Constitutional Law Commons^™

Removal Of Context: Blackstone, Limited Monarchy, And The Limits Of Unitary Originalism, Jed H. Shugerman

Faculty Scholarship

The Supreme Court's recent decisions that the President has an unconditional or indefeasible removal power rely on textual and historical assumptions and a “removal of context.” This article focuses on the “executive power” part of the Vesting Clause and particularly the unitary theorists' misuse of Blackstone. Unitary executive theorists overlook the problems of relying on England’s limited monarchy: the era’s rise of Parliamentary supremacy over the Crown and its power to eliminate or regulate (i.e., make defeasible) royal prerogatives. Unitary theorists provide no evidence that executive removal was ever identified as a “royal prerogative" or a default royal power. The …

Nomos And Nation: On Nation In An Age Of "Populism", John Valery White

Scholarly Works

Robert Cover's Nomos and Narrative points to the need to recognize a second, novel dimension for understanding rights. His concept of nomos, applied to competing notions of nation in pluralistic societies, suggests that the current dimension for understanding rights, which conceives of them fundamentally as protections for the individual against the state, is too narrow. Rather a second dimension, understanding rights of individuals against the nation, and aimed at ensuring individuals' ability to participate in the development of an idea of nation, is necessary to avoid "a total crushing of the jurisgenerative character" of nomoi by the state, or by …

What Did Those Sixteen Justices Say?, Leslie C. Griffin

Scholarly Works

Everyone is finally noticing that the current Supreme Court is changing its jurisprudence on religious freedom. The commentators are finally paying more attention to the fact that seven of the Court's current Justices were raised Catholic. What role have Catholics played in the Supreme Court's history? This article traces their contributions on religious freedom and civil rights, starting with Chief Justice Taney and ending with Justice Barrett.

Regulatory Constitutional Law: Protecting Immigrant Free Speech Without Relying On The First Amendment, Michael Kagan

Scholarly Works

No abstract provided.

Supreme Risk, Benjamin P. Edwards

Scholarly Works

While many have discussed the social issues that might arise because of a majority-conservative Supreme Court, one critical consequence of the current Court has been overlooked: the role of the Court in generating or avoiding systemic risk. For some time, systemic financial risk has been regulated by a mix of self-regulatory organizations (SROs), such as the Depository Trust Corporation, and federal regulators such as the Financial Stability Oversight Council (FSOC). However, the Court's recent jurisprudence now creates real risk that federal courts will declare keystone SROs unconstitutional because they do not fit neatly into an eighteenth-century constitutional framework.

SROs are …

The Constitutional Costs Of School Policing, Maryam Ahranjani, Natalie Saing

Scholarly Works

Responding to fears of violence and liability on K-12 campuses, local school boards and superintendents have made on-site or embedded school police omnipresent in American public schools. Yet, very little attention is paid to the many costs associated with their presence. When situating law enforcement's presence squarely in the racist history of policing and school policing the juxtaposition with the civic purpose of public education reveals significant constitutional costs. This Article builds on existing scholarship by bringing attention to the conflict between the First, Fourth, Fifth, Eighth, and Fourteenth Amendments and the dimensions of embedded school police. Ultimately, schools must …

Making Privacy Injuries Concrete, Peter Ormerod

Washington and Lee Law Review

In recent years, the U.S. Supreme Court has repeatedly said that the doctrine of Article III standing deprives the federal courts of jurisdiction over some lawsuits involving intangible injuries. The lower federal courts are carrying out the Supreme Court’s instructions, and privacy injuries have borne the brunt of the Court’s directive. This Article identifies two incoherencies in the Court’s recent intangible injury decisions and builds on the work of privacy scholars to fashion a solution.

The first incoherency is a line-drawing problem: the Court has never explained why some intangible injuries create an Article III injury in fact while others …

Taking Justification Seriously: Proportionality, Strict Scrutiny, And The Substance Of Religious Liberty, Stephanie H. Barclay, Justin Collings

Journal Articles

Last term, five Justices on the Supreme Court flirted with the possibility of revisiting the Court’s First Amendment test for when governments must provide an exemption to a religious objector. But Justice Barrett raised an obvious, yet all-important question: If the received test were to be revised, what new test should take its place? The competing interests behind this question have be-come even more acute in light of the COVID-19 pandemic. In a moment rife with lofty rhetoric about religious liberty but riven by fierce debates about what it means in practice, this Article revisits a fundamental question common to …

Treaties In The Philippine Constitutional System, Diane A. Desierto

Journal Articles

From the Article Abstract

International law has always had a dual significance to the Philippine constitutional system. On the one hand, the frequent articulation of international law principles within modern Philippine constitutional norms, statutes, and administrative rules demonstrate an outward-looking normative ethos – one I have described in other scholarship to be consistent with the 1987 Philippine Constitution’s ‘universalist history’. On the other hand, the considerable volume of Philippine jurisprudence applying international law norms to date overwhelmingly illustrate how Philippine litigants have strategically deployed international law (most especially international human rights law) over the years, as an acceptable external legal …

Defining “Substantial Burdens” On Religion And Other Liberties, Sherif Girgis

Journal Articles

The U.S. Supreme Court seems poised to restore free exercise exemptions from neutral laws that burden religion. But pivotal Justices have asked how to narrow religious exemptions. This Article proposes answers with wide-ranging implications for the future—and limits—of free exercise, and for the doctrine on other liberties.

To date, courts applying exemptions from “substantial burdens” on religion have tended to narrow protections to the detriment of religious minorities. But many fear that expanding exemptions would over-protect Christians in culture-war cases.

Striking a balance will require a sound definition of “substantial burdens.” But the current, strongly pro-religion Court will not impose …

Concrete Reliance On Stare Decisis In A Post-Dobbs World, Michael Gentithes

Akron Law Faculty Publications

This Article will describe two ways in which Dobbs v. Jackson Women’s Health Organization has muddied the Supreme Court’s precedent on precedent. First, it will examine how the Court’s decision to overrule Planned Parenthood of Southeastern Pennsylvania v. Casey undermines not only its substantive due process holding, but also its status as a precedent on precedent. Without Casey in place, Dobbs further elevates a weakened version of stare decisis that has been ascendant on the Court in recent decades, one which threatens to undermine legal stability in all areas of constitutional law. Second, the Article will examine the Dobbs majority’s …

Sex, Money, And Free Speech: The Many Harms Of Fosta/Sesta, Desmond Mantle

CMC Senior Theses

This thesis tracks the development of the Fight Online Sex Trafficking Act/Stop Enabling Sex Traffickers Act, or FOSTA/SESTA, which became federal law in 2018. The law's passage followed as a natural consequence of popular concerns about human trafficking. Congress passed the legislation by large margins in both houses given bipartisan opposition to sex trafficking. This thesis identifies plausible reasons for the only two Senate votes against the bill: those of Senators Rand Paul and Ron Wyden. Though these senators came from opposite sides of the aisle, they shared concerns about the future of free speech online and the potential failure …

Survival Voting And Minority Political Rights, Douglas M. Spencer, Lisa Grow Sun, Brigham Daniels, Chantel Sloan, Natalie Blades

American University Law Review

The health of American democracy has literally been challenged. The global pandemic has powerfully exposed a long-standing truth: electoral policies that are frequently referred to as “convenience voting” are really a mode of “survival voting” for millions of Americans. As our data show, racial minorities are overrepresented among voters whose health is most vulnerable, and politicians have leveraged these health disparities to subordinate the political voice of racial minorities.

To date, data about racial disparities in health has played a very limited role in assessing voting rights. A new health lens on the racial impacts of voting rules would beneficially …

Misinformation About Marijuana: Commercialization, Consolidation, And The New First Amendment, David Angelatos

American University Law Review

From “Reefer Madness” to “This Is Your Brain on Drugs,” Americans have lived through decades of anti-cannabis propaganda. Legalization is poised to turn this information environment on its head, unleashing a torrent of corporate-funded, pro-cannabis misinformation that regulators cannot prevent or dispel. This appears to be a problem caused by the Supreme Court’s creation and expansion over the past fifty years of First Amendment protections for corporate and commercial speech. Although these doctrines contribute substantially to the problem, this Article shows how it originates in lax antitrust policy rather than expansive First Amendment jurisprudence.

If Congress follows current legalization trends …

Setting The Record Straight: Why Threats Of Physical Violence Made Towards Inmates Violate The Eighth Amendment, Alyssa M. Knappins

Roger Williams University Law Review

No abstract provided.

Rhode Island And Sports Law, Adam Epstein

Roger Williams University Law Review

No abstract provided.

Keeping Our Republic, Ashlee A. Paxton-Turner

Law Faculty Publications

In championing the Constitution at a time when most Americans hardly felt any national allegiance, Alexander Hamilton insisted on “think[ing] continentally.” In other words, if the fledging nation were going to survive, the loose confederation of states formed under the Articles of Confederation was not the answer. For many Americans in 1787, the idea of abandoning  this loose confederation was a hard sell. But Hamilton, along with James Madison and John Jay, understood that a new structure of government was needed. And it is here—with this colonial trio—that our story begins. ...

State V. Depina, 245 A.3d 1222 (R.I. 2021), Christopher Minicucci

Roger Williams University Law Review

No abstract provided.

Ten Years Later, Prea Does Not Live Up To Its Goal: Amending The Statute To Reduce Discriminatory Violence Against Transgender Prisoners, Carla Aveledo

Roger Williams University Law Review

No abstract provided.

2021 Surveys Of Rhode Island Law

Roger Williams University Law Review

No abstract provided.