Constitutional Law Commons^™

Opinion: The Constitution - Not Trump - Demands Our Allegiance, Christian G. Fritz

Faculty Scholarship

Supporting the Constitution not only requires submission to constitutional authority but implies resistance to powers that are exercised unconstitutionally. Such resistance might take the form of brave individuals living up to their oath of office or courts defending the rule of law and the Constitution. But while the Supreme Court plays a key role in interpreting the Constitution and holding a president in check, it has long been recognized that others besides the court have always been necessary to help monitor America’s constitutional order. The practice of resisting unconstitutional acts of the federal government by sounding the alarm was described …

Is It Time To Scrap Stare Decisis?, Wilfred U. Codrington Iii

Articles

Shortly after returning to the presidency, Donald Trump terminated several independent federal officers, prompting legal action by employees who occupied government positions covered by statutory for cause removal protections long held constitutionally permissible and valid. Eventually, one or more suits alleging unlawful termination owing to the removal without cause will reach the Supreme Court to be decided on the merits. Having steadily narrowed the Humphrey’s Executor line of cases that insulate these officers, the Court now seems poised to displace that precedent entirely. In isolation, the overruling would mark a seismic doctrinal shift and major advance in legal conservatism's pursuit …

What Are “Wartime Authorities” And When Can The President Use Them? An Expert Q&A, Tess Bridgeman, Rebecca Ingber, Scott Roehm

Online Publications

The first several months of President Donald Trump’s second administration have been marred by the chaotic and often unlawful use, or threatened use, of wartime and terrorism-related authorities for what are essentially domestic immigration or criminal law enforcement purposes. This is not the first time a president has sought to push the boundaries of his wartime powers, or outright claimed those he did not have, but it may well be the most extreme. Indeed, Trump’s reliance on wartime authorities in contexts entirely divorced from armed conflict, or even the threat of force against the United States, puts the country on …

The Objective Observer: The Washington State Supreme Court's Remedial Aspirations And Experience On The Ground, David B. Owens

Washington Law Review

The Washington State Supreme Court has adopted an “objective observer rule” for addressing whether race impacted jury selection and extended this rule to evaluating all aspects of Washington courts, including jury trials. The objective observer rule allows courts to evaluate whether decisions in those courtrooms could be viewed as the result of racial bias, even where there is no evidence of specific racial animus and in the absence of racial slurs. The rule, which covers a form of disparate impact, has now existed for over half a decade. This Article outlines the Washington State Supreme Court’s development of the objective …

The Gift Of Public Funds Bogeyman, Noah Purcell, Michelle Saperstein

Washington Law Review

Washington’s “gift of public funds” doctrine is frequently misunderstood in ways that impede innovative ideas aimed at remedying some of our state’s most intractable problems. This doctrine arises from article VIII, sections 5 and 7 of the Washington Constitution, which prohibit state and local governments from gifting assets or loaning credit. While the Washington State Supreme Court historically applied these provisions in restrictive and confusing ways, the Court’s modern jurisprudence recognizes that the doctrine is inapplicable to funding expended for any of the many “fundamental purposes” of government. Even where a government program does not fall under this broad category, …

Letter From The Editor, Davis Hayman

Criminal Law Practitioner

Dear Readers,

Thank you for your interest in The Criminal Law Practitioner. This marks my first publication as the Editor-in-Chief for the 2025-2026 academic year. I am thrilled to leave this remarkable team as we continue to solicit, write, and publish issues in criminal law.

 This issue continues this trend by highlighting topics including evolving interpretation of the 8th Amendment and a discussion on Constitutional venue issues related to internet crimes. Our authors provide some intriguing, unique insights that I invite you to dig into. In “The Continuing Unevolving Model of Decency, Kennedy v. Louisiana in Peril”, Professor Patrick S. …

Why Medicaid Is Addressing Homelessness With Section 1115 Waivers: A Critical Examination Of The United States' Federalist Mental Health System, Joshua Haas

Washington Law Review

Housing and health care are deeply interconnected, and their systemic relationship profoundly affects individual and societal well-being. Inadequate funding has undermined the American mental health system for decades, leading to gaps in care that have caused lasting harm to vulnerable individuals and society as a whole. This Comment examines the historical connections between homelessness and the American mental health system. It explores the benefits and criticisms of the United States’ federalist approach to health care, particularly focusing on Medicaid and its “section 1115 waivers,” which grant states flexibility to develop innovative, state-specific Medicaid programs. Recently, states began to utilize section …

The Continuing Unevolving Model Of Decency, Kennedy V. Louisiana In Peril, Patrick S. Metze

Criminal Law Practitioner

Professor Metze reflects on Kennedy v. Louisiana in its part in the development of Eighth Amendment jurisprudence and how the Supreme Court initially used Kennedy to further our understanding of the limits of the Eighth Amendment. The Court recently avoided a meaningful discussion of how our society is maturing and evolving by acknowledging a purposeful effort of some to reflect modern beliefs in opposition to those who would interpret everything through an 18th-century prism. After a case-by-case analysis of how the Court has used Kennedy, it is apparent the conservative majority now on the Court has decided there is no …

Criminalization Of Immigration Through State Enforcement: Lessons From Texas’S Latest Efforts To Criminalize Immigration Through Senate Bill 4, A. Regenold Bright

University of Arkansas at Little Rock Law Review

No abstract provided.

Ninth Amendment Neurorights, Joseph A. Tomain

Indiana Law Journal

Neurotechnology developments threaten two fundamental human rights: freedom of thought and mental privacy. For example, neuroscientists use brain scans to decode unspoken thoughts and to predict political ideology and sexual orientation. Additionally, they have successfully implanted false memories in the minds of mice. There are undoubtedly beneficial uses of this dual-use technology, such as identifying and treating a variety of medical conditions. But left unchecked, neurotechnology will be exploited by public and private actors alike. There is a growing and contested literature about how the law should respond to the increasing risks of neurotechnology. This Essay contributes to that literature …

Facial Recognition Ai, Margaret Hu

Faculty Publications

The integration of algorithmic decisionmaking and artificial intelligence (“AI”) into facial recognition technology poses new, unprecedented risks to privacy and individual autonomy rights, particularly in urban settings. The murder of Brian Thompson, CEO of UnitedHealthcare, in New York City on December 4, 2024, provides a timely case study to examine the deployment of facial recognition systems by the New York Police Department and other law enforcement agencies to identify the suspect. New York City deploys some of the most sophisticated surveillance architecture in the nation, put into place following the terrorist attacks of September 11, 2001. This Article explores the …

The Future Is In Their Care: Justice And The Washington Constitution, Steven González

Washington Law Review

No abstract provided.

The Equal Protection-Fourth Amendment Shell Game: An Essay On The Limited Reach Of The 2023 Affirmative Action Cases, The Fourth Amendment, And Race Beyond Skin Color, David B. Owens

Articles

In striking down race-conscious admissions at Harvard and the University of North Carolina, the Supreme Court used lofty rhetoric about the importance of ending race discrimination, even calling the command of Equal Protection “universal.” In two ways, this Essay explores the legal and practical limits of the affirmative action cases and illustrates how the Court’s claimed concern about race discrimination rings hollow. First, this Essay discusses state actors permitted to use race in their decision-making: the police. Unlike elite universities whose policies are subject to exacting scrutiny, the Supreme Court permits police to use race when deciding whom to seize …

The Equal Rights Amendment: The 28th Amendment To The U.S. Constitution, Twiss Butler, Patrick Butler

Dignity: A Journal of Analysis of Exploitation and Violence

This article reviews how Supreme Court interpretations of the 14^th Amendment have allowed laws to discriminate against women. It aims to show that the Equal Rights Amendment, ratified as the 28^th Amendment in 2020, offers a constitutional basis for eliminating all forms of legal sex discrimination against women. These forms include discrimination based on pregnancy and abortion, commodifying women’s bodies, and allowing men to intrude into women’s protected spaces. The review starts with the denial of protection for women by America’s Declaration of Independence in 1776, denounces the Supreme Court’s precedent-setting 1974 Geduldig decision, which ruled—quite illogically—that discrimination …

The Unfulfilled Promise Of Confédération Des Syndicats Nationaux: A Case Study On The Reconciliation Of Equality And Freedom Of Association, Andrea Talarico

Dalhousie Law Journal

The evolution of the protection of collective bargaining rights in Canada has been marked by a tension between freedom of association (section 2(d) of the Canadian Charter of Rights and Freedoms, “the Charter”) and equality (section 15(1) of the Charter). In most cases before the Supreme Court of Canada (“the SCC”), the SCC has examined both rights separately. More recently, the SCC has treated equality as a value (rather than a right), using the value of equality to inform its interpretation of freedom of association. Both these approaches (the “Siloed Approach” and the “Charter Values” approach) fail …

From Australian Influence To Rohingya Refugees: A Systematic Literature Review Of Asylum Seekers And Refugees In Indonesia, Bilal Dewansyah

The Indonesian Journal of Socio-Legal Studies

The fact that Indonesia hosts asylum seekers and refugees attracted not only policy debate and media attention but also academic research. However, no systematic review has been conducted to assess the scholarly literature on this topic. This article is intended to fill this gap by presenting a systematic literature review (SLR) on asylum seekers and refugees in Indonesia. As a result, I found five major themes in the reviewed literature: (1) the focus on the Indonesia – Australia relationship; (2) people smuggling; (3) refugees’ journey and living conditions in Indonesia; (4) Rohingya refugees; (5) legal protection and refugee status. However, …

The Right To Exit Religion, Zalman Rothschild

Articles

This Article argues that just over fifty years ago, in Wisconsin v. Yoder, the Supreme Court recognized what might be called a right to exit religion. In this decision, the Court expressed appreciation for preserving insular religious communities, while simultaneously articulating the principle that accommodations for such communities must not unduly restrict community members’ ability to exit should they wish to do so. Yet courts and scholars have largely overlooked Yoder’s recognition of a right to exit religion. To make this “right” more concrete, the Article examines impediments to it through a case study of one large insular religious community—the …

Discussing The Unconstitutionality Of The Dual Sovereign Doctrine, Kaden Collorafi

NSU Undergraduate Law Journal

This paper critically examines the United States Supreme Court’s long-standing endorsement of the Dual Sovereignty Doctrine, which permits successive prosecutions by both state and federal governments for the same underlying conduct. Rooted in dicta from Moore v. Illinois and formally adopted in United States v. Lanza, the doctrine, in the author’s opinion, has repeatedly undermined the Double Jeopardy Clause of the Fifth Amendment. Despite the incorporation of this clause to the states through the Fourteenth Amendment in Benton v. Maryland, the Court has maintained the doctrine on grounds of judicial practicality and sovereign independence.

Through an in-depth review …

Culpable Kids, Cara H. Drinan

Texas A&M Law Review

When a child commits a crime, how do states determine if that child is culpable? There are procedural rules that determine the forum for a minor’s trial and doctrines that limit children’s exposure to the most severe sentencing. But when it comes to culpability, states employ the same substantive law whether the defendant is 50 or 15. As this Article explains, that approach is profoundly flawed. In the early 21st century, in a series of cases known as the Miller trilogy, the United States Supreme Court established that youth are fundamentally different from adults and state sentencing practices must recognize …

Nourishing The Living Tree: Vincent Macdonald And His Constitutional Thought, Preston Jordan Lim

Faculty Publications

Since the enactment of the Canadian Charter of Rights and Freedoms, Canadian judges have increasingly approached the Constitution through a living constitutionalist lens, adapting the Constitution to contemporary realities and treating the text as but one interpretive modality alongside purpose and context. The Supreme Court has rooted this living constitutionalism in the Judicial Committee of the Privy Council’s judgment, Edwards v Attorney General of Canada, wherein Lord Sankey introduced the metaphor of the “living tree.” Justice Robert Sharpe and Professor Patricia McMahon have suggested that the “living tree metaphor remained a forgotten footnote until 1982.” Indeed, more formalist approaches towards …