Why Don’t More Public Schools Teach Sex Education?: A Constitutional Explanation and Critique
This article questions why so many public schools do not teach any form of sex education. The answer proposed in this article is that the U.S. Constitution is a part of the problem. This claim is based on the following two premises: (1) the U.S. Constitution almost certainly does not require public schools to teach sex education; and (2) the U.S. Constitution arguably requires public schools that teach sex education to exempt those students whose religious beliefs are substantially burdened by sex education.
To illustrate how these two premises might weigh in a school district’s decision not to teach sex education, this article analyzes a hypothetical question of how a school district should respond to threatened constitutional litigation over sex education. After Part I poses the hypothetical, Part II analyzes the problem and concludes with the two premises upon which my thesis is based. Based on Part II’s analysis, Part III offers the following solution: not to teach sex education. After noting that this is not a solution to the problems resulting from uninformed or misinformed teen sex, Part III then departs from the article’s descriptive format and briefly explores, as a normative matter, whether we should break the constitutional constraints that lead schools not to teach sex education. The article concludes with consideration of how the preceding discussion contributes to our understanding of the Constitution and those charged with interpreting it.
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A Clarification of the Constitution’s Application Abroad: Making the “Impracticable and Anomalous” Standard More Practicable and Less Anomalous
This Article explores how to apply the “impracticable and anomalous” standard, which is the test that courts have used in determining whether and how the Constitution applies to U.S. conduct abroad. Under this test, the Constitution constrains U.S. conduct abroad unless it would be impracticable and anomalous to do so. The “impracticable and anomalous” standard has been implicitly applied since the Insular Cases, a group of cases decided in the early 20th century, and explicitly applied since 1957 in Reid v. Covert, but it is still unclear what the standard means, even after the Supreme Court’s landmark 2008 decision applying the test in Boumediene v. Bush to determine whether and how the Suspension Clause applies to U.S. conduct in Guantanamo Bay.
Indeed, the syntactic structure of the “impracticable and anomalous” standard is still ambiguous, as the Court has not clarified whether it is a disjunctive or conjunctive standard, and there is also confusion about the standard’s semantic content, since the Court has provided little insight into what the words “impracticable” and “anomalous” mean in this context. With so many ambiguities, the doctrine is itself impracticable, because judges cannot apply it objectively and predictably, and it is also anomalous in the Court’s constitutional jurisprudence, because although many judicial doctrines contain some ambiguity, it is difficult to think of one whose semantic and syntactic structure is this amorphous.
Although there has been little scholarly inquiry into how to apply the standard, the issue is now heating up, as Gerald Neuman and Christina Duffy Burnett, two leading lights on the Constitution’s transnational applicability, have recently written significant articles on how they believe courts do and should apply the standard. But despite the enhanced interest in the issue, Neuman and Burnett agree that “a full elaboration and defense of [the standard] has yet to be written.”
This Article undertakes that challenge to become the first “full elaboration and defense of” the standard, and in the process, to make it more practicable as a judicial doctrine and less anomalous in the Court’s constitutional jurisprudence.
Source: works.bepress.com
A Clarification of the Constitution’s Application Abroad: Making the “Impracticable and Anomalous” Standard More Practicable and Less Anomalous
This Article explores how to apply the “impracticable and anomalous” standard, which is the test that courts have used in determining whether and how the Constitution applies to U.S. conduct abroad. Under this test, the Constitution constrains U.S. conduct abroad unless it would be impracticable and anomalous to do so. The “impracticable and anomalous” standard has been implicitly applied since the Insular Cases, a group of cases decided in the early 20th century, and explicitly applied since 1957 in Reid v. Covert, but it is still unclear what the standard means, even after the Supreme Court’s landmark 2008 decision applying the test in Boumediene v. Bush to determine whether and how the Suspension Clause applies to U.S. conduct in Guantanamo Bay.
Indeed, the syntactic structure of the “impracticable and anomalous” standard is still ambiguous, as the Court has not clarified whether it is a disjunctive or conjunctive standard, and there is also confusion about the standard’s semantic content, since the Court has provided little insight into what the words “impracticable” and “anomalous” mean in this context. With so many ambiguities, the doctrine is itself impracticable, because judges cannot apply it objectively and predictably, and it is also anomalous in the Court’s constitutional jurisprudence, because although many judicial doctrines contain some ambiguity, it is difficult to think of one whose semantic and syntactic structure is this amorphous.
Although there has been little scholarly inquiry into how to apply the standard, the issue is now heating up, as Gerald Neuman and Christina Duffy Burnett, two leading lights on the Constitution’s transnational applicability, have recently written significant articles on how they believe courts do and should apply the standard. But despite the enhanced interest in the issue, Neuman and Burnett agree that “a full elaboration and defense of [the standard] has yet to be written.” This Article undertakes this challenge to become the first “full elaboration and defense of” the standard, and in the process, to make it more practicable as a judicial doctrine and less anomalous in the Court’s constitutional jurisprudence.
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Locke v. Davey
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Neutral Principles
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Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council
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Where Do Constitutional Modalities Come From? Complexity Theory and the Emergence of Intradoctrinalism
This article seeks to shed light on one of the most vexing and important problems in constitutional law and theory: how courts interpret the Constitution. Part I of the article begins by recounting the major theories of how courts should interpret the Constitution. Part I then explains why many scholars agree that Philip Bobbitt’s modal approach has best addressed this problem. According to this approach, courts and lawyers use six modalities or methods to interpret the Constitution. Part I concludes by pointing out that Bobbitt’s framework, though helpful, fails in two respects: it fails to explain where these modalities come from and it fails to explain how courts resolve modal conflicts (i.e., cases involving conflicts between two methods of interpreting the Constitution).
Here, we come to a central purpose of my article, to fill in these two holes in Bobbitt’s framework. To the best of my knowledge, there is only one other article that takes on this task, an article by Ian Bartrum recently published in the William and Mary Bill of Rights Journal.
Part II summarizes how Bartrum’s article seeks to use metaphor theory to resolve these two problems in Bobbitt’s framework. Part II concludes that although Bartrum’s use of metaphor theory represents a significant advancement in the debate over this issue, Bartrum’s account is still incomplete because it does not capture the unpredictability and randomness in the emergence of new modalities.
Part III proposes that complexity theory, with its focus on the unpredictability and non-linearity of complex systems, provides a better way of understanding the creation of new modalities. After providing some background on the leading complexity theories, this section argues that modal conflicts are instances of legal chaos, analogous to far-from-equilibrium systems in thermodynamics, in which complex forces resonate to produce outcomes that are ex ante unpredictable.
The final section, Part IV, explores precisely how complexity theory can apply to cases involving modal conflicts. In describing different types of modal conflicts, Part IV argues that some conflicts create so much legal chaos that they generate new modalities altogether. Part IV offers an example of such an emerging modality, a modality that I have named “intradoctrinalism.” When a court applies this modality, it interprets a particular doctrine in a way that makes all of the court’s doctrines logically cohere. I argue that this modality might explain a very important case in church-state law, Locke v. Davey, 540 U.S. 712 (2004).
The paper concludes with some reflection on how complexity theory can apply to other legal problems, such as how courts can reconcile conflicts between competing legal regimes. The paper thus has both a narrow purpose, to use complexity theory to fill in the gaps in Bobbitt’s modal approach, as well as a broader purpose, to advance complexity theory as a means of examining legal problems in general. With this broader purpose, the paper stands alongside recent efforts to place complexity theory at the forefront of the debate over how to explain social phenomena.
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ESTABLISHMENT CLAUSE-TROPHOBIA: BUILDING A FRAMEWORK FOR ESCAPING THE CONFINES OF DOMESTIC CHURCH-STATE JURISPRUDENCE
Does the First Amendment’s Establishment Clause, which provides that “Congress shall make no law respecting an establishment of religion,” apply to United States conduct abroad? For years, this question has been lurking in the background of discussions of the Constitution’s extraterritorial application. Indeed, while the U.S. Supreme Court has ruled that the Fifth and Sixth Amendments apply abroad in some circumstances, and that the Fourth Amendment’s warrant requirement generally does not apply abroad, the Court has never considered the transnational applicability of the Establishment Clause. In fact, only one case has directly addressed whether the Establishment Clause applies abroad, Lamont v. Woods, a Second Circuit U.S. Court of Appeals decision holding that the Establishment Clause always applies abroad but less strictly than it does domestically.
Although several scholars have recently explored more generally whether and to what extent the Constitution applies abroad, the specific issue of whether and how the Establishment Clause applies abroad has risen barely above a whisper in scholarly discourse. Indeed, although some prominent church-state scholars have commented on the Lamont decision, none has thoroughly analyzed it, leaving a law student Note as the most significant work to engage the Lamont reasoning. The issue is now screaming for scholarly and judicial treatment, as evidenced by a July 17, 2009 audit by the USAID inspector general’s office questioning whether some of USAID’s programs violate the Establishment Clause. This audit, as well as recent reports on this issue by the Chicago Council on Global Affairs and the Center for Strategic and International Studies, indicate the need for legal clarity on this important policy question. This Article seeks to provide that clarity by comprehensively analyzing whether and to what extent the Establishment Clause applies abroad.
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