Constitutional Law Commons^™

Notes On Continental Constitutional Identities, Benjamen F. Gussen

Vanderbilt Journal of Transnational Law

Geo-constitutional analysis examines the reciprocal effect of geography on constitutions. Within this analysis, a continental constitutional identity focuses on the intersection between institutional geographies and institutional identities, where constitutions are understood as meta-institutions. In some constitutions, belonging to a continent is part of the national identity, while other constitutions only signal a non-geographic, usually an ethnic, identity. The US Constitution is an example of the former. The quintessential example of a non-geographic constitution is the Constitution of the Russian Federation. A similar disregard of continental identities can be found in Israel and the Arab League countries east of the Sinai …

Court Reform And The Promise Of Justice: Lessons From Reconstruction, David H. Gans

Lewis & Clark Law Review

The Supreme Court is broken. How should we fix it? This Article argues that Reconstruction, a period in American history when the role of the Supreme Court in American life was hotly debated and Congress repeatedly took steps to reform the courts, provides important and underappreciated lessons.

Reconstruction’s model makes clear that when the Supreme Court runs roughshod over constitutional rights, Congress need not sit on the sidelines. Rather, the Constitution gives it powerful tools of reform. Congress can (1) change the composition of the Court, (2) alter its jurisdiction and regulate its proceedings, and (3) use its express enforcement …

Freedom Not To See A Doctor: The Path Toward Over-The-Counter Abortion Pills, Lewis Grossman

Scholarly Articles in Law Reviews & Journals

American courts and lawmakers are engaged in an epic struggle over the fate of abortion pills. While some anti-abortion activists are attempting to drive the pills off the market entirely, supporters of reproductive rights are striving to make them more easily accessible. This Article advances the latter mission with a bold proposal: FDA should consider allowing abortion pills to be sold over the counter (OTC). Abortion rights supporters argue that FDA should repeal the special distribution and use restrictions it unnecessarily imposes on mifepristone, one of two drugs in the medication abortion regimen. Even if FDA removed these restrictions, however, …

Confidentiality Over Privacy, Stacey A. Tovino

Faculty Articles

No abstract provided.

Necessary Necessity: Courts’ Historical Assessment Of The Condition Precedent For Martial Law, Eric Merriam

Oklahoma Law Review

No abstract provided.

Law And Redemption: Expounding And Expanding Robert Cover’S Nomos And Narrative, Samuel J. Levine

Scholarly Works

This Article explores two interrelated themes that distinguish much of Robert Cover's scholarship: reliance on Jewish sources and the redemption of American constitutionalism. Two pieces of Cover's, Nomos and Narrative and Bringing the Messiah Through the Law: A Case Study, explore these themes, providing complementary views on the potential and limitations of the redemptive power of law. In Nomos and Narrative, Cover develops a metaphor of the law as a bridge, linking the actual to the potential. Bringing the Messiah Through the Law: A Case Study extends the metaphor through the lens of Jewish legal history. Building on Cover's foundation, …

Gouverneur Morris And The Drafting Of The Federalist Constitution, William M. Treanor

Georgetown Law Faculty Publications and Other Works

The Salmon P. Chase Colloquium series has had two themes: One is great moments in constitutional law, and the other is people who have been forgotten but should not have been. This colloquium is primarily in the latter category—it is about a forgotten founder of the Constitution. But the Constitution has more than one forgotten founder. I did a Google search this afternoon for “Forgotten Founder” and there are a whole series of books on various people who are the Constitution’s Forgotten Founder. So the Chase Colloquium series has another decade of subjects: Luther Martin, George Mason, Charles Pinckney, Roger …

Genealogy Sites And Adoptions–Connecting Families Or Ruining Them?, Taylor Bialek

Touro Law Review

No abstract provided.

The Paradoxes Of A Unified Judicial Philosophy: An Empirical Study Of The New Supreme Court, 2020-2022, Victoria Frances Nourse

Georgetown Law Faculty Publications and Other Works

The 2021 Supreme Court Term ended with a bang, yielding blockbuster cases making headlines. But what of the rest of the cases? This is the first major paper to examine the “Trump effect,” meaning the influence of three Justices appointed by President Trump who all share a “unified” judicial philosophy. In a two-year project, starting from 2020, when Justice Barrett ascended to the Court, to the end of June 2022, this article reviews 124 cases and over 300 opinions. There is both good and bad news for the court’s new “unified” judicial philosophy. History and text are both upwardly mobile …

The Rule Of Law Under Challenge: The Enmeshment Of National And International Trends, Gregory Shaffer, Wayne Sandholtz

Georgetown Law Faculty Publications and Other Works

The goal of the rule of law is to protect individuals from the arbitrary exercise of power. Democracy and human rights depend on the rule of law. But today the rule of law is under growing threat in the United States and around the world. Trends regarding rule-of-law protections are transnational in scope. They involve shifting norms, institutions, and practices at the local, national, and international levels. This paper assesses how challenges are taking place at the international and national levels, and how these challenges are linked. It examines the ways in which international law and institutions are important for …

Executive Branch Control Of Federal Grants: Policy, Pork, And Punishment, Eloise Pasachoff

Georgetown Law Faculty Publications and Other Works

High-profile controversies in each of the last several administrations have involved the extent of Executive Branch control over federal grants. These challenges were particularly pronounced during the Trump Administration, when it seemed that each month brought a new grant-related controversy, from the opening week’s attempts to withhold funding from sanctuary cities to the last months’ effort to deny funding to “anarchist” jurisdictions. The aftermath of the Trump Administration thus provides an important opportunity to assess the bounds of Executive Branch control over federal grants writ large. In doing so, this Article makes three contributions. First, as a descriptive matter, it …

The Originalist Jurisprudence Of Justice Samuel Alito, J. Joel Alicea

Scholarly Articles

Since Justice Alito’s appointment to the Supreme Court in 2006, constitutional theorists have struggled with how to characterize his approach to constitutional adjudication. Many scholars have argued that “Justice Alito is not to any significant extent an originalist” but is, instead, “a methodological pluralist” who uses both originalist and non-originalist tools of constitutional adjudication. Others have contended that “Justice Alito’s jurisprudence is originali[st], though not in the traditional sense.”

Mysterizing Religion, Marc O. Degirolami

Scholarly Articles

In this short essay, I suggest that "mysterizing" religion may change the stakes in some of the most controversial contemporary conflicts in law and religion. To mysterize (not a neologism, but an archaism) is to cultivate mystery about a subject, in the sense described above-to develop and press the view that a certain subject or phenom-enon is not merely unknown, but unknowable by human beings. At the very least, such mysteries are unknowable by those human beings who have charge of the secular legal order of earthly human affairs, Paul's "princes of this world." That is what I propose to …

Traditionalism Rising, Marc O. Degirolami

Scholarly Articles

Constitutional traditionalism is rising. From due process to free speech, religious liberty, the right to keep and bear arms, and more, the Court made clear in its 2021 term that it will follow a method that is guided by “tradition.”

This paper is in part an exercise in naming: the Court’s 2021 body of work is, in fact, thoroughly traditionalist. It is therefore a propitious moment to explain just what traditionalism entails. After summarizing the basic features of traditionalism in some of my prior work and identifying them in the Court’s 2021 term decisions, this paper situates these recent examples …

Establishment As Tradition, Marc O. Degirolami

Scholarly Articles

Traditionalism is a constitutional theory that focuses on concrete political and cultural practices, and the endurance of those practices before, during, and after the ratification of the Constitution, as the presumptive determinants of constitutional meaning and constitutional law. The Supreme Court has long interpreted traditionally but now says explicitly that it uses a method of “text, history, and tradition” in several areas of constitutional law. Foremost among these is the Establishment Clause. This Essay examines two questions about traditionalism, both of which concern the Establishment Clause in distinct but related ways. First, why has traditionalism had special salience in this …

Sincerity, Subjectivity & Religion: The Evolution Of Rfra From A Constitutional Shield To A Political Sword, Emily Kathryn Tubb

Oklahoma Law Review

No abstract provided.

Legitimate State Interest Or Educational Censorship: The Chilling Effect Of Oklahoma House Bill 1775, Jennie A. Hill

Oklahoma Law Review

No abstract provided.

Critical Erase Theory: The Assault On Public School Curriculum, Brooks R. Cain

Oklahoma Law Review

No abstract provided.

A Week To Prep, Two Minutes To Talk, And Two Days To Move: Why Oklahoma’S Eviction Courts Are Out Of Step With The Constitution, Adam H. Hines

Oklahoma Law Review

No abstract provided.

A Meditation On The Thirteenth Amendment And Constitutional Redemption, Darrell A. H. Miller

Faculty Scholarship

No abstract provided.