Constitutional Law Commons^™

The Right To Inequality: Conservative Politics And Precedent Collide, Jonathan P. Feingold

Connecticut Law Review

The “end of affirmative action” is the beginning of this story. In Students for Fair Admissions v. Harvard (SFFA), the Supreme Court struck a near fatal blow to race-consciousness. Many institutions have since pivoted to “race neutral alternatives.” This is a natural turn. But one that faces immediate headwinds.

The same entities that demanded Harvard pursue racial diversity through colorblind means have sued public high schools for doing just that. These litigants assert a “right to inequality”—a theory that would pit the Equal Protection Clause against equality itself. Even if normatively jarring, a right to inequality might seem a natural …

Defining Law But Not Justice, Franciska Coleman

Chicago-Kent Law Review

No abstract provided.

How Not To Teach Criminal Law, Evan D. Bernick

Chicago-Kent Law Review

No abstract provided.

The Constitutional Case Against State-Controlled Fact-Checking: A Case Comment On Kunal Kamra V. Union Of India, Abhinav Ravi, Aravind Sundar

National Law School of India Review

The Bombay High Court in Kunal Kamra v Union of India struck down the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023, which had established a centralised fact-checking unit to issue takedown orders against social media posts that were identified as “fake or false or misleading”. The Rules threatened the safe harbour protection of social media intermediaries for failing to adhere to such takedown orders. The Court held that the establishment of the fact-check unit violates the rights of free speech, profession and equality under the Indian Constitution. This article explores the free speech implications of …

Constitutionalism, Social Justice, And Social Contract: Unpacking The Debate On Scheduled Caste Reservation For Christian And Muslim Dalits, Arvind Kumar

National Law School Journal

This article examines the constitutional, historical, and political debates surrounding the demand for extending Scheduled Caste (SC) status to Christian and Muslim Dalits in India. Drawing on Constituent Assembly Debates, archival materials, judicial decisions, government affidavits, petitions, and my previous scholarship, it challenges the claim that SC reservation was originally conceived as religion-neutral. The article argues that SC reservation emerged as a specific pre-constitutional agreement rooted in the Poona Pact and designed to address the historical injustice of untouchability within Hindu society. Its provisions were subsequently extended to Sikh and Buddhist converts under particular historical and political circumstances but did …

Limitation For Liberty: A Commentary On Federalism And The Tenth Amendment, Riley Banker

Senior Honors Theses

The concept of Federalism is essential to the very survival of the United States. However, recent decisions by the Supreme Court have illustrated attempts by the federal government to expand its authority and undermine the balance of power created by Federalism. This thesis will explore the concept of Federalism to demonstrate how it can best be protected. First, this thesis will address the origins of Federalism. Second, it will show how the principles of Federalism are manifested within the founding documents of the United States. Finally, this thesis will analyze current events including Supreme Court cases to demonstrate a concerning …

In The Name Of Tradition: A Comparative Study On Nonestablishment, Sungmin Cho

Washington Law Review

The Establishment Clause of the First Amendment to the United States Constitution prohibits the government from establishing a state religion. The U.S. Supreme Court has developed different tests to determine whether a government action complies with this principle. Over the past few decades, the Court gradually turned to whether the challenged practice is consistent with the history and tradition of the nation.

Meanwhile, the separation of church and state is not a notion unique to the United States. After centuries of Confucian monarchy, Korea drafted a modern constitution with a similar provision. Nevertheless, the Constitutional Court of Korea has upheld …

Abdication Of Power: Arizona V. Navajo Nation And Judicial Refusal To Enforce The Federal Trust Relationship, Jessica Yin

Washington Law Review

Over 150 years ago, the federal government signed a treaty promising the Navajo people a permanent home within the bounds of their ancestral homeland. To this day, that promise remains unfulfilled because the Navajo people face a severe water access crisis. When the Navajo Nation brought the United States to the Supreme Court to enforce its promise, the Court declined to hold the federal government accountable.

This Comment analyzes the Supreme Court’s decision in Arizona v. Navajo Nation through the lens of the judiciary’s historical approach to the federal trust relationship. The Court has traditionally defined the federal trust relationship …

We Are All Cafeteria Originalists Now (And We Always Have Been), Jack M. Balkin

William & Mary Bill of Rights Journal

In Memory and Authority, I argue that Americans, both in politics and in constitutional culture, are "‘cafeteria originalists.’ They pick and choose when to follow the views of the founders, framers, or adopters (as they understand them) and often artfully recharacterize these principles to support contemporary political and legal arguments.” Like customers in a cafeteria who take the chocolate cake and leave the boiled kale, Americans pick the features of the framers they like to support their arguments, and leave other, less savory, features behind.

[...]

My central claim is that cafeteria originalism is not a pathology or a …

The Griffin's Case Phenomenon And The Problem Of Historical Knowledge In Legal Arguments, Rachel A. Shelden

William & Mary Bill of Rights Journal

The sudden relevance of a formerly little-known historic case is surely not new; much of legal history is necessarily about discovery and rediscovery of the past. Still, I think the clarity with which we can outline the development of the Griffin’s Case phenomenon offers an opportunity to think carefully about the role of history in constitutional conversation. What follows, then, is a short exploration of the case’s recent (re)entry into our historical consciousness. Tracing this phenomenon highlights (at least for me) some potential difficulties embedded in the interaction between legal advocacy and what we know about the past.

This abstract …

In Praise Of Ignoring Facts, Stephen E. Sachs

William & Mary Bill of Rights Journal

Treating every use of legal rhetoric as equally probative of American law is fatal to the theoretical project—including to [Jack] Balkin’s own “thin” theory of constitutional law, which stretches itself past the breaking point in the hopes of accommodating the changing winds of social movements. Rather than take advocates’ rhetorical moves for granted, we scholars have the indulgence and time to look for the implicit theories underlying these moves, to air those theories explicitly, to identify what might make them true or false, and to assess how plausible they are on those grounds. Constitutional theories need microfoundations: a theory of …

Learning To Read Like An Eighteenth-Century Lawyer: The Historical Critique Of Originalism Revisited, Saul Cornell

William & Mary Bill of Rights Journal

Historians have been among the fiercest critics of originalism. Among the many virtues of Jack Balkin’s book, Memory and Authority, is the deft way he analyzes and dismantles these efforts to insulate originalism from historical critique. In a short essay, it would be impossible to fully acknowledge the sophistication of Balkin’s analysis. Instead, I would like to build on his impressive achievement by pointing out additional problems with the originalist response to historical critique.

This abstract has been taken from the author's opening paragraph.

Memory, Resistance, And Doubt, Richard Primus

William & Mary Bill of Rights Journal

The Burroughs Court did not identify any enumerated power that warranted the Corrupt Practices Act, I suggest, because the Burroughs Court did not subscribe to the enumeration principle. The Justices did not believe—or at least, did not consistently believe— that every federal law must be grounded in some enumerated power. As I have explained at length elsewhere, the text of the Constitution does not actually prescribe the enumeration principle: it can be read to support that idea, but it need not be. And at various moments in American constitutional history, judges and other people have taken the view that Congress …

Shared Memories And Constitutional Foundations, Sanford Levinson

William & Mary Bill of Rights Journal

It is significant that the first word in the title of Jack Balkin’s new book [Memory and Authority] is “memory.” A repeated theme of the book is that what binds a nation—or a constitutional order—together is shared memories around which diverse individuals can gather together and therefore establish themselves as a community. Balkin refers to an impressive array of sources with regard to the topic of “public memory,” but I want to concentrate on one of them, which is cited but not extensively discussed. That is Ernest Renan’s famous speech, delivered at the Sorbonne in Paris on March …

Invocations Of Memory In State Constitutional Law, Fred O. Smith Jr.

William & Mary Bill of Rights Journal

This Symposium Essay discusses the roles of history and memory within the realm of state constitutional law. Building on Professor Balkin’s observations, I offer two claims. The initial argument, delineated in Part I, is descriptive. While the practice of state constitutional law often mirrors that of federal constitutional interpretation, the use of history in state constitutional interpretation has unique characteristics, both with respect to text and ethos. Regarding textual analysis, understanding the language of a state constitution often involves engaging with a concept referred to by some scholars as “interconstitutionalism.” This phenomenon occurs when a single governmental body has operated …

One Is Not Enough: Session, The Social Status Provision, And Consistent And Definitive Constructions, Miles C. Skedsvold

Mercer Law Review

Originalism really is “a theory working itself pure.” But most of the blood, sweat, and tears in the enterprise are spilled over the federal constitution. At least partially as a result of those efforts, though, more and more important legal questions are examined under state law—and in particular, state constitutions. And so it is more important than ever to work through the hard methodological questions that will help produce answers. Presiding Justice Nels S.D. Peterson’s landmark article “Principles of Georgia Constitutional Interpretation” breaks key ground in this area—and this Article aims to take the shovel and keep digging. ...

Thus, …

Framing Indian Federalism, Madhav Khosla

Faculty Scholarship

This article focuses on a set of historical and contemporary developments in Indian constitutionalism that implicate the question of democracy and the question of federalism. Its goal is to connect the design and application of federal powers with what many regard as an important telos of federalism, namely, the promotion of democracy. Towards this end, it holds up for consideration India’s federal model, which, it is suggested, focuses on the presence of a subnational demos rather than the political identity of subnational units. Such an understanding of federalism de-emphasizes the territorial aspect of federalism and allows federal design to accommodate …

Introduction To The Special Issue: Pluralist Agreement And Constitutional Transformation Ii (Pact Ii), . .

National Law School Journal

This is an introduction to the second special issue of the Pluralist Agreement and Constitutional Transformation (PACT) arising out of the NLSIU-PACT Conference conducted at the National Law School of India University in August 2024.

Understanding The Equality Of Parties In Arbitration: A Case Comment On International Seaport Dredging Private Limited V Kamarajar Port Limited, Sahana Ramesh

National Law School Journal

While the Supreme Court of India has emphasised the equality of arbitrating parties in several decisions, the court often had to use various tools to assert this. It is a question of policy as to whether statutory undertakings—that perform public functions by entering commercial transactions—must be given preferential treatment in certain aspects of the dispute settlement process, including when they choose to challenge an arbitral award. This case comment considers the decision of the Supreme Court of India in International Seaport Dredging Private Limited v Kamarajar Port Limited to highlight the nuances involved in the court’s conclusion that all …

Reimagining Constitutional Institutions: Integrity, Efficiency, And Accountability (Justice Es Venkataramiah Centennial Memorial Lecture), Justice Ps Narasimha

National Law School Journal

In this 'Justice ES Venkataramiah Centennial Memorial Lecture' delivered at the National Law School of India University in 2024, Justice PS Narasimha lays down the importance of fourth branch institutions. He points to the constitutional history and framework that established them, lays down their evolution, and examines their role and functioning in the current context.