Constitutional Law Commons^™

Political Tribalism Is Trumping Accountability. That’S Bad For Democracy, Bruce Ledewitz

Newspaper Columns

Collected biweekly contributions to the Pennsylvania Capital-Star, a nonpartisan, nonprofit news site.

September 10, 2020: This Week's Column--Tribalism, Bruce Ledewitz

Hallowed Secularism

Blog post, “This Week's Column--Tribalism“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Book Review Of How Constitutional Rights Matter, Katharine G. Young

Journal of Legal Education

No abstract provided.

September 6, 2020: "Art Is Not Enough, But Art Is All We Have", Bruce Ledewitz

Hallowed Secularism

Blog post, "art is not enough, but art is all we have" discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Access To Literacy Under The United States Constitution, Christine M. Naassana

Buffalo Law Review

No abstract provided.

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Pardoning Dogs, Sarah Schindler

Nevada Law Journal

No abstract provided.

Uncertain Immunity: Assessing Qualified Immunity In The Context Of Post-Arrest Excessive-Force Claims Arising Prior To A Judicial Determination Of Probable Cause, J. Tyler Barton

West Virginia Law Review

No abstract provided.

Ethical And Aggressive Appellate Advocacy: The Decision To Petition For Certiorari In Criminal Cases, J. Thomas Sullivan

Law Faculty Scholarship

Over the past six decades, United States Supreme Court decisions have dramatically reshaped the criminal justice process to provide significant protections for defendants charged in federal and state proceedings, reflecting a remarkable expansion of due process and specific constitutional guarantees. For criminal defendants seeking relief based on recognition of new rules of constitutional criminal procedure, application of existing rules or precedent to novel factual scenarios, or in some cases, enforcement of existing precedent, obtaining relief requires further action on the Court’s part. In those situations, the Court’s exercise of its certiorari jurisdiction is the exclusive remedy offering an avenue for …

The Permissibility Of Acting Officials: May The President Work Around Senate Confirmation?, Nina A. Mendelson

Articles

Recent presidential reliance on acting agency officials, including an acting Attorney General, acting Secretaries of Defense, and an acting Secretary of Homeland Security, as well as numerous below-Cabinet officials, has drawn significant criticism from scholars, the media, and members of Congress. They worry that the President may be pursuing illegitimate goals and seeking to bypass the critical Senate role under the Appointments Clause. But Congress has authorized—and Presidents have called upon—such individuals from the early years of the Republic to the present. Meanwhile, neither formalist approaches to the constitutional issue, which seem to permit no flexibility, nor current Supreme Court …

Herein Of 'Herein Granted': Why Article I'S Vesting Clause Does Not Support The Doctrine Of Enumerated Powers, Richard A. Primus

Articles

Article I of the United States Constitution begins as follows: “All legislative Powers herein granted shall be vested in a Congress of the United States[.]” That text is sometimes called the Vesting Clause, or, more precisely, the Article I Vesting Clause, because Articles II and III also begin with Vesting Clauses. And there is a feature of those three clauses, when compared, to which twenty-first century constitutional lawyers commonly attribute considerable significance. Although the three Clauses are similar in other ways, the syntax of Article I’s Vesting Clause is not fully parallel to that of the other two. The Vesting …

Convenience Or Confidentiality: Nevada’S Digital Data Laws In The Age Of Always-Listening Devices, E. Sebastian Cate-Cribari

Nevada Law Journal

No abstract provided.

A (Cruel And) Unusual Decision: Questions Raised For The Fifth Circuit Moving Forward From Gibson V. Collier, J. Gregory Cloward

Nevada Law Journal

No abstract provided.

Les Deux Constitutions De John Marshall : Une Relecture De L’Arrêt Marbury V. Madison, Elisabeth Zoller

Articles by Maurer Faculty

No abstract provided.

Indigenous Constitutionalism And Dispute Resolution Outside The Courts: An Invitation, Karen Drake

Articles & Book Chapters

The Supreme Court of Canada's jurisprudence on constitutionally protected Aboriginal rights filters Indigenous laws through the lens of liberal constitutionalism, resulting in distortions of Indigenous law. To overcome this constitutional capture, this article advocates for an institution that facilitates dispute resolution between Canadian governments and Indigenous peoples grounded in Indigenous constitutionalism. To avoid a pan-Indigenous approach, this article focuses on Anishinaabe constitutionalism as one example of Indigenous constitutionalism. It highlights points of contrast between Anishinaabe constitutionalism's and liberalism's foundational norms and dispute resolution procedures. This article argues that a hybrid institution—combining features of both liberalism and Indigenous constitutionalism—would merely reproduce …

Presidential Selection: Historical, Institutional, And Democratic Perspectives, James A. Gardner

Contributions to Books

Published as Chapter 1 in The Best Candidate: Presidential Nomination in Polarized Times, Eugene Mazo and Michael Dimino, eds.

It has been nearly two centuries since an American presidential election has evoked a crisis of confidence like that following the election of 2016. Not since the election of Andrew Jackson in 1828 has there been such a public display of anxiety concerning the methods by which we choose our chief executive. As in the contest of 1828 pitting the Democrat Jackson against his Federalist opponent John Quincy Adams, the presidential nominating process of 2016 produced a contest between a celebrity …

Constitutional Literacy In Times Of Crisis, Maartje De Visser

Research Collection Yong Pung How School Of Law

At the same time she announced her withdrawal from public life in 2018, former US Supreme Court Justice Sandra Day O’Connor made a passionate plea for “all citizens to understand our Constitution and unique system of government, and participate actively in their communities.”441 The timing coincided with the halfway mark of Donald Trump’s term in presidency, a president who has very publicly declared his knowledge of the US Constitution, but whose understanding of it has regularly been called into question.442 At its foundation, the democratic legitimacy of a government arguably presupposes a working familiarity with the constitution qua social contract. …

State Enforcement In A Polycentric World, David A. Hyman, William E. Kovacic

BYU Law Review

No abstract provided.

Is This A Christian Nation?: Virtual Symposium September 25, 2020, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

Corpus Linguistics And Gun Control: Why Heller Is Wrong, Kyra Babcock Woods

BYU Law Review

No abstract provided.

It’S Whose Party? Accurately Defining Political Parties In First Amendment Cases, Makade Claypool

BYU Law Review

No abstract provided.

Visions Of The Republic Symposium: The People: A Pre-Primer For Critically Reevaluating Representation & Court Power In The Present, Marvin L. Astrada

Fordham Law Review Online

What exactly is an American? Who or what are the People? Is there an authentic, viable American political identity or community? Or do the deep ruptures and balkanization that seem to pervade law and politics— ranging from pandemics, national security, impeachment, and the environment, to issues of an everyday, local nature—indicate a crisis of legitimacy, cohesion, and national community?

Novel Perspectives On Due Process Symposium: Do Foreign Nations Have Constitutional Rights?, Robert J. Pushaw Jr.

Fordham Law Review Online

Clarity would be promoted by treating Article III—which primarily concerns subject matter jurisdiction over three categories of “Cases” and six types of “Controversies”— separately from Due Process issues such as personal jurisdiction. Moreover, Article III’s text and history indicate that its drafters included “Controversies . . . between a State, or the Citizens thereof, and foreign States, Citizens or Subjects” to ensure that such disputes would be resolved impartially by federal judges who, unlike their state counterparts, enjoyed tenure and salary guarantees that insulated them from political pressure.

Novel Perspectives On Due Process Symposium: The Rights Of Foreign States In The Unites States Legal System, John Harrison

Fordham Law Review Online

Professor Wuerth’s article is a significant piece of scholarship. This brief comment is devoted, not to the article’s many strengths, but to its principal doctrinal conclusion, with which I disagree. In my view, the Due Process Clause of the Fifth Amendment allows Congress to provide any rules it chooses regarding service of process on and personal jurisdiction over foreign sovereigns. That is true, at least, insofar as the judgments of U.S. courts are to be enforced against foreign sovereign assets located in the United States. The rules about personal jurisdiction over foreign sovereigns in the Foreign Sovereign Immunities Act therefore …

Novel Perspectives On Due Process Symposium: Doctrinal Redundancy And The Two Paradoxes Of Personal Jurisdiction, Robin J. Effron

Fordham Law Review Online

At several junctures, scholars have wondered what constitutional personal jurisdiction doctrine can and should add to procedural doctrines that regulate access to courts and parties’ amenability to suit in U.S. jurisdictions, and procedural doctrines that sort lawsuits into geographically suitable or appropriate locations. Professor Wuerth’s Article invites us to refocus on the question of what doctrines can and should regulate the amenability of foreign sovereigns (as well as the agencies and instrumentalities of foreign sovereigns) to suit in American courts.

Novel Perspectives On Due Process Symposium: A Commentary On Ingrid Wuerth's The Due Process And Other Constitutional Rights Of Foreign Nations, David P. Stewart

Fordham Law Review Online

Are foreign States and governments (and their state-owned enterprises) “persons” for constitutional purposes? Do they—should they—have “due process” rights under the U.S. Constitution? Ingrid Wuerth’s thoughtful and thoroughly researched article addresses those important questions from both the historical and doctrinal perspectives and proposes an innovative approach to resolving the issues. The following commentary provides additional background and context, briefly tracing the origins and history of relevant U.S. case law and noting some of the practical implications of answering the questions affirmatively or negatively, particularly in light of the various exceptions to U.S. jurisdiction under the Foreign Sovereign Immunities Act. It …

Novel Perspectives On Due Process Symposium: Foreign Nations, Constitutional Rights, And International Law, Austen Parrish

Fordham Law Review Online

Some of the more pressing issues related to global governance and world order lie at the intersection of foreign relations law, international law, and constitutional law. What role does the Constitution play in ensuring the United States lives up to the nation’s international law obligations in an evolving period of globalization? More provocatively, to what degree will the United States uphold its international legal obligations if not mandated by the Constitution? And what role do domestic courts play in enforcing these international law obligations? In this regard, the U.S. Supreme Court has not directly addressed the question of the rights, …

Novel Perspectives On Due Process Symposium: Rights, Immunities, And Sovereigns, Katherine Florey

Fordham Law Review Online

This response first looks at the historical understanding of foreign sovereign immunity and the ways in which it should inform our reading of Article III. It then considers the role that sovereign immunity protections for foreign nations currently play. It closes with a suggestion that—while the sovereign immunity regime is largely adequate to protect other nations’ interests—Professor Wuerth’s insights nonetheless have a role to play in our understanding of cases involving foreign sovereigns.

Novel Perspectives On Due Process Symposium: Questioning The Constitutional Rights Of Foreign Nations, Donald Earl Childress Iii

Fordham Law Review Online

This response evaluates whether Professor Wuerth’s reading of the Constitution is correct. In so doing, this response considers the original understanding of these provisions, the law of nations as understood during the founding era, and Supreme Court case law close to the time of the founding. As explained below, I conclude that it is questionable that the Constitution extends rights to foreign nations.

Novel Perspectives On Due Process Symposium: Constructing The Original Scope Of Constitutional Rights, Nathan S. Chapman

Fordham Law Review Online

This response argues that Wuerth’s paper illustrates the most persuasive way to go about the task—one question at a time, with an emphasis on conventional legal materials and forms of argumentation. Some questions will call for especially imaginative constructions. This does not render them irrelevant, but it does caution some modesty about the extent to which they ought to trump competing constructions arising from practice and precedent. Despite her reluctance, then, Wuerth’s methods are entirely consistent with a confident originalism.