Constitutional Law Commons^™

Filling The Gap In The Efficiency Gap: Measuring Partisan Gerrymandering On A Per-District Basis, Richard E. Finneran, Steven K. Luther

UC Law Constitutional Quarterly

In Gill v. Whitford, the Supreme Court dismissed a challenge to Wisconsin’s state legislative map based upon a lack of standing. While the plaintiffs alleged that the statewide map violated the Equal Protection Clause of the Constitution by being gerrymandered to asymmetrically advantage one political party over the other, the Court held that such allegations were insufficient to state a personal, individualized injury under Article III’s Case or Controversy Clause. Since the plaintiffs had not alleged that their voting power in their particular legislative districts had been diluted, the Court found that the plaintiffs’ complaint stated only a “generalized grievance” …

The Fourth Amendment And Technological Exceptionalism After Carpenter: A Case Study On Hash-Value Matching, Denae Kassotis

Fordham Intellectual Property, Media and Entertainment Law Journal

The Fourth Amendment has long served as a barrier between the police and the people; ensuring the government acts reasonably in combating crime. Fourth Amendment jurisprudence is more dynamic than other constitutional guarantees, and has undergone periodic shifts to account for technological and cultural changes. The Supreme Court’s 2018 decision in United States v. Carpenter marks the most recent jurisprudential shift, as the Court departed from the well-settled reasonable expectation of privacy test to account for a new technology (CSLI records). This Note examines Carpenter’s impact on future Fourth Amendment cases, using another novel surveillance technique, hash-value matching, as a …

Due Process Of War, Nathan S. Chapman

Notre Dame Law Review

The application of the Due Process Clause of the Fifth Amendment to the government’s deprivation of rights during war is one of the most challenging and contested questions of constitutional law. The Supreme Court has not provided a consistent or historically informed framework for analyzing due process during war. Based on the English background, the text and history of the U.S. Constitution, and early American practice, this Article argues that due process was originally understood to apply to many but not to all deprivations of rights during war. It proposes a framework for analyzing due process during war that accords …

Faithful Nonexecution, Peter M. Shane

Cornell Journal of Law and Public Policy

Decisions by the federal executive branch to under-enforce statutes, whether on a case-by-case or programmatic basis, are a commonplace feature of the modern administrative state. Critics may challenge "nonexecution" decisions in court or otherwise as inconsistent with the President's constitutional duty to "take care that the laws be faithfully executed." Such decisions, however, are most helpfully viewed not as instances of the executive's failure to act, but rather as part and parcel of an agency's affirmative strategies for implementing its statutory mandates. As such, their legality is appropriately judged not under the terms of Article II, but rather according to …

Moving The Line: Leveraging The Legalization Of Sports Gambling To Protect Student-Athletes And Preserve Amateurism, Matt Farnum

Cornell Journal of Law and Public Policy

Just as sports gambling promotes viewership, attracts commercial interests, and encourages fan interaction, it forces sports leagues to redefine their core values to maintain the "integrity of the game" and protect athletes. It challenges sports leagues to reconcile their promotion of honest and fair competition with the near-nationwide normalization of an activity replete with under-the-table dealing, corruption, and scandal. Common sense dictates that gamblers prefer safe bets, yet gambling is necessarily a calculated risk-taking in an uncertain outcome. The history of sports gambling has shown that uncertainty can be combatted by incentivizing players and teams to dictate the outcome of …

Public/Private Distinction In Islamic Jurisprudence: Reflection On Islamic Constitutionalism, Faris F. Almalki

Maurer Theses and Dissertations

The study seeks to attract scholars' attention to the importance of normative theory in the process of constitutionalism in the Islamic world. The study argues that Islamic jurisprudence requires a state or a public authority to ensure the conformity of outward with Islamic norms. Accordingly, the preservation of Islamic norms is a central value controlling the dynamics of public/private distinction. Thus, the central value determines the meaning of limited government, and the study argues this central value in constitutional level defines people's liberties. Then, the study discusses the effect of the Islamic normative theory on the liberal-Islamic model of constitutionalism. …

"Something Called The 'Municipal Securities Rulemaking Board'": Unexamined Issues Of Constitutionality, Richard E. Brodsky

American University Business Law Review

No abstract provided.

Against The Tiers Of Constitutional Scrutiny, J. Joel Alicea, John D. Ohlendorf

Scholarly Articles

This year, for the first time in nearly a decade, the Supreme Court will return to the subject of the Second Amendment. New York State Rifle & Pistol Association, Inc. (NYSRPA) v. City of New York concerns a New York City licensing regime that, at the time the Court granted review, prohibited the transportation of any firearm outside city limits. (The City subsequently changed its licensing regime, perhaps in an effort to make the case go away before the Court could rule on the merits. It is unclear, at the time we write, whether that tactic will succeed.) Although most …

The Sickness Unto Death Of The First Amendment, Marc O. Degirolami

Scholarly Articles

Part I of this paper describes early American understandings of the purposes and limits of freedom of speech. During this period, the outer bounds of freedom of speech reflected similar limits on the right of religious freedom: both were conceived within an overarching framework of natural rights delimited by legislative judgments about the common political good. Though there is scholarly debate about how much the Fourteenth Amendment may have altered that approach in certain details, the basic legal framework remained intact in the nineteenth century.

Part II traces the replacement of that framework with a very different one in the …

Implicit Limits On Amending The Japanese Constitution, Adam N. Sterling

Washington International Law Journal

Japan's Liberal Democratic Party has advocated many years for constitutional revision, and after attaining a two-thirds majority in both Houses of the Diet in 2017, Prime Minister Shinzō Abe is poised to move forward with that goal. The only hurdles to amending the Constitution of Japan are the amendment procedures stipulated in Article 96. The plain text of Article 96 requires a two-thirds vote in both Houses followed by popular referendum, but it poses no explicit limitations on the scope of any amendment even the amendment process itself is fair game at first glance. Nevertheless, Japanese scholars have claimed that …

Ghosting In Tax Law: Sunset Provisions And Their Unfaithfulness, Alli Sutherland

UC Law Constitutional Quarterly

Tax is a subject that could easily put many to sleep. It is dense, convoluted, and intimidating. But it also touches practically every American. This note will discuss how the recent tax overhaul by the Trump Administration includes dangerous provisions, called sunset provisions. These sunset provisions, which get their name from how the law expire after a specified date, are dangerous because they constitute a legislative runaround. Rarely, if ever, do these provisions actually expire. Rather, law makers are able to avoid procedural requirements by placing an end date on the law, but then extending the law’s effective date. This …

The Unconstitutional Tampon Tax, Bridget J. Crawford, Emily Gold Waldman

Elisabeth Haub School of Law Faculty Publications

Thirty-five states impose a sales tax on menstrual hygiene products, while products like spermicidal condoms and erectile dysfunction medications are tax-free. This sales tax--commonly called the “tampon tax”--represents an expense that girls and women must bear on top of the cost of biologically necessary items that they need in order to attend school, work, and otherwise participate in public life. This article explores the constitutionality of the tampon tax and argues that it is an impermissible form of gender discrimination under the Equal Protection Clause. First, menstrual hygiene products are a unique proxy for female sex, and therefore any disadvantageous …

Accommodating Competition: Harmonizing National Economic Commitments, Jonathan Baker

Scholarly Articles in Law Reviews & Journals

This article shows how the norm supporting governmental action to protect and foster competitive markets was harmonized with economic rights to contract and property during the 19th century, and with the development of the social safety net during the 20th century. It explains why the Constitution, as understood today, does not check the erosion of the entrenched but threatened national commitment to assuring competitive markets.

Manufactured Emergencies, Robert Tsai

Scholarly Articles in Law Reviews & Journals

Emergencies are presumed to be unusual affairs, but the United States has been in one state of emergency or another for the last forty years. That is a problem. The erosion of democratic norms has led to not simply the collapse of the traditional conceptual boundary between ordinary rule and emergency governance, but also the emergence of an even graver problem: the manufactured crisis. In an age characterized by extreme partisanship, institutional gridlock, and technological manipulation of information, it has become exceedingly easy and far more tempting for a President to invoke extraordinary power by ginning up exigencies. To reduce …

Considerations Of History And Purpose In Constitutional Borrowing, Robert Tsai

Scholarly Articles in Law Reviews & Journals

This essay is part of a symposium issue dedicated to "Constitutional Rights: Intersections, Synergies, and Conflicts" at William and Mary School of Law. I make four points. First, perfect harmony among rights might not always be normatively desirable. In fact, in some instances, such as when First Amendment and Second Amendment rights clash, we might wish to have expressive rights consistently trump gun rights. Second, we can't resolve clashes between rights in the abstract but instead must consult history in a broadly relevant rather than a narrowly "originalist" fashion. When we do so, we learn that armed expression and white …

A Distinction With A Difference: Rights, Privileges, And The Fourteenth Amendment, William J. Aceves

Faculty Scholarship

In Timbs v. Indiana, the Supreme Court held the Eighth Amendment’s prohibition on excessive fines was incorporated and applied to states through the Due Process Clause of the Fourteenth Amendment. While the decision was unanimous, the concurring opinions offered a revealing reflection of past constitutional battles and an intriguing vision of future conflicts. Both Justices Gorsuch and Thomas suggested resurrecting the Privileges or Immunities Clause as a more appropriate vehicle than the Due Process Clause for applying the prohibition on excessive fines to states.

Justice Thomas took this proposal one step further. He suggested the Privileges or Immunities Clause …

A Wall Of Hate: Eminent Domain And Interest-Convergence, Philip Lee

Brooklyn Law Review

Through the power of eminent domain, President Donald Trump is seeking to take properties owned by private landowners and Native American tribes, including people’s homes and businesses, to build a continuous physical wall along the two thousand-mile border between the United States and Mexico. He has even partially shut down the government for the longest period in history in order to pressure Congress to fund his wall. Substantial evidence suggests that this massive government condemnation scheme will not effectuate Trump’s primary purpose: to stop illegal immigration. If Trump succeeds, then potentially thousands of people from all racial backgrounds will lose …

A Safe Harbor In The Opioid Crisis: How The Federal Government Should Allow States To Legislate For Safe Injection Facilities In Light Of The Opioid Public Health Emergency, Amber A. Leary

Brooklyn Law Review

Opioid addiction is wreaking havoc across the United States, leading to a shocking number of overdoses and deaths. This epidemic has prompted the Trump Administration to declare opioid abuse a public health emergency and to call for increases in evidence-based treatment for those addicted to harmful opioids. To combat this epidemic, some cities have embraced one such evidence-based treatment plan—safe injection facilities—which are infirmaries where drug users can inject pre-obtained drugs under the supervision of nurses or overdose reversal specialists who can respond in real time to prevent overdose and death. Though safe injection facilities outside the United States have …

An Analysis And Critique Of Mental Health Treatment In American State Prisons And Proposal For Improved Care, Shelby Hayne

Scripps Senior Theses

Mental health treatment in state prisons is revealed to be highly variable, under-funded, and systematically inadequate. Existing literature exposes this injustice but fails to provide a comprehensive proposal for reform. This paper attempts to fill that gap, outlining a cost-effective, evidence-based treatment proposal, directly addressing the deficits in care revealed through analysis of our current system. In addition, this paper provides historical overviews of the prison system and mental health treatment, utilizing theoretical perspectives to contextualize this proposal in the present state of affairs. Lastly, the evidence is provided to emphasize the potential economic and social benefits of improving mental …

"No Person . . . Shall Ever Be Molested On Account Of His Mode Of Worship Or Religious Sentiments . . . .": The Northwest Ordinance Of 1787 And Strader V. Graham, Allan W. Vestal

Marquette Law Review

The Article looks at the first article of compact of the Northwest Ordinance,

the religious liberty guarantee: “No person . . . shall ever be molested on

account of his mode of worship or religious sentiments . . . .” Congress

provided that the Northwest Ordinance articles of compact would “forever

remain unalterable.” But in a fugitive slave case from 1851, Strader v. Graham,

Chief Justice Roger Taney declared the articles of compact to be no longer in

force.

In evaluating Chief Justice Taney’s reasoning, the question posed at the

dawn of the 20th Century by historian Professor Andrew McLaughlin …

Disgorging Emoluments, Caprice L. Roberts

Marquette Law Review

This Article is about unjust enrichment. It includes a theory of an unjust

enrichment cause of action against executive actors who receive unlawful

emoluments. Interpretations of the boundaries of unlawful emoluments range

from receipt of a gift or benefit because of the position of power held to quid

pro quo exchanges of a thing of value in exchange for government information

or advantage. Wherever the proper line, the purpose of the law of unjust

enrichment is to prevent and undo benefits one has no right to retain. It

achieves those goals with the use of restitution remedies including

disgorgement of …

A Century In The Making: The Glorious Revolution, The American Revolution, And The Origins Of The U.S. Constitution’S Eighth Amendment, John Bessler

All Faculty Scholarship

The sixteen words in the U.S. Constitution’s Eighth Amendment have their roots in England’s Glorious Revolution of 1688–89. This Article traces the historical events that initially gave rise to the prohibitions against excessive bail, excessive fines, and cruel and unusual punishments. Those three proscriptions can be found in the English Declaration of Rights and in its statutory counterpart, the English Bill of Rights. In particular, the Article describes the legal cases and draconian punishments during the Stuart dynasty that led English and Scottish parliamentarians to insist on protections against cruelty and excessive governmental actions. In describing the grotesque punishments of …

Waiving Goodbye To First Amendment Protections: First Amendment Waiver By Contract, Brittany Scott

UC Law Constitutional Quarterly

The First Amendment is an embodiment of American freedom and therefore is often considered inviolable. This is a fallacy. First Amendment rights are not absolute and may be waived. The Supreme Court has declined to outline a rule for First Amendment waiver, but the Circuit Courts have filled this gap and adapted the waiver rules from criminal procedure to permit waiver of First Amendment rights by contract. In permitting waiver of First Amendment rights, the Courts give deference to contracts and strain the outer boundaries of First Amendment protections.

Subdued Process: Onyx Properties Llc V. Board Of County Commissioners Of Elbert County And The Removal Of “Property” From The Due Process Clause, Alan Fonseca

Oklahoma Law Review

No abstract provided.

Reynolds V. United States, Rewritten, Laura T. Kessler

Utah Law Faculty Scholarship

In Reynolds v. United States, 98 U.S. 145 (1878), Chief Justice Morrison Waite, writing for a unanimous Supreme Court, upheld the federal Morrill Anti-Bigamy Act outlawing polygamy in the federal territories and providing criminal penalties for it. This is a re-writing of that opinion, presented in the form of a dissent, available in Feminist Judgments: Family Law Opinions Rewritten (Cambridge University Press, forthcoming 2020). Unlike the Court’s opinion, this dissent concludes that religious practice, as well as belief, is protected by the First Amendment. It therefore holds that a religious duty to engage in an unlawful practice may be a …

Constitutionally Incapable: Parole Boards As Sentencing Courts, Mae C. Quinn

Journal Articles

Courtroom sentencing, as part of the judicial process, is a long-standing norm in the justice system of the United States. But this basic criminal law precept is currently under quiet attack. This is because some states are now allowing parole boards to step in to decide criminal penalties without first affording defendants lawful judicial branch sentencing proceedings and sentences. These outside-of-court punishment decisions are occurring in the cases of youthful offenders entitled to sentencing relief under Miller v. Alabama, which outlawed automatic life-without-parole sentences for children. Thus, some Miller-impacted defendants are being sentenced by paroleboards as executive branch agents, rather …

Article Iii Adultification Of Kids: History, Mystery, And Troubling Implications Of Federal Youth Transfers, Mae Quinn, Grace R. Mclaughlin

Journal Articles

There is no federal juvenile court system in the United States. Rather, teens can face charges in Article III courts and can be transferred to be tried and sentenced as adults in these venues. This Article is the first of two articles in the Washington and Lee Journal of Civil Rights and Social Justice seeking to shed light on the largely invisible processes and populations involved in federal youth prosecution. This Article focuses on the federal transfer and prosecution of American youth as adults. It considers constitutional and statutory law relating to these federal transfers and then considers why current …

Youth Suffrage: In Support Of The Second Wave, Mae Quinn, Caridad Dominguez, Chelsey Omega, Abrafi Osei-Kofi, Carlye Owens

Journal Articles

The 100th anniversary of the 19th Amendment to the United States Constitution is an appropriate moment to reflect on the history—and consider the future—of the right to vote in the United States. High school and college classes teach the nation’s suffrage story as integral to our identity, focusing on the enfranchisement of women under the 19th Amendment and African Americans pursuant to the 15th Amendment.1 Constitutional law courses also present the 15th Amendment as foundational knowledge for the legal profession.2 Critical legal theory and women’s legal history texts frequently cover the 19th Amendment as central to understanding the first wave …

Trends In Opinion Writing & Consensus: The Roberts Court, Marti Auburn Liechty

Undergraduate Theses, Professional Papers, and Capstone Artifacts

No abstract provided.

Constitutional Cohesion And The Right To Public Health, James G. Hodge Jr., Daniel Aaron, Haley R. Augur, Ashley Cheff, Joseph Daval, Drew Hensley

University of Michigan Journal of Law Reform

Despite years of significant legal improvements stemming from a renaissance in public health law, Americans still face major challenges and barriers in assuring their communal health. Reversals of legal reforms coupled with maligned policies and chronic underfunding contribute to diminished public health outcomes. Underlying preventable morbidity and mortality nationally are realities of our existing constitutional infrastructure. In essence, there is no general obligation of government to protect or promote the public’s health. Under principles of “constitutional cohesion,” structural facets and rights-based principles interwoven within the Constitution protect individuals and groups from governmental vices (i.e., oppression, overreaching, tyranny, and malfeasance). Structural …