Constitutional jurisprudence

Justice Markandey Katja (Judge, Supreme Court of India) explains and illustrates the concept of 'constitutional jurisprudence' - as a kind of philosphy of constitutional law, seeking to explain in general terms ideas such as: What is a constitution? What is its purpose? What is its position in the legal system of the country

Punishing the Poor Through Welfare Reform: Cruel and Unusual?

This Comment aims to show how the Eighth Amendment intersects with welfare reform and what constitutional limits exist vis-à-vis welfare restrictions for society’s neediest citizens. Part I explores Eighth Amendment jurisprudence and its historical underpinnings and will provide background on the 1996 welfare reforms. Part II explores whether welfare reforms penalize individuals for their status as “poor” or “unemployed” and whether this constitutes cruel and unusual punishment. Finally, Part III illustrates how welfare programs can be reformed for constitutional compliance

Incitement, Threats, and Constitutional Guarantees: First Amendment Protections pre- and post-Elonis

[Excerpt] While the First Amendment to the United States Constitution protects the freedom of expression, individuals issuing threats or advocating illegal conduct may be subject to punishment. What constitutes proscribable speech has long been evolving, and the recent jurisprudence suggests that First Amendment protections are more robust for advocacy of illegal conduct than for threats. Elonis v. United States provided the Court with a golden opportunity to clarify First Amendment threat jurisprudence; however, those hoping for an illuminating analysis cannot help but be disappointed. Part I of this Article discusses the developing First Amendment jurisprudence regarding the regulation of incitement, focusing on how constitutional protections for such speech have increased over time. Part II discusses the constitutional limitations on the regulation of threats, noting the Court\u27s consistent refusal to address what kind of subjective intent is necessary in order for an individual to be convicted of having made a threat. Part III focuses on Elonis in particular, explaining how the case wasted the opportunity to clarify a number of First Amendment issues. The article concludes by pointing to several areas the Court may be forced to address in the not-too-distant future, including some of the confusions created by the Elonis opinion itself

McKithen v. Brown: Due Process and Post-Conviction DNA Testing

When the Second Circuit decided McKithen v. Brown, it joined an ever-growing list of courts faced with a difficult and pressing issue of both constitutional and criminal law: is there a federal constitutional right of post-conviction access to evidence for DNA testing? This issue, which sits at the intersection of new forensic technologies and fundamental principles of constitutional due process, has divided the courts. The Second Circuit, wary of reaching a hasty conclusion, remanded McKithen’s case to the district court for consideration. The district court for the Eastern District of New York was asked to decide whether a constitutional right of access to evidence for DNA testing exists both broadly as well as under the defendant’s circumstances. This iBrief concludes that although a due process post-conviction right of access to evidence for DNA testing may exist under some circumstances, it does not exist under current constitutional jurisprudence in McKithen’s case

Interior Preservation: In or Out?

This paper examines takings and due process challenges in the leading cases that galvanized the constitutionality of interior preservation. These cases together form the shield that protects interior designations from constitutional attack. This paper\u27s goal is to distill the critical points that have left the jurisprudence on interior preservation all but bare for much more than a decade

Fourth Amendment Accommodations: (UN)Compelling Public Needs, Balancing Acts, and the Fiction of Consent

The problems of public housing-including crime, drugs, and gun violence- have received an enormous amount of national attention. Much attention has also focused on warrantless searches and consent searches as solutions to these problems. This Note addresses the constitutionality of these proposals and asserts that if the Supreme Court\u27s current Fourth Amendment jurisprudence is taken to its logical extremes, warrantless searches in public housing can be found constitutional. The author argues, however, that such an interpretation fails to strike the proper balance between public need and privacy in the public housing context. The Note concludes by proposing alternative consent-based regimes that would pass constitutional muster

Dialing It Back: Why Courts Should Rethink Students’ Privacy and Speech Rights as Cell Phone Communications Erode the ‘Schoolhouse Gate’

The ubiquity of cell phones in today’s society has forced courts to change or dismiss established, but inapplicable analytical frameworks. Two such frameworks in the school setting are regulations of student speech and of student searches. This Article traces the constitutional jurisprudence of both First Amendment off-campus speech protection and Fourth Amendment search standards as applied to the school setting. It then analyzes how the Supreme Court’s ruling in Riley v. California complicates both areas. Finally, it proposes a pragmatic solution: by recognizing a categorical First Amendment exception for “substantial threats” against the school community, courts could accommodate students’ constitutional rights while upholding school administrators’ ability to maintain a safe environment

THE DANGERS OF FIGHTING TERRORISM WITH TECHNOCOMMUNITARIANISM: CONSTITUTIONAL PROTECTIONS OF FREE EXPRESSION, EXPLORATION, AND UNMONITORED ACTIVITY IN URBAN SPACES

Part I of this article examines how some commentators can plausibly argue that constitutional liberty and privacy protections do not protect the individual liberty and privacy that modern individuals have come to expect in many public spaces, particularly in urban environments. Constitutional liberalism, this section points out, makes this question a difficult one, because it is marked by scrupulous neutrality towards different visions of “the good life.” In other words, the constitutional order does not condemn those who choose a communitarian way of life and favor those who prefer individualism. Rather, it tolerates both of these (and other) preferences about one’s social and cultural environment, and leaves citizens free to opt for the life of their choice. Part II suggests that it is difficult to make sense of our modern jurisprudence of First Amendment rights, especially as they relate to anonymous communication and association on the Internet and elsewhere, unless one allows room in our constitutional law for a jurisprudence that “captures” and preserves social incarnations of liberty and privacy that were not yet in existence when theConstitution was drafted. Therefore, it is possible for for courts and others to find that freedom-enabling institutions that did not exist earlier in American history, and might cease to exist in the future, deserve certain constitutional protection while they are here. Part III explains that like the virtual liberation offered by the Internet, city life offered and continues to offer an invaluable refuge for substantial expressive activity and intellectual exploration that would be far more elusive without this type of urban existence. It provides individuals with an incredibly rich bazaar of ideas, and allows them to browse among these deas, substantially free from outside monitoring or control. While First Amendment law does not single out urban environments for protection, it protects such environments indirectly by preserving certain opportunities that are characteristic of modern urban life: opportunities for giving speeches to large crowds, for confronting strangers with ideas they may find unfamiliar or provocative, or for speaking or gathering information in the anonymity of the crowd

Immigration as Commerce: A New Look at the Federal Immigration Power and the Constitution

The relationship of immigration law to the Constitution has long been incoherent. One result is that there is little clarity on the appropriate standard of review for constitutional violations when aspects of immigration law and policy are challenged in the federal courts. This Article advances the Commerce Clause as the anchor of a new understanding of the link between the government\u27s immigration power and the Constitution. Despite the extensive early history of the Foreign Commerce Clause as the presumed source of the immigration power, it plays almost no role in immigration jurisprudence today, and few scholars have seriously considered its suitability for that role. More strikingly, none have explored the Interstate Commerce Clause as an appropriate source of the immigration power, one that could open the door to a normalization of constitutional analysis in the immigration context. The Article argues that both the Foreign and the Interstate Commerce Clauses should be understood to undergird the contemporary immigration power, and suggests that acknowledging immigration’s relationship to the Commerce Clause clears a path to more routine constitutional review of immigration law and policy