Constitutional Law Commons^™

The "Irish Born" One American Citizenship Amendment, Kevin C. Walsh

Scholarly Articles

Our Constitution has a deferred maintenance problem because we have fallen out of the habit of tending to its upkeep ourselves. The silver lining is a double benefit from any constitutional maintenance projects that we undertake now. These projects are good not only for what they do to our Constitution, but also for making us exercise self-government muscles that have atrophied from civic sloth.

Fortunately, the time has never been better to repeal one of our Constitution’s most pointlessly exclusionary provisions. The President of the United States is married to a naturalized citizen. And nobody can legitimately question the patriotism …

Constitutional Anomalies Or As-Applied Challenges? A Defense Of Religious Exemptions, Mark L. Rienzi

Scholarly Articles

In the wake of Burwell v. Hobby Lobby and now in anticipation of Craig v. Masterpiece Cakeshop, Inc., the notion that religious exemptions are dangerously out of step with norms of Constitutional jurisprudence has taken on a renewed popularity. Critics increasingly claim that religious exemptions, such as those available prior to Employment Division v. Smith and now available under the federal Religious Freedom Restoration Act (RFRA), are a threat to basic fairness, equality, and the rule of law. Under this view, exemptions create an anomalous private right to ignore laws that everyone else must obey, and such a scheme …

Who Are “Officers Of The United States”?, Jennifer L. Mascott

Scholarly Articles

For decades courts have believed that only officials with “significant authority” are “Officers of the United States” subject to the Constitution’s Article II Appointments Clause requirements. But this standard has proved difficult to apply to major categories of officials. This Article examines whether “significant authority” is even the proper standard, at least as that standard has been applied in modern practice. To uncover whether the modern understanding of the term “officer” is consistent with the term’s original public meaning, this Article uses two distinctive tools: (i) corpus linguistics-style analysis of Founding-era documents and (ii) examination of appointment practices during the …

Illuminating The Dark Act, Samantha Ricci

UC Law Constitutional Quarterly

Labeling is a primary method of providing information about food such as the production, ingredients, and nutrition facts-but what happens when labels become less accessible? This Note explores the justice implications of the first genetically modified organism (GMO) labeling bill, The Safe and Accurate Food Labeling Act, or known to opponents as The DARK Act (Denying Americans the Right to Know). This Act allows for a "QR" code, website, or 1-800 number to constitute a label for GMO labeling requirements. This Act discriminates against 100 million Americans who do not own smart phones or have access to Wi-Fi or data, …

Police Ignorance And Mistake Of Law Under The Fourth Amendment, Eang L. Ngov

Faculty Scholarship

No abstract provided.

The Complexities Of Human Rights And Constitutional Reform In The United Kingdom; Brexit And A Delayed Bill Of Rights: Informing (On) The Process, Katie Boyle, Leanne Cochrane

Northwestern Journal of Human Rights

The United Kingdom’s politicised and contested human rights framework has come under increasing pressure during recent periods of constitutional and political instability. The UK 2016 referendum on membership of the European Union, the delayed repeal of the Human Rights Act 1998 and the proposals to enact a British Bill of Rights have all shaped the discourse at the national level around decisions to retain rights (or not) rather than progressively improve the human rights structure. The European Union and Council of Europe human rights frameworks act as important pillars of human rights and democracy under the UK constitution and each …

School Desegregation 2.0: What Is Required To Finally Integrate America's Public Schools, Jim Hilbert

Northwestern Journal of Human Rights

No abstract provided.

Take Time To Wander Outside Your Comfort Zone, David Spratt

Scholarly Articles in Law Reviews & Journals

No abstract provided.

The Ongoing Challenge To Define Free Speech, Stephen Wermiel

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Capital-Sentencing Law And The New Conservative Court, Scott W. Howe

Cardozo Law Review de•novo

With the Supreme Court now dominated by a solidly conservative majority, recent, well-grounded hopes for prompt judicial abolition of the death penalty have vanished. Furthermore, existing Eighth Amendment doctrines that limit the death penalty could be in jeopardy. Historically, many advocates for abolition have criticized these doctrines. They claim that the Eighth Amendment prohibition on Cruel and Unusual Punishments requires “consistency” in capital selection and that current capital-sentencing doctrines do not satisfy—and sometimes conflict with— this requirement. However, these advocates failed to anticipate the need to defend these doctrines should judicial abolition become an impossibility and the rolling-back of current …

Thwarting Speech On College Campuses, Stephen Wermiel

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Guns N' Ganja: How Federalism Criminalizes The Lawful Use Of Marijuana, Ira P. Robbins

Scholarly Articles in Law Reviews & Journals

Federalism is a vital tenet of our Republic. Although federal law is the supreme law of the land, our Constitution recognizes the integral role that state law plays in the national scheme. Like any pharmaceutical drug that withstands rounds of clinical testing, state law functions as a laboratory in which Congress can evaluate and potentially adopt novel policies on a nation-wide basis. Most of the time, federal and state law exist harmoniously, complementing one another; other times, however, the two systems clash, striking a dissonant chord.

In the United States, state marijuana laws are currently on a crash course with …

Taking The States' Congressional Delegations Seriously: A Twelfth Amendment And First Amendment Approach To Identifying The Worst Gerrymanders, Jamin B. Raskin

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Pickering, Garcetti, & Academic Freedom, Mark Strasser

Brooklyn Law Review

While the U. S. Supreme Court long ago recognized that individuals do not lose their free speech rights simply by virtue of being state employees, the contours of their First Amendment protections have been evolving over the past several decades. The proper way to apply these protections in the academic context is confusing, especially after Garcetti v. Ceballos in which the Court suggested that First Amendment protections do not attach insofar as individuals are speaking as employees rather than as citizens. The circuit courts have adopted a dizzying set of rules to determine when First Amendment protections are triggered in …

When The Fourth Estate’S Well Runs Dry, Megan L. Shaw

Brooklyn Law Review

The press is under fire. Members of the press often face subpoenas or similar court orders, compelling the disclosure of a source’s identity. By issuing media subpoenas, the government has effectively censored the press—the exact type of censorship that the Supreme Court held presumptively unconstitutional over eight decades ago in Near v. Minnesota. Yet the least protected—and most complicated—aspect of the newsgathering process is a reporter’s relationship with her source. For decades, journalists have tried to assert defenses to government compulsions on First Amendment grounds as well as by invoking a “reporter’s privilege,” a testimonial privilege similar to that of …

Accommodating Bias In The Sharing Economy, Norrinda Brown Hayat

Brooklyn Law Review

The “sharing economy” is not equally accessible to all. The sharing economy’s travel accommodations giant, Airbnb, illustrates this problem. At least one study has found that requests on Airbnb from guests with distinctively African-American names are approximately 16 percent less likely to be accepted than identical guests with distinctively white names. Some Airbnb “hosts,” including hosts that list multiple units, insist that they are not subject to civil rights laws relying on First Amendment jurisprudence, property law and business justifications for support. These arguments are identical to arguments raised and ultimately dismissed in opposition to blacks’ right to travel prior …

Section 230’S Liability Shield In The Age Of Online Terrorist, Jaime M. Freilich

Brooklyn Law Review

In recent years, “home grown” terrorists—individuals inspired to violence after watching terrorist videos online—have been responsible for devastating attacks in the United States and across Europe. Such terrorist propaganda falls outside the realm of the First Amendment’s protection because it has been proven to indoctrinate attackers, thus inciting imminent lawless action. Seizing on this, victims’ families have brought suits alleging that social media platforms, including Twitter, Facebook, and Google, provided material support to terrorists in violation of the Anti-Terrorism Act (ATA). The Communications Decency Act (CDA), however, has served as an impenetrable shield against these claims, protecting social media companies …

Loving Lessons: White Supremacy, Loving V. Virginia, And Disproportionality In The Child Welfare System, Leah A. Hill

Fordham Law Review

Part I of this Article introduces a brief discussion of the history of antimiscegenation laws and, specifically, their prevalence in the Commonwealth of Virginia during the 1950s. Next, Part II sets forth a short commentary about the Lovings’ triumph over antimiscegenation. Part III then details the Lovings’ judicial hurdles against the state, which argued that its antimiscegenation laws were enacted, in part, to prevent child abuse and thus served legitimate state interests. Part IV argues that the remnants of the white supremacist ideology at the center of Loving appear in our modern child welfare system, which has long been plagued …

Arbiters Of Decency: A Study Of Legislators' Eighth Amendment Role, Aliza Plener Cover

Articles

Within Eighth Amendment doctrine, legislators are arbiters of contemporary values. The United States Supreme Court looks closely to state and federal death penalty legislation to determine whether a given punishment is out of keeping with “evolving standards of decency.” Those who draft, debate, and vote on death penalty laws thus participate in both ordinary and higher lawmaking. This Article investigates this dual role.

We coded and aggregated information about every floor statement made in the legislative debates preceding the recent passage of bills abolishing the death penalty in Connecticut, Illinois, and Nebraska. We categorized all statements according to their position …

The Bumpy Road To The Supreme Court: Does The Second Amendment Prevent States From Prohibiting Ownership Of Assault-Style Rifles And High-Capacity Magazines?, James B. Astrachan

University of Baltimore Law Review

No abstract provided.

Federalism Friction In The First Year Of The Trump Presidency, Vikram David Amar

UC Law Constitutional Quarterly

Over the last twelve months or so, federalism principles have been repeatedly invoked by state and local governments in a range of lawsuits and legislative proposals seeking to block or temper federal policy initiatives emanating from the new Administration of President Donald Trump. In this essay, I hope to sketch out a few of the more high-profile federalism flashpoints that have emerged over the past year or so, and offer some preliminary assessments of some of the decisions that lower courts (and legislative bodies) have been rendering in some of them. I try to highlight areas of agreement and areas …

Jeopardizing Their Communities, Their Safety, And Their Lives: Forced Concealed Carry Reciprocity's Threat To Federalism, Hannah E. Shearer

UC Law Constitutional Quarterly

The Concealed Carry Reciprocity Act (H.R. 38) is a gun bill that would force each state to recognize and enforce the concealed carry laws of every other state. State laws governing the concealed carry of firearms vary widely in how effectively they screen out reckless or unlawful gun carriers. Weaker state laws let more people carry with fewer background checks or other restrictions, and H.R. 38 would extend the geographic scope of the weakest concealed carry laws in the nation, without requiring that Congress actually adopt a weak national standard. This Essay argues that forced reciprocity violates the division of …

The President's Constitutional Responsibility To Confront Climate Change And Invest In Renewable Energy For National Security, Bishop Garrison

UC Law Constitutional Quarterly

Climate change is having a direct effect on the United States as well as the rest of the world. The national security community has long identified climate change as an ongoing security threat. For decades, plans of action have been established to address it, but the issue is still treated from a more partisan space than with the heft of a danger with lasting consequences. If national security leaders have deemed it a hazard, it follows that the leader of the Free World-the president of the United States-has a duty under the U.S. Constitution to protect against such a threat. …

Constitutionally Compromised Democracy: The United States District Clause, Its Historical Significance, And Modern Repercussions, Bradley Raboin

UC Law Constitutional Quarterly

The United States is widely considered the most prominent example of the modem democratic state. Yet, America's most prolific historical document remains imbued with a seemingly impossible contradiction. The District of Columbia, the Constitutionally mandated territory housing the federal government and serving as the literal epicenter of American democracy, does not actually provide representation to citizens living in that district. Incredibly, the very place created to house a government "for the people, of the people, and by the people," does not even allow the people residing therein to partake in that government.

This Article examines this Constitutional conflict within American …

Sex Offender Regulations And The Rule Of Law: When Civil Regulatory Schemes Circumvent The Constitution, Ryan W. Porte

UC Law Constitutional Quarterly

The U.S. Supreme Court last decided the issue of whether post-incarceration sex offender regulations constituted punishment or nonpunitive regulations over twenty years ago. In coming to its conclusion, the Supreme Court assessed the regulations as they were written in the 1990s and the early 2000s and maintained the assumption that offenders constituted a greater danger to the public than other classes of criminals. In 2018, post-incarceration sex offender regulations are far more restrictive than they were two decades ago and scientific studies tend to refute the public belief that sex offenders are more recidivistic than other criminals. Recognizing this, some …

Emoluments, Zones Of Interests, And Political Questions: A Cautionary Tale, Jed Handelsman Shugerman, Gautham Rao

UC Law Constitutional Quarterly

As the Supreme Court addresses partisan gerrymanders in 2018, the "political question" doctrine is facing intense scrutiny. Will the Court tackle the problem or punt once again? It turns out that other high-profile cases in the lower courts offer a perspective on the political question doctrine. The Emoluments cases offer a cautionary tale about the use of the political question doctrine, and how the political question doctrine is too often an unconsciously tempting escape forjudges facing challenging legal questions.

The dismissal by the Southern District of New York in CREW v. Trump avoided reaching the merits of the emoluments claims …

Religious Exemptions, Harm To Others, And The Indeterminacy Of A Common Law Baseline, Elizabeth Sepper

Kentucky Law Journal

No abstract provided.

Equitable Mootness: Ignorance Is Bliss And Unconstitutional, Robert Miller

Kentucky Law Journal

No abstract provided.

Lies, Line Drawing, And (Deep) Fake News, Marc Jonathan Blitz

Oklahoma Law Review

No abstract provided.

Legislating Against Lying In Campaigns And Elections, Joshua S. Sellers

Oklahoma Law Review

No abstract provided.