Constitutional Law Commons^™

A Rapid And Accurate Pcr Test For Constitutionality Of Covid-19 Vaccine Mandates: The Appropriate Standard Of Review Adopted By Klaassen V. Trustees Of Indiana University, Natalie Anderson

Villanova Law Review (1956 - )

No abstract provided.

Granting A Hall Pass To Public School Educators: How The Fifth Circuit's Decision In T.O.V. Fort Bend Independent School District Highlights The Inadequate Constitutional Curriculum For Academic Corporal Punishment, Jessica Whelan

Villanova Law Review (1956 - )

No abstract provided.

Tax Incentives In Three Common Markets, Sarah Khaled Alsultan

Georgia Journal of International & Comparative Law

There are three approaches to dealing with tax incentives within common markets: permit them, limit them, or harmonize them. Broadly speaking, the United States (U.S.) follows the first approach, the European Union (EU) adopts the second, and the Gulf Cooperation Council (GCC) pursues the third by harmonizing some tax incentives, particularly those offered to the industrial sector. Unlike the U.S. and EU common markets, where incentives have gained significant scholarly attention, no academic literature exists on the legal framework of tax incentives in GCC common market. This work attempts to compensate for this insufficiency in scholarship and compares the three …

Constitutionalism In The Land Of The Peaceful Thunder Dragon: The Kingdom Of Bhutan's Marbury Moment, Markus G. Puder, Ngawang Choden

Georgia Journal of International & Comparative Law

No abstract provided.

The Dream Of The Common Good: Not A Nightmare, Jackson Gregory Dellinger

Honors Theses

This paper examines an emerging position in the philosophy of law, common-good constitutionalism. In the first two parts of the paper, I explain the position and constitutionalism more generally, examining how common-good constitutionalism fits within the definition of constitutionalism providing by a neutral scholar. In the next five parts, I attempt to show that common-good constitutionalism’s preference for explicit adherence to the common good does not violate constitutionalism. In doing so, I provide an examination of common-good constitutionalism’s relationship with three important constitutional principles and the separability of common-good constitutionalism as a whole and the infamous views of its most …

Symposium: Sexual Orientation, Gender Identity & The Constitution: American Constitutions And Artificial Insemination Births, Jeffrey A. Parness

ConLawNOW

Childcare parentage issues arising from assisted reproduction births are subject to constitutional guidance, including due process, equal protection, and privacy dictates. Constitutional rights, however, sometimes go unrecognized in assisted reproduction laws, particularly for same sex couples, wed and unwed, as well as for single women. Upon a brief review of contemporary American state assisted reproduction laws, current and future constitutional precedents are explored. This analysis shows that constitutional, as well as public policy, reforms are particularly needed for same-sex female couples and single women employing assisted reproduction as intended parents.

Chapter One Foundation Limited And 2 Others V The Attorney General 2020/Ccz/0013 [2021], Florence Chumpuka, Mbaka Wadham

SAIPAR Case Review

If Zambia is to achieve gender parity and the representation of youth and persons with disabilities in politics, the Constitutional Court must be committed to: a) interpreting the Constitution in a manner which aligns with the principles and values set out in the Constitution, and b) Constitutional Court needs to offer extensive well-reasoned analysis of the Constitution within context of the laws’ purpose.

Mubita Mwananuka V Armaguard Security Caz Appeal No. 201/2021, O'Brien Kaaba

SAIPAR Case Review

The Court of Appeal of Zambia, in the case of Mubita Mwananuka v Armaguard Security CAZ Appeal No. 201/2021, delivered a Ruling on 3rd August 2022 to divest the High Court General List of jurisdiction over employment matters. I argue that this decision is in clear violation of the Constitution and demonstrates bewildering disregard of precedents by the Supreme Court and the Constitutional Court, which bind the Court of Appeal.

Taking (Equal Voting) Rights Seriously: The Fifteenth Amendment As Constitutional Foundation, And The Need For Judges To Remodel Their Approach To Age Discrimination In Political Rights, Vikram D. Amar

Notre Dame Law Review

This Essay explores the relationship between twentieth-century voting-discrimination amendments and the Fifteenth Amendment’s antidiscrimination groundwork on which these later developments built. In particular, it examines ways in which the Twenty-Sixth Amendment, whose text and ratification conversations tightly track those of the Fifteenth Amendment, has been underimplemented, if not completely ignored, in recent debates and cases that are ever-more crucial to the meaning of political-rights equality under the Constitution. It ends by urging courts to take more seriously the similarities between the Twenty-Sixth and Fifteenth Amendments in adjudicating disputes involving facial or de facto age discrimination in political rights realms.

The Work Is Not Done: Frederick Douglass And Black Suffrage, Bradley Rebeiro

Notre Dame Law Review

Since antiquity, political theorists have tried to identify the proper balance between ideals and pragmatism in political and public life. Machiavelli and Aristotle both offered prudence as an approach, but with different ends in mind: stability and the good, respectively. Among the many contributions Kurt Lash’s two-volume set on the Reconstruction Amendments provides to present-day discourse, it supplies the careful reader an answer to this timeless question by highlighting the role of Frederick Douglass in public deliberation over the Fifteenth Amendment. In this Essay I argue that Amer-ican abolitionist, social reformer, and statesman Frederick Douglass illustrates and enacts the Aristotelian …

The Incorporation Of The Republican Guarantee Clause, Jason Mazzone

Notre Dame Law Review

This Article makes the case for understanding the Fourteenth Amendment to incorporate the Republican Guarantee Clause of Article IV. Incorporation shifts the focus of the Guarantee Clause from the interests of states to the interests of citizens; from protecting popular sovereignty as a political ideal to safeguarding more specifically rights that citizens hold and exercise in a republican system. Once incorporated, the Guarantee Clause should be understood to require states themselves to maintain a republican form of government and to act to correct departures from republicanism within their own governing arrangements. In addition, an incorporated Guarantee Clause informs the meaning …

The Lawfulness Of The Fifteenth Amendment, Travis Crum

Notre Dame Law Review

One of the most provocative debates in constitutional theory concerns the lawfulness of the Reconstruction Amendments’ adoptions. Scholars have contested whether Article V permits amendments proposed by Congresses that excluded the Southern States and questioned whether those States’ ratifications were obtained through unlawful coercion. Scholars have also teased out differences in how States were counted for purposes of ratifying the Thirteenth and Fourteenth Amendments. This debate has focused exclusively on the Thirteenth and Fourteenth Amendments, dismissing the Fifteenth Amendment as a mere sequel.

As this Essay demonstrates, the Fifteenth Amendment’s ratification raises unique issues and adds important nuance to this …

The Role Of Emotion In Constitutional Theory, J. Joel Alicea

Notre Dame Law Review

Although the role of emotion in law has become a major field of scholarship, there has been very little attention paid to the role of emotion in constitutional theory. This Article seeks to fill that gap by providing an integrated account of the role of emotion within the individual, how emotion affects constitutional culture, and how constitutional culture, properly understood, should affect our evaluation of major constitutional theories.

The Article begins by reconstructing one of the most important and influential accounts of emotion in the philosophical literature: that of Thomas Aquinas. Because Aquinas’s description of the nature of emotion accords …

Brown, History, And The Fourteenth Amendment, Christopher W. Schmidt

Notre Dame Law Review

Legal scholars and historians in recent years have sought to elevate Reconstruction to the stature of a “second Founding,” according it the same careful inquiry and legitimating function as the first. Their work marks the latest iteration of a decades-long campaign to displace the far more dismissive attitude toward Reconstruction that permeated historical scholarship and legal opinions in the first half of the twentieth century. In this Article, I present the flurry of engagement with the history of the Fourteenth Amendment during the litigation of Brown v. Board of Education (1954) as a key transition point in how historians and …

Freedom Seekers: The Transgressive Constitutionalism Of Fugitives From Slavery, Rebecca E. Zietlow

Notre Dame Law Review

In the years leading up to the Civil War, fugitives from slavery put their lives on the line to improve their own status and that of their families in their quest for freedom. Fugitives from slavery, or “freedom seekers,” engaged in civil disobedience, resisting laws that they believed to be unjust and inhumane. In the North, free black people and their white allies supported the freedom seekers by engaging in civil disobedience of their own. The transgressive actions of freedom seekers sparked constitutional controversy during the antebellum era over issues of interstate comity, federalism, citizenship rights, and fundamental human rights. …

The Intent Of The Framer: John Bingham’S Fourteenth Amendment, Michael Zuckert

Notre Dame Law Review

It is not often that a single individual is responsible for constitutional provisions as important as Sections 1 and 5 of the Fourteenth Amendment. My project in this Essay is not to engage in a study of original intent, or original public meaning, or however we wish now to characterize the originalist project, but to engage in a quest for John Bingham’s Amendment, for understanding the Amendment as he understood it. Whether this gives us an authoritative reading of the Amendment for the purposes of constitutional interpretation and adjudication is a separate issue. I treat Bingham as an author and …

How Favored, Exactly? An Analysis Of The Most Favored Nation Theory Of Religious Exemptions From Calvary Chapel To Tandon, Luray Buckner

Notre Dame Law Review

In this Note, I argue that Justice Kavanaugh’s most favored nation test for religious exemptions actually differs from the one employed by the majority of the Court in Tandon. The majority’s formulation of the test is vague and explicitly requires courts to engage in a fact-intensive comparability analysis. Practically, lower courts applying Tandon to religious exemption questions have exploited this comparability step to rule against religious claimants generally, but more specifically to deny them strict scrutiny. Because the Tandon test was formulated to apply to all free exercise claims, the test is necessarily framed in more general terms and …

A Sixth Amendment Inclusionary Rule For Fourth Amendment Violations, Scott W. Howe

Connecticut Law Review

Early in the tenure of Chief Justice Roberts, a five-Justice majority of the Supreme Court signaled that it was ready to consider eliminating the exclusionary rule as a remedy for Fourth Amendment violations. The central concern was that, even after decades of limiting the rule through new exceptions, it purportedly lacked utility in balancing protections against the competing dangers of crime and police abuse, the only rationale on which it has been grounded in the modern era. That existential reappraisal never openly occurred, and the exclusionary rule, in further reduced form, still survives. Yet, given the Court’s recent conservative shift, …

Evaluating The Constitutionality Of Marital Status Classifications In The Regulation Of Posthumous Reproduction And Postmortem Sperm Retrieval, Alison Jane Walker

Connecticut Law Review

In Eisenstadt v. Baird, the Supreme Court held that a state law prohibiting the provision of contraceptives to unmarried persons violated the Fourteenth Amendment’s rational basis test because of the disparate treatment it afforded to married and unmarried individuals. Eisenstadt stands for an individual’s right to make their own procreative decisions, free from governmental intrusions which impose arbitrary classifications on privacy and freedom. This Note focuses on posthumous reproduction and, more specifically, postmortem sperm retrieval: the process of using a deceased male’s frozen sperm after his death to produce his biological children at the request of his spouse or intimate …

Inadequate Healthcare, Inadequate Recovery: Exploring The Challenges Of Compensating Pregnant Inmates Deprived Of Adequate Healthcare At State Prisons, Katherine Mckeon

Connecticut Law Review

Prenatal healthcare services available to pregnant inmates in state prisons are wholly inadequate. Despite the glaring shortcomings of state prisons’ healthcare services, there has still only been limited attention paid to rectifying the problem. This lack of attention is problematic for many reasons, but especially because the number of women in prisons has increased in recent decades and inmates who are pregnant when they arrive to prison face conditions that risk extreme health condition.

Not only are pregnant inmates subjected to inadequate healthcare services, but they also have very few legal remedies available to them when they have been deprived …