Constitutional Law Commons^™

Guilty Of Homelessness: Evaluating The Criminalization Of Homelessness Through A Human Rights Framework, Cristina M. Semi

Departmental Honors Projects

Several international treaties and declarations affirm adequate housing as a fundamental human right. However, the United States, while a signatory to several of these agreements, does not recognize this right. Homelessness violates the right to housing. Moreover, homelessness often subjects individuals to additional rights violations. These additional violations often occur because governments criminalize homelessness.

Public order laws that criminalize basic life-sustaining behaviors, such as sitting, lying, and sleeping in public spaces, violate several constitutional rights when applied to unsheltered individuals experiencing homelessness. Devoid of any accommodation aside from the public streets, such individuals must necessarily perform the prohibited conduct in …

When Speech Isn't Free: Legal Barriers And Consequences Of Reporting Sexual Violence, Kevin M. Fleming

Departmental Honors Projects

Incidents of sexual violence continue to be a serious problem for society. Likewise, acts of sexual violence impose severe consequences for survivors. The consequences initially begin at the onset of the survivor’s journey to psychological recovery following the traumatic sexual assault. The consequences take on a unique set of characteristics when the survivor attempts to use the justice system to confront the perpetrator who committed the offense. These characteristics can transform an adversarial process into an isolated battle for the survivor. In the worst cases, the justice system empowers individuals who wish to silence survivors with free speech restrictions instead …

Solving The Multimillion Dollar Constitutional Puzzle Surrounding State "Sustainable" Energy Policy, Steven Ferrey

Suffolk University Law School Faculty Works

The U.S. confronted a Constitutional impasse: The ability of state government to enact sustainable energy statutes and regulations is significantly restricted by successful recent Constitutional legal challenges to states actions This article identifies a solution to implement legally ‘bulletproof’ sustainable regulation at the state level, circumventing the major Constitutional impasse now frustrating U.S renewable energy policy

U.S. sustainable energy policy is principally implemented through state law and regulation, through five types of state programs. As implemented, these five policies are now being challenged as unconstitutional and improper exercises of state government authority. There is a legally “bright” jurisdictional line nowhere …

After The Tiers: Windsor, Congressional Power To Enforce Equal Protection, And The Challenge Of Pointillist Constitutionalism, William D. Araiza

Faculty Scholarship

No abstract provided.

The Pregnancy Exclusion In Advance Directives: Are Women's Constitutional Rights Being Violated? , Katie Rinkus

Public Interest Law Reporter

No abstract provided.

Woollard V. Gallagher: Normalizing The Fourth Circuit’S Approach To Second Amendment Challenges, William Young Jr.

Maryland Law Review Online

No abstract provided.

Education Rights And The New Due Process, Areto A. Imoukuede

Journal Publications

This Article argues for a human dignity-based, due process clause analysis to recognize the fundamental duty of government to provide high quality, public education. Access to public education is a fundamental duty, or positive fundamental right because education is a basic human need and a constituent part of all democratic rights. In The Fifth Freedom, I argued that there is a fundamental duty under the U.S. Constitution to provide public education and that the reason a fundamental right to public education has not been recognized is because of a profound confusion regarding fundamental rights as duties.' The Court is biased …

On Creativity In Constitutional Interpretation, Pierre Schlag

Publications

In the present article a particular aspect of constitutional interpretation will be considered. This aspect is called "creative" and involves retrieving the meaning of an object of interpretation. It is with regard to this particular aspect or moment of interpretation that creativity is often viewed as something to be avoided, to be shunned. If the task at hand is to "retrieve" some meaning, then the idea that this meaning can be created, in whole or in part, seems quite simply antithetical to the enterprise at hand. It suffices to note that many jurists and legal thinkers believe that interpretation as …

The President And Congress: Separation Of Powers In The United States Of America, Harold H. Bruff

Publications

Although the framers of the Australian Constitution adopted many features of the United States Constitution, they rejected the separation of legislative and executive power in favour of responsible government in a parliamentary system like that of the United Kingdom. In doing so, Australians depended on existing conventions about the nature of responsible government instead of specification of its attributes in constitutional text. The United States Constitution contains detailed provisions about separation of powers, but unwritten conventions have produced some central features of American government. This article reviews conventions developed by Congress that constrain Presidents in the domestic sphere with regard …

Immigration And Cooperative Federalism: Toward A Doctrinal Framework, Ming H. Chen

Publications

What can the new federalism teach us about what is happening in immigration law? The changing relationship of federal-state government in the regulation of immigrants has led to the creation of “immigration federalism” as a field of scholarship. Most of this scholarly attention has been directed at resisting restrictionist legislation that encourages vigorous law enforcement against undocumented immigrants. The scholarly tilt is especially pronounced since the Supreme Court recently struck down several provisions of S.B. 1070, Arizona’s restrictive law enforcement legislation. However, law enforcement is only one type of regulation, and the overwhelming focus on it skews the broader debate …

Same-Sex Marriage, Federalism, And Judicial Supremacy, Robert F. Nagel

Publications

Justice Kennedy's opinion in United States v. Windsor is characterized by a number of strained and wavering constitutional claims. Prominent among these is the argument that the principle of federalism calls into question the congressional decision to adopt the traditional definition of marriage, which the state of New York rejected. An examination of earlier federalism cases demonstrates that Kennedy's appreciation for federalism is in fact severely limited and suggests and that his lax use of legal authority is directly if perversely related to this limited appreciation.

Federalism cases prior to Windsor show that Justice Kennedy supports state authority only when …

Constitutional Concern, Membership, And Race, Sarah Krakoff

Publications

American Indian Tribes in the United States have a unique legal and political status shaped by fluctuating federal policies and the over-arching history of this country’s brand of settler-colonialism. One of the several legacies of this history is that federally recognized tribes have membership rules that diverge significantly from typical state or national citizenship criteria. These rules and their history are poorly understood by judges and members of the public, leading to misunderstandings about the “racial” status of tribes and Indian people, and on occasion to incoherent and damaging decisions on a range of Indian law issues. This article, which …

“What He Said.” The Transformative Potential Of The Use Of Copyrighted Content In Political Campaigns —Or— How A Win For Mitt Romney Might Have Been A Victory For Free Speech, Deidre Keller

Journal Publications

In January 2012 Mitt Romney’s campaign received a cease-and-desist letter charging, among other things, that its use of news footage concerning Newt Gingrich’s ethics problems in the House of Representatives constituted a violation of NBC’s copyright. This is just the latest such charge and came amidst similar allegations against the Gingrich and Bachmann campaigns and in the wake of similar allegations against both the McCain and Obama campaigns in 2008. Such allegations have plagued political campaigns as far back as Reagan’s in 1984. The existing literature is nearly devoid of a consideration of such uses as political speech protected by …

Solitary Confinement, Public Safety, And Recdivism, Shira E. Gordon

University of Michigan Journal of Law Reform

As of 2005, about 80,000 prisoners were housed in solitary confinement in jails and in state and federal prisons in the United States. Prisoners in solitary confinement are generally housed in a cell for twenty-two to twenty-four hours a day with little human contact or interaction. The number of prisoners held in solitary confinement increased 40 percent between 1995 and 2000, in comparison to the growth in the total prison population of 28 percent. Concurrently, the duration of time that prisoners spend in solitary confinement also increased: nationally, most prisoners in solitary confinement spend more than five years there. The …

The Collapsing Constitution, Michael D. Cicchini

Hofstra Law Review

No abstract provided.

Marriage Equality And One Original Principle Of Religious Liberty, Harry F. Tepker

Faculty Articles

No abstract provided.

Nonprofits, Speech, And Unconstitutional Conditions, Lloyd Hitoshi Mayer

Journal Articles

This Article proposes a new constitutional framework for approaching the issue of speech-related conditions on government funding received by nonprofits and demonstrates the application of this framework by applying it to the disputes that have reached the Supreme Court in this area. It argues that speech rights are generally inalienable as against the government under the First Amendment, and therefore any abridgement of such rights by the government – whether direct or indirect – is subject to strict scrutiny. As a result, the government is not permitted to buy an organization’s speech (or silence) absent a compelling governmental interest in …

In Defense Of Idea Due Process, Mark Weber

College of Law Faculty

Due Process hearing rights under the Individuals with Disabilities Education Act are under attack. A major professional group and several academic commentators charge that the hearings system advantages middle class parents, that it is expensive, that it is futile, and that it is unmanageable. Some critics would abandon individual rights to a hearing and review in favor of bureaucratic enforcement or administrative mechanisms that do not include the right to an individual hearing before a neutral decision maker. This Article defends the right to a due process hearing. It contends that some criticisms of hearing rights are simply erroneous, and …

Live And Let Die: Puerto Rico — The Unincorporated Jewel Of The Caribbean, Emmanuel Hiram Arnaud

Faculty Scholarship

Puerto Rico is a commonwealth of the United States. However, the ambiguous meaning of that phrase has allowed for inconsistent treatment of Puerto Rico by the Supreme Court of the United States. This short article briefly tackles the manner in which the federal government most recently applied the federal death penalty to Puerto Rico despite the island's constitutional ban against capital punishment.

The Fiduciary Foundations Of Federal Equal Protection, Gary S. Lawson, Guy Seidman, Robert G. Natelson

Faculty Scholarship

In Bolling v. Sharpe, the Supreme Court invalidated school segregation in the District of Columbia by inferring a broad “federal equal protection” principle from the Due Process Clause of the Fifth Amendment. It is often assumed that this principle is inconsistent with the Constitution’s original meaning and with “originalist” interpretation.

This Article demonstrates, however, that a federal equal protection principle is not only consistent with the Constitution’s original meaning, but inherent in it. The Constitution was crafted as a fiduciary document of the kind that, under contemporaneous law, imposed on agents acting for more than one beneficiary – and on …