Constitutional Law Commons^™

Enemy And Ally: Religion In Loving V. Virginia And Beyond, Leora F. Eisenstadt

Fordham Law Review

Throughout the Loving case, religion appeared both overtly and subtly to endorse or lend credibility to the arguments against racial mixing. This use of religion is unsurprising given that supporters of slavery, white supremacy, and segregation have, for decades, turned to religion to justify their ideologies. Although these views are no longer mainstream, they have recently appeared again in arguments against same-sex marriage and gay and transgender rights generally. What is remarkable in the Loving case, however, is an alternate use of religion, not to justify white supremacy and segregation but instead to highlight the irrationality of its supporters’ claims. …

Prejudice, Constitutional Moral Progress, And Being “On The Right Side Of History”: Reflections On Loving V. Virginia At Fifty, Linda C. Mcclain

Fordham Law Review

Looking back at the record in Loving, this Article shows the role played by narratives of constitutional moral progress, in which the Lovings and their amici indicted Virginia’s antimiscegenation law as an “odious” relic of slavery and a present-day reflection of racial prejudice. In response, Virginia sought to distance such laws from prejudice and white supremacy by appealing to “the most recent” social science that identified problems posed by “intermarriage,” particularly for children. Such work also rejected the idea that intermarriage was a path toward progress and freedom from prejudice. This Article concludes by briefly examining the appeal to Loving …

Debating The Past's Authority In Alabama, Sara Mayeux

Vanderbilt Law School Faculty Publications

With some exceptions, the major project of civil rights litigators today is not forward movement but the work of preserving as much as possible the gains of the 1960s against legal and political battering.29 Meanwhile, and ironically, the rise of conservative progress metanarratives reflects the achievement of both liberal and radical scholars of forcing into mainstream discourse greater recognition of the evils of slavery and Jim Crow. Respectable conservatives now join in denouncing the most flagrant forms of racial terror running through the American past (pace certain allies of the Trump Administration). But doing so places them in a bind, …

Constitutional Law In An Age Of Alternative Facts, Allison Orr Larsen

Faculty Publications

Objective facts—while perhaps always elusive—are now an endangered species. A mix of digital speed, social media, fractured news, and party polarization has led to what some call a “post-truth” society: a culture where what is true matters less than what we want to be true. At the same moment in time when “alternative facts” reign supreme, we have also anchored our constitutional law in general observations about the way the world works. Do violent video games harm child brain development? Is voter fraud widespread? Is a “partial-birth abortion” ever medically necessary? Judicial pronouncements on questions like these are common, and— …

The Office Of The Crown, J.G. Allen

Research Collection Yong Pung How School Of Law

A troubling veil of mystery still shrouds the central institution of the British Constitution – the Crown. In this paper, I examine the modern utility of five historical doctrines: the doctrine of the “King's two bodies”; the doctrine that the Crown is a “corporation sole”; the doctrine that the King can “do no wrong”; the doctrine that (high) public offices are “emanations” of the Crown; and the doctrine that the Crown is “one and indivisible”. Using some insights from social ontology, the history of office in the Western legal tradition, and the sociology of role and status, I argue that …

The Two Foundings Thesis, Sonu Bedi, Elvin T. Lim

Research Collection School of Social Sciences

Constitutional interpretation generates intense debates over rights and powers. Countless U.S. Supreme Court decisions, articles, and books discuss these debates. With regard to powers, these debates often center around a nationalistic view of the U.S. Constitution, where the U.S. Congress has broad and expansive powers, or a states’ rights view of the document, where Congress has narrow and limited powers.1 With regards to rights, these debates often center around an emphasis on a moral reading of various clauses2 versus an emphasis on originalism

Qualified Immunity At Trial, Alexander A. Reinert

Articles

Qualified immunity doctrine is complex and important, and for many years it was assumed to have an outsize impact on civil rights cases by imposing significant barriers to success for plaintiffs. Recent empirical work has cast that assumption into doubt, at least as to the impact qualified immunity has at pretrial stages of litigation. This Essay adds to this empirical work by evaluating the impact of qualified immunity at trial, a subject that to date has not been empirically tested. The results reported here suggest that juries are rarely asked to answer questions that bear on the qualified immunity defense. …

Prosecutorial Summation: Where Is The Line Between "Personal Opinion" And Proper Argument?, James W. Gunson

Maine Law Review

Prosecutorial forensic misconduct has become front page news in Maine. Since April of 1993, the Maine Supreme Judicial Court, sitting as the Law Court, has reversed convictions in three highly publicized cases based on remarks made by the prosecutor. In State v. Steen, the prosecutor asked the defendant to give his opinion concerning the veracity of other witnesses and suggested in closing argument that the favorable testimony given by the defense's expert witness resulted from the fee he had received. The Law Court vacated the gross sexual assault conviction, finding that the prosecutor's questions and closing argument “clearly suggested” to …

Multiculturalism And The Bill Of Rights, Arthur Schlesinger Jr.

Maine Law Review

The Second Annual Frank M. Coffin Lecture on Law and Public Service was held on October 7, 1993. Professor Arthur M. Schlesinger, Jr. presented "Multiculturalism and the Bill of Rights."

Oops!... I Infringed Again: An Analysis Of U.S. Copyright And Its Intended Beneficiaries, Gabriele A. Forbes-Bennett

Student Theses and Dissertations

This paper seeks to establish the reasons why federal copyright protection was created, discuss the shifts in reasoning behind major amendments, and explore its effects on copyright holders and the public, with a slight focus on the music industry. Federal copyright has existed in the United States since the late 1700s, with the creation of the Copyright Act in 1790. Adopted from the first copyright law ever created, the English Statute of Anne (1710), the Copyright Act was meant to protect citizens from piracy in a world where the risk of such a thing was rapidly increasing. The stated objective …

A Study In Sovereignty: Federalism, Political Culture, And The Future Of Conservatism, Clint Hamilton

Senior Honors Theses

This thesis confronts symptoms of an issue which is eroding at the principles of conservative advocacy, specifically those dealing with federalism. It contrasts modern definitions of federalism with those which existed in the late 1700s, and then attempts to determine the cause of the change. Concluding that the change was caused by a shift in American political identity, the author argues that the conservative movement must begin a conversation on how best to adapt to the change to prevent further drifting away from conservative principles.

Is The Conditionally Constitutional Doctrine Constitutional?, Pramudya A. Oktavinanda

Indonesia Law Review

Under the Conditionally Constitutional Doctrine, the Indonesian Constitutional Court may declare that a provision of a statute is constitutional if it is read in a way described by the Constitutional Court. In practice, this doctrine allows the Constitutional Court to create new legal norms that might not be covered or even considered in the reviewed statute. The main question is: does the Constitutional Court have any legitimate reasons to use such doctrine? This is especially crucial because the Indonesian House of Representatives once banned the doctrine through amendment to Law No. 24 of 2003 on Constitutional Court in 2011 and …

Remedies Symposium: Upstairs Downstairs: Morales-Santana And The Right To A Remedy In Comparative Law, Jerfi Uzman

ConLawNOW

The Supreme Court’s ruling in Sessions v. Morales-Santana has refueled a classic debate about constitutional remedies in equal protection cases. The ways in which courts should respond to underinclusive legislation is a question that is fundamental to the idea of constitutional rights. Not just in the United States but throughout the Western world, courts struggle with the dilemma raised in Morales-Santana. In this article, I seek to broaden the debate by putting Morales-Santana in a comparative perspective. Drawing from the case law of the U.S. Supreme Court, the Court of Justice of the European Union, the Supreme Court of …

Impact Of 2001 - 2016 Supreme Court Establishment Clause Cases, Nicole Cumming

Honors Theses

This study will look at United States Supreme Court Establishment Clause cases from 2001-2016. During those 16 years, the Court decided 1,276 cases. Only 10 of those cases dealt with the establishment clause.

At an absolute minimum, the Establishment Clause was intended to prohibit the federal government from declaring and financially supporting a national religion, which existed in many other countries at the time of America's founding. This idea has become vital to the values Americans hold dear. Throughout history, religious freedom and tolerance have been celebrated, and most of that is due to the Establishment Clause. However, there is …

Originalism’S Claims And Their Implications, André Leduc

Arkansas Law Review

In this article I explore six of the most fundamental disagreements between originalism and its critics over originalism’s implications. These implications—and the implications of the critics’ alternatives—figure prominently in the arguments advanced in the debate. Reconstructing these arguments in their strongest possible form permits the confusion and misdirection in the debate over originalism to emerge. First, originalism argues that it best comports with our republican democracy. Judicial review, performed by unelected judges with lifetime appointments, may appear inconsistent with the fundamental principles of our democratic republic. Originalism argues that deference to the original understandings or expectations with respect to the …

April 25, 2018: It’S The Stupid Tax Cut, Bruce Ledewitz

Hallowed Secularism

Blog post, “It’s the Stupid Tax Cut“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Neil Gorsuch And The Return Of Rule-Of-Law Due Process, Nathan Chapman

Popular Media

Something curious happened at the Supreme Court last week. While the country was glued to the Cirque du Trump, the rule of law made a comeback, revived by Neil Gorsuch, whose place on the Court may prove to be one of Trump’s most important legacies.

Unlike the partisan gerrymander and First Amendment cases currently pending before the Court, immigration cases are usually long on textual analysis and short on grand themes. Accordingly, court-watchers didn’t have especially high expectations for Sessions v. Dimaya.

Kratom Crackdown: How The Dea Abused Its Emergency Scheduling Authority Under The Controlled Substances Act, Olivia Castillo

University of Miami Law Review

The Drug Enforcement Administration wields tremendous power at scheduling a new drug or substance on an emergency basis under the Controlled Substances Act. The DEA newly leveled this power at a plant—kratom—with the potential to curb the menacing opioid epidemic in North America. This unprecedented effort has generated considerable controversy. Many individuals remonstrated the agency’s action, especially those facing life-threatening hardships because of the opioid crisis. Members of Congress also took a stand against the DEA’s unrivalled move to schedule kratom, suggesting that the agency had abused the emergency scheduling authority delegated by the legislative branch.

This Comment explores the …

The Travel Ban And Presidential Power, Peter Margulies

Law Faculty Scholarship

No abstract provided.

The Use Of Military Force And The Constitution, John M. Greabe

Law Faculty Scholarship

[Excerpt] Last week, for the second time since becoming president, President Donald Trump ordered a military strike on Syria without seeking or obtaining authorization from Congress. Both strikes were responsive to chemical-weapons attacks that, American intelligence analysts say, the Syrian government launched against its own people.

Many believe that these forceful responses to horrific war crimes involving banned weapons were morally justified. But were they constitutional?