Constitutional Law Commons^™

Sections 9, 10 And 11 Of The Canadian Charter, Steve Coughlan, Robert Currie

Articles, Book Chapters, & Popular Press

Section 9 of the Charter guarantees freedom from arbitrary detention, section 10 provides certain rights on arrest, and section 11 guarantees various rights to those charged with an offence. In this chapter the authors consider the aspects of these rights which have been authoritatively determined, as well as pointing to the areas which remain unsettled and discussing the areas of lingering controversy.

The Canadian Legal System, Steve Coughlan, Dale Darling

Articles, Book Chapters, & Popular Press

To really understand the influence of law on any activity, one must first understand the influences on the creation of law. This chapter sets the context for that discussion of law, by explaining the structural aspects of the legal system. Those aspects include the sources of law in Canada, the forms that law can take, and the parties who are primarily responsible for creating and shaping the law. This chapter will be structured around the discussion of four things: constitutional law, non-constitutional law, decision-makers in the legal system and, finally, a case study illustrating those features in action.

Reading (Into) Windsor: Presidential Leadership, Marriage Equality, And Immigration Policy, Victor C. Romero

Faculty Scholarship

Following the demise of the federal Defense of Marriage Act in United States v. Windsor, the Obama Administration directed a bold, equality-based reading of Windsor to immigration law, treating bi-national same-sex couples the same as opposite-sex couples. This Essay argues that the President's interpretation is both constitutionally and politically sound: Constitutionally, because it comports with the Executive's power to enforce immigration law and to guarantee equal protection under the law; and politically, because it reflects the current, increasingly tolerant view of marriage equality. Though still in its infancy, President Obama's policy of treating same-sex beneficiary petitions generally the same as …

Pass Parallel Privacy Standards Or Privacy Perishes, Anne T. Mckenna

Faculty Scholarship

No abstract provided.

Brief Of Amici Curiae Professors Nan D. Hunter, Et Al., Addressing The Merits In Support Of Respondents, Nan D. Hunter, Suzanne B. Goldberg

Faculty Scholarship

In this amicus brief filed in United States v. Windsor, pending before the Supreme Court, amici constitutional law professors argue that all classifications that carry the indicia of invidiousness should trigger a more searching inquiry than the traditional rational basis test under the Equal Protection Clause would suggest. Classifications that already receive heightened scrutiny, such as race or sex, fit easily into this approach. But the Court’s equal protection jurisprudence has become muddied in a series of cases in which it says rational basis review, but appears to do a more rigorous review. Sexual orientation classifications seemingly were analyzed …

Lincoln, The Emancipation Proclamation And Executive Power, Henry L. Chambers Jr.

Law Faculty Publications

This Essay explores whether President Lincoln's Emancipation Proclamation, freeing all slaves held in areas designated by the President to be under rebellion onJanuary 1, 1863, could be justified as an exercise of his power under the Take Care Clause. Part I of this Essay discusses the legislation that preceded the Emancipation Proclamation. Part II discusses the Emancipation Proclamation. Part III discusses the Take Care Clause and how it might authorize significant parts of the Emancipation Proclamation, if not the entire document.

The Missing Due Process Argument, Jamal Greene

Faculty Scholarship

The argument that eventually persuaded five members of the Supreme Court to conclude that the individual mandate exceeded Congress’s power to regulate interstate commerce is one most observers originally considered frivolous. In that respect, it is similar to another potential argument against the mandate — that forcing someone to pay for insurance violates the liberty interests guaranteed by the Constitution’s Due Process Clause. The Commerce Clause argument was the centerpiece of the challenge to the mandate; the due process argument was not meaningfully advanced at all. This chapter suggests reasons why.

Hate Speech And The Demos, Jamal Greene

Faculty Scholarship

It is sometimes said that the statist and aristocratic traditions of Europe render its political institutions less democratic than those of the United States. Richard Posner writes of “the less democratic cast of European politics, as a result of which elite opinion is more likely to override public opinion than it is in the United States.” If that is true, then there are obvious ways in which it figures into debates over the wisdom of hate-speech regulation. The standard European argument in favor of such regulation may easily be characterized as antidemocratic: Restrictions on hate speech protect unpopular minority groups …

The Origins Of The Privileges Or Immunities Clause, Part Iii: Andrew Johnson And The Constitutional Referendum Of 1866, Kurt T. Lash

Law Faculty Publications

This Article divides the events of 1866 into four phases. First, I discuss the early framing debates and the political rupture between congressional Republicans and President Andrew Johnson that occurred in the spring of 1866. Johnson’s March 27 veto of the Civil Rights Act and the congressional override were major public events and signaled what would become the central issue in the fall elections: whether the southern states should be readmitted without condition, or whether they must first be forced to protect the rights of citizens of the United States. The second Part discusses the final framing and initial public …

Paid Organ Donations And The Constitutionality Of The National Organ Transplant Act, John A. Robertson

UC Law Constitutional Quarterly

Organ transplant is a well-established medical therapy that saves thousands of lives. Yet many people who could survive with transplants die on waiting lists. With ever expanding indications for transplant, the supply of organs will never meet demand. But many more organ transplants could occur than do.

Under the National Organ Transplant Act ("NOTA"), the United States government prohibits the use of money in any form of organ donation scheme. By making it a federal felony to provide valuable consideration for organ donations, many proposed organ brokerages and exchanges have not been allowed to come to fruition. Valuable consideration includes …

Thomas Jefferson's Establishment Clause Federalism, David E. Steinberg

UC Law Constitutional Quarterly

Constitutional history can be used or misused. Historical analysis can provide insight into provisions shrouded in opaque language. But constitutional history also can be used to mislead, painting an intentionally distorted picture of people or events.

In the vast majority of its opinions analyzing the First Amendment's Establishment Clause that also include a historical account from Thomas Jefferson, the Supreme Court has consistently stated that Jefferson viewed the Establishment Clause as the embodiment of the church-state separation principle. However, if Jefferson were alive today and could read the Court's account of his views, he would be horrified. A distrust of …

Bans On Sex-Selective Abortions: How Far Is Too Far, Annie Moskovian

UC Law Constitutional Quarterly

"My mother in law always tells me I am useless because I do not have a son. If I do not have a son, she says, they will send me back to India." These words come from a qualitative study on son preference and fetal sex selection among Indian immigrants in the United States in which women expressed the pressure to have sons from in-laws and husbands. Census studies also indicate that many Chinese and Korean Americans terminate pregnancies if the fetus is of the undesired sex.

Further, studies imply that sex selection is not a practice that can be …

'You Are Hereby Sentenced To A Term Of . . . Enslavement?': Why Prisoners Cannot Be Exempt From Thirteenth Amendment Protection, Alvaro Hasani

Barry Law Review

No abstract provided.

E Pluribus Unum: Liberalism's March To Be The Singular Influence On Civil Rights At The Supreme Court, Aaron J. Shuler

Barry Law Review

This article seeks to apply Rogers Smith’s Multiple Traditions thesis to the United States Supreme Court’s treatment of the Fourteenth Amendment to uncover the influences behind its major civil rights decisions. It will argue that liberalism dominates at the Court after mostly, but not completely, shedding its illiberal tendencies. This article will argue that the Court’s focus on intent over impact and its “color-blind” approach to racial classifications in the era of subterranean prejudice and indifference or ignorance to inequality solidifies and perpetuates the hierarchies created by ascriptive forms of Americanism under the Court’s liberal notions. This article will also …

A Reporter's Privilege In Florida: Has The Conflict Between The First Amendment And Sixth Amendment Been Reconciled?, Jay B. Rosman

Barry Law Review

This article examines the reporter's privilege in Florida and the inherent conflict between the First Amendment and Sixth Amendment as it exists between the freedom of the press and the right to a fair trial. The salient question addressed is whether the conflict between the First Amendment and the Sixth Amendment has been reconciled on the issue of a reporter's privilege by Florida courts and the Florida Legislature. The author provides both an analytic and empirical study. Analytically, the article looks to the two amendments to define a reporter's privilege and considers the history of the privilege. The article discusses …

A Modest Defense Of Mind Reading, Kiel Brennan-Marquez

Faculty Articles and Papers

The last decade has witnessed a profusion of commentary on "mind-reading" devices. Instead of offering traditional legal arguments against such devices, most scholars have simply assumed their use to be unconstitutional. The consensus is clear: by essentially "speaking for" defendants, mind-reading devices offend the basic spirit of the Self-Incrimination Clause. In this Article, I defend the constitutionality of mind-reading on both doctrinal and normative grounds. First, I reconstruct the Court's self-incrimination jurisprudence to demonstrate that evidence is only "testimonial" and thus, privileged if it involves a "communicative act" from the suspect. Whether or not particular types of mind-reading devices would …

The United States Constitutional History Through The Barristers And Political Theories Of The Middle Temple Inn Of Court, Allen E. Shoenberger

Faculty Publications & Other Works

No abstract provided.

Footholds Of Constitutional Interpretation, Alexander Tsesis

Faculty Publications & Other Works

No abstract provided.

Maxim Constitutionalism: Liberal Equality For The Common Good, Alexander Tsesis

Faculty Publications & Other Works

No abstract provided.

Indiana V. Edwards: The Prospect Of A Heightened Competency Standard For Pro Se Defendants, Ashley N. Beck

University of Colorado Law Review

The Sixth Amendment to the United States Constitution guarantees a criminal defendant both the right to the assistance of counsel and the right of self-representation. The right of self-representation is deeply ingrained in the Anglo- American system of justice, but so is the requirement that a criminal defendant be tried only if competent to stand trial. In Indiana v. Edwards, the Supreme Court recognized a "gray area" of competency, noting that competency to stand trial with the assistance of counsel may not equate to competency to proceed pro se. In Edwards, the Court held that a trial court retains the …