Constitutional Law Commons^™

The Unbearable Inevitability Of Content Regulation, Jerome O’Callaghan

UC Law Constitutional Quarterly

No abstract provided.

The Cycle Of Delegitimization: Lessons From Dred Scott On The Relationship Between The Supreme Court And The Nation, Jonathon J. Booth

UC Law Constitutional Quarterly

This Article examines how Chief Justice Taney’s opinion in Dred Scott v. Sandford sparked a cycle of delegitimization that parallels contemporary debates about the Supreme Court’s legitimacy crisis. Part I explicates how one family’s fight for freedom in Missouri reached the Supreme Court, the resulting radical decision, and the nation’s reaction to show the initial stages of this cycle. Part II examines the impact of Dred Scott on politics and law during the James Buchanan administration (1857–1861). During this period, the federal government, Southern states, and some Western territories swiftly implemented the decision, for example by expelling free Black residents. …

How American Society And Law Continue To Undermine People With Disabilities Seeking Education And Employment, Angelica Guevara

UC Law Constitutional Quarterly

Our Founders specifically identified education as necessary to economic success and full participation in our democracy and society. However, the Supreme Court held in San Antonio Independent School District v. Rodriguez that education in America is not a constitutional right; instead, it is a commodity that few can afford. Then, in 2023, Biden v. Nebraska exposed the direct result of that ruling: the average American––regardless of their disability status––struggles to pay back their student loans, even when they have a well-paying job. The student debt crisis significantly impacts the economic future of students with disabilities, who make on average sixty-six …

Will The New Roberts Court Revive A Formalist Approach To Fourth Amendment Jurisprudence?, Roger Antonio Tejada

UC Law Constitutional Quarterly

While all Chief Justices leave behind distinctive periods of judicial thought and practice, the quantitative and qualitative data presented in this article show that the Roberts Court in particular stands out in the development of Fourth Amendment precedent. The key cases that shaped the search and seizure doctrine before and during his rise show that, contrary to what many may expect, Chief Justice Roberts will likely oversee limited, pro-defendant decisions that could grant additional legitimacy to the Court’s crime-control jurisprudence. On the other hand, the new Justices’ voting records and writings suggest that there are several potential coalitions that could …

Executive Power And Patronage: Lessons From Puerto Rico, Stephen A. Plass, Naomy M. Rivera

UC Law Constitutional Quarterly

Conservatives have made reforming the civil service a top priority, and this was exemplified by former President Donald Trump’s open opposition to job protections that federal civil servants enjoy. President Trump and others who advance a unitary executive theory, pledged to reshape the civil service by amassing appointment, disciplinary and removal powers in the president, although this would make a patronage system more feasible. To this end, President Trump issued an executive order that exposed many career federal civil service workers to a spoils system. This came on the heels of other executive orders that reduced existing workplace protections for …

The Fourteenth Amendment And The Vénus Noire, Farah Peterson

William & Mary Law Review

This Essay makes two points. The first is that originalism is not a promising path for progressive causes. The second is that as the Constitution is amended, the meaning of the entire document is altered, and earlier text should be interpreted in light of what has changed. But instead of making these observations in the usual law review style, I’m calling on a figure out of nineteenth-century art, the Vénus Noire, to serve as our companion and guide.

This abstract has been taken from the author's introductory paragraphs.

Terrorism Should Not Be A Crime: How Political Labels Are Dangerous To American Democracy, Abigail S. Grand

William & Mary Journal of Race, Gender, and Social Justice

This Note calls for a dismantling of the United States’ current method of prosecuting terrorism, rejecting the “terrorism” label as a mechanism for charging crimes. Prosecutors should instead charge individuals in terrorism cases for their underlying criminal actions rather than rely on material support statutes and political innuendos to secure a conviction. By examining the implications of the terrorism label in post-9/11 America, this Note addresses how a moral panic enabled the executive branch to overstep its constitutional restraints and threatened the delicate balance of powers central to American democracy. Next, it proposes, as many have before, that Article III …

Contempt: The Original Judicial Cheat Code, Ryan L. Scott

Dickinson Law Review (2017-Present)

The judicial contempt power challenges the fundamental rights enshrined in America’s Constitution. Imagine spending eight years in federal prison with no right to a jury trial or a court appointed attorney. Your only reprieve is the discretion of the judge who is imprisoning you. Meaningful appeals and even habeas corpus actions are generally not available remedies. Instead, what was originally justified as an inherent power of the court, necessary to maintain order and decorum, is increasingly used for trivial offenses or to incarcerate individuals for far longer than their possible crimes would otherwise warrant.

Despite widespread instances of abuse of …

Chilling Victims’ Rights: The Supreme Court Creates A “Pride Of Place” For True Threats, Ana Maria Matovic

Dickinson Law Review (2017-Present)

Living in the Information Age means that information is literally always at our fingertips. This also means that keeping tabs on one another is as easy as a tap on a screen. The effortless ability to follow another’s life on the internet has led to a sinister phenomenon: cyberstalking. Prosecuting cyberstalking cases poses complex constitutional challenges. Specifically, prosecuting these cases may clash with a perpetrator’s First Amendment right to free speech. However, the First Amendment does not protect all categories of speech. One of those unprotected categories is the category of “true threats.” If a perpetrator’s conduct constitutes a “true …

Interpreting Religious Doctrine: The Third Rail That Wags The Dog In Religion Clause Jurisprudence, Samuel J. Levine

Washington and Lee Law Review

This Article is part of a broader project exploring and assessing the United States Supreme Court’s hands-off approach to interpreting religious doctrine. The mixed metaphor that constitutes the title of this Article incorporates various aspects of the project’s interrelated themes and claims. First, as a descriptive matter, the Supreme Court has repeatedly and increasingly refused to adjudicate issues that require the interpretation, evaluation, and resolution of substantive areas of religious practice and belief. Thus, like the third rail of train tracks, interpreting religious doctrine is deemed off-limits and better left untouched. Indeed, the Court’s justifications for the hands-off approach rely …

Masthead, Cardozo Journal Of Equal Rights & Social Justice, Vol. 31 (2024–25)

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

Want To Solve Labor Shortages? Relaxing The Child Labor Law Is Not The Answer, Yi Wu

Dickinson Law Review (2017-Present)

Recently, the United States has been engaged in a nationwide debate over loosening regulations regarding children’s employment. The Fair Labor Standards Act (FLSA) sets restrictions on the working hours of children under 16 and prohibits their employment in certain hazardous positions. However, some states, such as Iowa, Ohio, Arkansas, and Wisconsin, have either passed or are considering legislation allowing children to work longer hours or in potentially dangerous conditions in response to labor shortages. These new state laws conflict with existing federal regulations. This Comment discusses why states should refrain from relaxing their child labor laws to permit children to …

Back To The Future: Revisiting State Constitutions To Protect Against New Technological Intrusions, Matthew Radford

Washington and Lee Law Review

The Fourth Amendment is crucial for protecting Americans from government intrusion. However, new technologies such as pole cameras, reverse keyword searches, and geofence searches provide new ways for governments to gather information about individuals. As these new technologies develop, the Fourth Amendment has struggled to advance alongside this new technology.

Thankfully, the Fourth Amendment is not the only protection Americans have from government intrusion. Every single state has its own state constitution and analog to the Federal Fourth Amendment. In fact, some states had their own analog amendments even before the adoption of the Federal Fourth Amendment. While oftentimes the …

Negara Hukum Kesejahteraan Di Batas Pantai: Paradoks Perlindungan Negara Terhadap Masyarakat Pesisir Di Tengah Perubahan Iklim, Aji Baskoro

Jurnal Ilmu Kesejahteraan Sosial

Climate change poses significant challenges to vulnerable coastal communities in Indonesia. As a welfare state, the Indonesian government is expected to safeguard these vulnerable groups through policies that promote their welfare and sustainable livelihoods. However, current policies create a paradox. This article explores this paradox: on the one hand, Indonesia adheres to the welfare state principle, which demands that all government actions be grounded in law, ensuring public safety and welfare. On the other hand, the policies focus on exploiting natural resources, exacerbating the vulnerabilities of coastal communities, particularly in the face of climate change. The article employs a normative …

Book Review: John Paul Stevens, The Making Of A Justice: Reflections On My First 94 Years, New York, Little, Brown And Co., 2019, Pp. 549, $35.00 (Hardback), Stephen Wermiel

Scholarly Articles in Law Reviews & Journals

The autobiography of Justice John Paul Stevens, published just a few months before he died, is an enticing travelogue for Supreme Court nerds. Other travelers may want to pick a different landscape.

Make America Fake Again?: Banning Deepfakes Of Federal Candidates In Political Advertisements Under The First Amendment, Sophie Loewenstein

Fordham Law Review

In recent years, artificial intelligence (AI) technology has developed rapidly. Accompanying this advancement in sophistication and accessibility are various societal benefits and risks. For example, political campaigns and political action committees have begun to use AI in advertisements to generate deepfakes of opposing candidates to influence voters. Deepfakes of political candidates interfere with voters’ ability to discern falsity from reality and make informed decisions at the ballot box. As a result, these deepfakes pose a threat to the integrity of elections and the existence of democracy. Despite the dangers of deepfakes, regulating false political speech raises significant First Amendment questions. …

Emergency Powers For Good, Elena Chachko, Katerina Linos

William & Mary Law Review

Emergency powers are widely, and justly, criticized as threats to the rule of law. In the United States, forty-three declared emergencies give the executive vast authority to exercise power unencumbered by standard legal and procedural requirements. A long tradition of executive use of emergency powers to erode civil liberties amplifies fears of executive overreach.

Yet this, we argue, is only part of the picture. We examine how emergency powers can be used for good. We argue that under certain limited conditions, political actors can legitimately invoke emergency powers to transform public policy. In addition to widely accepted requirements of crisis …

Women On Death Row In The United States, Sandra Babcock, Nathalie Greenfield, Kathryn Adamson

Cardozo Law Review

This Article presents a comprehensive study of forty-eight persons sentenced to death between 1990 and 2022 who were legally recognized as women at the time of their trials. Our research is the first of its kind to conduct a holistic and intersectional analysis of the factors driving women’s death sentences. It reveals commonalities across women’s cases, delving into their experiences of motherhood, gender-based violence (“GBV”), and prior involvement with the criminal legal system. We also explore the nature of the women’s crimes of conviction, including the role of male codefendants and the state’s use of aggravating factors. Finally, we reveal …

Privacy Law’S Role In An Information Economy, Sari Mazzurco

Cardozo Law Review

What do we lose when we lose our privacy? A slew of recently enacted state laws suggest that the loss of privacy is merely a loss of individual choice in the market exchange of services for personal information. This Article argues that a loss of privacy risks something greater: the collapse of complex and fluid social identity. Without privacy, individuals cannot nurture their own senses of self because they are no longer free to try on different social roles across diverse relationships. Pervasive, private data collection threatens multifaceted selfhood by eliminating the boundaries that make social roles distinct and hindering …

Theistic Illiberal Constitutionalism: A Review Of Adrian Vermeule’S Common Good Constitutionalism, Kyron J. Huigens

Articles

Adrian Vermeule’s Common Good Constitutionalism drew a remarkable amount of attention from constitutional law scholars when it was published in 2020. About eighteen months later, Vermeule published a piece complaining that the critics had missed the point, that they had ignored the natural law jurisprudence that grounds the work. He was correct. This Review addresses Vermeule’s natural law jurisprudence, emphasizing the fact that it is a religious natural law jurisprudence. His arguments are in the tradition of ScholasticismAristotelian logic incorporated into Christian theology by St. Thomas Aquinas. Scholasticism is a remarkably weak foundation for constitutional jurisprudence. It is a vast …