Constitutional Law Commons^™

The Due Process And Other Constitutional Rights Of Foreign States, Ingrid W. Brunk

Vanderbilt Law School Faculty Publications

The rights offoreign states under the US. Constitution are becoming more important as the actions offoreign states andforeign state-owned enterprises expand in scope and the legislative protections to which they are entitled contract. Conventional wisdom and lower court cases hold that foreign states are outside our constitutional order and that they are protected neither by separation ofpowers nor by due process. As a matter ofpolicy, however, it makes little sense to afford litigation-related constitutional protections to foreign corporations and individuals but to deny categorically such protections to foreign states. Careful analysis shows that the conventional wisdom and lower court cases …

Wealth, Equal Protection, And Due Process, Brandon L. Garrett

William & Mary Law Review

Increasingly, constitutional litigation challenging wealth inequality focuses on the intersection of the Equal Protection and Due Process Clauses. That intersection—between equality and due process—deserves far more careful exploration. What I call “equal process” claims arise from a line of Supreme Court and lower court cases in which wealth inequality is the central concern. For example, the Supreme Court in Bearden v. Georgia conducted analysis of a claim that criminal defendants were treated differently based on wealth in which due process and equal protection principles converged. That equal process connection is at the forefront of a wave of national litigation concerning …

Sri Lanka's Quest For A Reformed Constitution: Lessons Froma Lost Opportunity, Austin I. Pulle, Suri Ratnapala

Research Collection Yong Pung How School Of Law

The history of Sri Lanka is highly instructive of the dynamics of constitutional evolution in a post-colonial, multi-ethnic, and economically challenged Asian nation. Sri Lanka is one of the few ex-colonies where constitutional change has happened without military involve ment. Citizens have changed their government10 times by generally fair and free elections. In the first three decades after independence, the country’s judiciary enjoyed an enviable reputation for independence, integrity, and competence.The public service, though poorly re warded and resourced, maintained a praiseworthy standard of administrative impartiality and competence. Sri Lanka had, and still has, one of the highest rates of …

The Integrity Of Marriage, Kaiponanea T. Matsumura

William & Mary Law Review

While the Supreme Court’s decision in Obergefell v. Hodges resolved a dispute about access to legal marriage, it also exposed a rift between the Justices about what rights, obligations, and social meanings marriage should entail. The majority opinion described marriage as a “unified whole” comprised of “essential attributes,” both legal and extralegal. The dissents, in contrast, were more skeptical about marriage’s inherent legal content. Justice Scalia, for instance, characterized marriage as a mere bundle of “civil consequences” attached to “whatever sexual attachments and living arrangements [the law] wishes.” This side debate has taken center stage in several recent disputes. In …

The Transgender Military Ban: Preservation Of Discrimination Through Transformation, Michele Goodwin, Erwin Chemerinsky

Northwestern University Law Review

This Essay contends that the Trump Administration’s ban on transgender individuals serving in the military is based on prejudice and bias, lacking any legitimate justification. As such, the transgender military ban cannot be justified on legal grounds. Nor can it be justified based on health and safety. Engaging a robust empirical record, the authors show that the ban cannot be justified based on matters of efficiency, preparedness, or combat readiness—arguments used by the Trump Administration to justify the ban. Despite transgender individuals serving openly in the military in recent years, the Trump Administration has not been able to offer in …

The Due Process And Other Constitutional Rights Of Foreign Nations, Ingrid Wuerth

Fordham Law Review

The rights of foreign states under the U.S. Constitution are becoming more important as the actions of foreign states and foreign state-owned enterprises expand in scope and the legislative protections to which they are entitled contract. Conventional wisdom and lower court cases hold that foreign states are outside our constitutional order and that they are protected neither by separation of powers nor by due process. As a matter of policy, however, it makes little sense to afford litigation-related constitutional protections to foreign corporations and individuals but to deny categorically such protections to foreign states. Careful analysis shows that the conventional …

Fourth Amendment Textualism, Jeffrey Bellin

Faculty Publications

The Fourth Amendment’s prohibition of “unreasonable searches” is one of the most storied constitutional commands Yet after decades of Supreme Court jurisprudence, a coherent definition of the term “search” remains surprisingly elusive Even the justices know they have a problem Recent opinions only halfheartedly apply the controlling “reasonable expectation of privacy” test and its wildly unpopular cousin, “third-party doctrine,” with a few justices in open revolt.

These fissures hint at the Court’s openness to a new approach Unfortunately, no viable alternatives appear on the horizon The justices themselves offer little in the way of a replacement And scholars’ proposals exhibit …

American Legion V. American Humanist Association, Seth T. Bonilla

Public Land & Resources Law Review

The separation of church and state is a key element of American democracy, but its interpretation has been challenged as the country grows more diverse. In American Legion v. American Humanist Association, the Supreme Court adopted a new standard to analyze whether a religious symbol on public land maintained by public funding violated the Constitution’s Establishment Clause.

Unconstitutional Or Just Unworkable? The Life And Death Of A Prohibition On Floor-Crossing In Fletcher V The Government Of Manitoba, Andrew Martin

Articles, Book Chapters, & Popular Press

Fletcher v the Government of Manitoba is the first reported challenge to a floor-crossing prohibition under the Canadian Charter of Rights and Freedoms. This case comment begins with the legislative history of the challenged provision and then provides an overview and critique of the reasons in Fletcher. Against this backdrop, it then reflects on the lessons of the case in two respects. The first is the difficulty in translating a policy idea into legislation – specifically, defining the conduct to be prohibited and determining the appropriate deterrent or penalty for breach. The second respect is the government’s role in …

Indonesian Term Of Address Ustad In Film Utterances: Forms, Functions, And Social Values, Sandy Nugraha, Wiwin Triwinarti

International Review of Humanities Studies

This study analyzes the term of address ustad in Indonesian culture. Indonesia’s religious-themed movies may represent the use of the term of address ustad in daily conversation. In particular, this study aims to describe the patterns of form, the patterns of use, and the social values of the term of address ustad in film utterances. The data of the term of address ustad and its contexts are collected from the utterances in Indonesia’s four Islamic-themed movies. This descriptive qualitative study uses sociopragmatics approach in identifying the functions of the term of address in film discourse. The context of the utterances …

Knick V. Township Of Scott, Alizabeth A. Bronsdon

Public Land & Resources Law Review

The Supreme Court overruled a 34-year-old precedent and sparked a sharp dissent by holding that a landowner impacted by a local ordinance requiring public access to an unofficial cemetery on her property could bring a takings claim directly in federal court. The decision eliminated a Catch-22 state-litigation requirement that effectively barred local takings plaintiffs from federal court, but raised concerns about government land use and regulation, judicial federalism, and the role of stare decisis.

League Of Conservation Voters V. Trump, Adam W. Johnson Mr.

Public Land & Resources Law Review

A consortium of environmental groups brought suit challenging an executive order opening millions of acres of continental shelf lands to oil and gas leasing. The Court held that the President’s actions exceeded his statutory authority and intruded on Congress’s power under the Property Clause, violating the separation of powers doctrine.

October 27, 2019: The Shooter And The Death Penalty, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Shooter and the Death Penalty“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

October 22, 2019: What Is The Universe?, Bruce Ledewitz

Hallowed Secularism

Blog post, “What is the Universe?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

The Personhood Paradox: Citizens United As Rejection Of Corporate Personhood?, Stefan J. Padfield

ConLawNOW

This ConLawNOW submission is an excerpt from a previously published piece. The following abstract is from that piece.

UCLA Law Professor Adam Winkler has published an excellent book on the history of corporate rights. The book, We the Corporations: How American Businesses Won Their Civil Rights, “reveals the secret history of one of America’s most successful yet least-known ‘civil rights movements’—the centuries-long struggle for equal rights for corporations.” The book has been highly praised by some of the greatest minds in corporate and constitutional law, and the praise is well-deserved. However, the book is not without its controversial assertions, …

The Defamation Injunction Meets The Prior Restraint Doctrine, Doug Rendleman

San Diego Law Review

This article maintains that, under defined circumstances, a judge should be able to grant an injunction that forbids the defendant’s proved defamation. It analyzes the common law of defamation, the constitutional prior restraint doctrine, the constitutional protection for defamation that stems from New York Times v. Sullivan, and injunctions and their enforcement.

In Near v. Minnesota, the Supreme Court expanded protection for expression by adding an injunction to executive licensing as a prior restraint. Although the Near court circumscribed the injunction as a prior restraint, it approved criminal sanctions and damages judgment for defamation. An injunction that forbids the defendant’s …

October 14, 2019: Why The Democrats Need To Tap The Brakes On Impeachment, Bruce Ledewitz

Hallowed Secularism

Blog post, “Why the Democrats Need to Tap the Brakes on Impeachment“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Unusual Deference, William W. Berry Iii

Florida Law Review

Three Eighth Amendment decisions—Harmelin v. Michigan, Pulley v. Harris, and McCleskey v. Kemp—have had enduring, and ultimately, cruel and unusual consequences on the administration of criminal justice in the United States. What links these cases is the same fundamental analytical misstep—the decision to ignore core constitutional principles and instead defer to state punishment practices. The confusion arises from the text of the Eighth Amendment where the Supreme Court has read the “cruel and unusual” punishment proscription to rest in part on majoritarian practices. This is a classical analytical mistake—while the Amendment might prohibit rare punishments, it …

Sweet Child O’ Mine: Adult Adoption & Same-Sex Marriage In The Post-Obergefell Era, Robert Keefe

Florida Law Review

Gay and lesbian partners used adult adoption to create family relationships and to ensure inheritance and property rights in the decades before the Supreme Court’s decision in Obergefell v. Hodges legalized same-sex marriage nationwide. Same-sex partners who chose adult adoption as an alternative to marriage before the Obergefell decision must now dissolve the adoption in order to exercise their constitutional right to marry due to state incest laws prohibiting marriages between parents and their adopted children. It is difficult, however, to dissolve an adoption, and anecdotal evidence indicates that some judges have refused to dissolve adoptions between same sex partners. …

By Any Other Name: Rational Basis Inquiry And The Federal Government’S Fiduciary Duty Of Care, Gary Lawson, Guy I. Seidman

Florida Law Review

Under modern law, federal legislation is subject to “rational basis review” under the doctrinal rubric of “substantive due process.” That construction of the Fifth Amendment’s Due Process of Law Clause is notoriously difficult to justify as a matter of original constitutional meaning. Something functionally very similar to substantive due process, however, is easily justifiable as a matter of original constitutional meaning once one understands that the Constitution, for interpretative purposes, is best seen as a kind of fiduciary instrument. Fiduciary instruments operate against a background of legal norms that notably include a duty of care on the part of agents. …