Constitutional Law Commons^™

Negative Freedom In Crisis Times, Leslie Francis

Utah Law Faculty Scholarship

Contemporary U.S. jurisprudence thus treats public health orders requiring masks or limiting attendance at religious services as conflicts between individual freedoms and the public safety. Courts have left unquestioned the scope of individual liberties. Choices about whether to cover one’s face or attend religious services are not, however, fully analogous to protections from physical injury by others. Instead, they are choices that may result in risks to others. It is thus at least open to question whether they are within the scope of protected individual liberties in the first place. The scope of personal liberty—whether liberty is distinct from license—is …

Constitutional Revolution: A Path Towards Equitable Representation, Chris Chambers Goodman

Maryland Law Review

No abstract provided.

Persuasion About/Without International Law: The Case Of Cybersecurity Norms, Steven R. Ratner

Book Chapters

International law on cybersecurity is characterized by at best a thin consensus on the existence of rules, their meaning, and the desirability and content of new rules. This legal landscape results in a unique pattern of argumentation and persuasion by states and non-state actors both in advocating for a regulatory scheme for cyber activity and in reacting to malicious cyber acts. By examining argumentation in the absence of a generally agreed legal framework, this chapter seeks to provide new insights into the motivations for and effects of international legal argumentation in shaping debates and behavior. After describing the legal landscape …

Cases And Materials On West Virginia Constitutional Law, Robert M. Bastress Jr.

Open Access Law Books

No abstract provided.

Foreword, Richelle Joy Gernan, Cecilia Salem

UC Law Constitutional Quarterly

No abstract provided.

Against Equality: A Critical Essay For The Naacp And Others, Richard Delgado, Jean Stefancic

UC Law Constitutional Quarterly

We address a recurring problem in movement scholarship and activism: why do some civil rights organizations persist in promoting themselves as advocates of equal protection when street activists rarely mention it, and lawyers know that litigation brought under that clause almost always loses? Try to recall the last time you heard of a street protest by a group—say Mexican-American school children in Tucson, Arizona, Black victims of police violence, or military women subjected to sexual harassment— proceeding under the banner of equal protection. Or think when you last read of a lawyer who brought and won a case for a …

A Push For An Egalitarian Constitution, Richelle Joy Gernan

UC Law Constitutional Quarterly

No abstract provided.

American Imperialism In Hawai’I: How The United States Illegally Usurped A Sovereign Nation And Got Away With It, Noelani Nasser

UC Law Constitutional Quarterly

In 1778, England’s Captain Cook first landed on the Hawaiian Islands. Since then, the Native Hawaiians have struggled to maintain their indigenous identity as distinct from the outside world and indigenous to Hawai’i. In the one thousand years preceding this early invasion, Native Hawaiians established unique political structures and cultural identities that were not present in England or the newly independent United States. Following the United States’ overthrow of the Hawaiian monarchy in 1893, the United States quickly enacted legislation that severely impacted the Native Hawaiians. This paper will discuss historical events in Hawai’i from 1778 to the twenty-first century …

Canada’S Amendment Rules: A Window Into The Soul Of A Constitution - Review Essay Of Richard Albert, Constitutional Amendments: Making, Breaking, And Changing Constitutions, Jamie Cameron

Articles & Book Chapters

This Review Essay forms part of a special issue of the Manitoba Law Journal (forthcoming) dedicated to Richard Albert, Constitutional Amendments: Making, Breaking, and Changing Constitutions. Years in the making, Constitutional Amendments explains how amendment rules define a constitution’s integrity, ensuring its longevity by allowing and even inviting formal changes to its text. Albert’s work is prodigious and monumental, connecting abstract issues of textual design to the follies of constitutional amendment over diverse variables of time and place. This Review focuses selectively on Constitutional Amendments and its implications for Canadian amendment constitutionalism, exploring Albert’s view that amendment rules expose …

School “Safety” Measures Jump Constitutional Guardrails, Maryam Ahranjani

Scholarly Works

In the wake of George Floyd's murder and efforts to achieve racial justice through systemic reform, this Article argues that widespread "security" measures in public schools, including embedded law enforcement officers, jump constitutional guardrails. These measures must be rethought in light of their negative impact on all children and in favor of more effective-and constitutionally compliant-alternatives to promote school safety. The Black Lives Matter, #DefundthePolice, #abolishthepolice, and #DefundSchoolPolice movements shine a timely and bright spotlight on how the prisonization of public schools leads to the mistreatment of children, particularly children with disabilities, boys, Black and brown children, and low-income children. …

The People's Court: On The Intellectual Origins Of American Judicial Power, Ian C. Bartrum

Scholarly Works

This article enters into the modern debate between "constitutional departmentalists"-who contend that the executive and legislative branches share constitutional interpretive authority with the courts-and what are sometimes called "judicial supremacists." After exploring the relevant history of political ideas, I join the modern minority of voices in the latter camp.

This is an intellectual history of two evolving political ideas-popular sovereignty and the separation of powers-which merged in the making of American judicial power, and I argue we can only understand the structural function of judicial review by bringing these ideas together into an integrated whole. Or, put another way, we …

Distributed Federalism: The Transformation Of Younger, Anne R. Traum

Scholarly Works

For decades federal courts have remained mostly off limits to civil rights cases challenging the constitutionality of state criminal proceedings. Younger abstention, which requires federal courts to abstain from suits challenging the constitutionality of pending state prosecutions, has blocked plaintiffs from bringing meritorious civil rights cases and insulated local officials and federal courts from having to defend against or decide them. Younger’s reach is broad. It has forced political protestors (from the Vietnam era to Black Lives Matter) to challenge the constitutionality of their arrests and prosecutions within their state criminal proceedings. The doctrine also has made it difficult to …

Communities Of Interest In Colorado Redistricting, David Willner

University of Colorado Law Review

Part I of this Article will provide background on redistricting in Colorado, including an overview of recent developments regarding the establishment of an independent commission. Part II will describe the two federal constitutional requirements for redistricting and then explore the state-specific redistricting criteria used in Colorado. Part III includes a geographic profile of the distinct regions of Colorado and then delves into an examination of how communities of interest have been increasingly used in Colorado redistricting during three of the past four redistricting cycles. Part IV of this Article will critique the use of communities of interest and focus on …

Expanding The Administrative Record: Using Pretext To Show "Bad Faith Or Improper Behavior", Laura Boyer

University of Colorado Law Review

This Comment argues that courts should more readily permit extra-record discovery when preliminary signs of pretext strongly suggest "bad faith and improper behavior" by agency decision-makers. 3 1 Section L.A sets the scene by describing the basic mechanics of litigation challenging agency decisions. Section I.B shifts focus by examining two recent Supreme Court decisions that illustrate the Court's struggle to review executive action where an agency seems to have offered a pretextual justification. Part II then shows how agencies' reliance on pretextual justifications is becoming a growing and serious problem-especially within the Trump Administration-and describes a 2017 decision by the …

Contesting The Legacy Of The Nineteenth Amendment: Abortion And Equality From Roe To The Present, Mary Ziegler

University of Colorado Law Review

Beyond the question of suffrage, the Nineteenth Amendment raised the issue of what it would take for women in America to achieve equal citizenship. The meaning of both the Nineteenth Amendment and equality for women remain especially contested in broader conflicts about abortion-and of how those conflicts have changed in fundamental ways in the decades since Roe v. Wade. For some time, fetal rights were pitted against the kinds of concerns about equality for women that drove reformers to seek the vote in 1920. But by the early 1990s, the terms of the conflicts had changed, with both sides claiming …

Working Mothers And The Postponement Of Women's Rights From The Nineteenth Amendment To The Equal Rights Amendment, Julie C. Suk

University of Colorado Law Review

The Nineteenth Amendment's ratification in 1920 spawned new initiatives to advance the status of women, including the proposal of another constitutional amendment that would guarantee women equality in all legal rights, beyond the right to vote. Both the Nineteenth Amendment and the Equal Rights Amendment (ERA) grew out of the long quest to enshrine women's equal status under the law as citizens, which began in the nineteenth century. Nearly a century later, the ERA remains unfinished business with an uncertain future. Suffragists advanced different visions and strategies for women's empowerment after they got the constitutional right to vote. They divided …

School “Safety” Measures Jump Constitutional Guardrails, Maryam Ahranjani

Seattle University Law Review

In the wake of George Floyd’s murder and efforts to achieve racial justice through systemic reform, this Article argues that widespread “security” measures in public schools, including embedded law enforcement officers, jump constitutional guardrails. These measures must be rethought in light of their negative impact on all children and in favor of more effective—and constitutionally compliant—alternatives to promote school safety. The Black Lives Matter, #DefundthePolice, #abolishthepolice, and #DefundSchoolPolice movements shine a timely and bright spotlight on how the prisonization of public schools leads to the mistreatment of children, particularly children with disabilities, boys, Black and brown children, and low-income children. …

The Small-Er Screen: Youtube Vlogging And The Unequipped Child Entertainment Labor Laws, Amanda G. Riggio

Seattle University Law Review

Family vloggers are among the millions of content creators on YouTube. In general, vloggers frequently upload recorded videos of their daily lives. Family vloggers are unique because they focus their content around their familial relationships and the lives of their children. One set of family vloggers, the Ace Family, has recorded their children’s lives from the day they were born and continue to upload videos of each milestone, including “Elle Cries on Her First Rollercoaster Ride” and “Elle and Alaïa Get Caught Doing What!! **Hidden Camera**.” Another vlogging couple, Cole and Savannah LaBrant, post similar content, including videos titled “Baby …

Why Do The Poor Not Have A Constitutional Right To File Civil Claims In Court Under Their First Amendment Right To Petition The Government For A Redress Of Grievances?, Henry Rose

Seattle University Law Review

Since 1963, the United States Supreme Court has recognized a constitutional right for American groups, organizations, and persons to pursue civil litigation under the First Amendment right to petition the government for redress of grievances. However, in three cases involving poor plaintiffs decided by the Supreme Court in the early 1970s—Boddie v. Connecticut,2 United States v. Kras,3 and Ortwein v. Schwab4—the Supreme Court rejected arguments that all persons have a constitutional right to access courts to pursue their civil legal claims.5 In the latter two cases, Kras and Ortwein, the Supreme Court concluded that poor persons were properly barred from …

Catalytic Courts And Enforcement Of Constitutional Education Funding Provisions, Hugh D. Spitzer, Andy Omara

Articles

It is well-recognized that it is easier for judges to enforce constitutional “negative rights” provisions than positive social and economic rights. This article focuses on the challenges of enforcing one specific positive right: the constitutional right of children to attend adequately funded schools. Our article tests on-the-ground judicial implementation of education funding provisions against the general theoretical framework of judicial interaction with the political branches developed by Katharine Young. We analyze how, in multi-year, multi-decision litigation, constitutional court judges in the three jurisdictions we studied actively experimented with the challenging task of forcing, or enticing, reluctant legislative and executive branches …