Constitutional Law Commons^™

Book Review: Kermit Roosevelt Iii, The Nation That Never Was: Reconstructing America's Story, Ainslee Johnson-Brown

ConLawNOW

This review summarizes the key thesis of the book, The Nation That Never Was, which argues for a reset of the Constitutional baseline of principles. The book argues that the Gettysburg Address should be considered a key part of modern constitutional guarantees of equality and liberty. The review explains this thesis, and notes the questions it leaves open.

Weekly Pop-Up Class: Understanding The Lgbtq+ Civil Rights Movement And Why It Matters: Professor Edward Stein, Benjamin N. Cardozo School Of Law

2022 Event Invitations

The first class will cover the evolution of LGBTQ+ family law in the United States and will be presented by LGBTQ+ legal expert and Cardozo Professor and former Vice Dean Edward Stein, author of The Mismeasure of Desire, The Science, Theory, and Ethics of Sexual Orientation and other scholarly works on sexual identity and the law.

Playing With Words: Amar’S Nationalist Constitution, Robert J. Pushaw Jr.

Washington and Lee Law Review Online

This essay provides a balanced critique of Akhil Amar’s important book on early constitutional theory and practice. On the one hand, Amar’s work has three unique virtues. First, unlike other constitutional historians, he does not examine a particular clause or a brief time period (such as 1787‑1789), but rather analyzes the Constitution as a whole from 1760 to 1840. This holistic and longitudinal approach enables him to trace in detail the evolving constitutional views of America’s leading Founders—John Adams, Alexander Hamilton, Thomas Jefferson, James Madison, John Marshall, and George Washington—and the personal relationships among those men that helped shape those …

Chisholm V. Georgia (1793): Laying The Foundation For Supreme Court Precedent, Abigail Stanger

The Cardinal Edge

No abstract provided.

Symposium: Sexual Orientation, Gender Identity & The Constitution: Love Is Love: The Fundamental Right To Love, Marriage, And Obergefell V. Hodges, Reginald Oh

ConLawNOW

Why is same-sex marriage a constitutional right of individual autonomy and dignity? Because of love. Based on a close reading of Justice Anthony Kennedy’s majority opinion in Obergefell v. Hodges, this essay will argue that Obergefell is best understood as an opinion about the centrality of love, not just marriage, for individual self-realization. It is love that helps make sense of Kennedy’s opinion. If love is not understood to be an essential aspect of Kennedy’s reasoning, then the opinion is rendered less coherent, emptied of much of its substance, and made vulnerable to critiques from both the right and …

Europe And The Federal Conceit, Paul Linden-Retek

Book Reviews

Reviewing The constitutional theory of the federation and the European Union, by Signe Rehling Larsen.

Crisis can obscure and confuse. The past decade’s tribulations of the European Union and its structures of governance have left theorists grappling to comprehend the precise terms of Europe’s political and constitutional transformation. But crisis also can occasion a return to first principles—often those forgotten or themselves obscured by political transformations—that clarify thinking about political form and might even illuminate the contours of crisis itself. This is what Signe Rehling Larsen has done in her remarkable book on federation and European Union. In what follows, …

Only You Can Prevent Amendment Abuse, Bruce Ledewitz

Newspaper Columns

Collected biweekly contributions to the Pennsylvania Capital-Star, a nonpartisan, nonprofit news site.

Freedom Of Peaceful Assembly And Section 2(C) Of The Charter: Report For The Public Order Emergency Commission, Jamie Cameron

Commissioned Reports, Studies and Public Policy Documents

Those who participated in the 2022 protest convoy were exercising their rights under the Canadian Charter of Rights and Freedoms when the federal government declared an emergency, creating a large secure zone and dispersing the truckers’ demonstration. These rights, including and especially freedom of peaceful assembly, form the backdrop to consideration of the federal government’s decision to declare an emergency under the Emergencies Act and enact regulations for bringing the demonstrations to an end.

Though it is one of the Charter’s fundamental freedoms, s.2(c)’s freedom of peaceful assembly received little or no attention in the first 40 years of …

Fourteenth Amendment Confrontation, Evan D. Bernick

College of Law Faculty Publications

Mr. Haley is one of the most memorable villains in all of American fiction. A “coarse” slave-trader whose “swaggering air of pretension” enrages readers of Harriet Beecher Stowe’s Uncle Tom’s Cabin from his appearance in the opening scene, Haley does his part to fulfill the novel’s purpose of strengthening the abolitionist cause. He is also not entirely fictional, and his creation is part of the constitutional history of the United States.

The real Haley was John Caphart, a slave-catcher hired by John DeBree of Norfolk, Virginia to capture Shadrach Minkins—an enslaved man who in 1851 fled from Virginia to Boston. …

The First Amendment And The Regulation Of Speech Intermediaries, Shaun B. Spencer

Marquette Law Review

Calls to regulate social media platforms abound on both sides of the political spectrum. Some want to prevent platforms from deplatforming users or moderating content, while others want them to deplatform more users and moderate more content. Both types of regulation will draw First Amendment challenges. As Justices Thomas and Alito have observed, applying settled First Amendment doctrine to emerging regulation of social media platforms presents significant analytical challenges.

Holmes V. Walton And Its Enduring Lessons For Originalism, Justin W. Aimonetti

Marquette Law Review

Originalism is nothing new. And the New Jersey Supreme Court’s 1780 decision in Holmes v. Walton shows it. In that case, the New Jersey Supreme Court disallowed a state law as repugnant to the state constitution because the law permitted a jury of only six to render a judgment. To reach that result, the court looked to the fixed, original meaning of the jury trial guarantee embedded in the state constitution, and it then constrained its interpretive latitude in conformity with that fixed meaning. Holmes thus cuts against the common misconception that originalism as an interpretive methodology is a modern …

Bottom-Rung Appeals, Merritt E. Mcalister

UF Law Faculty Publications

There are haves and have-nots in the federal appellate courts, and the haves get more attention. For decades the courts have used a triage regime where they distribute judicial attention selectively: some appeals receive a lot of judicial attention, some appeals receive barely any. What this work unearths is that this triage system produces demonstrably unequal results depending on the circuit handling the appeal and whether the appellant has counsel or not. Together, these two factors produce dramatic disparities: in one circuit, for example, an unrepresented appellant receives, on average, a decision less than a tenth the length of a …

Macro-Judging And Article Iii Exceptionalism, Merritt E. Mcalister

UF Law Faculty Publications

Over the last half-century, the federal courts have faced down two competing crises: an increase in small, low-value litigation thought unworthy of Article III attention and an increase in the numbers and complexity of “big” cases thought worthy of those resources. The choice was what to prioritize and how, and the answer the courts gave was consistent across all levels of the federal judiciary. Using what this Article calls “macro-judging,” Article III judges entrenched their own power and autonomy to focus on the work they deemed most “worthy” of their attention, while outsourcing less “important” work to an array of …

Faq On The U.S. Archivist And The Future Of The Equal Rights Amendment, Center For Gender And Sexuality Law

Center for Gender & Sexuality Law

On Wednesday, September 21, 2022, the Senate will hold hearings on the nomination of Colleen Shogan as the new Archivist of the United States. This FAQ offers a short primer on what the Archivist does, her official role in the finalization of proposed amendments to the U.S. Constitution, including the Equal Rights Amendment (ERA), and the impact of Archivist action on the validity of the ERA.

Judging Offensiveness: A Rubric For Privacy Torts, Patricia S. Abril, Alissa Del Riego

Articles

How do we judge whether a violation of someone's privacy is offensive? Currently, U.S. tort law requires privacy violations be "highly offensive to a reasonable person" to afford redress. However, our research reveals that there is no effective analysis-or rhyme or reason-to determine what conduct, disclosure, or implication is offensive. Our review of hundreds of privacy tort cases concludes that the ambiguity of the offensiveness prong has created opportunity for both significant legal errors and thriving biases, which often lead to discriminatory and neglectful treatment of women, racial minorities, and other marginalized groups. This is particularly alarming because the offensiveness …

Is It Time To Bury Barry? Why An Old Change At The Legislature Requires A New Look At Washington's Nondelegation Doctrine, Daniel A. Himebaugh

Washington Law Review Online

Fifty years ago, the Supreme Court of Washington adopted a relaxed version of the nondelegation doctrine in a case called Barry and Barry v. Department of Motor Vehicles. The Barry rule, which only loosely restricts the delegation of policy-making power from the Legislature to other bodies, is now widely applied in Washington State. However, the Barry Court’s reasons for adjusting the nondelegation doctrine were based on an outdated understanding of the Legislature, especially its regular session schedule. While the Legislature’s regular sessions have changed since 1972—becoming longer and more frequent due to constitutional amendment—the Court has not considered how …

An Analytical Study On Legal Validity Of Online Dispute Resolution (Odr) System In India And Indonesia, Dr Rahul Nikam, Bangkim Singh Nongthombam

Indonesia Law Review

Advancement in technology brought many inevitable changes with more efficiency, making human life easier. Benefit of technology shall be incorporated for effective and efficient justice delivery in dispute resolution mechanism. New development in this area is online arbitration dispute resolutions (ODR) which have been without doubt adopted and practices by justice delivery system across the globe. But the question remains the same as whether justice delivery system is equipped to cope up in the same pace with the changes taking place in the society and technology. Are the existing laws being enough to conduct online system as an effective mechanism …

The Feud Of Nemo Plus Iuris Ad Alium Transferre Potest Quam Ipse Habet And Nemo Dat Quad Non Habet (Nemo Dat Rule) Legal Principles Against The Legal Principle Of Good Faith (Bona Fides) In Indonesian Courts, Yonatan Yonatan, Rosa Agustina

Indonesia Law Review

Abstract

A dispute over ownership of land rights between the real Original Owner and a Good Faith Purchaser can be assumed as a dispute over legal principles in the field of civil law, namely: the legal principle of Nemo Plus Iuris Ad Alium Transferre Potest Quam Ipse Habet, and the legal principle of Nemo Dat Quad Non Habet (Nemo Dat Rule) against the legal principle of good faith (bona fides). The legal principle of Nemo Plus Iuris Ad Alium Transferre Potest Quam Ipse Habet and the legal principle of Nemo Dat Quad Non Habet (Nemo Dat Rule) are legal principles …

Property Law And Inequality: Lessons From Racially Restrictive Covenants, Carol M. Rose

Northwestern University Law Review

A long-standing justification for the institution of property is that it encourages effort and planning, enabling not only individual wealth creation but, indirectly, wealth creation for an entire society. Equal opportunity is a precondition for this happy outcome, but some have argued that past inequalities of opportunity have distorted wealth distribution in contemporary America. This article explores the possible role of property law in such a distortion, using the historical example of racially restrictive covenants in the first half of the twentieth century. I will argue that the increasing professionalization and standardization of real estate practices in that era included …

Climate Change Adaptation As A Problem Of Inequality And Possible Legal Reforms, David A. Dana

Northwestern University Law Review

Climate change will necessitate adaptation in all parts of the United States, but some individuals and localities will be better able to adapt than others. Wealth inequalities among individuals and localities already are translating—and will continue to translate—into inequalities between the rich and poor in their capacity to adapt. Current federal disaster aid programs and policies exacerbate these inequalities by favoring the wealthy, and future government resource management decisions and investments also may broaden the gap between rich and poor in terms of the economic and other costs they will bear from climate change. Some have suggested broadening Takings Clause …