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In Szeliga v. Lamone, a state trial court determined for the first time that Article III, Section 4 of the Maryland Constitution applies to restrict the Maryland General Assembly's power to adopt a plan of congressional redistricting. Using theories of constitutional interpretation including textualism, originalism, comparative constitutional law, and common law constitutional interpretation, we reject the trial court's interpretation. Instead, we suggest better techniques for interpreting the state constitution and perhaps for combating excessive partisan gerrymandering. [ABSTRACT FROM AUTHOR]

Constitutional constraints are undertheorized and overrated. Constitutions are routinely advertised as vehicles for constraining political decisions. Constitutions work when governing officials make decisions on the basis of constitutional rules rather than personal preferences. Officials protect religious liberty rather than advance what their faith teaches is the one true religion. Constitutional constraints are undertheorized because conventional accounts of constitutions as constraining mechanisms fail to explore the strategies available to unsympathetic constitutional decisionmakers bent on frustrating constitutional provisions inconsistent with what they believe to be desirable political arrangements, fundamental rights, vital interests, and cherished policies. President Trump's lawyers claimed that executive orders which Trump had described as a "Muslim ban" were designed to promote national security and not to discriminate against adherents of Islam. Constitutional constraints are overrated because even discounting disobedience, such strategies as invalidation, denial, neglect, off-the-wall interpretation, circumcision, circumvention, and capture frequently enable unsympathetic constitutional decisionmakers to frustrate constitutional provisions while maintaining nominal allegiance to the rule of law. Police officers frequently claim that evidence was "in plain sight" to frustrate implementation of the Fourth Amendment. Strong constitutional constraints work only when unsympathetic constitutional decisionmakers respect the rule of law and are compelled to interpret constitutional provisions as inconsistent with what they believe are desirable political arrangements, fundamental rights, vital interests, or cherished policies. Constitutional provisions constrain unsympathetic constitutional decisionmakers who have some respect for the rule of law only when they cannot invalidate, deny, neglect, interpret away, circumcise, capture, or circumvent the text. Constitutional reformers can preempt these strategies for frustrating constitutional constraints only by quite specific language that eschews appeals to broad values and is likely to be inflexible in response to political, social, and technological changes. One consequence of this narrowing is that constitutional constraints are poor vehicles for widescale social reform. Constitutional transformation requires empowering the faithful, not constraining the unsympathetic. [ABSTRACT FROM AUTHOR]

Just weeks before the Supreme Court in Dobbs v. Jackson Women's Health Organization abolished the individual right to terminate a pregnancy without government interference, Republican Senators in then-Judge Ketanji Brown Jackson's confirmation hearings queried her about the Ninth Amendment twenty-three times. Because the Ninth Amendment has long been treated as either excess verbiage or a rule of construction, the Senators' redundant questioning was auspicious: Could it play a role in the 6-3 conservative majority's reconfiguration of twentieth century constitutional law precedent? This Article explores the potential relationship between the Ninth Amendment and the modern Court's approach to unenumerated rights as a matter of substantive due process. It posits that, from the federalism vantage point outlined in dissenting opinions in Griswold v. Connecticut, the Ninth Amendment, considered alongside Dobbs, may be positioned to justify reversion Of other unenumerated rights to state legislatures within a generation's time. The problem with the Dobbs approach is that reliance on federalism as the panacea for rights protection is, empirically speaking, a myth. The majority in Dobbs signaled a penchant toward a restrictive view of unenumerated rights using "history and tradition as the touchstone, emboldening the role of States over other sources of what Justice John Paul Stevens once called the "conceptual core " of liberty. But the Dobbs majority wrongly assumed that the electoral system works fairly to reflect the actual will of the voting public. It also ignored the Supreme Court's decades-long hostility to voting rights, unnecessarily limiting the ability of individuals to elect representatives who will respond to the will of constituents. The Court's new doctrinal trajectory is thus not sufficiently robust to protect the individual from government overreach. Long before Griswold, the Court outlined an approach to unenumerated rights in Meyer v. Nebraska, which recognized rights beyond the Constitution's text as necessary to liberty while at the same time confining unelected judges' power to recognize new rights arbitrarily. Viewed as a mechanism for cabining the vast powers of government, Meyer offers a paradigm-shift in rights analysis--one that is grounded in the Court's precedent as positive law--that would appropriately tether it to the concepts of limited government that deeply animate the Constitution rather than on socially controversial culture debates. [ABSTRACT FROM AUTHOR]

Left critics of the Roberts Court have objected to the Court's decisions, but also to its efforts to transform the Constitution and constitutional interpretation, upending longstanding organizations of political power and the structure and scope of rights. These critics have questioned the Court's legitimacy, noting the unpopularity of some of these agendas. The criticisms, however, are hard to distinguish from the routine, if quite serious, objections that liberals have been raising for many years. This Article proposes a turn to queer theory, reading the Court's work in its recent terms as performance of bad drag: a judicial appropriation of the doctrinal garb of the Fuller Court. The Roberts Court's bad drag echoes advocacy for structures and principles that operate in a mean-spirited and defensive way, leaving little room for subversive play or the undermining of oppressive power structures. Understanding the Court's work in these terms provides an alternative approach to critique and highlights why its current behavior poses a serious threat to the institution's legitimacy. [ABSTRACT FROM AUTHOR]

Longstanding, post-adoption practice has become prominent in constitutional law, but its proper use remains unclear. As this Article shows, post-adoption longevity takes at least three argumentative forms: positive longevity, which uses the longevity of a practice as evidence of constitutionality; negative longevity, which uses the longstanding absence of a practice as evidence of unconstitutionality; and mandatory longevity, which requires longevity for a practice to be constitutional. Each use recognizes that longevity signals something about non-judicial interpretations of the Constitution, but each differs in what that something is. Prior scholarship has missed this range of appeals to longevity and their many claims about non-judicial interpretation, focusing instead on values that justify longevity itself rather than its particular form. As a result, the literature is missing a theory of longstanding practice that explains not only its proper use in constitutional argument but also its limits. This Article fills that gap. Drawing on the non-judicial constitutionalism literature, it explains that non-judicial officials interpret the Constitution with different competencies and democratic responsiveness than courts. Longevity's value is that it draws out deliberate attempts by non-judicial officials to engage with constitutional meaning through those distinctive features. Incorporating the results into constitutional doctrine is essential for correcting the institutional deficiencies that courts face as interpreters. However, the same concern counsels against using longevity to prevent nonjudicial officials from continuing to develop new practices that engage with constitutional meaning. These two principles--the incorporation principle and the continuing practice principle--guide the use of longevity in court. Armed with those principles, the Article then evaluates the three uses of longevity in constitutional law. Mandatory longevity contravenes the continuing practice principle by using longevity to block new practices. Negative longevity mostly goes wrong for the same reason, although the incorporation principle occasionally justifies it. By contrast, positive longevity rightly incorporates non-judicial interpretations while allowing officials to change the practice if they choose. The result is an approach to post-adoption longevity that draws all that can be inferred from a longstanding practice without using that practice to constrain the future. [ABSTRACT FROM AUTHOR]

Everyone is obsessed today with constitutional norms. They have powerfully penetrated our vocabulary and are mentioned with dizzying frequency. We now know that any account of our valuable constitutional practices cannot end with just politics or law and must also include norms. What is further unique about the current moment in our political era is that an important and increasingly growing subset of these norms appears to be exceedingly fragile and is under persistent attack. Some even suggest that the erosion of constitutional norms is at the heart of a global trend of democratic recession. But how precisely do constitutional norms change and ultimately collapse? And is there something actors can do to influence these processes? This Article's goal is to explore these questions, both in general and in the context of the alleged trend of democratic recession. It argues that although constitutional norms can be understood, following H.L.A Hart, as a "primitive" component in our political systems (given the way they differ from formal law), constitutional norms can attain some of the credentials Hart believed could be attributed exclusively to law. More specifically, the Article claims that we can fashion something akin to "rules of change" and "rules of adjudication" in relation to constitutional norms and accordingly gain a firmer grasp on how they develop, change, and ultimately break down and on how conflicts about constitutional norms are eventually resolved within our politics. As for "rules of change" for norms, the Article argues that constitutional norms tend to change in predictable ways and because of the working of several distinctive mechanisms. As for "rules of adjudication" for norms, the Article identifies a set of concrete strategies that constitutional norm entrepreneurs--who wish to change present norms, including destroying them--and constitutional norm anti-preneurs--who wish to safeguard present norms--can use to try to manipulate constitutional norms to achieve their desired, and oppositional, ends. The Article concludes by implementing that framework to our present moment of democratic recession. It asks, in other words, what constitutional norm anti-preneurs can do to halt further encroachment upon valuable constitutional norms that appear crucial to the resilience of democratic systems, both in general and in the United States. adjudication" for norms, the Article identifies a set of concrete strategies that constitutional norm entrepreneurs--who wish to change present norms, including destroying them--and constitutional norm anti-preneurs--who wish to safeguard present norms--can use to try to manipulate constitutional norms to achieve their desired, and oppositional, ends. The Article concludes by implementing that framework to our present moment of democratic recession. It asks, in other words, what constitutional norm anti-preneurs can do to halt further encroachment upon valuable constitutional norms that appear crucial to the resilience of democratic systems, both in general and in the United States. [ABSTRACT FROM AUTHOR]

When technology obviates the need for an election law that prevents some otherwise eligible voters from casting a ballot, a jurisdiction's retention of that law and refusal to adopt the technology should be deemed a serious infringement of the right to vote that triggers strict scrutiny under the Equal Protection Clause of the Constitution. [ABSTRACT FROM AUTHOR]

The global appeal of liberal constitutional democracy--defined as a competitive multiparty system combined with governance within constitutional limits--cannot be taken for granted due to the existence of competing forms of government that appear successful along a number of practical dimensions and consequently enjoy high levels of public acceptance. Proponents of liberal constitutional democracy must be prepared to proactively explain and defend its capacity to satisfy first-order political needs. A system of government is unlikely to command popular acceptance unless it can plausibly claim to address the problems of oppression, tribalism, and physical and economic security. Along these dimensions, the advantages of liberal constitutional democracy over the alternatives of social democracy of the type seen in Scandinavia, and bureaucratic authoritarianism of the type seen in parts of Asia, are not self-evident. Within Asia alone, seemingly functional alternatives to liberal constitutional democracy run the gamut from illiberal nondemocracy in China, to liberal one-party rule in Japan, to illiberal constitutional democracy in Singapore, to liberal constitutional nondemocracy in Hong Kong, to hereditary monarchy in Bhutan. [ABSTRACT FROM AUTHOR]

An obituary for professor Peter E. Quint, who taught Constitutional Law at University of Maryland School of Law, is presented.

An essay is presented in which the author discusses law school in an earlier period. Topics discussed include authors experience of studding at law school; his experience of teaching at Wayne State Law School which focuses on public interest, environmental protection, and tax reforms; and his work of constitutional law of Germany.

When constitutional courts are called upon to construe generally phrased provisions in the federal or a state's constitution, they necessarily exercise interpretive agency. This judicial agency is thought by some to be in tension with the values of democratic governance. One strategy for dealing with this perceived problem is to institute a preference for incorporating prior judicial interpretations as a way of reducing the overall incidence of new judicial decisionmaking. This strategy was pressed particularly in the mid-twentieth century by Justice Hugo Black, who called on the U.S. Supreme Court to incorporate the Court's prior interpretation of the Bill of Rights as a means of interpreting Section One of the Fourteenth Amendment. In instances in which a state supreme court is asked to construe a state constitutional provision that is analogous to a parallel federal constitutional provision, some have urged the state court to systematically defer to the prior interpretation of the parallel federal provision by the U.S. Supreme Court. This position, styled the "lockstep" approach, involves a kind of incorporation of a prior judicial interpretation, as do both the selective and total incorporation approaches to interpreting the Fourteenth Amendment. This Article reviews the competing conceptions of the judicial role and function articulated in the context of the Fourteenth Amendment incorporation cases, and evaluates the background assumptions and broader calculations that energized that debate both on the Court and among mid-twentieth century constitutional law scholars. It then traces the somewhat parallel debate that has taken place over the past several decades among state supreme court Justices and academics interested in state constitutional interpretation. The Article concludes by explaining why a passive spectator's role for constitutional courts, which is assumed by arguments for incorporation in the Fourteenth Amendment context and for a rule requiring automatic or presumptive deference by state courts to the prior judicial interpretation of parallel provisions in the federal constitution by the U.S. Supreme Court, is both undesirable in our democratic system and unrealistic. The Connecticut Supreme Court's recent decision in State v. Santiago is offered instead as an example of how a state court should proceed with appropriate agency in interpreting state constitutional text. [ABSTRACT FROM AUTHOR]

David has been "singled out." He is the only one in his neighborhood legally prohibited from building a house. In a town full of residences, his lot alone must remain vacant. This is unequal, but is it unconstitutional? Courts have continually grappled with this sort of question, vigilantly defending against unfair and unjust singling out. So important is this concern that the Supreme Court has emphasized it as the heart of the Fifth Amendment takings jurisprudence, and an entire Equal Protection doctrine has emerged around it. However, courts and scholars have yet to critically examine the concept of singling-out, and as a result, singling-out protections languish as ineffective and counterproductive. This Article remedies the oversight and presents a solution. By untangling the different singling-out theories, this Article prioritizes the approaches that best serve their underlying values. Moreover, this Article proposes an easily implementable, though counterintuitive, measure for improving both singling-out protections and Fifth Amendment takings jurisprudence. [ABSTRACT FROM AUTHOR]

The article examine the legal issues related to state action doctrine in the U.S. Topics discussed include formation of the doctrine by the U.S. Supreme Court civil rights cases; the Civil Rights Act of 1875; decision of the court in the case 'Shelley v. Kramer;' and use of Public function tests in identifying the state's action.

The right to privacy is the centerpiece of modern liberal constitutional thought in the United States. But liberals rarely invoke "the Founding" to justify this right, as if conceding that the right to privacy was somehow a radical departure from "original meaning, "perhaps pulled out of the hat by "activist" judges taking great interpretive liberties with the constitutional text. Far from being an unorthodox and modern invention, I argue here that privacy is a principle grounded in the very architecture of the Constitution as enumerated in its Articles, perhaps even more so than in particular sections o f the Bill of Rights, as is currently understood. More specifically, modern liberalism's articulation of the right to privacy in the twentieth century against state legislative leviathans bears a family resemblance to three principles in the Federalists' political theory, which introduced the new federalism, the new liberalism, and the new republicanism, which in turn are embedded in three interrelated structural innovations that would presage the modern turn to privacy: (1) the establishment of a stronger union would nationalize rights and introduce the radical idea that the federal government was not antithetical to liberty but would better guarantee it (the new federalism); (2) the creation of a large republic would acknowledge that fellow citizens, even more so than kings, can threaten our liberties (the new liberalism); and finally, (3) the introduction of the separation of powers would reverse the classical commitment to homogeneity and affirm instead the virtue of heterogeneity in understanding and constituting the republican commonweal (the new republicanism). [ABSTRACT FROM AUTHOR]

The article discusses the first amendment protections of the U.S. Constitution concerning the rights to freely exercise religion against government intrusion. Topics discussed include enactment of Religious Freedom Restoration Act and the Religious Land Use and Institutionalized Persons Act in the U.S.; decision of the U.S. Supreme Court in the case 'Burwell v. Hobby Lobby Stores Inc.;' and the U.S. judicial approach towards religious exercise cases.

This Article presents a new historical account of Stump v. Sparkman, one of the most controversial Supreme Court decisions in the past fifty years. Stump is the 1978 judicial immunity opinion in which the Supreme Court declared that judges are absolutely immune from liability for their official judicial acts, even if such acts are done maliciously or flawed by the commission of grave procedural errors. The context of the case was horrific. It involved the involuntary sterilization of a fifteen-year-old girl; she was sterilized pursuant to a court order that her mother had, obtained from a state judge without any notice to the child, appointment of a lawyer to represent her, presentation of evidence, or opportunity to appeal. As an adult she sued the judge and lost on the basis of the judicial immunity doctrine. The basic project of this Article is to show why this largely overlooked case is important in American constitutional law beyond the narrow issue of judicial immunity, recovering it as a canonical decision relevant to contemporary debates about constitutional reproductive rights and procedural due process. Specifically, this Article suggests that Stump emerged from an ongoing set of discussions about the nature and scope of then-nascent constitutional protections for reproductive rights, as well as access to the federal courts by civil rights claimants. These issues continue to be contested today, as courts and states reign in the scope of reproductive rights, and as federal judges increasingly employ procedural rules limiting the ability of civil rights victims to pursue their claims and receive a decision on the merits in federal court. As these questions continue to filter through the courts, a close examination of the historical antecedents to these trends, as reflected in earlier Supreme Court decisions such as Stump, can help courts envision more just alternatives to the present course on these fundamentally important procedural and substantive questions [ABSTRACT FROM AUTHOR]

The article discusses errors committed during post-conviction litigation, with a focus on when state prisoners with federal claims can overcome procedural default or procedural defect in a federal habeas proceeding. Topics include the consequences of errors committed during post-conviction litigation which might force an inmate to forfeit a claim in state court; rights guaranteed by the Sixth and 14th Amendments; and constitutional challenges by prisoners without the assistance of counsel.

The article discusses the U.S. Supreme Court's ruling in the 2013 case Clapper v. Amnesty International USA which deals with the legal standing requirements to challenge the constitutionality of Section 1881a of the U.S. Foreign Intelligence Surveillance Act (FISA) as of April 2014. According to the article, Section 1881a was added to the statute through Section 702 of the U.S. FISA Amendments Act of 2008. The U.S. Congress and nation's Foreign Intelligence Surveillance Court are examined.

The United States is often considered to be the most speech-protective country in the world. Paradoxically, the features that have led to this reputation have created areas in which the United States is in fact less speech protective than other countries. The Supreme Court's increasing use of a categorical approach to the First Amendment has created a growing divide between the U.S. approach to reconciling copyright and free expression and the proportionality analysis adopted by most of the rest of the world. In practice, the U.S. categorical approach to the First Amendment minimizes opportunities for judicial oversight of copyright. Consequently, as corporations lobby for ever-increasing penalties and enforcement mechanisms, the United States has fostered one of the world's least speech-friendly criminal copyright regimes. The United States is exporting that regime, including its presumption that copyright is unrelated to freedom of expression. Instead of exporting flawed presumptions, the United States should reintegrate proportionality concepts into First Amendment doctrine to examine the proportionality of sanctions for speech that has functionally been deemed unprotected by the First Amendment. [ABSTRACT FROM AUTHOR]