Fostering Civic Responsibility

This issue features: Fostering Civic Responsibility Through Service Learning; Program Profiles; and CityWorks: A Curriculum Model for Teaching Local Government Through Research and Service Learning

Cumulative Constitutional Rights

Cumulative constitutional rights are ubiquitous. Plaintiffs litigate multiple constitutional violations, or multiple harms, and judges use multiple constitutional provisions to inform interpretation. Yet judges, litigants, and scholars have often criticized the notion of cumulative rights, including in leading Supreme Court rulings, such as Lawrence v. Texas, Employment Division v. Smith, and Miranda v. Arizona. Recently, the Court attempted to clarify some of this confusion. In its landmark opinion in Obergefell v. Hodges, the Court struck down state bans on same-sex marriage by pointing to several distinct but overlapping protections inherent in the Due Process Clause, including the right to individual autonomy, the right to intimate association, and the safeguarding of children, while also noting how the rights in question were simultaneously grounded in equal protection. The Due Process Clause and the Equal Protection Clause are connected in a profound way, Justice Kennedy wrote. The Court did not, however, explain the connection. To redress harms to injured plaintiffs without creating doctrinal incoherence, courts need to understand the categorically distinct ways in which cumulative constitutional harm can occur and how these forms affect constitutional scrutiny. We argue that cumulative constitutional rights cases can be categorized into three general types and that these types need to be analyzed differently. The first type, aggregate harm, occurs when multiple discrete acts, taken together, add up to a harm of constitutional magnitude, even if each individual act, taken alone, would not. The second type, hybrid rights, occurs where a plaintiff claims a single action has violated rights under multiple constitutional provisions. If a court were to apply the proper level of scrutiny to the claims individually, however, none would result in redress. As a result, hybrid rights cases should not ordinarily result in relief. The third type, intersectional rights, occur when the action violates more than one constitutional provision but only results in relief when the provisions are read to inform and bolster one another. Our aim in this Article is to provide a framework courts can use to analyze cumulative constitutional rights. While courts should be open to conducting a cumulative analysis, when constitutional rights are mutually reinforcing those relationships should be clearly set out and defined

Two Conceptions of the Ninth Amendment

The Ninth Amendment has been largely ignored by the Supreme Court of the United States. Because the Ninth Amendment is unquestionably a part of our written Constitution, ignoring it would not have been possible without some theory that renders it without any function. This paper will first examine this theory, which is based on what the author calls the rights-powers conception of constitutional rights, a conception of constitutional rights that is applied only to the Ninth Amendment. Then he describes an alternative to this view of the Ninth Amendment, one that is based on what I call the power-constraint conception of constitutional rights, the conception that we normally use with constitutional rights., Lastly the author briefly addresses the topic of this part of the Symposium: The Ninth Amendment and its Relationship to Natural Rights

Psychological Testing and Constitutional Rights

The federal government uses psychological tests throughout the employment process-in hiring, promoting, and retiring its employees. Some of these tests probe into the most intimate aspects of an individual\u27s life. Do these tests produce their intended results? Are they necessary for effective government service? Do they unreasonably interfere with the private lives of the individuals tested? These and other questions have been asked with increasing frequency recently, and the author, who was counsel to the Senate Subcommittee which has been investigating governmental psychological testing, attempts to answer some of them in this article

Congress\u27s Power to Enforce Fourteenth Amendment Rights: Lessons from Federal Remedies the Framers Enacted

Professor Robert Kaczorowski argues for an expansive originalist interpretation of Congressional power under the Fourteenth Amendment. Before the Civil War Congress actually exercised, and the Supreme Court repeatedly upheld plenary Congressional power to enforce the constitutional rights of slaveholders. After the Civil War, the framers of the Fourteenth Amendment copied the antebellum statutes and exercised plenary power to enforce the constitutional rights of all American citizens when they enacted the Civil Rights Act of 1866 and then incorporated the Act into the Fourteenth Amendment. The framers of the Fourteenth Amendment thereby exercised the plenary power the Rehnquist Court claims the framers intended to exclude from Congress. The framers also adopted the remedies to redress violations of substantive constitutional rights the Court says the framers intended to reserve exclusively to the states. The Rehnquist Court\u27s Fourteenth Amendment jurisprudence, contradicted by this history, is thus ripe for reevaluation

Do Foreign Nationals Really Have Constitutional Rights?

[Excerpt] Last month, President Trump issued an executive order that has become known as the travel ban. Among other things, the ban sought to temporarily exclude from the United States foreign nationals from seven predominantly Muslim countries. Almost immediately, a number of plaintiffs sued and succeeded in obtaining stays preventing the ban from going into effect until the cases can be tried. Courts granted these stays because they found that the ban was likely to violate, among other things, anti-discrimination principles embedded within the First and Fifth Amendments to the United States Constitution

Do Foreign Nationals Really Have Constitutional Rights?

[Excerpt] Last month, President Trump issued an executive order that has become known as the travel ban. Among other things, the ban sought to temporarily exclude from the United States foreign nationals from seven predominantly Muslim countries. Almost immediately, a number of plaintiffs sued and succeeded in obtaining stays preventing the ban from going into effect until the cases can be tried. Courts granted these stays because they found that the ban was likely to violate, among other things, anti-discrimination principles embedded within the First and Fifth Amendments to the United States Constitution

The Constitutional Rights of Teachers and Professors

The discussion examines the current state of educators\u27 rights and identifies two key areas that are still hotly contested: extramural utterances that my be critical of the institution itself and a teacher\u27s freedom with his own classroom. A survey of two recent cases illuminates these issues