University of Pennsylvania journal of constitutional law最新文献

{"title":"The Gibbons Fallacy","authors":"Richard A. Primus","doi":"10.2139/SSRN.2732727","DOIUrl":"https://doi.org/10.2139/SSRN.2732727","url":null,"abstract":"In Gibbons v. Ogden, Chief Justice John Marshall famously wrote that “the enumeration presupposes something not enumerated.” Modern courts use that phrase to mean that the Constitution’s enumeration of congressional powers indicates that those powers are, as a whole, less than a grant of general legislative authority. But Marshall wasn’t saying that. He wasn’t talking about the Constitution’s overall enumeration of congressional powers at all, and nothing in his analysis purported to limit what Congress can do. Modern courts and commentators systematically misread Marshall on this point and in so doing lend unjustified credence to one of the central misconceptions of constitutional doctrine: that the enumerated powers of Congress must in practice authorize less legislation than a grant of general legislative authority would. Properly understood, Marshall’s statement about enumeration does not support that idea.","PeriodicalId":90761,"journal":{"name":"University of Pennsylvania journal of constitutional law","volume":"19 1","pages":"567"},"PeriodicalIF":0.0,"publicationDate":"2016-02-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68279060","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Laird v. Tatum and Article III Standing in Surveillance Cases","authors":"Jeffrey L. Vagle","doi":"10.31228/osf.io/gzpv5","DOIUrl":"https://doi.org/10.31228/osf.io/gzpv5","url":null,"abstract":"Plaintiffs seeking to challenge government surveillance programs have faced long odds in federal courts, due mainly to a line of Supreme Court cases that have set a very high bar to Article III standing in these cases. The origins of this jurisprudence can be directly traced to Laird v. Tatum, a 1972 case where the Supreme Court considered the question of who could sue the government over a surveillance program, holding in a 5-4 decision that chilling effects arising “merely from the individual’s knowledge” of likely government surveillance did not constitute adequate injury to meet Article III standing requirements.","PeriodicalId":90761,"journal":{"name":"University of Pennsylvania journal of constitutional law","volume":"23 1","pages":"1055"},"PeriodicalIF":0.0,"publicationDate":"2016-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69639629","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The 'Public Trust'","authors":"J. A. Kreder","doi":"10.2139/SSRN.2554862","DOIUrl":"https://doi.org/10.2139/SSRN.2554862","url":null,"abstract":"It seems as if no one really knows the meaning of the term “public Trust” used in the Religious Test Clause of Article VI of the U.S. Constitution. This Article is the first scholarly attempt to define the term by exploring historical evidence pre-dating the nation’s founding through the Constitution’s adoption, including British and colonial trust law that influenced the Founders’ conception of the term. Today, one can find the term used only in the cases and scholarship concerning environmental law, tax law and museum law. After a thorough analysis of the old and new sources, this Article proposes the following original definition of term “public Trust”: “Any entity given special privilege by the government, beyond the simple grant of a state corporate charter often coupled with state or federal tax waivers, so long as that entity is legally obligated to engage in conduct that could traditionally have been performed by the government itself for the public’s benefit.”","PeriodicalId":90761,"journal":{"name":"University of Pennsylvania journal of constitutional law","volume":"18 1","pages":"1425"},"PeriodicalIF":0.0,"publicationDate":"2016-01-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68201709","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Original Meaning of 'Natural Born'","authors":"Michael D. Ramsey","doi":"10.2139/SSRN.2712485","DOIUrl":"https://doi.org/10.2139/SSRN.2712485","url":null,"abstract":"Article II, Section 1 of the U.S. Constitution provides that no one but a “natural born Citizen” is eligible to be President of the United States. Modern conventional wisdom generally holds that the phrase “natural born Citizen” includes anyone made a U.S. citizen at birth by U.S. statutes or the Constitution. But that conventional wisdom is, on its face, under attack and open to doubt. If anyone born a U.S. citizen is eligible, the word “natural” in the eligibility clause is superfluous. Further, in general in eighteenth-century legal language, natural meant the opposite of “provided by statute” (hence “natural law” and “natural rights”). And plausible arguments can be made for a narrow meaning of “natural born” on the basis of either traditional English common law or eighteenth-century continental public law. To this point, modern scholarship has provided no comprehensive response to these objections.Nonetheless, as matter of the Constitution's original meaning, the conventional wisdom is correct. This article defends a broad view of the original meaning of the eligibility clause on the basis of eighteenth-century English parliamentary practice. The key to understanding the eligibility clause is Congress’ power over naturalization, which in turn is best understood by examining parliament’s naturalization power. By the mid-eighteenth-century, Parliament had power to define by statute who would be recognized as a “natural born subject” – a power that, along with others, was called naturalization. In a succession of Acts, Parliament extended this designation (which originally only applied to those born in England) to various categories of people born outside the country. In adopting the phrase “natural born” from English law, the American framers likely understood that they were using a phrase without a fixed definition and subject to legislative alteration through the naturalization power. That conclusion in turn provides sound support for the modern view that Congress can create categories of “natural born” citizens by statute.","PeriodicalId":90761,"journal":{"name":"University of Pennsylvania journal of constitutional law","volume":"20 1","pages":"199"},"PeriodicalIF":0.0,"publicationDate":"2016-01-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68267237","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Reconsidering Constitutional Protection for Health Information Privacy","authors":"W. Mariner","doi":"10.2139/SSRN.2797449","DOIUrl":"https://doi.org/10.2139/SSRN.2797449","url":null,"abstract":"What kinds of health information should be reported to government for civil purposes? Several competing trends encourage efforts to reassess the scope of constitutional protection for health information: the social and commercial value of health information; the amount of data held by third parties, from health care providers to internet servers; critiques of the third party doctrine exception to Fourth Amendment protection; and concerns about the loss of privacy. This article describes a variety of civil purposes for which health information is collected today. A close analysis of cases applying the third party doctrine, administrative search principles, and the special needs doctrine, as well as Fifth and Fourteenth Amendment cases examining health information privacy reveals quasi-precedents of limited relevance for evaluating mandatory reporting of health information. This lack of clarity calls for a more sophisticated approach to contemporary civil uses of health data.","PeriodicalId":90761,"journal":{"name":"University of Pennsylvania journal of constitutional law","volume":"8 1","pages":"975"},"PeriodicalIF":0.0,"publicationDate":"2015-11-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68331979","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"'But I Still Haven’t Found What I’m Looking For': The Supreme Court’s Struggle to Understand Factual Investigations in Federal Habeas Corpus","authors":"Tiffany R. Murphy","doi":"10.2139/ssrn.2644022","DOIUrl":"https://doi.org/10.2139/ssrn.2644022","url":null,"abstract":"The Supreme Court’s decision in McQuiggin v. Perkins found that a defendant’s actual innocence of his conviction may trump the 28 USC § 2244(d)(1)(D) one year statute of limitations for filing a habeas corpus petition. However, a federal court must take into account the delay in bringing the case when considering whether a miscarriage of justice occurred. In other words, the longer the delay after the one year trigger to bring the evidence to federal court, the less likely an inmate will be able to prove his innocence. The problem with application of a sliding scale is the Court’s failure to appreciate the difficulties in gathering the hard evidence necessary to establish actual innocence. For a pro se inmate, this task is near insurmountable because of the investigation needed to locate witnesses, find records, and obtain expert analysis of physical evidence required to substantiate an innocence claim. Even those agencies tasked with proving innocence take years to gather evidence that establishes innocence regardless of whether the case involves DNA testing.What makes the Court’s reasoning on innocence issues more troubling is the leniency that is extended to a much broader range of constitutional violations. Inmates who argue a Sixth Amendment ineffective assistance of counsel claim may have an easier time obtaining relief than an innocent inmate, even though both face the same obstacles concerning factual evidence to support their arguments. The Court’s recent decisions for Martinez v. Ryan and Trevino v. Thaler, which permits raising improperly pled ineffective assistance of counsel claims either on direct appeal or state post-conviction, to satisfy the cause and prejudice standard for not bringing a viable claim of failure to investigate within the proper procedural mechanism. The Court’s disconnect in recognizing that the same difficulties exist between the innocent and the wider pool of inmates challenging convictions must be remedied to permit those wrongfully convicted an easier path to freedom.","PeriodicalId":90761,"journal":{"name":"University of Pennsylvania journal of constitutional law","volume":"18 1","pages":"1129"},"PeriodicalIF":0.0,"publicationDate":"2015-08-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68237344","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Fall and Rise of Specialized Federal Constitutional Courts","authors":"Michael E. Solimine","doi":"10.2139/SSRN.2272627","DOIUrl":"https://doi.org/10.2139/SSRN.2272627","url":null,"abstract":"Most constitutional challenges in federal court to federal statutes are litigated in the familiar pattern of a decision by a single U.S. District judge, followed by an appeal to a three-judge panel of one of the U.S. Court of Appeals, followed by the filing of a writ of certiorari in the U.S. Supreme Court, which has discretion to grant or deny the writ. Sometimes, however, Congress requires a separate path for constitutional challenges to particular federal statutes, with the frequent challenges to provisions of the Bipartisan Campaign Reform Act, such as in Citizens United v. FEC (2010), being a notable example. These provisions often provide for the convening of a three-judge district court, usually in the District of Columbia, followed by an ostensibly mandatory appeal to the Supreme Court. They often also permit members of Congress to bring or intervene in such actions, and mandate that the federal courts decide the cases in an expeditious manner. All of these characteristics are absent from the typical challenge to federal statutes.These atypical jurisdictional provisions in effect establish specialized if temporary federal courts to rule on constitutional issues. The causes and consequences of specialized federal constitutional courts are an understudied phenomenon in the scholarly literature, a gap filled by this article. The article first summarizes the history of the three-judge district court, founded to consider all constitutional challenges to federal statutes, from its establishment in 1937 to its repeal in 1976. It next documents the instances when Congress has subsequently created such courts on a statute-specific basis, and addresses the rationales advanced in the legislative history, namely, uncertainty over a statute’s constitutionality, and the asserted need to promptly resolve that issue. The article then subjects the partial revival of such courts to critical examination. It argues that a complex and sometimes inconsistent set of reasons, including but not limited to Congressional abdication of constitutional deliberation to the judicial branch, explains the ad hoc adoption of these statutes. The article argues that other provisions of these laws, such as mandating venue in the District of Columbia or expeditious treatment, are unnecessary. Finally, it contends that cases litigated before these courts have a possibly deleterious impact on the quality of decisions in the Supreme Court. The article concludes that Congress should not pass these statutes and rather permit all constitutional litigation to proceed in a uniform manner.","PeriodicalId":90761,"journal":{"name":"University of Pennsylvania journal of constitutional law","volume":"17 1","pages":"115"},"PeriodicalIF":0.0,"publicationDate":"2015-01-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68049489","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Judicial Review and Non-Enforcement at the Founding","authors":"Matthew Steilen","doi":"10.2139/SSRN.2403956","DOIUrl":"https://doi.org/10.2139/SSRN.2403956","url":null,"abstract":"This Article examines the relationship between judicial review and presidential non-enforcement of statutory law. Defenders of non-enforcement regularly argue that the justification for judicial review that prevailed at the time of the founding also justifies the president in declining to enforce unconstitutional laws. The argument is unsound. This Article shows that there is essentially no historical evidence, from ratification through the first decade under the Constitution, in support of a non-enforcement power. It also shows that the framers repeatedly made statements inconsistent with the supposition that the president could refuse to enforce laws he deemed unconstitutional. In contrast, during this same period the historical record contains hundreds of discussions of judicial review. The Article then advances an explanation of why there was considerable support for judicial review but none for non-enforcement. Judicial review followed from what that generation called “expounding” the law, which meant explaining it. A court was supposed to explain the law in the course of deciding a case. Explaining the law involved examining all potentially relevant legal rules and showing how they fit together to deductively justify the judgment reached. In that context, if a statute could not be reconciled with the constitution, it would not be given effect. Since the president neither decided cases nor expounded the law, he did not enjoy a power of non-enforcement parallel to the power of judicial review.","PeriodicalId":90761,"journal":{"name":"University of Pennsylvania journal of constitutional law","volume":"17 1","pages":"479-568"},"PeriodicalIF":0.0,"publicationDate":"2014-03-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68183112","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The First Amendment Right to Speak About the Human Genome.","authors":"Barbara J Evans","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>This article explores whether laws that restrict the communication of genetic test results may, under certain circumstances, violate the First Amendment to the U.S. Constitution. The focus is whether investigators have a right to return results from non-CLIA-certified laboratories in situations where a research participant requests the results and the investigator is willing to share them but is concerned that doing so may violate regulations under the Clinical Laboratory Improvement Amendments of 1988 (\"CLIA\"). This article takes no position on whether investigators can be compelled to return results when they do not wish to do so. It examines only whether investigators may, not whether they must, return results to a willing research participant. The article: (1) surveys state and federal laws that block communication of genetic test results to research participants; (2) examines the historical use of speech restrictions as a tool for protecting human research subjects; (3) traces how First Amendment doctrine has evolved since the 1970s when foundations of modern research bioethics were laid; (4) inquires whether recent bioethical and policy debate has accorded due weight to the First Amendment. The article applies two common methods of legal analysis, textual and constitutional analysis. It concludes that the CLIA regulations, when properly construed, do not treat the return of results as an event that triggers CLIA's certification requirements. Moreover, there is a potential First Amendment problem in construing CLIA's research exception in a way that bans the return of results from non-CLIA-certified laboratories.</p>","PeriodicalId":90761,"journal":{"name":"University of Pennsylvania journal of constitutional law","volume":"16 3","pages":"549-636"},"PeriodicalIF":0.0,"publicationDate":"2014-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4249692/pdf/nihms617653.pdf","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"32878414","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"OA","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The First Amendment Right to Speak About the Human Genome.","authors":"B. Evans","doi":"10.2139/SSRN.2219522","DOIUrl":"https://doi.org/10.2139/SSRN.2219522","url":null,"abstract":"This article explores whether laws that restrict the communication of genetic test results may, under certain circumstances, violate the First Amendment to the U.S. Constitution. The focus is whether investigators have a right to return results from non-CLIA-certified laboratories in situations where a research participant requests the results and the investigator is willing to share them but is concerned that doing so may violate regulations under the Clinical Laboratory Improvement Amendments of 1988 (\"CLIA\"). This article takes no position on whether investigators can be compelled to return results when they do not wish to do so. It examines only whether investigators may, not whether they must, return results to a willing research participant. The article: (1) surveys state and federal laws that block communication of genetic test results to research participants; (2) examines the historical use of speech restrictions as a tool for protecting human research subjects; (3) traces how First Amendment doctrine has evolved since the 1970s when foundations of modern research bioethics were laid; (4) inquires whether recent bioethical and policy debate has accorded due weight to the First Amendment. The article applies two common methods of legal analysis, textual and constitutional analysis. It concludes that the CLIA regulations, when properly construed, do not treat the return of results as an event that triggers CLIA's certification requirements. Moreover, there is a potential First Amendment problem in construing CLIA's research exception in a way that bans the return of results from non-CLIA-certified laboratories.","PeriodicalId":90761,"journal":{"name":"University of Pennsylvania journal of constitutional law","volume":"16 3 1","pages":"549-636"},"PeriodicalIF":0.0,"publicationDate":"2014-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68000947","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}