Constitutional Law Commons^™

Cve And Constitutionality In The Twin Cities: How Countering Violent Extremism Threatens The Equal Protection Rights Of American Muslims In Minneapolis-St. Paul, Sarah Chaney Reichenbach

American University Law Review

In 2011, President Barack Obama announced a national strategy for countering violent extremism (CVE) to attempt to prevent the “radicalization” of potential violent extremists. The Obama Administration intended the strategy to employ a community-based approach, bringing together the government, law enforcement, and local communities for CVE efforts. Despite claiming to target extremism in all forms, government-funded CVE programs in the United States have almost exclusively focused on Islamic extremism. One pilot program focused on the Twin Cities in Minnesota—Minneapolis and St. Paul—home to the largest Somali community in the United States, most of whom are Muslim. The Trump Administration has …

Into The Void: The Gao's Role In The Regulartory State, Bridget C.E. Dooling

American University Law Review

The study of Congress largely focuses on its members, committees, and leaders. Meanwhile, the study of federal agencies tends to focus on those that fall within the executive branch. But many agencies and institutions exist to support Congress, and administrative law and political science scholarship has largely overlooked their internal operations. Far more than ministerial, some of these agencies have the ability to shape policy in very meaningful ways. They also have their own institutional interests distinct from the legislators they serve. As instruments of Congress, though, these agencies are generally exempt from the Administrative Procedure Act and a host …

Moderating Content Moderation: A Framework For Nonpartisanship In Online Governance, Edward Lee

American University Law Review

Internet platforms serve two important roles that often conflict. Facebook, Twitter, YouTube, and other internet platforms facilitate the unfettered exchange of free speech by millions of people, yet they also moderate or restrict the speech according to their “community standards,” such as prohibitions against hate speech and advocating violence, to provide a safe environment for their users. These dual roles give internet platforms unparalleled power over online speech—even more so than most governments. Yet, unlike government actors, internet platforms are not subject to checks and balances that courts or agencies must follow, such as promulgating well-defined procedural rules and affording …

First Amendment Traditionalism, Marc O. Degirolami

Scholarly Articles

Traditionalist constitutional interpretation takes political and cultural practices of long age and duration as constituting the presumptive meaning of the text. This Essay probes traditionalism's conceptual and normative foundations. It focuses on the Supreme Court's traditionalist interpretation of the First Amendment to understand the distinctive justifications for traditionalism and the relationship between traditionalism and originalism. The first part of the Essay identifies and describes traditionalism in some of the Court's Speech and Religion Clause jurisprudence, highlighting its salience in the Court's recent Establishment Clause doctrine.

Part II develops two justfications for traditionalism: "interpretive" and "democratic-populist." The interpretive justification is that …

Empathy And Worthiness: The Modern Victims' Rights Movement And The Growth Of Mass Incarceration, Samantha Dresner

Scripps Senior Theses

The Victims' Rights Movement emerged in the 1970s and 1980s, at the same time as the War on Drugs and War on Crime were driving mass incarceration at unprecedented levels. This paper examines the historical roots of the victims' rights movement and its evolution from grassroots organizing into a tool of state power. It interrogates the meaning of "worthy" victims, and looks into the landmark Supreme Court case Payne v. Tennessee as an example of victim impact evidence being used to support the state project of the death penalty.

The Constitutional Logic Of The Common Law, Douglas E. Edlin

Vanderbilt Journal of Transnational Law

This Article uses two concepts from philosophical logic, the transitive property and syllogistic reasoning, to examine the history and theory of the common law. More specifically, the Article uses the transitive property to challenge the claims of sovereignty theorists that parliamentary supremacy is truly the most fundamental historical and theoretical basis of the British constitution. Instead, the transitive property helps show that the history and theory of the common law tradition has long provided a role for independent courts in maintaining the rule of law as a foundational principle of the British constitution. The Article then closely analyzes the reasoning …

Identity Federalism In Europe And The United States, Vlad Perju

Vanderbilt Journal of Transnational Law

The turn to identity is reshaping federalism. Opposition to the policies of the Trump administration, from the travel ban to sanctuary cities and the rollback of environmental protections, has led progressives to explore more fluid and contingent forms of state identity. Conservatives, too, have sought to shift federalism away from the jurisdictional focus on limited and enumerated powers and have argued for a revival of the political safeguards of federalism, including state-based identities. This Article draws on comparative law to study identity as a political safeguard of federalism and its transformation from constitutional discourse to interpretative processes and, eventually, constitutional …

Church Taxes And The Original Understanding Of The Establishment Clause, Mark Storslee

Faculty Scholarship

Since the Supreme Court’s decision in Everson v. Board of Education, it has been widely assumed that the Establishment Clause forbids government from 'aiding' or subsidizing religious activity, especially religious schools. This Article suggests that this reading of the Establishment Clause rests on a misunderstanding of Founding-era history, especially the history surrounding to church taxes. Contrary to popular belief, the decisive argument against those taxes was not an unqualified assertion that subsidizing religion was prohibited. Rather, the crucial argument was that church taxes were a coerced religious observance: a government-mandated sacrifice to God, a tithe. Understanding that argument helps …

Decisions In The Dark: Why "Pregnancy Exclusion" Statutes Are Unconstitutional And Unethical, Shea Flanagan

Northwestern University Law Review

Advance health care directives are tools that allow people to state their health care treatment wishes or designate a health care proxy in anticipation of being unable to make those decisions in the future, including preferences to remove life-sustaining medical treatment. However, thirty-six states currently have “pregnancy exclusion” laws that require physicians to void the advance directives of pregnant women receiving life-sustaining treatment. This Note assesses the constitutionality and ethics of state pregnancy exclusion statutes by employing a new five-category typology of current pregnancy exclusion laws. This Note argues that all categories of these statutes violate an individual’s constitutional rights …

Commandeering, Preemption, And Vehicle Emissions Regulation Post-Murphy V. Ncaa, Amelia Raether

Northwestern University Law Review

The Clean Air Act is often heralded as a paragon of cooperative federalism. The Act’s approach to vehicle emissions regulation in particular prescribes a unique partnership between the federal government and the state of California: while all states are bound by federally mandated vehicle emissions requirements, California may set more stringent standards in recognition of its historic role on the leading edge of environmental protection. However, in August 2018, the Environmental Protection Agency proposed not only to roll back the national emissions regulations, but also to revoke California’s ability to set more stringent standards, which include limits on greenhouse gas …

Foreword: The Labor Constitution In 2020, Ruben J. Garcia

Scholarly Works

No abstract provided.

Of Constitutional Commissions And Expert-Led Interpretation During Processes Of Constitutional Change, De Maartje Visser

Research Collection Yong Pung How School Of Law

In an 1816 letter, Thomas Jefferson expressed himself in favour of including a provision in the constitution that would prescribe its regular upkeep. “[E]ach generation”, the Founding Father wrote, ought to be able to revise the constitu- tion “every nineteen or twenty years”, so it could “be handed on, with periodical repairs, from generation to generation, to the end of time.” As we know, his advice was not heeded: the U.S. Constitution is notoriously difficult to change, with the longest interval between two amendments running to slightly more than six decades. Closer to home, the Singapore Constitution similarly does not …

Symposium: The Puzzling And Troubling Grant In Kisor, Gillian E. Metzger

Faculty Scholarship

From one perspective, the Supreme Court’s decision to grant review in Kisor v. Wilkie is not surprising. Dating back at least to Justice Antonin Scalia’s 2011 concurrence in Talk America v. Michigan Bell Telephone Co., through Decker v. Northwest Environmental Defense Center in 2013 and Perez v. Mortgage Bankers Association in 2015, there’s been growing interest on the Supreme Court’s conservative wing in overturning Auer deference, or the doctrine that an agency’s interpretation of its own regulation is “controlling unless plainly erroneous or inconsistent with the regulation.” The campaign to overturn Auer v. Robbins then stalled, with the court denying …

Citizen Soldiers And The Foundation Fusion Of Masculinity, Citizenship, And Military Service, Jamie Abrams, Nickole Durbin

Scholarly Articles in Law Reviews & Journals

Sarah Livingston Jay famously toasted revelers in 1783: "May all our citizens be soldiers, and all our soldiers citizens." This toast conveyed "a foundational fusion" within our republican government tradition-coupling military service, citizenship, and masculinities.' The Akron Law School's conference on the 100th anniversary of the passage of the Nineteenth Amendment offered the chance to fight the eulogization of the Nineteenth Amendment and explore its modern relevance. This paper concludes that the Nineteenth Amendment cannot be understood without connecting it to broader conceptions of citizenship, masculinities, and military service, thus revealing its ongoing relevance to military inclusion and integration.

In …

The Lesser Of Two Evils: Lowering The Constitutional Amendment Bar To Avoid An Unadaptable Constitution, Encouraged Judicial Activism, And Disrupted Federalism, Hayley Stillwell

Faculty Articles

The Constitution has not been amended for nearly three decades. During this time, the line in the sand between political parties has morphed into an impenetrable wall that neither side can or is willing to breach. This begs the question whether the constitutional amendment process in Article V is presently functional. If Article V is no longer functional, then the constitutional amendment process itself needs to be amended. Drastic as this sounds, it is the lesser of two evils. The alternative—accepting that Article V is dead and the Constitution cannot be amended—will lead to a distorted world in which the …

Double Jeopardy’S Dual Sovereignty: A Tragic (And Implausible) Lack Of Humility, Stephen E. Henderson, Dean Strang

Faculty Articles

The core proposition of the Fifth Amendment’s Double Jeopardy Clause is as intuitive as it is straightforward. After all, if a state could prosecute someone despite her previous conviction or acquittal, then the scope of punishment would be unlimited and its threat unending—the sort of proposition only a tyrant could love. Yet, in Gamble v. United States, the Supreme Court once again blessed a dual sovereignty exception that permits just such duplicative prosecutions. We hardly are the first to question this rule, but we submit the Court’s most recent primary mistakes were two. First, the Court began from a …

Chiafalo: Constitutionalizing Historical Gloss In Law And Democratic Politics, Luis Fuentes-Rohwer, Guy-Uriel Charles

Articles by Maurer Faculty

We make one central point in this Article. Justice Kagan’s opinion in Chiafalo uses historical gloss to entrench a particular and modern view of political participation—which is best reflected by American political practices— by rejecting an alternative and anachronistic view—which is best reflected by the text and structure of the Constitution. Part I argues that Chiafalo is not a textualist opinion because Article II, Section 1 does not support the majority’s conclusion that states have the power to limit elector discretion. The majority’s reasoning to the contrary is not persuasive, even on its own terms. Part II argues that Chiafalo …

Why The House Of Representatives Must Be Expanded And How Today’S Congress Can Make It Happen, Caroline Kane, Gianni Mascioli, Michael Mcgarry, Meira Nagel

Faculty Scholarship

The House of Representatives was designed to expand alongside the country’s population—yet its membership stopped growing a century ago. Larger and, in some cases, unequal sized congressional districts have left Americans with worse representation, including in the Electoral College, which allocates electors partially on the size of states’ House delegations. This report recommends tying the House’s size to the cube root of the nation’s population, which would lead to 141 more seats. It also calls for an approach to drawing districts that would eliminate gerrymandering.

This report was researched and written during the 2018-2019 academic year by students in Fordham …

Protecting Against An Unable President: Reforms For Invoking The 25th Amendment And Overseeing Presidential Nuclear Launch Authority, Louis Cholden-Brown, Daisy De Wolff, Marcello Figueroa, Kathleen Mccullough

Faculty Scholarship

The immense powers of the presidency and the vast array of global threats demand a physically and mentally capable president. To help ensure able presidential leadership, this report advocates reforms related to the 25th Amendment, including proposals for an “other body” to act with the vice president in certain circumstances to declare the president unable and a mechanism for officials to report concerns about the president’s capacity. The report also recommends new checks on the president’s authority to use nuclear weapons, such as procedures for notifying top national security officials when use is contemplated.

This report was researched and written …

Changed Science Writs And State Habeas Relief, Valena Beety

Articles by Maurer Faculty

For decades now, the 1996 federal Antiterrorism and Effective Death Penalty Act (AEDPA) has limited the scope and influence of federal courts in post-conviction case review, forcing convicted individuals to rely instead on state habeas proceedings for conviction relief. Due in large part to the 2009 National Academy of Sciences Report, petitions for conviction relief increasingly include challenges to the government’s scientific evidence at trial. These petitions analyze that evidence by comparing the trial evidence to the advancement of scientific findings and scientific knowledge in the years since the trial. State habeas petitions thus provide an avenue for relief from …