Constitutional Law Commons^™

Virginia Uranium, Inc. V. Warren, Nyles G. Greer

Public Land & Resources Law Review

The Supreme Court of the United States recently ruled that the Atomic Energy Act did not preempt a Virginia law prohibiting uranium mining in the Commonwealth. The Court held that although the Act delegated substantial power over the nuclear life cycle to the Nuclear Regulatory Commission, it offered no indication that Congress sought to strip states of their traditional power to regulate mining on private lands within their borders.

November 22, 2019: What Is The Point Of This Column?, Bruce Ledewitz

Hallowed Secularism

Blog post, “What is the Point of this Column?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

About Those Constitutional Norms, Mr. Attorney General, Deborah Pearlstein

Online Publications

Among the many jaw-dropping moments in Attorney General Bill Barr’s address to the Federalist Society last Friday was the assertion that he had been unable to glean from his “friends on the other side” any clear answer as to what constitutional norms President Donald Trump was really breaching.

Let History Repeat Itself: Solving Originalism's History Problem In Interpreting The Establishment Clause, Neil Joseph

Duke Journal of Constitutional Law & Public Policy Sidebar

The Supreme Court's Establishment Clause jurisprudence is all over the place. The current justices have widely divergent views on the Establishment Clause's meaning, and the Lemon test has been widely panned by several justices. Originalist judges, however, have had a fairly consistent approach to interpreting the Establishment Clause. This largely stems from their reliance on history. This Note argues that their use of history in analyzing the Establishment Clause is flawed. Originalist Establishment Clause jurisprudence has been and is criticized for being unprincipled. And those criticisms are correct. Originalists encounter such criticism because the justices struggle to reconcile historical practice …

November 19, 2019: Court-Packing, Bruce Ledewitz

Hallowed Secularism

Blog post, “Court-Packing“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

November 14, 2019: What’S Wrong With Impeachment, Bruce Ledewitz

Hallowed Secularism

Blog post, “What’s Wrong With Impeachment“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Public Rights, Private Privileges, And Article Iii, John Harrison

Georgia Law Review

PUBLIC RIGHTS, PRIVATE PRIVILEGES, AND ARTICLE III John Harrison* This Article addresses the constitutional justification for adjudication by executive agencies that rests on the presence of a public right. The public rights rationale originated in the nineteenth century and was for many decades the dominant explanation for the performance of adjudicative functions by executive agencies. The U.S. Supreme Court most recently relied on that rationale in Oil States Energy Services v. Greene’s Energy Group in 2018. In light of the Court’s interest in the nineteenth century system, this Article explores that system in depth and seeks to identify the ways …

November 7, 2019: The Politics Of Carl Schmidt Versus The Politics Of Abraham Lincoln, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Politics of Carl Schmidt versus the politics of Abraham Lincoln“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Replaying The Past: Roles For Emotion In Judicial Invocations Of Legislative History, And Precedent, Emily Kidd White

Articles & Book Chapters

Legal reasoning in the common law tradition requires judges to draw on concepts, and examples that are meant to resonate with a particular emotional import and operate in judicial reasoning as though they do. Judicial applications of constitutional rights are regularly interpreted by reference to past violations (either through precedent, contextual framings, and/or legislative history), which in turn elicit a series of emotions which work to deepen and intensify judicial understandings of a right guarantee (freedom of association, freedom of expression, equality, security of the person, etc.). This paper examines the way in which invocations of past political histories, and …

Left With No Name: How Government Action In Intra-Church Trademark Disputes Violates The Free Exercise Clause Of The First Amendment, Mary Kate Nicholson

Washington and Lee Law Review

The United States was founded in part on the principle of freedom of religion, where citizens were free to practice any religion. The founding fathers felt so strongly about this principle that it was incorporated into the First Amendment. The Free Exercise Clause states that “Congress shall make no law . . . prohibiting the free exercise thereof . . . .” The Supreme Court later adopted the neutral principles approach to avoid Free Exercise violations resulting from courts deciding real property disputes. Without the application of the same neutral principles to intellectual property disputes between churches, however, there is …

The People V The Patents And Companies Registration Agency Ex-Partes Finsbury Investment Limited And Zambezi Portland Cement Limited 2017/Ccz/R003 Selected Judgment No. 28 Of 2018, Chanda Chungu

SAIPAR Case Review

The dispute related to how to commence judicial review proceedings in Zambia. The applicant in this matter commenced judicial review proceedings in the High Court of Zambia by way of applying for leave. In between the period after the High Court granted leave to hear the merits of the judicial review and the hearing date, the Patents and Companies Registration Agency (PACRA), the Respondent filed an application to discharge the leave granted. It was at this point that the Applicants filed summons, to have the matter referred to the Constitutional Court to determine whether or not the requirement for leave …

The Decline Of Denali’S Wolves: Federal Options In The Face Of Non-Cooperative Wildlife Federalism, Catherine Danley

Brigham Young University Journal of Public Law

No abstract provided.

The People V The Patents And Companies Registration Agency Ex-Partes Finsbury Investment Limited And Zambezi Portland Cement Limited 2017/Ccz/R003 Selected Judgment No. 28 Of 2018, O'Brien Kaaba

SAIPAR Case Review

The matter came to the Constitutional Court by referral from the High Court. The Applicant applied for leave to issue judicial review process and leave was granted by the High Court. While the main application for judicial review was still pending, the Respondent filed an application to discharge the leave granted to the Applicant. The Applicant opposed this motion and then applied to have the matter referred to the Constitutional Court.

The Implications Of Environmental Law And Latino Property Rights On Modern-Age Border Security: Rejecting A Physical Border And Embracing A Virtual Wall, Kevin Hernandez

Student Scholarship

For many, the construction of a physical border is a rational solution to national security concerns at the southern border. However, there is much evidence indicating that the negative impacts of building a physical border wall far outweigh its benefits. Particularly, the border region’s eco-systems have much to lose in the form of extinctions, biodiversity reduction, and critical habitat destruction. On top of that, a number of Latino communities would be the victims of various eminent domain claims that would strip them of land that, in many cases, has been in their family for multiple gener- ations. The broad, almost …

A Literary Lens Into Constitutional Interpretation And A Possible Synthesis Of Natural And Positive Law: The Silmarillion, Charles Edward Andrew Lincoln Iv

Student Scholarship

The nature of identity in the United States lies in the Constitution. Perhaps this is due to “veneration” of the document. It has also been argued that the Declaration of Independence holds a seminal role in the American identity.

The rift seems to occur with the concept of a “living constitution,” whereby the concept of an ever-evolving jurisprudence allows for an evolving interpretation of the Constitution as society changes.

This rift can be demonstrated by the world of J.R.R. Tolkien. In The Lord of the Rings and Silmarillion, the various languages of groups of Middle Earth represent and have distinct …

Freedom Of Association, Extreme Partisan Gerrymandering, Justiciability And The Unmistakable Political Question Controversy, L. Darnell Weeden

Brigham Young University Journal of Public Law

No abstract provided.

A “Justified Need” For The Constitutionality Of “Good Cause” Concealed Carry Provisions, Andrew Kim

Fordham Law Review

The U.S. Supreme Court’s landmark decision in District of Columbia v. Heller held that the prohibition of handguns in the home was unconstitutional and the Court extended this holding to the states through the Fourteenth Amendment in McDonald v. City of Chicago. Through these cases, the Court clarified that the core of the Second Amendment was self-defense. However, it did not specify the scope of this self-defense “core” and left the lower courts with room for interpretation—for example, it is unclear whether and to what extent the Second Amendment applies to the public space. Furthermore, the Supreme Court did …

Fourth Amendment Textualism, Jeffrey Bellin

Faculty Publications

The Fourth Amendment’s prohibition of “unreasonable searches” is one of the most storied constitutional commands Yet after decades of Supreme Court jurisprudence, a coherent definition of the term “search” remains surprisingly elusive Even the justices know they have a problem Recent opinions only halfheartedly apply the controlling “reasonable expectation of privacy” test and its wildly unpopular cousin, “third-party doctrine,” with a few justices in open revolt.

These fissures hint at the Court’s openness to a new approach Unfortunately, no viable alternatives appear on the horizon The justices themselves offer little in the way of a replacement And scholars’ proposals exhibit …

Let's Gossip About Glossip: The Supreme Court's Misguided Adoption Of An Unsurpassable Standard For Method Of Execution Challenges Under The Eighth Amendment, Tenia L. Clayton

Belmont Law Review

No abstract provided.

Contracting For Fourth Amendment Privacy Online, Wayne A. Logan, Jake Linford

Scholarly Publications

No abstract provided.

The Integrity Of Marriage, Kaiponanea T. Matsumura

William & Mary Law Review

While the Supreme Court’s decision in Obergefell v. Hodges resolved a dispute about access to legal marriage, it also exposed a rift between the Justices about what rights, obligations, and social meanings marriage should entail. The majority opinion described marriage as a “unified whole” comprised of “essential attributes,” both legal and extralegal. The dissents, in contrast, were more skeptical about marriage’s inherent legal content. Justice Scalia, for instance, characterized marriage as a mere bundle of “civil consequences” attached to “whatever sexual attachments and living arrangements [the law] wishes.” This side debate has taken center stage in several recent disputes. In …

When (And Why) The Levee Breaks: A Suggested Causation Framework For Takings Claims That Arise From Government-Induced Flooding, Charles D. Wallace

William & Mary Law Review

In 1968, the United States Army Corps of Engineers finished constructing the seventy-six-mile Mississippi River-Gulf Outlet (MR-GO) navigational channel. Congress authorized the Army Corps of Engineers to begin construction to create a shipping route between New Orleans and the Gulf of Mexico. However, the MRGO also caused significant erosion and other environmental detriments that greatly increased the risk of flooding around its vicinity. The Army Corps of Engineers learned about many of these detriments and risks through numerous studies it conducted between 1998 and 2005, but never fully addressed them.

Hurricane Katrina eventually showcased the MR-GO’s defects in violent fashion. …

"When The President Does It": Why Congress Should Take The Lead In Investigations Of Executive Wrongdoing, Andrew B. Pardue

William & Mary Law Review

Asked by British journalist David Frost whether the President of the United States has the ability to authorize illegal acts when he believes such action is justified, Richard Nixon infamously replied: “Well, when the President does it, that means it is not illegal.” A majority of Americans disagreed with the former President’s assessment. But the question remains: If the President is theoretically capable of breaking the law while in office, what is the best way to determine whether a crime has actually been committed? This question has forced lawmakers to attempt to reconcile various investigatory mechanisms—all differing in their independence …

The Due Process And Other Constitutional Rights Of Foreign Nations, Ingrid Wuerth

Fordham Law Review

The rights of foreign states under the U.S. Constitution are becoming more important as the actions of foreign states and foreign state-owned enterprises expand in scope and the legislative protections to which they are entitled contract. Conventional wisdom and lower court cases hold that foreign states are outside our constitutional order and that they are protected neither by separation of powers nor by due process. As a matter of policy, however, it makes little sense to afford litigation-related constitutional protections to foreign corporations and individuals but to deny categorically such protections to foreign states. Careful analysis shows that the conventional …

The Enacted Purposes Canon, Kevin M. Stack

Vanderbilt Law School Faculty Publications

This Article argues that the principle relied upon in King v. Burwell that courts "cannot interpret statutes to negate their stated purposes"-the enacted purposes canon-is and should be viewed as a bedrock element of statutory interpretation. The Supreme Court has relied upon this principle for decades, but it has done so in ways that do not call attention to this interpretive choice. As a result, the scope and patterns of the Court's reliance are easy to miss. After reconstructing the Court's practice, this Article defends this principle of interpretation on analytic, normative, and pragmatic grounds. Building on jurisprudence showing that …

The Due Process And Other Constitutional Rights Of Foreign States, Ingrid W. Brunk

Vanderbilt Law School Faculty Publications

The rights offoreign states under the US. Constitution are becoming more important as the actions offoreign states andforeign state-owned enterprises expand in scope and the legislative protections to which they are entitled contract. Conventional wisdom and lower court cases hold that foreign states are outside our constitutional order and that they are protected neither by separation ofpowers nor by due process. As a matter ofpolicy, however, it makes little sense to afford litigation-related constitutional protections to foreign corporations and individuals but to deny categorically such protections to foreign states. Careful analysis shows that the conventional wisdom and lower court cases …

Wealth, Equal Protection, And Due Process, Brandon L. Garrett

William & Mary Law Review

Increasingly, constitutional litigation challenging wealth inequality focuses on the intersection of the Equal Protection and Due Process Clauses. That intersection—between equality and due process—deserves far more careful exploration. What I call “equal process” claims arise from a line of Supreme Court and lower court cases in which wealth inequality is the central concern. For example, the Supreme Court in Bearden v. Georgia conducted analysis of a claim that criminal defendants were treated differently based on wealth in which due process and equal protection principles converged. That equal process connection is at the forefront of a wave of national litigation concerning …

Why Robert Mueller’S Appointment As Special Counsel Was Unlawful, Steven Calabresi, Gary S. Lawson

Faculty Scholarship

Since 1999, when the independent counsel provisions of the Ethics in Government Act expired, the Department of Justice (“DOJ”) has had in place regulations providing for the appointment of Special Counsels who possess “the full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney.” Appointments under these regulations, such as the May 17,2017 appointment of Robert S. Mueller to investigate the Trump campaign, are patently unlawful, for three distinct reasons.
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/="/">First, all federal offices must be “established by Law,” and there is no statute authorizing such an office in the DOJ. …

A Political Interpretation Of Vagueness Doctrine, Brenner M. Fissell, Guyora Binder

Faculty Publications

The “void-for-vagueness” doctrine requires the specific definition of criminal offenses. In this Article, though, we claim it does more: it largely restricts criminalization decisions to legislatures, which are unlikely to criminalize conduct they see as both harmless and widespread. Thus, rather than constitutionalizing the harm principle and thereby assuming a judicial obligation to define harm, the Supreme Court has used the vagueness doctrine to constrain majorities to make their own assessments of harmfulness. While American law has no explicit requirements that criminal liability be created by legislation or conditioned on harm, the vagueness doctrine achieves those ends indirectly

Sri Lanka's Quest For A Reformed Constitution: Lessons Froma Lost Opportunity, Austin I. Pulle, Suri Ratnapala

Research Collection Yong Pung How School Of Law

The history of Sri Lanka is highly instructive of the dynamics of constitutional evolution in a post-colonial, multi-ethnic, and economically challenged Asian nation. Sri Lanka is one of the few ex-colonies where constitutional change has happened without military involve ment. Citizens have changed their government10 times by generally fair and free elections. In the first three decades after independence, the country’s judiciary enjoyed an enviable reputation for independence, integrity, and competence.The public service, though poorly re warded and resourced, maintained a praiseworthy standard of administrative impartiality and competence. Sri Lanka had, and still has, one of the highest rates of …