Constitutional Law

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Volume 89.1
Remembering: The Constitution and Federally Funded Apartheid
Joy Milligan
Professor, the University of Virginia School of Law.

For helpful feedback, I thank Abhay Aneja, Darby Aono, Abbye Atkinson, Emily Bruce, Guy-Uriel Charles, Erwin Chemerinsky, Gabriel Chin, David Engstrom, Jonathan Glater, Michele Gilman, Becca Goldstein, Jon Gould, Kristen Holmquist, Olatunde Johnson, Daryl Levinson, Melissa Murray, Saira Mohamed, Tejas Narechania, Manisha Padi, Michael Pinard, Richard Primus, Bertrall Ross, Erik Stallman, Aaron Tang, Karen Tani, Rebecca Wexler, and participants in the Northern California Junior Faculty Workshop, Loyola Constitutional Law Colloquium, Poverty Law Mini-Workshop, AALS Civil Rights Section Works-in-Progress, NYU Constitutional Theory Colloquium, and the law faculty workshops at Duke, UCLA, the University of Miami, the University of Michigan, and the University of Virginia. I am grateful to the University of Chicago Law Review staff for their exceptional editing, and to Maya Campbell, Toni Mendicino, Talia Stender, and Graham Wyatt for their excellent research assistance.

The substantive Fifth Amendment ideal of preventing the federal government from aiding systemic discrimination receded because of increasing challenges to its substance, judicial fatigue with institutional oversight, and the sweeping scope of the problem—along with collective amnesia regarding the prior decades of constitutional struggle. This Article reveals that forgotten constitutional history. After excavating the Fifth Amendment struggles, I argue that the no-aid norm, and the underlying reality of long-term federal participation in racial apartheid, should be remembered and debated once again.

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Comment
Volume 89.1
The Power of Attorneys: Addressing the Equal Protection Challenge to Merit-Based Judicial Selection
Zachary Reger
B.J. & B.A. 2017, University of Missouri; J.D. Candidate 2022, The University of Chicago Law School.

Many thanks to the staffers and editors of the University of Chicago Law Review for their helpful comments on this piece.

This Comment responds to the equal protection challenge to merit selection. It argues that merit selection is constitutional by way of multiple exceptions, both recognized and implicit, to the “one person, one vote” principle. And though critics of merit selection often couch their arguments in prodemocratic terms, this Comment argues that merit selection—like the “one person, one vote” principle—promotes rather than thwarts the will of the people.

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Can Procedure Take?: The Judicial Takings Doctrine and Court Procedure
Rebecca Hansen
B.A. 2017, Brown University; J.D. Candidate 2022, The University of Chicago Law School.

Thank you to Alec Mouser, Kelly Gregg, Henry Walter, Sam Sherman, Ryne Cannon, the University of Chicago Law Review editors, and Professors Lee Fennell and Lior Strahilevitz for their help and advice.

In response to the COVID-19 pandemic, several state legislatures and executives limited the circumstances in which landlords could evict their tenants. Predictably, many of these moratoria were met with challenges under the Fifth Amendment’s Takings Clause, which prohibits the government from taking private property for public use without just compensation.

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Book review
v88.3
Organizational Rights in Times of Crisis
Katerina Linos
Professor of Law, University of California, Berkeley, and Co-Director, Miller Center for Global Challenges and the Law

Vanessa Rivas-Bernandy provided extraordinary research assistance for this piece—thinking through counterarguments and limitations to my claims, in addition to reorganizing convoluted sentences, paragraphs, and pages. For very helpful comments, I am also very grateful to Elena Kempf and to participants at the October 23, 2020, Conference on Measuring Impact in Constitutional Law. I am very grateful for the financial support of the Carnegie Foundation, the Miller Center for Global Challenges and the Law, and the German American Academic Exchange Program.

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88.1
A Class of One: Multiracial Individuals Under Equal Protection
Desirée D. Mitchell
B.A. 2018, Brigham Young University; J.D. Candidate 2021, The University of Chicago Law School.

For centuries, mixed-race Americans have felt a sense of isolation as unique as their racial makeup. Whether society perceived a multiracial person as White or non-White could determine everything from whom they could marry to which jobs they could work to which areas and homes they could live in.

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87.8
A (Very) Unlikely Hero: How United States v Armstrong Can Save Retaliatory Arrest Claims After Nieves v Bartlett
Brenna Darling
BA 2016, New York University; JD Candidate 2021, The University of Chicago Law School.

In May 2019, the Supreme Court attempted to clarify the long-disputed standard for First Amendment retaliatory arrest claims. Nieves v Bartlett holds that, as a threshold matter, a plaintiff must prove a lack of probable cause for their arrest, but that a “narrow qualification”—an exception to the probable cause burden—“is warranted for circumstances where officers have probable cause to make arrests, but typically exercise their discretion not to do so.”

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Article
87.5
The First Amendment’s Real Lochner Problem
Genevieve Lakier
Assistant Professor of Law and Herbert and Marjorie Fried Teaching Scholar, The University of Chicago Law School

Thanks to Monica Bell, Rabia Belt, Amy J. Cohen, Andrew Crespo, Aziz Huq, Elizabeth Kamali, Michael Kang, Andy Koppelman, Anna Lvovsky, Richard McAdams, Robert Post, John Rappaport, Daphna Renan, Geoffrey Stone, Nelson Tebbe, and participants at the University of Virginia and Northwestern University Law School Public Law Workshops, the University of Chicago and Vanderbilt Law School Work-in-Progress Workshops, and the Freedom of Expression Scholars Conference for thoughtful feedback, and to Graham Haviland and Elisabeth Mayer for excellent research assistance.Thanks to Monica Bell, Rabia Belt, Amy J. Cohen, Andrew Crespo, Aziz Huq, Elizabeth Kamali, Michael Kang, Andy Koppelman, Anna Lvovsky, Richard McAdams, Robert Post, John Rappaport, Daphna Renan, Geoffrey Stone, Nelson Tebbe, and participants at the University of Virginia and Northwestern University Law School Public Law Workshops, the University of Chicago and Vanderbilt Law School Work-in-Progress Workshops, and the Freedom of Expression Scholars Conference for thoughtful feedback, and to Graham Haviland and Elisabeth Mayer for excellent research assistance.

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87.3
The Origins of Substantive Due Process
Ilan Wurman
Visiting Assistant Professor and incoming Associate Professor, Sandra Day O’Connor College of Law, Arizona State University.

Thanks to William Baude, David Bernstein, Nathan Chapman, and John Harrison; to the participants of the 2018 Rocky Mountain Junior Faculty Colloquium, the 2019 Federalist Society Young Legal Scholars panel, and the 2019 University of Richmond Junior Scholars Workshop; and in particular to my colleagues Zack Gubler, Rhett Larson, Kaipo Matsumura, Trevor Reed, Josh Sellers, Bijal Shah, and Justin Weinstein-Tull for their early interventions. Thanks also to Jessica Kemper and Katherine Johnson for tremendous research assistance.

There has been renewed interest in recent years in the original understanding of “due process of law.” In a recent article, Professors Nathan Chapman and Michael McConnell argue that historically, due process meant only that an individual could not be deprived of life, liberty, or property without a general and prospective standing law, the violation of which had been adjudicated according to a certain minimum of common-law judicial procedures.

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