Constitutional Law Commons^™

February 9, 2021: God And The Pandemic, Bruce Ledewitz

Hallowed Secularism

Blog post, “God and the Pandemic“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Constitutional Right Of The Individual In The Environment Between The Differences In Jurisprudence (Fiqh) And The Judiciary Orientations: First Section, Amira Badr

UAEU Law Journal

The individual and the environment are considered as an integrated unit that we cannot imagine the existence of one without the existence of the other, so the international community became more aware that the protection of the environment is necessary for its survival, that made both states and international organizations contribute efforts in order to develop their legislations to protect the environment from all forms of degradation, pollution and to ensure life in sound and stable environment; through development and concluding international agreements dealing with this issues.

With the existence of the individual rights in healthy environment appears in relevant …

Shikata Ga Nai: Statelessness And Sacrifice For Japanese-American Volunteers During The Second World War, Kenzo E. Okazaki

Swarthmore Undergraduate History Journal

Through a Philosophical analysis of the nature of Internment Camps as well as oral histories of veterans who volunteered to serve in the US military from the camps, this paper will argue that the internment of Japanese Americans during WWII was an event that the Supreme Court and surrounding legal discourse placed outside of legal jurisdiction. Those within the camps were thus condemned to a life lacking political qualification and juridical personhood. Faced with the dangers of this condition, interned Japanese Americans who served in the U.S. Army consciously laid claim to the American political community through the sacrifice of …

Is New York's Market-To-Market Act Unconstitutionally Retroactive?, Reuven S. Avi-Yonah, David Gamage, Darien Shanske, Kirk J. Stark

Articles

In this installment of Academic Perspectives on SALT, the authors argue that if New York’s proposed Billionaire Mark-to-Market Tax Act is enacted, it should be upheld against any constitutional challenge based on retroactivity.

The Constitution And Democracy In Troubled Times, John M. Greabe

Law Faculty Scholarship

Does textualism and originalism approach positively impact democracy?

February 5, 2021: New York Review Letter To The Editor Concerning Originalism, Bruce Ledewitz

Hallowed Secularism

Blog post, “ New York Review Letter to the Editor Concerning Originalism“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Introduction – 2019 Constitutional Cases At The Supreme Court: Up Close And In Person, Sonia Lawrence

Articles & Book Chapters

From the vantage point of Summer 2020, 2019 seems almost a mirage. The conditions created across Canada by government and individual responses to COVID-19 were all but unimaginable when 2019 drew to a close, and the legal issues that preoccupy those interested in constitutional and public law now revolve around rapidly evolving rules and policies designed to protect public goods like health and health care. Questions of profound significance to constitutional lawyers, such as the location of limits on state powers, the appropriate roles and relative competencies of courts and governments, the place of state law in creating the good …

A Separation Of Powers Analysis Of Forum Non Conveniens’ Adequate Available Forum, Jason S. Palmer

St. John's Law Review

(Excerpt)

“Boehner snubs [White House], invites Netanyahu to address Congress.” These words, or words remarkably similar, headlined newspapers all around the United States on January 21, 2015. Without consulting President Obama, House Speaker John Boehner invited Israeli Prime Minister Benyamin Netanyahu to address a joint session of Congress in opposition to the White House’s overtures to Iran with respect to its nuclear program. Speaker Boehner extended the invitation in apparent response to President Obama’s State of the Union Address, in which he informed Congress that any further economic sanctions bill against Iran at that time would be detrimental to ongoing …

Can I Have Some Privacy?: A Look Into The Unfortunate Truth Of Pregnancy Tests Throughout Sports And The Negative Impact On Female Athletes, Hannah Rogers

Jeffrey S. Moorad Sports Law Journal (1994 - )

No abstract provided.

The District Of Columbia Circuit Finds Article Iii Standing Based On The Risk Of Future Identity Theft In In Re U.S. Office Of Personnel Management Data Security Breach Litigation, Briana L. Borgolini

Villanova Law Review (1956 - )

No abstract provided.

On American Demagoguery To National Security, Jennifer Brumfield

University of Cincinnati Law Review

No abstract provided.

The Establishment Clause: Its Original Public Meaning And What We Can Learn From The Plain Text, Carl H. Esbeck

Faculty Publications

Modern times in church-state relations began in 1947 with the Supreme Court’s decision in Everson v. Board of Education. The justices in both the majority and dissent said they were interpreting the Establishment Clause based on the intent of the founding generation. However, rather than looking to Congress’s lawmaking in the summer of 1789 that led to the First Amendment, the justices relied on the Virginia disestablishment from four years prior, as well as the efforts of just two statesmen, James Madison and Thomas Jefferson.

For the next half century, the High Court’s search was for events and prominent …

Military Service And Offending Behaviors Of Emerging Adults: A Conceptual Review, Christopher Salvatore, Travis A. Taniguchi

Department of Counseling Scholarship and Creative Works

Focusing on the United States, this paper examines the impact of military service for the cohort of individuals that have experienced the social factors that characterize emerging adulthood as a unique stage in the life course. We argue that military service, as a turning point, may act differently in contemporary times compared to findings from past research. This difference is driven by changes in military service, the draft versus volunteer military service, and the prevalence of emerging adulthood. As a background, we describe emerging adulthood, examine how emerging adulthood relates to crime and deviance, explore the impact of military life …

Are We Still Not Saved? Race, Democracy, And Educational Inequality, Lia Epperson

Scholarly Articles in Law Reviews & Journals

Thirty-four years ago, in his seminal book, "And We Are Not Saved: The Elusive Quest for Racial Justice," Derrick Bell provided a critical view of American history and constitutional jurisprudence to illustrate the challenges the United States faces in reaching true equality. In his enlightened observations about the structure of our republic, Bell refers to “the American contradiction.” To see true progress toward meaningful equality, he contends, we must reckon with the challenging truth of our history—that we are a nation founded on this “constitutional contradiction”... In his work, Professor Bell argued that this American contradiction, “shrouded by myth,” serves …

Thirteenth Amendment Litigation In The Immigration Detention Context, Jennifer Safstrom

Michigan Journal of Race and Law

This Article analyzes how the Thirteenth Amendment has been used to prevent forced labor practices in immigration detention. The Article assesses the effectiveness of Thirteenth Amendment litigation by dissecting cases where detainees have challenged the legality of labor requirements under the Trafficking Victims Protection Act. Given the expansion in immigration detention, the increasing privatization of detention, and the significant human rights implications of this issue, the arguments advanced in this Article are not only currently relevant but have the potential to shape ongoing dialogue on this subject.

Whose Rights Matter More—Police Privacy Or A Defendant’S Right To A Fair Trial?, Laurie L. Levenson

Loyola of Los Angeles Law Review

The function of the prosecutor under the federal Constitution is not to tack as many skins of victims as possible to the wall. His function is to vindicate the right of the people as expressed in the laws and give those accused of crime a fair trial.

– William O. Douglas

The Coronavirus Pandemic Shutdown And Distributive Justice: Why Courts Should Refocus The Fifth Amendment Takings Analysis, Timothy M. Harris

Loyola of Los Angeles Law Review

The 2020 Coronavirus Pandemic and the ensuing shutdown of private businesses—to promote the public’ s health and safety— demonstrated the wide reach of state and local governments’ police power. Many businesses closed and many went bankrupt as various government programs failed to keep their enterprises afloat.

These businesses were shut down to further the national interest in stemming a global pandemic. This is an archetypal example of regulating for the public health—preventing a direct threat that sickened hundreds of thousands of Americans. But some businesses were disproportionately hit while others flourished. Many who bore the brunt of these regulations sued, …

Rethinking The Reasonable Response: Safeguarding The Promise Of Kingsley For Conditions Of Confinement, Hanna Rutkowski

Michigan Law Review

Nearly five million individuals are admitted to America’s jails each year, and at any given time, two-thirds of those held in jail have not been convicted of a crime. Under current Supreme Court doctrine, these pretrial detainees are functionally protected by the same standard as convicted prisoners, despite the fact that they are formally protected by different constitutional amendments. A 2015 decision, Kingsley v. Hendrickson, declared that a different standard would apply to pretrial detainees and convicted prisoners in the context of use of force: consistent with the Constitution’s mandate that they not be punished at all, pretrial detainees …

Anti-Modalities, David E. Pozen, Adam M. Samaha

Michigan Law Review

Constitutional argument runs on the rails of “modalities.” These are the accepted categories of reasoning used to make claims about the content of supreme law. Some of the modalities, such as ethical and prudential arguments, seem strikingly open ended at first sight. Their contours come into clearer view, however, when we attend to the kinds of claims that are not made by constitutional interpreters—the analytical and rhetorical moves that are familiar in debates over public policy and political morality but are considered out of bounds in debates over constitutional meaning. In this Article, we seek to identify the “anti-modalities” of …

Illiberalism And Authoritarianism In The American States, James A. Gardner

Journal Articles

Federalism contemplates subnational variation, but in the United States the nature and significance of that variation has long been contested. In light of the recent turn, globally and nationally, toward authoritarianism, and the concurrent sharp decline in public support not merely for democracy but for the philosophical liberalism on which democracy rests, it is necessary to discard or to substantially revise prior accounts of the nature of state-to-state variation in the U.S. All such accounts implicitly presuppose a common commitment, across the political spectrum, to the core tenets of democratic liberalism, and consequently that subnational variations in policy preferences and …