Constitutional Law Commons^™

The Endorsement Test’S Early Years, 1983–1985: Notes From The O’Connor Files, Jay Wexler

William & Mary Bill of Rights Journal

One of Justice Sandra Day O’Connor’s signature contributions to U.S. constitutional law was the endorsement test, a subtle but critically important reformulation of the Court’s then prevailing approach to applying the Establishment Clause that focused on the message sent by government action supporting religion and the potentially harmful effects of that message on religious minorities and the political community. Now that the current Court has discarded the endorsement test, leaving the government freer than ever to support religion in a variety of ways, we should expect to see the harms that Justice O’Connor cared about become increasingly widespread and prevalent. …

Not Born A Democracy: Constitutional Preconditions, Martha Minow

William & Mary Law Review

Beneath growing perceptions of constitutional crisis and democratic fragility in the United States lies a fundamental conundrum. Critical preconditions for effective self-government are either weak or missing in action, and our constitutional system, at least for now, stands in the way of actions to strengthen or build those preconditions. This Article focuses on three essential predicates for constitutional democracy that face jeopardy: education, reliable news, and security against lethal violence. As basic as these elements may be, repeated efforts to secure a federal constitutional right to education have failed in the courts. Because of a confluence of legal, technological, and …

The Persistence Of The Unconstitutional Status/Use Distinction In Federal Grants To Religious Nonprofits, Nicole Stelle Garnett, Cameron Grinnell

Books

Manhattan Institute Memo

Do Civil Penalties Punish? The Fbar Penalty And The Case For An Emboldened Excessive Fines Clause, Scott Oatkin

Cardozo Law Review

The Report of Foreign Bank and Financial Accounts (FBAR) regime authorizes the IRS to impose severe penalties—up to the greater of $100,000 or fifty percent of the account balance—for failure to report foreign bank accounts exceeding $10,000. While the Eighth Amendment protects Americans from “excessive fines,” circuit courts are split on whether the FBAR penalty constitutes a fine and is subject to constitutional scrutiny. Some courts have found that the FBAR penalty is wholly remedial and beyond the reach of the Excessive Fines Clause, but this Note argues that such an interpretation is inconsistent with the history and case law …

Religious Conflicts In Disguise: The Limits Of The Law In Tackling Conflicts With Religious Dimensions, Yael Efron

Cardozo Journal of Conflict Resolution

In previous publications, we have established the crucial differences between conflicts with religious dimensions (CRDs) and other types of conflicts. We claim that a legal solution to CRDs is rarely sufficient to terminate the conflict and often might lead to further damage to communities and persons, sometimes even harsher than the original dispute. Since not all CRDs are similar, a theorized model of their distinguishing elements—time, intensity, and proximity to core values—assists us in differentiating them. By analyzing the elements of CRDs in accordance with the TIV model, we can more easily determine which conflicts are suitable for legal process …

Pursuing Restorative Justice For The Legacy Of Federal Indian Boarding Schools, Jilly Horowitz

Cardozo Journal of Conflict Resolution

This Note examines the United States’ federal boarding school policy, designed to eliminate Native populations, and the federal government’s efforts from June 2021 to December 2024 to acknowledge and address its harms. For 150 years, Native children were subjected to this brutal policy and were removed from their communities and placed in boarding schools. These schools were focused less on providing education and opportunity for Native students, and instead were tools to carry out a concentrated federal policy of cultural assimilation and forcible removal from Native lands. The federal government implemented this policy throughout the country, operating or funding 451 …

Blazing A New Path: How Regulatory Negotiation Can Resolve Cannabis Legalization’S Shortcomings, Natalie Pearson

Cardozo Journal of Conflict Resolution

New York’s ambitious cannabis legalization effort has fallen short of its promises, burdened by regulatory confusion, industry roadblocks, and an unchecked illicit market. Despite state-level approval, legalization remains riddled with contradictions and obstacles, leaving businesses and policymakers struggling to navigate an unstable framework. This Note explores how regulatory negotiation, an alternative dispute resolution (“ADR”) mechanism, can address key industry challenges, particularly those arising from conflicting federal and state laws.

Much Ado About Critical Race Theory, Matthew Patrick Shaw

Vanderbilt Law School Faculty Publications

This Article offers novel observation and critical intervention in the challenge to state laws which have been adopted, allegedly, to prevent the teaching of critical race theory

(CRT) in public schools. Against the trend of recent scholarship that understands these laws as curricular censorship of topical subjects and seeks to contest their validity on those grounds, this Article more accurately identifies them as pedagogical censorship: Limits on teaching methods, which raise different, potentially more dispositive questions about the states’ educational decision-making authority—questions that the U.S. Supreme Court has long sought to avoid. But exposing these so-called “anti-CRT” laws as neither …

Splitting The Statute: Severability As A Canon Of Construction Or Constitutional Concern?, Amy L. Moore

Law Faculty Scholarship

This Article examines the Supreme Court’s evolving severability doctrine and interrogates whether severability is best understood as a canon of statutory construction or as a constitutional limitation on judicial power. Tracing the doctrine from Marbury v. Madison through modern cases such as Champlin Refining Co., Carter Coal, INS v. Chadha, Alaska Airlines, Booker, and Seila Law, the Article demonstrates that the Court has oscillated between an interpretive presumption favoring preservation of legislative enactments and a structural concern about judicial lawmaking. It distinguishes between textual severability—excising unconstitutional statutory provisions—and application severability—limiting unconstitutional applications while preserving …

The Evolution Of The Second Amendment And The American Gun Violence Epidemic: A Historical Analysis Of Political Self-Sabotage, Amanda Tureaud

Senior Theses

From the conception of the Bill of Rights until the 21st century, the Second Amendment was read and understood by the American population, both ordinary citizens and government officials, branches, and agencies inclusively, to allow the nation to have an armed military but not for private citizens to own and/or carry firearms. Since 2008, however, the Second Amendment has been interpreted as an absolute freedom for private citizens to own and carry semiautomatic assault weapons in the name of personal protection. This thesis holds that the evolution of society’s attitude on guns and gun control is specifically denoted by the …

Criminal Court's Disability, Zohra Ahmed

Faculty Scholarship

Do criminal courts meaningfully accommodate psychiatric disability? A review of competency proceedings across the United States suggests not. In competency to stand trial proceedings, criminal court actors offer a narrow vision of psychiatric disability that excludes many defendants. Ultimately, the institutional context of criminal court undermines even the meagre accommodations that the competency framework provides.

Competency proceedings are the constitutional accommodations available to disabled defendants if they can establish that they are unable to consult with their lawyers or if they do not have a rational or factual understanding of the proceedings against them. After a finding of incompetency, the …

Interpreting The Private‑ And Public‑Sector Service Criteria For Singapore’S Aspiring Presidential Candidates, Benjamin Joshua Ong

Research Collection Yong Pung How School Of Law

The Singapore President's role is not only ceremonial: from 1991, it has encompassed the substantive function of serving as a guardian of public reserves and the integrity of the public service. A person must meet certain qualifying criteria in order to run in a Presidential election. This article focuses on one set of qualifying criteria, namely, the "service criteria": the requirement that candidates have had certain experience in serving in certain roles in the public sector or the private sector. The service criteria were last amended in 2016, and came to the fore in the 2023 Presidential Election following George …

Beyond Democracy: How A Free Press Supports The Rule Of Law, Erin C. Carroll

Georgetown Law Faculty Publications and Other Works

Widespread agreement has existed for centuries that a free press is essential to democracy. But legal scholars have spent almost no effort thinking about why else we might need a free press. This article attempts to widen the aperture. It argues that as the free press is essential to democracy, it is just as essential to a separate value: the rule of law.

Recognizing and investigating the connections between the free press and the rule of law is essential right now. It can help us discern how the press can create friction against the erosion of both rule of law …

Scotus Term Preview, Floersheimer Center For Constitutional Democracy

2025–2026 Flyers

No abstract provided.

Rights In The Eyes Of The Beholder: The Lived Hierarchy Of Rights In India's Democracy, Sehar Abdullah, Keerthana Satheesh, Prashant Narang

Socio-Legal Review

This paper examines how citizens in India perceive and prioritise fundamental rights, with particular attention to the six freedoms under Article 19(1) and the property right. While the freedoms of Article 19(1) remain central to democratic citizenship, the Forty-Fourth Constitutional Amendment of 1978 reclassified the right to property as a constitutional right under Article 300A. This shift prompts an important question: Does the diminished constitutional rank of property correspond to its place in popular hierarchies of rights? Our in-depth interviews with 26 respondents, whose livelihoods make them especially sensitive to changes in both categories of rights, reveal that citizens continue …

Two Wrongs Don't Make A Right: The Fourth Circuit Sidesteps Supreme Court Precedent In Upholding An Assault Weapon Ban In Bianchi V. Brown, Gabriella Mudd

Villanova Law Review (1956 - )

No abstract provided.

The Section 32(1) Analysis: Clarifying Eldridge In Light Of York Region District School Board, Kate Glover Berger

All Papers

The Eldridge framework, a stable feature of Canadian Charter jurisprudence for decades, sets out part of the framework for determining when entities or activities qualify as “government” under section 32(1), the Charter’s application section. In light of this stability, the Supreme Court of Canada’s analysis of the section 32(1) issue in York Region District School Board v Elementary Teachers Federation of Ontario was surprising. It raised the question: Why did the Court in York Region deviate from well-settled law on the Eldridge framework and, in the process, seemingly change the framework’s thresholds? This question arises because the Court in …

Coffee & Constitutions, Cardozo Office Of Student Services & Advising

2025–2026 Flyers

No abstract provided.

Tribal Sovereign Immunity: Absolute Authority Or Accountability, Kekek Jason Stark

Public Land & Resources Law Review

In the wake of the recent United States Supreme Court decision of Trump v. United States, the Court determined that the President as Chief Executive is immune from conduct associated with official acts.3 The question that emanates from this opinion is how will this decision affect Indian Country and tribal court determinations of tribal sovereign immunity? This article will attempt to address this question. I begin with the Anishinaabe story of Bebaamosed miinawaa Gawigoshko’iweshiinh (The Trickster and the Little Scary Bird)5 in an attempt to understand the complicated nature of tribal sovereign immunity.

Discovering The Doctrine Of Discovery, Douglas Lind

Public Land & Resources Law Review

The doctrine of discovery is a concept in crisis. A principle of public international law associated with the so-called Age of Discovery, the doctrine of discovery is commonly said to have authorized European nations to claim the lands of indigenous peoples and establish settlements on the basis of “discovery” alone. Today, with good reason, the doctrine is widely condemned. The United Nations has denounced it as “the very foundation of genocide.” Describing its manifest injustices against indigenous cultures, dominion, and sovereignty as “devastating, far-reaching and intergenerational,” the UN Economic and Social Council has called for the doctrine to be categorically …