Constitutional Law Commons^™

Grants Pass And The Innocence Limit, Gregory Cui, Emily Clark

William & Mary Law Review

This Article examines City of Grants Pass v. Johnson as an important development in the Supreme Court’s doctrine concerning the Constitution’s “innocence limit.” This limit is a fundamental boundary on the state’s power to punish; it provides that criminal punishment may only apply to that which is morally culpable or blameworthy and thus may not apply to wholly innocent conduct. This principle was famously expressed in Robinson v. California, but this Article identifies a broader network of cases in which the Court has consistently effectuated the innocence limit and intervened against prosecutions of the innocent. This Article observes that …

The Presence And Persistence Of Social Rights In U.S. Constitutional Law, Mila Versteeg, Emily Zackin

William & Mary Law Review

Although the U.S. Constitution is widely described as lacking enforceable social rights, a recent line of cases from the Ninth Circuit recognizes a limited right to shelter. Relying on the Eighth Amendment, the Ninth Circuit held that individuals who lack access to shelter have a limited right to stay on public land with their belongings. The Supreme Court reversed in 2024, portraying the Ninth Circuit’s approach as an anomalous departure from accepted constitutional norms.

This Article argues that the Ninth Circuit’s decisions were not an aberration but instead exemplify a longstanding and globally common mode of social-rights adjudication. The common …

After Grants Pass: The Case For Recentering The Criminal Legal System And Its Constitutional Constraints, Scout Katovich

William & Mary Law Review

In City of Grants Pass v. Johnson, the Supreme Court held that the Eighth Amendment does not prohibit cities from punishing unhoused people for sleeping outside when they have nowhere else to go. While the holding was legally narrow, the Court’s rhetoric framed criminalization as sound policy rather than punishment, obscuring the criminal legal system implications at the heart of the case. Cities responded not to the narrow holding but to the rhetorical message: In the year following the decision, they enacted hundreds of new laws criminalizing homelessness and dramatically intensified enforcement.

This Article argues for the recentering of …

Setting The Stage For Grants Pass (& A Moral Constitutional Reckoning), Sara K. Rankin

William & Mary Law Review

The U.S. Supreme Court’s decision in City of Grants Pass v. Johnson marked a seismic shift in the legal landscape governing homelessness throughout the country. By permitting the criminalization of involuntary acts, such as sleeping or resting in public when no shelter is available, the Court foreclosed constitutional protections under the Eighth Amendment’s Cruel and Unusual Punishments Clause and signaled judicial deference to punitive local policies targeting unhoused people. But Grants Pass was not spontaneous; it was seeded over time. This Article situates Grants Pass within the broader legal and nonlegal contexts that made its outcome possible. Part I explores …

All The King’S Lawyers, Rebecca Aviel

Fordham Law Review

No abstract provided.

"In Better Times": The Basis Of Representation And The Forgotten History Of The Fourteenth Amendment, Jessica I. Gorovitz

Fordham Law Review

Over the past several years, the U.S. Supreme Court has incorporated history into the analysis of unenumerated individual rights, like abortion, and enumerated ones, like the right to keep and bear arms. But it has not incorporated history into its approach to individual rights claims of racial discrimination under the Equal Protection Clause, a methodological gap the Court has left unexplained. Rather, it has held that the purpose of the Fourteenth Amendment is to prevent racial classifications, largely citing its own precedent, eschewing the Amendment’s history. This approach conflicts with section 2 of the Voting Rights Act, which requires states …

Unacceptable In Any Era: The Unusual And Unconstitutional Effort To Criminalize Sleeping While Homeless, Joseph W. Mead, Shelby Calambokidis

William & Mary Law Review

Grants Pass, Oregon, effectively made it a crime for some of its homeless residents to sleep—a universal and unavoidable biological necessity. In a 2024 decision, the Supreme Court held that the Eighth Amendment’s Cruel and Unusual Punishments Clause posed no obstacle to this law, but it emphasized that other constitutional provisions could place important limits on how cities treat their homeless residents.

This Article argues that modern laws criminalizing sleeping— especially when no shelter is available—represent an unprecedented and unconstitutional departure from centuries of American legal tradition. Tracing the evolution of vagrancy, poor relief, and settlement laws from the Statute …

Complicit Nullification: The Illegitimate (Abrogation) Of School Religious Liberty Precedent, Amanda Harmon Cooley

Cardozo Law Review

Louisiana has enacted legislation that mandates the display of the Ten Commandments in every public school classroom. This statutory mandate directly contradicts the Supreme Court’s extant precedent in Stone v. Graham. Legislators in Texas, North Dakota, South Dakota, Oklahoma, Tennessee, and Kentucky have also indicated plans to introduce similar unconstitutional legislation, defying the Supreme Court’s interpretations of the First Amendment’s Religion Clauses. Similarly, Texas and Florida now permit public school chaplains or Bible-based public school curricula, which violates the Court’s longstanding prohibitions on such actions, as established in its 1948 ruling in Illinois ex rel. McCollum v. Board of Education …

Selective Service And The Separation Of Powers, Jeremy K. Kessler

Faculty Scholarship

The legal history of the U.S. military draft is a case study in creative statutory interpretation. Throughout the twentieth century, this interpretive creativity tended both to expand draft registrants’ substantive and procedural rights, and to recalibrate the roles played by Congress, the courts, and various executive branch factions in the governance of tens of millions of young men. Today’s Military Selective Service Act (“MSSA”) reads much like the law that governed the land when the country last went to war with conscripts during the 1950s and 1960s. But between U.S. entry into the Korean War and its withdrawal from Vietnam, …

Perkembangan Dan Ruang Lingkup Sosiologi Hukum, Mulyana W. Kusumah

Jurnal Hukum & Pembangunan

Abstract

Hold Your Horses: The Eleventh Circuit Recognizes A Direct Cause Of Action Under The Takings Clause In Fulton V. Fulton County Board Of Commissioners, Brock Gumbel

Mercer Law Review

“[No person shall be] deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” In just twelve words, the drafters of the Bill of Rights guaranteed property owners a significant protection. The Fifth Amendment Takings Clause is not an express ban on government takings. Rather, it guarantees that when the government takes property from private citizens, it must provide just compensation. Although this guarantee is generally well established, its enforcement in federal court introduces unique and significant challenges.

Plaintiffs must have a cause of action to invoke …

Stuck In The Waiting Room: Medina V. Planned Parenthood’S Restriction On The Enforcement Of Spending Statutes Through 42 U.S.C. § 1983, Rebekah Rooks

Mercer Law Review

42 U.S.C. § 1983 was originally enacted in response to Ku Klux Klan violence during the Reconstruction era that had gone largely unpunished in state courts. The statute granted individuals an alternative means to enforce their “rights, privileges, or immunities secured by the Constitution and laws” in federal courts. What began as a lifeline for civil rights violations soon expanded to allow enforcement of all rights secured by federal and constitutional law. This broad interpretation of § 1983 language expanded the statute’s reach to include private enforcement of federal spending statutes against the states. The expansion ignited extensive debate over …

Foreword, Marlene Coss

UC Law Constitutional Quarterly

No abstract provided.

When Constitutional Protection For Religious Liberty Gets Lost In Translation: A Case Study From Washington State, Robert W. Gomulkiewicz

UC Law Constitutional Quarterly

Protecting religious liberty can present difficult challenges when religious liberty conflicts with laws prohibiting discrimination. Balancing religious liberty and nondiscrimination requires courts to accurately apply the U.S. Supreme Court’s complex First Amendment jurisprudence, including cases that address compelled speech, expressive association, and church autonomy. Amidst all the complexity, protection for religious liberty can get lost in translation. One important venue where protection can get lost in translation is in religious liberty cases decided by state supreme courts. The decisions of state supreme courts are especially significant because they provide the authoritative construction for state statutes and the state constitution. In …

The Merit Systems Protection Board And Removal Doctrine In The Second Trump Administration, Nathan A. Thomas

UC Law Constitutional Quarterly

In a federal civil service of millions, a means of adjudicating internal employment disputes objectively and efficiently is integral to the continued confidence of the federal workforce.1 This is the role occupied by the U.S. Merit Systems Protection Board.2 On February 10, 2025, President Trump fired MSPB Chairman Cathy Harris without citing any reason, in direct violation of the good cause standard needed to remove an MSPB Board member. 3 President Trump’s unjustified firing of Chairman Harris reopens the ongoing assault on removal doctrine, but this note argues that the structure of the MSPB is constitutional under current removal doctrine. …

Masthead

UC Law Constitutional Quarterly

No abstract provided.

Geofence Surveillance And The Possibility Of Radicalization, Bardia Moghtaderi Zadeh

UC Law Constitutional Quarterly

No abstract provided.

Amicus Brief In Trump V. Barbara: An Originalist Defense Of Birthright Citizenship, Jed Handelsman Shugerman, Evan D. Bernick

Faculty Scholarship

For nearly all of the first 235 years under the Constitution, the citizenship of every child born in the United States to alien parents, with immaterial exceptions, was a given. Then, in 2025, the Trump administration changed course. Even though the Fourteenth Amendment makes no mention of limiting birthright citizenship to the children of domiciled parents, the Government now claims that is what “subject to the jurisdiction thereof” has always meant. While the Government and its amici admit that the common law recognized the citizenship of children of transient aliens, their remaining “survey of history range[s] from the constitutionally irrelevant” …

Masalah Voting Dalam Praktek Demokrasi Pancasila, Razali Abdullah, S.H.

Jurnal Hukum & Pembangunan

Abstract

Asas Patut Sebagai Asas Kerja Penyelesaian Perkara Menurut Hukum Adat Bali, Atmadja S.H.

Jurnal Hukum & Pembangunan

Abstract