Constitutional Law Commons^™

Redlining Reimagined: "Race-Neutral Alternatives" In The Likely Wake Of Affirmative Action, Margaret Kruzner

Duke Journal of Constitutional Law & Public Policy Sidebar

For a decade, Justice Clarence Thomas has sharply criticized the Court's treatment of affirmative action, the race-conscious university admissions processed used to pursue the educational benefits associated with diverse classrooms. Calling affirmative action a "faddish theory" that the "Constitution abhors," Justice Thomas signaled his readiness to overrule Grutter v. Bollinger, which endorsed the practice in 2003.

Justice Thomas and the Court's originalist Justices have a new opportunity to strike down affirmative action in the Students for Fair Admissions litigation. Students for Fair Admissions, a non-profit organization founded by Edward Blum, is suing Harvard College and the University of North …

Moore V. Harper: The Independent State Legislature Theory And The Court At The Brink, Braden Fain

Duke Journal of Constitutional Law & Public Policy Sidebar

Moore v. Harper tasks the Supreme Court with considering a fringe legal idea known as the Independent State Legislature Theory (ISLT). Donald Trump gave ISLT new life by invoking the theory during his attempts to overturn the results of the 2020 election. Instead of presidential elections, the litigation in Moore concerns congressional elections and partisan gerrymandering. Were the Court to accept ISLT, the theory would render states effectively impotent to curb gerrymandering and would aggrandize the Court's authority in federal elections. Scholars have recognized the theory's threat to American democracy and have accordingly produced a detailed record debunking the ISLT. …

The Supreme Court And New Frontiers In Religious Liberty, Floersheimer Center For Constitutional Democracy

2023 Event Invitations

The Floersheimer Center for Constitutional Democracy is proud to present The Supreme Court and New Frontiers in Religious Liberty. Join us for a conversation with First Amendment experts to discuss the future of First Amendment Free Exercise and Establishment Clause jurisprudence.

Professor Michael Pollack will lead a discussion on the Court’s jurisprudence and its impact on civil liberties, religious liberty, and separation of church and state.

Panelists:

• Nelson Tebbe, Cornell Law School
• Mark L. Movsesian, St. John's University School of Law
• Elizabeth Reiner Platt, Columbia Law School
• Giselle Klapper, Sikh Coalition

Click here to view the flyer.

The Supreme Court And New Frontiers In Religious Liberty, Floersheimer Center For Constitutional Democracy

2022–2023 Flyers

Click here to view the event invitation.

The "Independent" State Legislature In Republican Theory, Franita Tolson

Texas A&M Law Review

The independent state legislature theory provides that state legislatures are not constrained by their respective state constitutions in exercising the authority that the U.S. Constitution delegates to states over federal elections. In its most extreme form, the doctrine permits state legislatures, in overseeing the mechanics of federal elections, to disregard state court interpretations of state constitutions. Scholars have offered a number of criticisms of this doctrine, noting that it runs counter to the Founding Generation’s concerns about the lawlessness of state legislatures; is contrary to historical practice at the Founding; and undermines the constitutional structure in which the more democratically …

A Square Double Helix In A Round Hole: Forensic Genetic Genealogy Searches And The Fourth Amendment, Matthew Sweat

Georgia State University Law Review

A forensic genetic genealogy search (FGGS) involves law enforcement’s use of consumer DNA databases to generate leads to solve cold cases. As a result of more modern technological processes, the DNA profiles kept in consumer databases are far more revealing than the DNA profiles stored in the FBI’s Combined DNA Index System (CODIS). Accordingly, each DNA profile in a consumer database can be used to identify hundreds of relatives related to the DNA’s contributor.

The government’s use of consumer DNA databases to locate the perpetrators of horrific, unsolved crimes has generated fans and critics. Supporters of FGGSs argue that, in …

Constitutional Patriotism As Europe’S Public Philosophy? On The Responsiveness Of Post-National Law, Paul Linden-Retek

Contributions to Books

Published as Chapter 13 in Constitutional Patriotism as Europe’s Public Philosophy? On the Responsiveness of Post-National Law, Jan Komárek, ed.

This chapter critiques Jürgen Habermas’s concept of constitutional patriotism—and its basis in his discourse theory of democracy and law—from the analytic perspective of ‘constitutional imaginaries’, and details the consequences of this critique for the constitutional discourse of the contemporary European judiciary. In the first instance, analysis of constitutional imaginaries reveals the extent to which civic attachment to constitutional law is oriented not merely to legal principles simpliciter but also to the historical settlement of political conflict those principles reflect. This …

What's Originalism After Transunion?: Picking An Originalist Approach That Gets Standing Back On Track, Julian Gregorio

Notre Dame Law Review Reflection

This Note argues that not only is standing fascinating and contested, but it is so important that the Court should reconsider standing doctrine in appropriate future cases. While the TransUnion case came and went without much kerfuffle outside of legal circles, standing does not find itself sailing smoothly. As noted, perhaps the Court’s most reliable originalist just dissented from a case that largely restates the current law on standing. And Justice Kagan, perhaps the Court’s most influential liberal, wrote that after TransUnion, standing jurisprudence “needs a rewrite.” Given the current makeup of the Court, any reconsideration of standing doctrine …

The Limitations Of Privacy Rights, Daniel J. Solove

Notre Dame Law Review

Individual privacy rights are often at the heart of information privacy and data protection laws. The most comprehensive set of rights, from the European Union’s General Data Protection Regulation (GDPR), includes the right to access, right to rectification (correction), right to erasure (deletion), right to restriction, right to data portability, right to object, and right to not be subject to automated decisions. Privacy laws around the world include many of these rights in various forms.

In this Article, I contend that although rights are an important component of privacy regulation, rights are often asked to do far more work than …

A Prophylactic Approach To Compact Constitutionality, Katherine Mims Crocker

Notre Dame Law Review

From COVID-19 to climate change, immigration to health insurance, firearms control to electoral reform: state politicians have sought to address all these hot-button issues by joining forces with other states. The U.S. Constitution, however, forbids states to “enter into any Agreement or Compact” with each other “without the Consent of Congress,” a requirement that proponents of much interstate action, especially around controversial topics, would hope to circumvent.

The Supreme Court lets them do just that. By interpreting “any Agreement or Compact” so narrowly that it is difficult to see what besides otherwise unlawful coordination qualifies, the Court has essentially read …

Warren/Burger Courts Exalted “Free” Expression Over Other American Values, Louis W. Hensler Iii

Marquette Law Review

Anglo-American defamation law started with a simple condemnation of the sin of evil speaking. Eventually, this value condemning harmful speech was accommodated to the value of speaking the truth, even hurtful truth. A third value of fostering responsible self-government was injected into American defamation law at and around the time of the American Revolution. This value makes it especially important for citizens to freely speak even hurtful truth about their government.

Carceral Socialization As Voter Suppression, Danieli Evans

Articles

In an era of mass incarceration, many people are socialized through interactions with the carceral state. These interactions are poweful learning experiences, and by design, they are contrary to democratic citizenship. Citizenship is about belonging to a community of equals, being entitled to mutual respect and concern. Criminal punishment deliberately harms, subordinates, and stigmatizes. Encounters with the carceral system are powerful experiences of anti-democratic socialization, and they impact peoples' sense of citizenship and trust in government. Accordingly, a large body of social science research shows that eligible voters who have carceral contact are significantly less likely to vote or to …

No Sense Of Decency, Kathryn E. Miller

Washington Law Review

For nearly seventy years, the Court has assessed Eighth Amendment claims by evaluating “the evolving standards of decency that mark the progress of a maturing society.” In this Article, I examine the evolving standards of decency test, which has long been a punching bag for critics on both the right and the left. Criticism of the doctrine has been fierce but largely academic until recent years. Some fault the test for being too majoritarian, while others argue that it provides few constraints on the Justices’ discretion, permitting their personal predilections to rule the day. For many, the test is seen …

Gone Fishing: Casting A Wide Net Using Geofence Warrants, Ryan Tursi

Washington Law Review

Technology companies across the country receive requests from law enforcement agencies for cell phone location information near the scenes of crimes. These requests rely on the traditional warrant process and are known as geofence warrants, or reverse location search warrants. By obtaining location information, law enforcement can identify potential suspects or persons of interest who were near the scene of a crime when they have no leads. But the use of this investigative technique is controversial, as it threatens to intrude upon the privacy of innocent bystanders who had the misfortune of being nearby when the crime took place. Innocent …

Race, Religion, And National Identity Review Of Sahar Aziz, The Racial Muslim: When Racism Quashes Religious Freedom (Uc Press, 2022), Natsu Taylor Saito

UC Law Constitutional Quarterly

No abstract provided.

Theseus In The Labyrinth: How State Constitutions Can Slay The Procedural Minotaur, Marcus A. Gadson

Washington Law Review

Civil procedure is one of the biggest hurdles to access to justice. An array of rules and interpretations of those rules have turned lawsuits into meandering mazes with a procedural minotaur waiting to gobble up meritorious claims. The problem is especially acute for the many Americans without abundant resources or access to a lawyer. Fortunately, there is a ready remedy, albeit one access to justice advocates have ignored: state constitutions. Forty state constitutions, which protect hundreds of millions of Americans, generally guarantee “[t]hat all courts shall be open, and every person, for an injury done him in his person, property …

Congressional Power, Public Rights, And Non-Article Iii Adjudication, John M. Golden, Thomas H. Lee

Notre Dame Law Review

When can Congress vest in administrative agencies or other non–Article III federal courts the power to adjudicate any of the nine types of “Cases” or “Controversies” listed in Article III of the United States Constitution? The core doctrine holds that Congress may employ non–Article III adjudicators in territorial courts, in military courts, and for decision of matters of public right. Scholars have criticized this so-called “public rights” doctrine as incoherent but have struggled to offer a more cogent answer.

This Article provides a new, overarching explanation of when and why Congress may use non–Article III federal officials to adjudicate matters …

The Limits Of Church Autonomy, Lael Weinberger

Notre Dame Law Review

American courts apply “church autonomy doctrine” to protect the self-governance of religious institutions, based on both of the First Amendment’s religion clauses. Church autonomy’s defenders have sometimes described the doctrine as establishing distinct spheres of sovereignty for church and state. But critics have argued that church autonomy puts religious institutions above the law. They contend that church autonomy doctrine lacks limiting principles and worry that the “sphere sovereignty” theory of church and state leaves no room for accountability for wrongdoing in religious institutions. The courts, for their part, have recognized that church autonomy must have limits but have struggled to …

Foreword, Madeline Cline

UC Law Constitutional Quarterly

No abstract provided.

Understanding An American Paradox: An Overview Of The Racial Muslim: When Racism Quashes Religious Freedom, Spearit

UC Law Constitutional Quarterly

No abstract provided.