Constitutional Law

The Possibility of Illiberal Constitutionalism?

Written by: Mark Tushnet

Abstract This Essay examines the possibility of an illiberal constitutionalism in which some citizens have “second-class” status – protected against arbitrary government action but with restricted rights. Drawing on scholarship dealing with “dual states” and federalism, the Essay argues that illiberal constitutionalism is possible conceptually but may be quite difficult to sustain over time in […]

Rational Basis Is The Only Rational Solution: Resolving Foreign Commerce Clause Confusion

Written By: Justin Senior

Abstract Congress enacted the PROTECT Act in 2003 to curtail the sexual abuse of children by U.S. citizens abroad. While the Act has not received much attention from scholars or courts, defendants in court consistently challenge its constitutionality. Congress maintains that it has the Foreign Commerce Clause power to prohibit the illicit sex activity in […]

Judging Implicit Bias: A National Empirical Study of Judicial Stereotypes

Written by: Justin D. Levinson, Mark W. Bennett, & Koichi Hioki

Abstract American judges, and especially lifetime-appointed federal judges, are often revered as the pinnacle of objectivity, possessing a deep commitment to fairness, and driven to seek justice as they interpret federal laws and the U.S. Constitution. As these judges struggle with some of the great challenges of the modern legal world, empirical scholars must seek […]

Undignified: The Supreme Court, Racial Justice, and Dignity Claims

Written by: Darren Lenard Hutchinson

Abstract The Supreme Court has interpreted the Equal Protection Clause as a formal equality mandate. In response, legal scholars have advocated alternative conceptions of equality, such as antisubordination theory, that interpret equal protection in more substantive terms. Antisubordination theory would consider the social context in which race-based policies emerge and recognize material distinctions between policies […]

Due Process and Agency: Compliments, Not Substitutes

Timothy Sandefur

Abstract Response to Gary Lawson & Guy I. Seidman, By Any Other Name: Rational Basis Inquiry and the Federal Government’s Fiduciary Duty of Care In 1816, in answer to an inquiry from a lawyer, former president Thomas Jefferson wrote that the political writings of Aristotle, valuable as they may be in general, were “almost useless” for understanding […]

Are Professors Lawson and Seidman Serious About A “Fiduciary Constitution”?

Sotirios A. Barber

Abstract Response to Gary Lawson & Guy I. Seidman, By Any Other Name: Rational Basis Inquiry and the Federal Government’s Fiduciary Duty of Care In By Any Other Name: Rational Basis Inquiry and the Federal Government’s Fiduciary Duty of Care, Professors Gary Lawson and Guy I. Seidman elaborate part of their argument for a “fiduciary Constitution” that […]