Constitutional Law Commons^™

What Is Trump Immunity?, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

In Trump v. United States, the Supreme Court held that a former President is entitled to an immunity in criminal cases in certain circumstances. The decision has been heavily criticized, with many commentators saying it places the President above the law. Exactly how it does so depends on what type of immunity a former President enjoys. Is the immunity enjoyed by former Presidents in criminal cases an immunity from the operation of the primary obligations imposed by the criminal laws in question? Or is it an immunity from being subjected to certain types of sanctions for having violated validly …

Does The Original Meaning Of The Fourteenth Amendment Protect Economic Liberty?, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

In my remarks today, I will defend the proposition that the original meaning of the Fourteenth Amendment protects "economic liberty." To clarify the issue, let me being by defining economic liberty. I define economic liberty as the right to acquire, use and possess private property and the right to enter into private contracts of one's choosing. If these rights are protected by the original meaning of the Fourteenth Amendment, then we can conclude that the Amendment does protect economic liberty.

In my view, the evidence that the original meaning Fourteenth Amendment protects rights of private property and contract is overwhelming. …

How To Teach A Course On Land Use And Anti-Jewish Discrimination, Michael Lewyn

Scholarly Works

In 2022, I was asked to teach a one-week mini-course within a broader course on "Structural Barriers and the Pursuit of Equity," a course focusing on various forms of structural discrimination. The course is typically taught by over a dozen professors from various parts of Touro University, each of whom teaches for a week on a different topic. I chose to teach on issues related to land use law (because my scholarship focuses on that area) and in particular how land use law has been used by and against traditionally observant Jews (because that is the religious tradition I am …

Disparate Impact And Synagogue Location, Michael Lewyn

Scholarly Works

Because anti-density regulations seem likely to have a negative impact upon Sabbath-observant Jews, one might think that such regulations violate the Fair Housing Act (FHA) disparate impact doctrine. The purpose of this article is to show why FHA claims in this type of situation are unlikely to succeed: first by explaining the law governing the disparate impact doctrine, and then by applying that law to a hypothetical case involving Orthodox Jews.

States In The Separation Of Powers, Ernest A. Young

Faculty Scholarship

No abstract provided.

What Belongs In A Constitutional Law Casebook?, Ernest A. Young

Faculty Scholarship

No abstract provided.

Teaching Firearms Law: One Big Opportunity And Three Pedagogical Challenges, Joseph Blocher, Jacob D. Charles, Darrell A.H. Miller

Faculty Scholarship

The U.S. Supreme Court’s groundbreaking 2008 decision in District of Columbia v. Heller ushered in a new era for the Second Amendment: one in which the right to keep and bear arms, long dormant as a matter of practical impact and even “embarrassing” as a matter of legal scholarship, vaulted into the front ranks of constitutional law. The Court itself has only revisited the Amendment a few times since then—albeit once by revolutionizing the doctrine. Meanwhile, lower courts have issued thousands of decisions giving shape to the right, while scholars have generated work that is increasingly deep, diverse, and challenging. …

Cost–Benefit Analysis, Matthew D. Adler

Faculty Scholarship

This chapter will address the place of cost–benefit analysis (CBA) in constitutional law, by way of a case study. I’ll describe, and puzzle over, CBA’s absence from most U.S. constitutional doctrines, notwithstanding its major role in U.S. administrative law. The general questions that I seek to illuminate are by no means limited to the U.S. How might CBA figure within the tests that constitutional courts use to adjudicate alleged violations of constitutional rights? How might it serve to determine the structure of constitutional institutions? Would it be justified for CBA to play these doctrinal roles? But these general questions are …

Brief Of Professors Julian Arato, Rachel Brewster, Harlan Grant Cohen, David Singh Grewal, J. Benton Heath, Timothy Meyer, Gregory Shaffer, And Chantal Thomas As Amici Curiae In Support Of Petitioners In No. 24-1287 And Respondents In No. 25-250, Julian Arato, Rachel Brewster, Harlan Grant Cohen, David Singh Grewal, J. Benton Heath, Timothy Meyer, Gregory Shaffer, Chantal Thomas

Faculty Scholarship

No abstract provided.

History And Tradition As Heightened Scrutiny, Andrew Willinger

Faculty Scholarship

The Supreme Court is turning to methodologies privileging text, history, and tradition, or THT, to interpret and implement various constitutional provisions. The Court has recently endorsed historically-focused approaches to determine how the Second Amendment protects the right to keep and carry a firearm, how the First Amendment protects the rights to free speech and freedom of religion, and whether the Due Process Clause protects reproductive autonomy, among other questions.

Much scholarship and popular commentary surrounding THT portrays the methodology as sui generis: presenting unique analytical challenges and impervious to direct comparison to existing doctrinal approaches. However, the jurist most …

Listening On Campus: Academic Freedom And Its Audiences, Joseph Blocher

Faculty Scholarship

Current debates about campus speech often conflate two related but importantly distinct values: free speech and academic freedom. Both are widely perceived to be in crisis, but they are not interchangeable, and slippage between the two makes it even harder to frame, let alone address, difficult questions about speech in university settings. Many of the most fundamental challenges—indeed, much of what makes campus speech unique in the first place—arise from the need to accommodate both values. In doing so, defenders of academic freedom must, as advocates of free speech have, more clearly articulate an account of listener interests. The basic …

Judge–Scholar Collaboration And The Second Amendment, Andrew Willinger, Eric Ruben

Faculty Scholarship

Legal scholarship is overly abstract and theoretical, making it unhelpful to judges and lawyers. That, at least, is the classic critique from the bench. When it comes to the Second Amendment, however, a different pattern has emerged: judges consistently cite law review articles and look to the academy for guidance. Most recently, in United States v. Rahimi, some Justices went further, implicitly inviting more scholarly work to help the Court answer open questions raised by its novel methodological approach to the Second Amendment. This Article explores this aberrant trend.

We raise several explanations for the distinctive scholarly role in …

Race, The Academy, And The Constitution Of The War On Drugs, I. Bennett Capers, Jeffrey Bellin

Faculty Scholarship

The war on drugs is widely viewed as a policy failure. Despite massive government intrusions on personal liberty, drug addiction, overdoses, and drug-related violence have only increased since the war was declared in 1971. David Pozen’s new book, The Constitution of the War on Drugs, reveals a constitutional failure as well. Pozen chronicles a host of constitutional arguments that American litigants deployed to protect a “right” to use drugs with surprising, if fleeting, success. Pozen asks what might have been, exploring why the courts backtracked and effectively removed the Constitution as a meaningful obstacle to drug prohibitions. 

This Review …

Family Regulation's Consent Problem, Anna Arons

Faculty Publications

The home is the most protected space in constitutional law. But family regulation investigators conduct millions of home searches a year. Under pressure, parents nearly always consent to these state agents’ entry into the most private areas of their lives.

This Article identifies the coercive forces—not least the threat of family separation—that drive parents to consent to home searches. Drawing on primary sources and case law examining consent in criminal cases, it shows that common family regulation investigation tactics render consent involuntary and the ensuing searches unconstitutional. And yet, it argues, the Constitution is not enough. Though constitutional litigation could …

Status, Conduct, Belief, And Message: The Wedding Vendor Cases, Mark L. Movsesian

Faculty Publications

(Excerpt)

I’d like to speak today about one of the more neuralgic episodes in the United States’s ongoing culture wars: the wedding vendor cases. These are cases in which small business owners decline, from religious conviction, to provide services for same-sex weddings. A baker declines to bake a wedding cake for a gay couple because, as a Christian, he opposes same-sex marriage and doesn’t want to participate in sinful behavior. A Christian web designer declines to create websites for same-sex weddings, since doing so would express her support for such weddings, which she doesn’t want to do. Other examples involve …

Student Protests And “Fighting Words”: Critical Race Theory And The Evolution Of Hate Speech Codes On College Campuses, Mark C. Niles

Faculty Publications

Devastating Hamas attacks on Israeli civilians and military personnel in October 2023, and the Israeli military response to those attacks in Gaza, have given rise to protests around the world, notably on college campuses in the United States. These protests (on more than fifty campuses in all parts of the country) have in turn generated multiple allegations of antisemitic statements and conduct by protestors. Many high-profile university donors and board members, portions of the media, and some elected officials responded to these allegations by identifying perceived deficiencies in campus administrative responses to these complaints and to calls for more robust …

Is Originalism Bullshit?, Michael L. Smith

Faculty Articles

It’s finally time to answer the big question. This Article draws on the surprisingly robust literature examining the definition, essence, and significance of bullshit and evaluates whether originalist constitutional interpretation fits the bill. I begin with Harry Frankfurt’s definition of bullshit as utterances made in pursuit of the speaker’s goals without regard for their truth value. I also rely on alternate formulations, including bullshit as unclarifiable nonsense as well as contextual and audience-centric variations of bullshit.

While not all instances of originalism are bullshit, I identify those instances which are, and go on to demonstrate that originalism is uniquely prone …

The American Oligarchy, Match Dawson

Faculty Articles

What was designed as a constitutional republic, bound by self-rule and democratic accountability, has become an oligarchy camouflaged by the illusion of public sovereignty. The corporate architects of this new world order did not seize power through conquest or force: they legislated, litigated, and purchased it into existence. Oligarchic rule is more than a simple political crisis. It is a democratic one. Just as prior generations have been called upon to preserve the republic against threats to liberty, we now face our own defining challenge and must decide whether to accept a government auctioned to the highest bidder or reclaim …

The Sovereign Acre, Match Dawson

Faculty Articles

What if the next constitutional crisis is not declared from a presidential podium but tyranny forged into a deed? Not a contested election. Not a rogue legislature. Not even a runaway court. This time, it is quieter—with a deed signed and title passed, a new sovereign is crowned in private ink. Across the country, billionaire land grabs are redrawing the map of municipal governance itself. As wealthy elites and corporate oligarchs carve out private enclaves—from the privatized contract city of Sandy Springs, Georgia, to the unsettling governance of The Woodlands, Texas—we bear witness to public sovereignty giving way to oligarchic …

The Military's Constitutional Role, Brenner M. Fissell

Faculty Publications

A basic principle of the American constitutional order is that civilian authority must be supreme over that of the military. The violation of this principle by the British was one of the grievances enumerated in the Declaration of Independence, and the Framers responded with a Constitution that made military rule impossible. But why is so-called “civilian control” of the military so important? This deep normative question has yet to be thoroughly answered by scholars, most of who assume it away as a given. This Article takes up that task, using contemporary political theory to defend the principle of civilian control. …