Constitutional Law Commons^™

Fundamental Rights Betrayed: How Pregnancy Exclusions In Advance Directive Statutes Silence Pregnant People’S Wishes, Molly Hill

American University Journal of Gender, Social Policy & the Law

INTRODUCTION: In 2013, Marlise Muñoz collapsed at her home and was rushed to the hospital, where the doctors informed her family that she had suffered a pulmonary embolism and was now brain-dead. Marlise had previously expressed to her family that she never wished to be kept on life support if she was left brain-dead, so her family wanted to honor her wishes. However, despite her irreversible brain death, because Marlise was fourteen weeks pregnant, Texas law required that her body remain on life-sustaining treatment until her fetus became viable. Her body lay in the hospital hooked up to machines against …

No Exception For Ultra Vires Discrimination, Rev. James Deboer

American University Journal of Gender, Social Policy & the Law

The Ministerial Exception (“the Exception”) is an affirmative defense that religious institutions may use to obtain dismissal of discrimination claims brought by current and former ministerial employees.The Exception rests on the seemingly straightforward premise that churches and other religious institutions must be free to select and remove their own ministers without interference from secular laws.  It applies with equal force to any kind of discrimination; extends to harassment and retaliation; and is not confined to forms of alleged discrimination motivated by religious belief.

The Supreme Court has only addressed the Exception twice. First, in 2012, through Hosanna-Tabor Evangelical Lutheran Church …

The Ambiguity That Isn’T: Why Same-Sex Marriage Is Legal In American Samoa, Dante Cade Harootunian, Sammi Lawrence

American University Journal of Gender, Social Policy & the Law

After the U.S. Supreme Court ruled in Obergefell v. Hodges that prohibitions on same-sex marriage violate the equal protection guarantees of the U.S. Constitution, several government officials in American Samoa issued statements claiming that the decision had no effect in American Samoa, and, to date, no same-sex couples have

applied for a marriage license in the territory. This Article analyzes the Obergefell decision in light of other federal and territorial court decisions that determined the applicability of constitutional rights to U.S. territories and concludes that, despite the statements of local officials, the Obergefell decision applies in American Samoa, and the …

Why Dobbs Is No Roadmap For Deciding State Constitutional Abortion Issues, Daniel A. Small

American University Journal of Gender, Social Policy & the Law

In deciding that Fourteenth Amendment “liberty” does not protect a woman’s decision to end her pregnancy, Dobbs v. Jackson Women’s Health Organization sought to distinguish the precedent that Roe and Casey relied on to recognize an abortion right. The Dobbs majority claimed that this precedent did not support a right to abortion because, in its view, destroying a fetus is more immoral than the conduct at issue in those earlier cases. However, moral concerns about fetal destruction shed no light on the nature or characteristics of a woman’s liberty interest in an abortion decision. These concerns, therefore, cannot show whether …

What Is “The Nation’S History And Tradition?”: Using History To Redefine “Liberty” And Applying A New Deeply Rooted Test To Transgender Rights, Kaori Kawaguchi

American University Journal of Gender, Social Policy & the Law

INTRODUCTION: “In a Constitution for a free people, there can be no doubt that the meaning of ‘liberty’ must be broad indeed.” In Roe v. Wade, the Court considered a woman’s liberty right to decide whether to continue a pregnancy or have an abortion and recognized the constitutional validity of a liberty right to abortion as part of the right to privacy. In Roe, the Court concluded, “[o]nly personal rights that can be deemed ‘fundamental’ or ‘implicit in the concept of ordered liberty’ are included in the guarantee of a right of personal privacy.” Liberty should be “left to …

Nonviolent Felony Offenders And The Second Amendment: Reexamining Categorical Disarmament Laws In Light Of Bruen And Rahimi, Nikolay Belardi

American University Journal of Gender, Social Policy & the Law

INTRODUCTION: The Second Amendment ensures that “the right of the people to keep and bear Arms, shall not be infringed.” In a country with more civilian-owned firearms than people—and more gun dealers than McDonald’s, Burger King, Subway, and Wendy’s locations combined—it is no surprise that Americans pride themselves on their right to bear arms. However, a majority of the American population favors stricter gun laws and regulations, a position that seems sensible given that mass shootings are an all-too-familiar occurrence in the United States. The enshrinement of the right to bear arms in the Constitution limits the laws and regulations …

Dualisme Tujuan Pembebanan Uang Pengganti: Analisis Putusan Angelina Sondakh Di Berbagai Tingkat Peradilan, Valencia Puspa Novandra Ali, Tamsil .

Jurnal Hukum & Pembangunan

Studi ini meneliti perbedaan interpretasi dan penerapan hukuman tambahan berupa restitusi (uang pengganti) dalam kasus korupsi melalui analisis komparatif keputusan Angelina Sondakh di pengadilan tingkat pertama, pengadilan banding, pengadilan kasasi, dan pengadilan peninjauan yudisial. Muncul interpretasi ganda antara memandang restitusi sebagai kompensasi atas kerugian keuangan negara dan sebagai mekanisme untuk menyita keuntungan ilegal. Judex facti menolak penerapan restitusi dengan alasan bahwa tidak terjadi kerugian negara dalam kasus suap dan gratifikasi, sementara judex juris di tingkat kasasi menafsirkan restitusi sebagai instrumen pemulihan aset yang ditujukan untuk keuntungan yang diperoleh secara ilegal. Orientasi konseptual yang bertentangan ini menghasilkan perbedaan signifikan dalam penjatuhan …

Kedudukan Putusan Peradilan Etik Sebagai Keputusan Tata Usaha Negara: Studi Kasus Gugatan Hakim Konstitusi Anwar Usman, Satrio Febriyanto

Jurnal Hukum & Pembangunan

As an effort to concretize ethics, there is a process of formalizing ethics into a set of rules through a code of ethics. The code of ethics needs institutional enforcement instruments so that it can be effectively applied through ethical trials. Ethical courts, as institutions that adjudicate violations of the code of ethics, have the authority to issue decisions as a follow-up to cases of violations of the code of ethics that they handle. In carrying out its duties, ethical courts use ethical and moral analysis to assess the appropriateness of an action. This analytical approach differs from legal decisions …

Tinjauan Frasa “Setiap Orang” Dalam Pasal 3 Ayat (1) Peraturan Pemerintah Nomor 56 Tahun 2021 Tentang Pengelolaan Royalti Hak Cipta Lagu Dan/Atau Musik, Fajar Hidayansyah Ilham, Luna Dezeana Ticoalu

Jurnal Hukum & Pembangunan

Copyright is one form of legal protection for intellectual works, occupying an important position within the intellectual property law system. The Copyright Law explicitly grants exclusive rights to creators, encompassing both moral rights and economic rights. Economic rights, as stipulated in Article 9 paragraph (1), allow creators to obtain economic benefits from their works, ranging from publication, reproduction, distribution, performance, to communication to the public. This provision shows that creators hold a primary position as legal subjects entitled to protection, while also serving as central actors in the creative industry ecosystem. In practice, the mechanism for copyright protection requires implementing …

Justifying The Fourth Amendment, Daniel Epps

Vanderbilt Law Review

Why does the Fourth Amendment belong in the Constitution? This question is not whether society should impose some legal restraints on government searches and seizures. Rather, why should such protections reside in our national charter, superior to other forms of law and insulated from change via ordinary majoritarian political processes? Despite major disputes about the Fourth Amendment's content, Fourth Amendment theorists rarely ask this question. Almost all agree that the Fourth Amendment's constitutional protections are critically important-even if no one can agree exactly what those protections are.
This Article seeks a justification for the Fourth Amendment-the reason why search-and-seizure protections …

Disconsents, Daryl J. Levinson, David E. Pozen

Faculty Scholarship

Consent is an indispensable standard and organizing principle in any liberal legal order that prizes self-directed autonomy, self-identified preferences, and collective agreement. Yet consent’s capacity to advance those values has become increasingly uncertain in a society beset by power imbalances, information asymmetries, and multiple forms of polarization. In this Article, we document how the rise of neoliberalism has led to greater reliance on consent throughout U.S. law, while at the same time leading to greater doubts about its moral efficacy and empirical feasibility. Connecting and generalizing pathologies of consent-based regulation that have been identified within myriad domains, the Article identifies …

Teaching Constitutional Law: Politics, Democracy And History, Andrea Scoseria Katz

Scholarship@WashULaw

Teaching Constitutional Law in the present era presents unique pedagogical challenges. My students arrive skeptical of the field, doubtful of the Supreme Court’s authority, questioning the relevance of legal methods in determining case outcomes, and perceiving constitutional adjudication as irreducibly political. Rather than dismiss these concerns, I argue that constitutional law professors must acknowledge them directly. Our task is not to restore naïve faith in judicial neutrality (an impossible ideal), but to present students with a vision of constitutional meaning-making—one grounded in politics, history, and democratic politics—in which they can recognize themselves as engaged participants in the future of our …

Why Constitutional Argument Matters, Philip C. Bobbitt

Faculty Scholarship

The program for this symposium promised that I would be discussing the “descriptive grammar of constitutional law.” To put my purpose less benignly, I should say that I mean to attack the practice of limiting what I will call “modal analysis” to its descriptive virtues. Part of that attack will be the claim that courts and their commentators should pay closer attention to the modal requirements of the fundamental forms of constitutional discourse, but not because straying from this is a kind of grammatical faux pas. After all, if the system I have urged for constitutional analysis — the system …

Obituary For The Birth Certificate, Malinda L. Seymore

Faculty Scholarship

Have birth certificates outlived their usefulness? Birth certificates establish an individual’s name, identity, age, race, sex and gender, parental authority, and citizenship. In addition, the information collected at the time of birth and reflected on a long-form birth certificate provides data for public health policy, population statistics, internal migration, government planning, and resource allocation. Birth certificates are also the all-access pass to American life, necessary for many functions of modern life: registering a child in school, signing a child up for soccer, getting a driver’s license and passport, enlisting in the military, and applying for government benefits. All of this, …

Property Rights V. Taxpayer Rights: The Battle Over Tax Foreclosures, Stewart E. Sterk

Articles

No abstract provided.

How The U.S. Constitution Shapes International Tax Law: Instrument Choice In Tax Agreements, Noam Noked, Young Ran (Christine) Kim, Reuven S. Avi-Yonah

Articles

The U.S. Constitution’s Treaty Clause, which requires Senate approval by a two-thirds vote for treaties, has significantly influenced the development of international tax law. This Article examines the implications of Senate supermajority requirements on bilateral and multilateral tax treaties and agreements, alternative instruments, relevant international tax standards, and global tax governance.

Historically, tax treaties have been approved exclusively as Article II treaties requiring Senate approval. The difficulty of entering into treaties with the United States has influenced the instrument choice and design of U.S. and international tax standards. To address this challenge, several U.S. and international tax reforms have employed …

Taxing The Architecture: A Structural Remedy For Disinformation In The Algorithmic Marketplace, Padmakshi Sharma

LL.M. Essays & Theses

This paper argues that the constitutional assumption that truth will prevail over falsehood in the marketplace of ideas has always depended on three structural preconditions. These conditions were: distributive parity for counter-speech, institutional segmentation of the information environment, and epistemic credibility signals that allowed non-expert audiences to distinguish authoritative from non-authoritative sources. Together, these conditions ensured that truth was granted a structural advantage sufficient to offset the harms of falsehood. Social media platforms have destroyed all of these conditions. The destruction is a consequence of an economic model organized around behavioral advertising and engagement maximization, which systematically amplifies disinformation over …

The Crisis Of Appropriations Law, Samuel R. Bagenstos

Articles

Appropriations law is a unique body of federal law.  Appropriations law imposes its own somewhat baroque set of statutory interpretation principles, approves of very broad delegations to the Executive Branch without meaningful limiting principles, and is often exempt from judicial review.  But perhaps that is all about to change.  Donald Trump’s historically aggressive challenge to Congress’s power of the purse has spurred an unusually large volume of exceptionally high-stakes appropriations law litigation. 

The potential implications go beyond the high-profile issues such as enforcement of the Impoundment Control Act.  In general, the unusual features of appropriations law are built on a …

Constitutional Colonialism And Decolonization: Moving Toward A Decolonial African Constitutional Future, Luwam Dirar

Faculty Scholarship

This Article is an attempt at theorizing Africa's colonial constitutional legacies and post-colonial constitutionalism. The central argument of this Article is that constitutional law in Africa is a colonial tool that was used to legalize the subjugation of Africans and Africa, and a post-colonial necessity for the "self-determination and statehood" of newly-minted African states, while at the same time, it remains a decolonial battlefield of epistemic colonization. This Article adopts a broader conception of colonialism that extends beyond the 19th-century understanding of European colonialism and interrogates constitutional law as both a colonial tool and an act of self-determination in the …

Sacred Or Sham? Strengthening Judicial Review Of Religious Sincerity Under The Free Exercise Clause Article Title, Montana Martinez

Faculty Scholarship

While the Court has expanded the scope of Free Exercise protections, it has conspicuously failed to articulate how courts should separate sincere religious claims from fraudulent ones. The result is a doctrinal void: any claimant can recast political or philosophical objections as "religious" and demand constitutional protection. The risk is that the Free Exercise Clause, if stripped of any sincerity filter, will collapse into a generalized right to exemption from law. This Article argues that courts can assess religious sincerity without evaluating the truth or validity of the religious belief, and it proposes a framework grounded in the constitutional text, …