Constitutional Law Commons^™

Gerrymandering Justiciability, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

As illustrated by its 2019 decision in Rucho v. Common Cause, the Supreme Court has gerrymandered its justiciability doctrines in a way that protects the political power of white voters. Comparing the Court’s willingness to find racial gerrymanders justiciable with its refusal to find partisan gerrymanders justiciable reveals a lack of doctrinal constraint. That gives the Court the discretionary power to uphold or strike down particular gerrymanders by deeming them racial or partisan in nature. Such discretion is problematic because, when the Supreme Court has exercised discretion in a racial context, it has historically done so to protect the …

A Clarion Call For Strengthening The Rule Of Law, Penelope Andrews

Articles & Chapters

No abstract provided.

The Superfluous Fifteenth Amendment?, Travis Crum

Northwestern University Law Review

This Article starts a conversation about reorienting voting rights doctrine toward the Fifteenth Amendment. In advancing this claim, I explore an unappreciated debate—the “Article V debate”—in the Fortieth Congress about whether nationwide black suffrage could and should be achieved through a statute, a constitutional amendment, or both. As the first significant post-ratification discussion of the Fourteenth Amendment, the Article V debate provides valuable insights about the original public understandings of the Fourteenth and Fifteenth Amendments and the distinction between civil and political rights.

The Article V debate reveals that the Radical Republicans’ initial proposal for nationwide black suffrage included both …

Associations And Cities As (Forbidden) Pure Private Attorneys General, Heather Elliott

William & Mary Law Review

The Supreme Court interprets Article III’s case-or-controversy language to require a plaintiff to show injury in fact, causation, and redressability. A plaintiff who meets that tripartite test has standing to sue and thus a personal stake in pursuing the litigation. Accordingly, in Sierra Club v. Morton, the Supreme Court prohibited pure private attorneys general: litigants who would sue without the requisite personal stake. This limitation extends to organizations. They, too, must show standing on their own account or, under Hunt v. Washington Apple Advertising Commission, identify a member with Article III standing and show how the lawsuit is germane to …

State Intent Under International Law, Stephen Townley

Cardozo International & Comparative Law Review

The question of legislative intent has long been a topic of intense scholarly focus in the United States. There has also been a recent uptick in discussion of executive branch intent with the filing of highprofile lawsuits predicated upon allegations of improper motives. However, there has been no corollary effort to unpack the concept of state intent at the international level, where it arises with respect to such varied questions as how to understand the scope of a state's consent, whether a state should be deemed to be negotiating in good faith, and whether a state has engaged in genocide. …

Return Of The King: Corruption Backsliding In America, Pedro Gerson

Cardozo International & Comparative Law Review

The United States appears to be going through a crisis of corruption. However, it is hard to know whether this is a matter of appearance or if the country is at risk of high levels of corruption making a comeback. The Article applies the equilibrium model of corruptionthe leading social science account of how corruption operates-to the current U.S. system, and shows that the United States may indeed be backsliding. The potential for corruption to creep back up is due to more than the political moment. Rather, it is the result ofpolitics combined with the relatively powerless institutional controls for …

Addressing The Supreme Court’S ‘Constitutional Orphan’: Determining The Scope Of The Second Amendment In Public, Along With Its Need To Be Regulated, Eli Zlotowitz

Cardozo International & Comparative Law Review

No abstract provided.

Abolishing Ice Is Not Enough: Using Conservative Judicial Principles To Protect Unauthorized Immigrants From A "Tyrannical Bureaucracy", Ashley Dylenski

Cardozo Journal of Equal Rights & Social Justice

The note argues that abolishing ICE alone will not resolve the systemic issues plaguing the U.S. immigration system, as the root problem lies in Congress's overdelegation of authority to executive agencies. These agencies, operating under doctrines like plenary power and Chevron deference, wield broad discretion with minimal judicial oversight, leading to inhumane and unpredictable enforcement practices. The analysis advocates for resurrecting the nondelegation doctrine and reasserting congressional authority to restore separation of powers and ensure a more humane and transparent immigration system.

Reconstructing The Congressional Guarantee Of Republican Government, David S. Louk

Vanderbilt Law Review

This Article considers whether the Clause might serve as an additional constitutional basis for federal legislation and explores the interpretive arguments Congress might raise to justify the power to reform electoral processes in the states under the Clause. This Article also questions the prevailing view that the Supreme Court has always treated the Clause as functionally nonjusticiable. It argues that even following established precedents, the contemporary Court might well engage with the merits of legislation and litigation commenced under the Clause, given the Court’s recent penchant for enhanced scrutiny of congressional enforcement powers under the Reconstruction Amendments. Such challenges would …

The Political Development Of Capital Punishment In The Modern Moroccan State, Mia Barr

Independent Study Project (ISP) Collection

The modern Moroccan state seen today is very young. Having only been independent from France since 1956, the country has spent the last sixty-four years crafting its post-colonial statehood. What has emerged is a hybrid political system with powers split, however unequally, between the King and his inner circle, known as the makhzen, and the Parliament. Not only is the monarchy constitutional—meaning that its legitimacy is literally written into the primary governing document of Morocco, which had its last referendum in 2011—but it is also self-sustaining and self-legitimizing, for the monarchy uses its constitutional powers to grant itself further powers …

The Cradle Of The Countermajoritarian Diffifficulty, John W. Compton

Political Science Faculty Articles and Research

Part of book review symposium responses to Repugnant Laws: Judicial Review of Acts of Congress from the Founding to the Present. By Keith E. Whittington (University Press of Kansas, 2019). In

Implied Presidential And Congressional Powers, David M. Driesen, William C. Banks

Cardozo Law Review

No abstract provided.

Children's Equality Rights: Every Child's Right To Develop To Their Full Capacity, Nancy E. Dowd

Cardozo Law Review

Children are born equal. Yet as early as eighteen months, hierarchies emerge among children. These hierarchies are not random butfall into patterns by race, gender, and class. They are not caused nor voluntarily chosen by children or their parents. The hierarchies grow, persist, and are made worse by systems and policies created by the state, perpetuating the position of the privileged and continuing the disadvantage of the subordinated. Children's equal right to develop to their capacity is severely undermined by policies and structures that hamper and block the development of some by creating barriers and challenges or failing to support …

Patents As Property: Oil States And Its Implications On The Takings Clause, Jordan T. Owens

Cardozo Law Review

No abstract provided.

A Constitutional Wealth Tax, Ari Glogower

Michigan Law Review

Policymakers and scholars are giving serious consideration to a federal wealth tax. Wealth taxation could address the harms from rising economic inequality, promote equality of social and economic opportunity, and raise the revenue needed to fund critical government programs. These reasons for taxing wealth may not matter, however, if a federal wealth tax is unconstitutional.

Scholars debate whether a tax on a wealth base (a “traditional wealth tax”) would be a “direct tax” subject to apportionment among the states by population. This Article argues, in contrast, that this possible constitutional restriction on a traditional wealth tax may not matter. If …

A Third-Party Doctrine For Digital Metadata, H. Brian Holland

Cardozo Law Review

No abstract provided.

Brief Of First Amendment Scholars As Amici Curiae In Support Of Petitioner, Tabatha Abu El-Haj, Timothy Zick, Hyland Hunt

Briefs

No abstract provided.

Hash It Out: Fourth Amendment Protection Of Electronically Stored Child Exploitation, Rebekah A. Branham

Akron Law Review

Few courts have addressed whether ISP’s use of hash-based evaluation violates an individual’s Fourth Amendment rights. In 2018, the Fifth Circuit was presented with this issue in United States v. Reddick. The defendant is Reddick uploaded files to the cloud-sharing server Microsoft SkyDrive. Thereafter PhotoDNA, a computer software program that uses hashing, automatically reviewed the hash values of those files and compared them against its database of known child pornography hash values. PhotoDNA detected a hash value match between the defendant’s photos and the database. It then created a “CyberTip,” sending the files and users information to the NCMEC. …

Masterpiece Cakeshop: A Formula For Legislative Accommodations Of Religion, Matthew A. Brown

Akron Law Review

When two core identities clash, such as sexual orientation and religious belief, which one should prevail? I argue that, rather than picking a winner and a loser, the Supreme Court in Masterpiece Cakeshop allowed for a much broader solution than the Court was able to provide—legislative accommodations rooted in tolerance that protect the dignity of same-sex couples and respect sincere religious beliefs.

In Masterpiece Cakeshop, a Colorado baker refused to design a cake for a same-sex wedding based on his religious beliefs. Instead of picking a broad winner and loser, the Supreme Court ruled narrowly by finding the Colorado …

Presidential Immunity From Prosecution: Tolling The Statute Of Limitations, Margit Livingston

Brigham Young University Journal of Public Law

No abstract provided.