Constitutional Law Commons^™

Original Public Meaning, Lawrence B. Solum

Faculty Scholarship

“Original public meaning” has become increasingly important in constitutional discourse. This Article investigates the nature of original public meaning in three steps. First, each word in the phrase “original public meaning” is explicated and clarified. The word “original” represents the idea that the meaning of the constitutional text is fixed at the time each provision is framed and ratified. The word “public” signifies that the relevant meaning is ordinary meaning, the understanding of the text conveyed to the public at the time each provision was framed and ratified. The word “meaning” refers to the set of ideas (concepts and propositions) …

Move To Amend, Wilfred Codrington Iii

Faculty Scholarship

No abstract provided.

The Indecisions Of 1789: Inconstant Originalism And Strategic Ambiguity, Jed H. Shugerman

Faculty Scholarship

The unitary executive theory relies on the First Congress and an ostensible “Decision of 1789” as an originalist basis for unconditional presidential removal power. In light of new evidence, the First Congress was undecided on any constitutional theory and retreated to ambiguity in order to compromise and move on to other urgent business.

Seila Law’s strict separation-of-powers argument depends on indefeasibility (i.e., Congress may not set limits or conditions on the president’s power of civil removal). In fact, few members of the First Congress defended or even discussed indefeasibility. Only nine of fifty-four participating representatives explicitly endorsed the presidentialist view …

Mysterizing Religion, Marc O. Degirolami

Faculty Publications

(Excerpt)

A mystery of faith is a truth of religion that escapes human understanding. The mysteries of religion are not truths that human beings happen not to know, or truths that they could know with sufficient study and application, but instead truths that they cannot know in the nature of things. In the Letter to the Colossians, St. Paul writes that as a Christian apostle, his holy office is to “bring to completion for you the word of God, the mystery hidden from ages and from generations past.” Note that Paul does not say that his task is to make …

Investing In Abolition, Sandeep Singh Dhaliwal

Faculty Publications

This Article situates the prison within a broader macro-financial trend, what I call “community capture.” As private equity firms have consolidated the market for carceral services, they have also gained control over other essential social infrastructure, like housing and healthcare. By layering debt, fees, and aggressive profit expectations over companies or assets that provide for basic needs, their strategies intensify the economic pressures communities face. These strategies rely on various forms of coordination and legal protection from contestation. To demonstrate this process in the context of mass incarceration, this Article tells the story of Securus, a dominant carceral service company …

All The Way To Hell: An Artist's Legal Descent Into The Underworld Of Oil And Gas, Madison S. Marlow

Cardozo Arts & Entertainment Law Journal

Eliza Evans’ project, All the Way to Hell, employs a novel legal strategy to challenge Oklahoma’s permissive fracking regulations by fragmenting mineral rights among thousands of co-owners, aiming to disrupt the forced pooling process. While her approach highlights systemic legal and environmental issues, the state’s industry-friendly framework and regulatory capture present significant barriers to meaningful change. The note argues that Evans’ activism underscores the need for legislative reform to balance individual property rights with environmental protection.

The Ftc's "Made In America" Enforcement Policy Is Too Stringent For Small Businesses To Comply With, Jamie Cutler

Cardozo Arts & Entertainment Law Journal

The note argues that the Federal Trade Commission's (FTC) "Made in America" policy is overly stringent and disproportionately burdensome for small businesses. The policy requires products labeled as "Made in America" to contain "all or virtually all" parts and processing from the U.S., a standard that is often ambiguous, economically prohibitive, and misaligned with consumer perceptions. The note contends that this strict enforcement creates a "Hobson's choice" for small businesses, making it infeasible for them to comply without suffering financial harm or reputational damage. It advocates for lowering the threshold to allow more flexibility, which would support small businesses, promote …

Making Justice Available For Victims Of Sexual Misconduct Within The Prison System, Emma L. Bruder

Cardozo Journal of Equal Rights & Social Justice

The note advocates for amending the Prison Rape Elimination Act (PREA) to include a private cause of action, enabling survivors of sexual misconduct in confinement to seek judicial remedies. This amendment would enforce their Eighth Amendment rights and address the limitations imposed by the Prison Litigation Reform Act (PLRA), which hinders access to justice for incarcerated individuals.

Beyond Removal, Jane Manners

Fordham Law Review

The contemporary debate over presidential power often assumes that removal is the primary tool through which a President exercises control over executive branch officers to fulfill the Constitutional duty to “take Care that the Laws be faithfully executed.” This must be so, the logic goes, because without this authority, “the President could not be held fully accountable for discharging his own responsibilities.” The power to remove, the U.S. Supreme Court has reasoned, also endows the President with the power to supervise. To be sure, other scholars and jurists have pointed out the ways that this fails to capture the range …

Surveillance Technologies And Constitutional Law, Christopher Slobogin, Sarah Brayne

Vanderbilt Law School Faculty Publications

This review focuses on government use of technology to observe, collect, or record potential criminal activity in real-time, as contrasted with “transaction surveillance” that involves government efforts to access already-existing records and exploit Big Data, topics that have been the focus of previous reviews (Brayne 2018, Ridgeway 2018). Even so limited, surveillance technologies come in many guises, including closed-circuit television, automated license plate and facial readers, aerial cameras, and GPS tracking. Also classifiable as surveillance technology are devices such as thermal and electromagnetic imagers that can “see” through walls and clothing. Finally, surveillance includes wiretapping and other forms of communication …

Constitutional Limits On The Imposition And Revocation Of Probation, Parole, And Supervised Release After Haymond, Nancy J. King

Vanderbilt Law School Faculty Publications

In its Apprendi line of cases, the Supreme Court has held that any fact found at sentencing (other than prior conviction) that aggravates the punishment range otherwise authorized by the conviction is an "element" that must be proved beyond a reasonable doubt to a jury. Whether Apprendi controls factfinding for the imposition and revocation of probation, parole, and supervised release is critically important. Seven of ten adults under correctional control in the United States are serving terms of state probation and post-confinement supervision, and roughly half of all prison admissions result from revocations of such terms. But scholars have yet …

The Perils Of Asian-American Erasure, Matthew P. Shaw

Vanderbilt Law School Faculty Publications

Affirmative action, particularly its most well-known variant, race-conscious college admissions practices, has long occupied a precarious position in constitutional jurisprudence of equal protection and statutory antidiscrimination law. As a policy matter, affirmative action practices are necessary to reduce the impact of durable structural barriers to opportunity that have been imposed on members of identifiable racial groups because of their race. Legally, they’re on far less secure footing.

As a constitutional matter, these measures have been summarily divorced from any reparative purpose since the “diversity rationale” emerged from Regents of the University of California v. Bakke as the only compelling interest …

Reasonable Classification Versus Equality Under The Indian Constitution, Jahnavi Sindhu, Vikram Aditya Narayan

National Law School Journal

This article critiques the standard of review most prominently applied in cases involving claims of violations of Article 14 of the Constitution: the reasonable classification test. We argue that this test is woefully inadequate in appreciating and protecting the wide-ranging nature of the right to equality. Through an examination of the origins of the reasonable classification test, we demonstrate the weak justifications initially advanced by the Indian judiciary to import it from dated United States (US) case law. Further, we highlight the substantial weaknesses of the test and explain how it precludes the judiciary from safeguarding the content of substantive …

Electoral Maintenance, Douglas M. Spencer

Publications

According to the U.S. Supreme Court, the right to vote is fundamental because it is preservative of all rights, and yet in many cases legal protections for the right to vote fall short of protections for the other rights that voting is meant to preserve. Redefining the right to vote cannot solve this problem alone. Election administration has at least as much consequence on the right to vote as any particular definition or legal theory. In Democracy’s Bureaucracy, Michael Morse draws our attention to one of the most important yet understudied issues of election administration: voter list maintenance. In addition …

Towards A Monist Constitutional Ideology? In Re: Article 370 Of The Constitution, Subordination Of Jammu And Kashmir, And The Supra-Constitutional Presidential Power, Zaid Deva

National Law School Journal

This case comment shows how the fascination for a certain form of a monist constitutional order, first articulated by the opposition during the Nehru years, was institutionalised in the form of a judicial discourse, culminating in the Article 370 judgement. At the heart of this discourse lay two imaginaries: (i) a subordinated Jammu and Kashmir (J&K) and (ii) an unbounded or supra-constitutional power vested in the Indian president to deal with J&K, freed of the express conditions precedent laid down in the proviso to Clause 3 of Article 370. In this case comment, I trace the continuities between these monist …

Originalism-By-Analogy And Second Amendment Adjudication, Joseph Blocher, Eric Ruben

Faculty Journal Articles and Book Chapters

In New York State Rifle & Pistol Ass’n v. Bruen, the Supreme Court held that the constitutionality of modern gun laws must be evaluated by direct analogy to history, unmediated by familiar doctrinal tests. Bruen’s novel approach to historical decision-making purported to constrain judicial discretion but instead enabled judicial subjectivity, obfuscation, and unpredictability. Those problems are painfully evident in courts’ faltering efforts to apply Bruen to laws regulating 3D-printed guns, assault weapons, large-capacity magazines, obliterated serial numbers, and the possession of guns on subways or by people subject to domestic-violence restraining orders. The Court’s recent grant of certiorari in United …

Covid-19, Free Exercise, And Most Favored Nation Status, Mark Strasser

Lewis & Clark Law Review

Commentators and some Justices suggest that religious activity is accorded a kind of Most Favored Nation status under free exercise guarantees—if a statutory exception is made for a relevantly similar secular activity, then an exception must also be made for religious activity. Such an approach would require a careful consideration of which secular activities were relevantly similar to religious activities to warrant protecting the latter. But the Most Favored Nation approach involves a mischaracterization of the past jurisprudence. Further, as is evidenced in the COVID cases, the U.S. Supreme Court does not engage in a nuanced consideration of which activities …

The Right To Migrate, Matthew J. Lindsay

Lewis & Clark Law Review

Since the late-19th century, the Supreme Court has insisted that the preservation of national sovereignty requires a constitutional chasm between immigration law and ordinary law. If the Court is to bridge that chasm, it must reimagine the longstanding premise of the federal immigration power that the presence of noncitizens in U.S. territory menaces the nation’s sovereignty and security. This Article contributes to that reimagining by chronicling a compelling alternative worldview with a venerable historical pedigree—that of a quintessentially American right to migrate.

During the Founding Era, American statesmen described the impoverished subjects of Europe’s monarchies as protagonists in an unfolding …

Abortion Localism And Preemption In A Post-Roe Era, Kaitlin Ainsworth Caruso

Lewis & Clark Law Review

In Dobbs v. Jackson Women’s Health Organization, the U.S. Supreme Court eliminated federal constitutional protections for abortion. Practically, a person’s access to abortion has long depended on where they live and where they can travel; that disparity is far worse now. In light of Dobbs, some states decisively changed their laws, often decimating abortion access. In other states, however, the law remains unclear; advocates are furiously lobbying and litigating to redefine their states’ standards. Amid this upheaval, one element of the new abortion landscape is underappreciated: how localities impact abortion access.

For decades, local governments have influenced access to abortion …

Recourse To Sages And Supermen: Interpreting The 1857 Oregon Constitution In Light Of The Convention’S Failure To Hire An Official Reporter, Nora Coon

Lewis & Clark Law Review

The lodestar of Oregon interpretive methodology is “legislative intent,” whether it is statutory or constitutional. But discerning that intent is often difficult and it is made even harder when there is a dearth of meaningful history. The Oregon Constitution is one such troublesome document. The Oregon Constitutional Convention of 1857 went against the trend of constitutional conventions in its era and failed to hire a reporter to document its proceedings, leaving that task to newspapers of varying political ideologies. The Oregon delegates, like their contemporaries, relied on four primary considerations: (1) the cost; (2) the importance of immediate publication; (3) …