Constitutional Law Commons^™

Constitutional Law – Warrantless Searches – Whether The Search Incident To Arrest Exception Should Apply To Data Stored On Cellular Phones, Jeremy Ray

Tennessee Journal of Race, Gender, & Social Justice

No abstract provided.

The Meaning Of The Seventeenth Amendment And A Century Of State Defiance, Zachary D. Clopton, Steven E. Art

Northwestern University Law Review

Nearly a century ago, the Seventeenth Amendment to the U.S. Constitution worked a substantial change in American government, dictating that the people should elect their senators by popular vote. Despite its significance, there has been little written about what the Amendment means or how it works. This Article provides a comprehensive interpretation of the Seventeenth Amendment based on the text of the Amendment and a variety of other sources: historical and textual antecedents, relevant Supreme Court decisions, the complete debates in Congress, and the social and political factors that led to this new constitutional provision. Among other things, this analysis …

Originalism And The Ratification Of The Fourteenth Amendment, Thomas B. Colby

Northwestern University Law Review

Originalists have traditionally based the normative case for originalism primarily on principles of popular sovereignty: the Constitution owes its legitimacy as higher law to the fact that it was ratified by the American people through a supermajoritarian process. As such, it must be interpreted according to the original meaning that it had at the time of ratification. To give it another meaning today is to allow judges to enforce a legal rule that was never actually embraced and enacted by the people. Whatever the merits of this argument in general, it faces particular hurdles when applied to the Fourteenth Amendment. …

Agency Adjudication And Judicial Nondelegation: An Article Iii Canon, Mila Sohoni

Northwestern University Law Review

The rules governing judicial review of adjudication by federal agencies are insensitive to a critical separation of powers principle. Article III jurisprudence requires different treatment of agency adjudication depending on whether the agency is adjudicating a “private right” or a “public right.” When agencies adjudicate private rights, review of the agency adjudication must be available to an Article III court on a direct appellate basis. In contrast, Article III jurisprudence does not require review to an Article III court on a direct appellate basis of agency adjudications of purely public rights. That means that federal courts reviewing agency adjudications of …

The Intratextual Independent “Legislature” And The Elections Clause, Michael T. Morley

NULR Online

No abstract provided.

The Intratextual Independent “Legislature” And The Elections Clause, Michael T. Morley

NULR Online

No abstract provided.

January 18, 2015: How Serious Is Global Warming, Really?, Bruce Ledewitz

Hallowed Secularism

Blog post, “ How Serious is Global Warming, Really?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

“Camels Agree With Your Throat” And Other Lies: Why Graphic Warnings Are Necessary To Prevent Consumer Deception, Ellen English

Florida Law Review

The government’s latest attempt to protect consumers from the perils of tobacco use is in jeopardy. In 2009, Congress enacted the Family Smoking Prevention and Tobacco Control Act, which requires cigarette advertisements and packages to bear nine new textual health warnings and gives the FDA authority to regulate tobacco products. In 2011, in compliance with the Act, the FDA issued a regulation, known as the graphic warning requirement, which mandates that a color graphic image accompany each of the nine textual warning statements. The graphic warning requirement now faces challenges from the tobacco industry, and the ambiguities current standards present …

January 14, 2015: Heidegger And The Jewish Question, Bruce Ledewitz

Hallowed Secularism

Blog post, “Heidegger and the Jewish Question“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Retroactive Application Of State Long-Arm Statutes, Dane Reed Ullian

Florida Law Review

A precondition to a court’s exercising any measure of authority over an individual or an entity is the court’s establishment of personal jurisdiction. A court may exercise personal jurisdiction over a nonresident defendant only if the forum state provides a statutory basis for exercising jurisdiction over the nonresident and the exercise of jurisdiction satisfies the constitutional due process standard. Personal jurisdiction is one of the most commonly litigated issues today, due primarily to confusion over the constitutional standard.

Commentators and courts write extensively about the constitutional prerequisites for personal jurisdiction, but say little about state long-arm statutes. Perhaps this should …

Pardons And The Theory Of The “Second-Best”, Chad Flanders

Florida Law Review

This Article explains and defends a “second-best” theory of pardons. Pardons are second-best in two ways. First, pardons are second-best because they represent, in part, a response to a failure of justice: the person convicted was not actually guilty, or he or she was punished too harshly, or the punishment no longer fits the crime. In the familiar analogy, pardons act as a “safety valve” on a criminal justice system that doesn’t work as it ideally should. Pardons, in the nonideal world we live in, are sometimes necessary.

But pardons are also second-best because they can represent deviations from other …

The Rostrum Principle: Why The Boundaries Of The Public Forum Matter To Statutory Interpretation, Amy Widman

Florida Law Review

This Article explores a normative proposal for statutory interpretation in light of this media-saturated age. The proposal, referred to in this Article as the Rostrum Principle, encourages the Court to interpret ambiguous terms in legislation with a presumption toward the way the legislation was “sold” to the public. This Article further explores the shifting public forum—away from the Congressional Record and formal legal frameworks to include cable news television, newspaper op-eds, and even Twitter. The explosion of popular and social media and politicians’ increasingly sophisticated use of these forms of communication goes far toward setting the debate regarding pending legislation. …

January 10, 2015: Islam Is Violence, Judaism Is Exclusion, Capitalism Is Inequality, Christianity Is Colonialism, Bruce Ledewitz

Hallowed Secularism

Blog post, “Islam is Violence, Judaism is Exclusion, Capitalism is Inequality, Christianity is Colonialism“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

What A History Of Tax Withholding Tells Us About The Relationship Between Statutes And Constitutional Law, Anuj C. Desai

Northwestern University Law Review

No abstract provided.

Did The Sixteenth Amendment Ever Matter? Does It Matter Today?, Erik M. Jensen

Northwestern University Law Review

No abstract provided.

Congressional Arbitrage At The Executive's Expense: The Speech Or Debate Clause And The Unenforceable Stock Act, Anna Fodor

Northwestern University Law Review

No abstract provided.

Judiciary Rising: Constitutional Change In The United Kingdom, Erin F. Delaney

Northwestern University Law Review

No abstract provided.

The Definite Article: The D.C. Circuit's Redefinition Of Recess Appointments, Jeff Vandam

Northwestern University Law Review

No abstract provided.

Doe V. Elmbrook School District And The Importance Of Refocusing Establishment Clause Jurisprudence, Julie M. Karaba

Northwestern University Law Review

No abstract provided.

January 8, 2015: 29 Nome, Alaska—11 Pittsburgh, Bruce Ledewitz

Hallowed Secularism

Blog post, “29 Nome, Alaska—11 Pittsburgh“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.