Constitutional Law Commons^™

Noncitizen Voting: A Case Study Of Oregon, Monet Gonnerman, Ryan Willett

Lewis & Clark Law Review

Using the State of Oregon as a case study, this Article proposes that states and municipalities may and should extend the right to vote to noncitizens. The Article’s analysis, rooted in national history and the U.S. Constitution, is applicable to other states across the country. The Article situates the practice of noncitizen voting within the larger historical context of both the United States and Oregon. It also provides the legal framework that demonstrates state and municipal power to set voter qualifications for their respective elections. Finally, the Article suggests reasons why states should allow for noncitizen voting.

The Structure Of Intermediate Review, R. Randall Kelso

Lewis & Clark Law Review

Today, there are two well-established versions of intermediate review: stand- ard intermediate review, used for cases like gender discrimination or content-neutral regulations of speech in a public forum, and a heightened intermediate review standard used for content-based, subject-matter regulations of commercial speech under Central Hudson. Yet, in actual use, four other kinds of intermediate review tests have been formulated by the Court in some cases. These four should be viewed as “mutations” of the two kinds of intermediate review proper to apply. This Article discusses both the well-established versions of intermediate review, and the four variations on intermediate review applied …

Legislative Redistricting In The Time Of Covid, Norman R. Williams

Lewis & Clark Law Review

Due to the COVID pandemic, the U.S. Census Bureau was unable to provide 2020 census data to Oregon in time for the Legislature to engage in redistricting during the 2021 session, as required by the Oregon Constitution. As a result of this delay, the Oregon Legislature asked the Oregon Supreme Court to push back the constitutionally imposed deadlines for redistricting—a request which the Court agreed to in part. This Essay examines the Court’s power to revise constitutionally prescribed deadlines and the extent to which any districting plan must be based on federal census data.

Proffitt V. Florida: Distorting Death, Corinna Barrett Lain

Law Faculty Publications

This essay, Chapter 7 in Painting Constitutional Law, examines Xavier Cortada’s depiction of Proffitt v. Florida, the 1976 decision that approved Florida’s guided discretion statute after Furman v. Georgia had invalidated the death penalty in 1972. Cortada’s depiction is a fantastical piece, a piece that captures the horror of death by electrocution set against two columns of ominous looking Roman numerals. The Roman numerals represent the mechanical imposition of death — the formulaic approach to death penalty decision-making that tells sentencers to simply add up the columns of aggravating and mitigating circumstances and see where the balance lies. Cortada resists …

Wolastoqiyik And Mi’Kmaq Grandmothers - Land/Water Defenders Sharing And Learning Circle: Generating Knowledge For Action, Sherry Pictou, Janet Conway, Angela Day

Reports & Public Policy Documents

This report is a summary of the Grandmothers/Defenders’ stories and are interwoven with corresponding news articles, press releases, and other public documents. This is followed by an overview of some of the critical common issues and importantly, strategies for moving forward proposed by the Grandmothers/Defenders.

The Grandmother’s Report is a collection of stories told by Wolastoqiyik Grandmother/Defenders against the Sisson Mine in New Brunswick and Mi’kmaq Grandmothers against the Alton Gas project in Nova Scotia at the event, Indigenous Grandmothers Sharing and Learning Circle: Generating Knowledge for Action, held at the Tatamagouche Centre in Nova Scotia, January 26 to 27, …

My Friend, Charles Reich, Hon. Guido Calabresi

Touro Law Review

No abstract provided.

Charles Reich: Due Process In The Eye Of The Receiver, Harold Hongju Koh

Touro Law Review

No abstract provided.

Keeping Up: Walking With Justice Douglas, Charles A. Reich

Touro Law Review

No abstract provided.

Witness For The Self: Miranda V. Arizona’S Political Theology, Graham James Mcaleer

Touro Law Review

No abstract provided.

Amending A Racist Constitution, William J. Aceves

Faculty Scholarship

Ours is a racist Constitution. Despite its soaring language, it was founded on slavery and a commitment to racial inequality. This vision is etched in the constitutional text, from the notorious Three-Fifths Clause to the equally repugnant Fugitive Slave Clause. And despite the Civil War and the Reconstruction Amendments, the Constitution retains these vestiges of slavery in its fabric. After 230 years, it is time to remove these troubling provisions from the Constitution. This Essay offers a radical departure from prior constitutional practice. Instead of appending yet another amendment that would simply require readers to ignore the offending language, this …

Anti-Modalities, David E. Pozen, Adam Samaha

Faculty Scholarship

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 …

Re-Reading Chevron, Thomas W. Merrill

Faculty Scholarship

Though increasingly disfavored by the Supreme Court, Chevron remains central to administrative law doctrine. This Article suggests a way for the Court to reformulate the Chevron doctrine without overruling the Chevron decision. Through careful attention to the language of Chevron itself, the Court can honor the decision’s underlying value of harnessing comparative institutional advantage in judicial review, while setting aside a highly selective reading that unduly narrows judicial review. This re-reading would put the Chevron doctrine – and with it, an entire branch of administrative law – on firmer footing.

Towards A Law Of Inclusive Planning: A Response To “Fair Housing For A Non-Sexist City”, Olatunde C.A. Johnson

Faculty Scholarship

Noah Kazis’s important article, Fair Housing for a Non-sexist City, shows how law shapes the contours of neighborhoods and embeds forms of inequality, and how fair housing law can provide a remedy. Kazis surfaces two dimensions of housing that generate inequality and that are sometimes invisible. Kazis highlights the role of planning and design rules – the seemingly identity-neutral zoning, code enforcement, and land-use decisions that act as a form of law. Kazis also reveals how gendered norms underlie those rules and policies. These aspects of Kazis’s project link to commentary on the often invisible, gendered norms that shape …

Constructing Countervailing Power: Law And Organizing In An Era Of Political Inequality, Kate Andrias

Faculty Scholarship

This Article proposes an innovative approach to remedying the crisis of political inequality: using law to facilitate organizing by the poor and working class, not only as workers, but also as tenants, debtors, welfare beneficiaries, and others. The piece draws on the social-movements literature, and the successes and failures of labor law, to show how law can supplement the deficient regimes of campaign finance and lobbying reform and enable lower-income groups to build organizations capable of countervailing the political power of the wealthy. As such, the Article offers a new direction forward for the public-law literature on political power and …

Arguing About The Jus Ad Bellum, Monica Hakimi

Faculty Scholarship

Quite a bit of research suggests that international law’s argumentative practice has value insofar as it leads to or affirms some kind of normative settlement. This chapter uses the argumentative practice in the jus ad bellum to counter that view. The chapter’s central claim is that arguments about the jus ad bellum are valuable, even when they do not lead to normative settlement and the law’s content on the issue in dispute remains contested. The reason they are valuable is that they promote certain values that are associated with the rule of law.

Originalism From The Soft Southern Strategy To The New Right: The Constitutional Politics Of Sam Ervin Jr, Logan E. Sawyer Iii

Scholarly Works

Although originalism’s emergence as an important theory of constitutional interpretation is usually attributed to efforts by the Reagan administration, the role the theory played in the South’s determined resistance to civil rights legislation in the 1960s actually helped create the Reagan coalition in the first place. North Carolina Senator Sam Ervin Jr., the constitutional theorist of the Southern Caucus, developed and deployed originalism because he saw its potential to stymie civil rights legislation and stabilize a Democratic coalition under significant stress. Ervin failed in those efforts, but his turn to originalism had lasting effects. The theory helped Ervin and other …

Who Determines Majorness?, Chad Squitieri

Scholarly Articles

The major questions doctrine is said to assist courts in identifying whether Congress has delegated authority to administrative agencies. A closer look at the doctrine, however, reveals that it has been used by courts to tell Congress how it can delegate authority. What is more, some textualists have proposed strengthening the major questions doctrine into a revived nondelegation doctrine, which speaks to whether Congress can delegate authority. This Article argues that the major questions doctrine, particularly in its strengthened form, runs afoul of key commitments of textualism.

Dignity And Discrimination, Frederick Mark Gedicks

Faculty Scholarship

Delivered as the Dignity in Law Symposium keynote address, this essay surveys uses of “dignity” in U.S. constitutional law, with a focus on conflicts between the dignities attached to citizenship and religious conscience. Parts I and II discuss dignity as state sovereignty and hierarchical status. Part III examines the collision of dignities in the Masterpiece Cakeshop decision. Part IV argues that attention to the public or private nature of the site where religious accommodation is demanded clarifies when accommodation is appropriate, using a house of worship and a government office as illustrations. Part V lists other sites of accommodation and …

Mahanoy Area School District V. B.L.: The Court Protects Student Social Media But Leaves Unanswered Questions, David L. Hudson Jr.

Law Faculty Scholarship

In Mahanoy Area School District v. B.L.: The Court Protects Student Social Media but Leaves Unanswered Questions, published in the Cato Supreme Court Review, David L. Hudson Jr. analyzes the U.S. Supreme Court’s landmark decision addressing the scope of public schools’ authority over off-campus student speech on social media. Situating Mahanoy within the Court’s broader K–12 student speech jurisprudence—from Barnette and Tinker to Fraser, Hazelwood, and Morse—the Article explains how the Court declined to adopt a categorical rule excluding off-campus speech from regulation while nevertheless ruling in favor of the student. The majority recognized diminished school …

Jacobson 2.0: Police Power In The Time Of Covid-19, James R. Steiner-Dillon

Akron Law Faculty Publications

The COVID-19 pandemic has become a legal, as well as a public health, crisis. In response to the pandemic, state and municipal governments have imposed unprecedented constraints on Americans’ daily activities. These restrictions provoked a wave of constitutional challenges that have revealed the antiquated doctrinal foundations of states’ police power in the area of public health. It has been over a century since the Supreme Court, in Jacobson v. Massachusetts, articulated a broadly deferential approach to constitutional review of state orders issued in response to a public health emergency. The constitutional order has changed since Jacobson was decided; many provisions …