law Faculty Explains, Wilson Huhn

Duquesne Law Review

During the 2021-2022 Term, the United States Supreme Court issued several groundbreaking opinions that fundamentally changed the interpretation of the Constitution in a number of areas, including freedom of religion under both the Free Exercise Clause and the Establishment Clause; reproductive freedom and the Right to Privacy; and justiciability, administrative law and the Separation of Powers. The Court also granted certiorari in another case that may have an enormous impact on our representative democracy and the right to vote in federal elections.

A "Mere Shadow" Of A Conflict: Obscuring The Establishment Clause In Kennedy V. Bremerton, Ann L. Schiavone

Duquesne Law Review

In Kennedy v. Bremerton School District,¹ the Roberts Court continued its move to carve out larger spaces for religious practice and expression in public spheres.² But in so doing it left lower courts and school districts with many more questions than answers concerning what the Establishment Clause means and what it requires of them. Can school districts still protect students from religious coercion by teachers, classmates, and others? Are entanglements between church and state or the appearance of endorsement no longer problematic?³ Should the individual history and tradition of schools and communities influence decision making on …

Let The Right Ones In: The Supreme Court's Changing Approach To Justiciability, Richard L. Heppner Jr.

Duquesne Law Review

In last term's blockbuster case Dobbs v. Jackson Women's Health Organization, one of the considerations Justice Alito cited for overturning Roe and Casey was that they "have led to the distortion of many important but unrelated legal doctrines."¹ Alito asserted that abortion jurisprudence has, among other things, "ignored the Court's third-party standing doctrine."² Whether that is a fair description of the case law is debatable. But it raises the question of whether the newly ascendant conservative majority might likewise distort standing doctrine, and other justiciability doctrines, in order to decide particular, controversial issues.

Applying Bentham's Theory Of Fallacies To Chief Justice Robert's Reasoning In West Virginia V. Epa, Dana Neacsu

Duquesne Law Review

There are two issues in West Virginia v. EPA.¹ One regards justiciability, and the other delegation. Article III of the Federal Constitution limits justiciability to controversies, to disputes involving an injured party whose harm the judiciary believes it can remedy. The Constitution is silent on delegation.

This Essay summarizes the Court's decision in West Virginia v. EPA.² It also analyzes Chief Justice Roberts' reasoning and addresses the case's flaws from two perspectives. It references the Court's decision connecting it to the so-called New Deal Cases,³ because in both Panama Refining Co. v. Ryan,^{4 …}

The False Promise Of Jurisdiction Stripping, Daniel Epps, Alan M. Trammell

Scholarly Articles

Jurisdiction stripping is seen as a nuclear option. Its logic is simple: By depriving federal courts of jurisdiction over some set of cases, Congress ensures those courts cannot render bad decisions. To its proponents, it offers the ultimate check on unelected and unaccountable judges. To its critics, it poses a grave threat to the separation of powers. Both sides agree, though, that jurisdiction stripping is a powerful weapon. On this understanding, politicians, activists, and scholars throughout American history have proposed jurisdiction-stripping measures as a way for Congress to reclaim policymaking authority from the courts.

The conventional understanding is wrong. Whatever …

Arresting Assembly: An Argument Against Expanding Criminally Punishable Protest, Allison Freedman

Faculty Scholarship

ARRESTING ASSEMBLY: AN ARGUMENT AGAINST EXPANDING
CRIMINALLY PUNISHABLE PROTEST
ALLISON M. FREEDMAN

ABSTRACT

In recent years, public protests have shed light on societal inequities that had previously gone unheard. Yet instead of responding to protesters’ concerns, many state legislators are attempting to silence disenfranchised groups by introducing hundreds of “anti-protest” bills. This is a recent phenomenon and one that is accelerating—the largest wave of “anti-protest” bills was introduced on the heels of the most robust protest movement in recent history, Black Lives Matter during the summer of 2020.

Although it is clear that legislators are attempting to tamp down public …

The Wolf In Sheep's Clothing: How Historical And Blight Designations In The Absence Of Constitutional Safeguards Can Render Property Rights Illusory, Kyle B. Teal, Dane L. Stuhlsatz

St. Thomas Law Review

This article summarily analyzes those more subtle forms of property rights infringement, including historical designations and blight designations, and it critiques laws in place that purport to grant local government the authority to assert such designations. This article also provides a summary of the causes of action owners aggrieved by unjust designations could bring in response, and critiques the flaws in those elective safeguards, which are prevalent even in property rights friendly jurisdictions such as Florida. It then proposes high-level solutions to enact legislation to limit fee exposure for property owners who bring inverse condemnation actions and Bert J. Harris …

Resolving Establishment Clause Issues Is No Longer "Easy-Peasy, Lemon-Squeezy", Daniela Cecilia Pachon

St. Thomas Law Review

The notion of separating Church and State is one that is deeply rooted in American history. Although simple on its face, as the American population grows more diverse, the idea of separation has become a convoluted concept difficult to apply. In an attempt to create a “one-size-fits-all” solution to issues regarding government intruding on the individual’s religious freedoms, the Supreme Court developed a tripartite test to determine whether a statute violated the Establishment Clause. In Lemon v. Kurtzman, the Court combined several tests originating in prior case law to develop the singular, infamous Lemon test. However, in June 2022 with …

Abolishing Police Consent Searches Through Legislation: Lessons From Scotland, Josephine Ross

American University Law Review

Why have U.S. civil rights organizations omitted the abolition of consent searches from the panoply of recommended police reforms? As over 90% of all searches of cars and pedestrians in the United States are based on consent, this begs the question. The Supreme Court created the consent loophole so that police who lacked probable cause could nevertheless search pockets and cars. In the American context, consent searches bolster racial profiling and enable police harassment.

Americans do not have to wait for the Court to change the law. States and cities have the power to close off this loophole through legislative …

Contemporary Tribal Lawyering & Legal Ethics, Murphy Chen

PEEL Alumni Scholarship

No abstract provided.

Dobbs, Right-Wing Revisionism, And Public Outrage: Rodrigo's Late-Night Chronicle, Richard Delgado, Jean Stefancic

American University Law Review

When we next see Rodrigo, he has been brought into town by Giannina’s women’s rights group. The Supreme Court had just decided Dobbs and revoked a constitutional right that had existed for fifty years prior. Giannina’s organization is meeting to discuss possible responses to the Dobbs decision. While he is in town, Rodrigo decides to seek out the professor, hoping to reconnect and pick his brain on this seismic shift in the legal landscape.

Deeply Rooted Or Deeply Flawed? A Constitutional Criticism Of Dobbs And Roe's Potential Resurrection, Julian Whitley

American University Journal of Gender, Social Policy & the Law

Abortion has been a divisive issue in this country for decades. Some believe that abortion should be illegal under any circumstance, others believe that abortion under certain circumstances should be legal, and still others believe that abortion should be legal in all circumstances. The issue of abortion was initially decided by the Court in 1973 under Roe v. Wade, where the Court devised a trimester approach.

When Congress Passes The Buck: How Russia’S Invasion Of Ukraine Exposed Flaws In Granting The President Sanctioning Powers, Artem M. Joukov, Samantha M. Caspar

Seattle University Law Review

The United States (U.S.) Constitution provides few limitations on endowing the Executive Branch with powers to govern foreign trade, which was initially granted to the Legislature. In a world where global trade dominates, the power over foreign trade can be more important than the power over domestic matters. Leaving unrestrained trade authority to the Executive Branch may cause hazards for Americans and foreigners alike. Russia’s war in Ukraine demonstrates the flaws in permitting the Executive Branch to unilaterally sanction foreign states. This Article demonstrates how reactive Executive Branch policies infringed on the welfare and safety of American citizens and foreigners …

Pedaling Backwards: Examining The King County Board Of Health’S Choice To Repeal Its Bicycle Helmet Law, Schuyler M. Peters

Seattle University Law Review

In Part I, this Comment will explain the Helmet Law itself and the timeline that ultimately led to its repeal. Part II will focus on the positive impact of the Helmet Law, the dangers associated with the repeal, why the repeal should not have occurred in the manner it did, and what societal costs stem from the BOH’s decision. Part III will address the actions that must be taken to revoke this repeal and the reasons behind these alternative pathways, including an Equity Impact Review study specifically on the consequences of repeal, a collaborative outreach program to bring helmets to …

The Language Of Record: Finding And Remedying Prejudicial Violations Of Limited English Proficient Individuals’ Due Process Rights In Immigration Proceedings, Anna C. Everett

Connecticut Law Review

In immigration court proceedings, court interpreters interpret only those statements made directly to and by the limited English proficient (“LEP”) party. Thus, LEP individuals can only understand what is being spoken to them, not what is being asserted about them. In asylum interviews, applicants must provide their own interpreter, and failure to do so may result in an applicant-caused delay and, ultimately, a denial of work authorization. In immigration proceedings, the LEP party’s livelihood, family unity, and freedom from persecution and death are at stake. The message that the U.S. legal system makes clear is that it does not value …

The Right To Personality: Navigating The Brave New World Of Personality-Altering Interventions, Christopher S. Sundby

Connecticut Law Review

As neuroscience progresses, policy makers will have an increasing arsenal of behavior-modifying interventions at their disposal to deploy in the hopes of reducing recidivism and making the criminal justice system more rehabilitative. While these interventions are promising, they also can pose grave risks to individual liberty interests that are insufficiently acknowledged, much less protected, by current jurisprudence. Specifically, the current legal regimes and proposed alternatives either fail to identify the nature of the liberty at stake by overly focusing on physical side effects to the exclusion of thought- and personality-altering side effects, reject completely the potential for these interventions to …

Originalism-By-Analogy And Second Amendment Adjudication, Joseph Blocher, Eric Ruben

Faculty Journal Articles and Book Chapters

In New York State Rifle & Pistol Ass’n v. Bruen, the Supreme Court held that the constitutionality of modern gun laws must be evaluated by direct analogy to history, unmediated by familiar doctrinal tests. Bruen’s novel approach to historical decision-making purported to constrain judicial discretion but instead enabled judicial subjectivity, obfuscation, and unpredictability. Those problems are painfully evident in courts’ faltering efforts to apply Bruen to laws regulating 3D-printed guns, assault weapons, large-capacity magazines, obliterated serial numbers, and the possession of guns on subways or by people subject to domestic-violence restraining orders. The Court’s recent grant of certiorari in United …

The Appropriate Appropriations Inquiry, Chad Squitieri

Scholarly Articles

The Supreme Court is set to hear oral argument this fall concerning whether the Consumer Financial Protection Bureau (CFPB) is unconstitutionally self-funded. The question presented in the case asks whether the statute establishing the CFPB’s self-funding scheme, 12 U.S.C. § 5497, “violates the Appropriations Clause.” But that question is incomplete at best, because although the Appropriations Clause requires that “appropriations” be “made by law,” the Appropriations Clause does not itself vest Congress with any authority to make “law” in the first place. Instead, Congress’s authority to make appropriations laws is vested in part by the Necessary and Proper Clause. Thus, …

Traditionalism Rising, Marc O. Degirolami

Scholarly Articles

Constitutional traditionalism is rising. From due process to free speech, religious liberty, the right to keep and bear arms, and more, the Court made clear in its 2021 term that it will follow a method that is guided by “tradition.”

This paper is in part an exercise in naming: the Court’s 2021 body of work is, in fact, thoroughly traditionalist. It is therefore a propitious moment to explain just what traditionalism entails. After summarizing the basic features of traditionalism in some of my prior work and identifying them in the Court’s 2021 term decisions, this paper situates these recent examples …

The Constitutional Imagination Of The Mujahidin: A History And Translation Of Two Constitutions Proposed By Afghan Islamist Militias In The 1990s, Shamshad Pasarlay, Clark Lombardi

Washington International Law Journal

No abstract provided.

Equal Protection Against Policing, Evan D. Bernick

College of Law Faculty Publications

A White police officer pins his knee against a Black man’s neck. The Black man lies prone. He says he can’t move. He says he can’t breathe. He says he’s through. He pleads for his mama. He moans, gasps, and writhes. Blood runs out of his nose and mouth. After eight minutes and forty-six seconds, George Floyd is dead.

Videos of the killing went viral. All four of the Minneapolis Police Department officers who arrested Floyd for allegedly using a counterfeit $20 bill at a convenience store were fired. Derek Chauvin—who held his knee to Floyd’s neck—was initially charged by …

What Is The Object Of The Constitutional Oath?, Evan D. Bernick, Christopher R. Green

College of Law Faculty Publications

How and why are public officials today obliged to follow the Constitution? Article VI gives us a crystal-clear answer: They are bound “by oath or affirmation, to support this Constitution.” But what is “this Constitution”? American constitutional culture today describes its Constitution in ways that presuppose that the Article VI oath binds officeholders to an external, objective, common object: the same commitment for all oath-takers today, and the same commitment today as in the past. Justices on the Supreme Court took their constitutional oaths at different times, spread out over 31 years from 1991 to 2022, but they claim to …

Judicial Process And Vigilante Federalism, Charles W. "Rocky" Rhodes, Howard M. Wasserman

Faculty Publications

Jon Michaels’ and David Noll’s "Vigilante Federalism" (Cornell Law Review) decries the explosion of state laws that target certain people (women seeking abortions, trans students seeking to use bathrooms, schools trying to teach about race) and rely on private civil litigation by random "any persons" as the exclusive or primary enforcement mechanism. These laws "deputize private actors to wage and win the culture wars," while subordinating marginalized groups.

But Michaels and Noll conflate well-taken substantive constitutional objections to these laws with procedural issues surrounding the private enforcement mechanism, which is neither unique nor constitutionally problematic. States have long authorized private …

Public Order Policing: A Proposal For A Charter-Compliant Legislative Response, Jamie Cameron, Robert Diab

Articles & Book Chapters

This article offers a brief response to the Final Report of the Public Order Emergency Commission by two authors who provided expert reports to the Commission. We focus on Commissioner Rouleau’s recommendation that the provinces and the federal government create a “major event management unit” to ensure “integrated command and control” of large events, and that governments clarify the scope of police power to create exclusion zones and to impose other limits on protest and assembly. We argue that nothing short of legislation on point would suffice to address problems of coordination among police agencies and the lack of clarity …

The Indecisions Of 1789: Inconstant Originalism And Strategic Ambiguity, Jed H. Shugerman

Faculty Scholarship

The unitary executive theory relies on the First Congress and an ostensible “Decision of 1789” as an originalist basis for unconditional presidential removal power. In light of new evidence, the First Congress was undecided on any constitutional theory and retreated to ambiguity in order to compromise and move on to other urgent business.

Seila Law’s strict separation-of-powers argument depends on indefeasibility (i.e., Congress may not set limits or conditions on the president’s power of civil removal). In fact, few members of the First Congress defended or even discussed indefeasibility. Only nine of fifty-four participating representatives explicitly endorsed the presidentialist view …

The Use And Limits Of Longstanding Practice In Constitutional Law, Spencer G. Livingstone

Maryland Law Review

No abstract provided.

Towards Critical Environmental Justice Approach In Multicultural Divided States: Lessons From The Israeli Regulative System, Manal Totry-Jubran

Fordham Environmental Law Review

This article draws upon the evolving framework of the Critical Environmental Approach in examining the conceptualization and manifestation of the Environmental Justice approach and its pillars within the regulatory system of multicultural and divided societies. These are states comprised of marginalized ethnic and minority groups that frequently face instances of social and environmental injustice. Employing this perspective through a case study show that gradual and anecdotic but unorganized and incoherent incorporation of Environmental Justice pillars lacks the capacity to effectively address long-standing historical environmental injustices and fails to challenge the prevailing social framework. In fact, it runs the risk of …

Exhuming Nondelegation . . . Intelligibly, Zachary R.S. Zajdel

Fordham Journal of Corporate & Financial Law

Whether by avalanche or a thousand cuts, the intelligible principle test may be awaiting its untimely demise at the behest of a reinvigorated nondelegation movement. Perhaps looking to speed up the decomposition, the Fifth Circuit in Jarkesy v. Securities and Exchange Commission struck down the SEC’s discretion to pursue enforcement actions with its own Administrative Law Judges or in federal court as unconstitutionally delegated legislative power. This Note posits that Jarkesy was rightly decided but rife with uncompelling reasoning. Establishing this requires a detour into the meaning of the Necessary and Proper Clause, the significance of the separation of powers, …