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Unlike some similarly situated nations, the United States does not recognize the right to shelter. As a result, the country’s homelessness epidemic is exacerbated by anti-homelessness laws that punish homeless people for peddling, dumpster-diving, or sleeping in public encampments. Largely supported by the government, non-profit charities receive funding in order to deliver sheltering services into communities; however, shelters often have restrictions on who they allow to access their services. The U.S. Supreme Court has not held that there is no right to shelter, but federal and state courts have used Supreme Court precedent to carve out an understanding that no such right exists. The U.S. Constitution provides a limited number of enumerated rights, but the Supreme Court has utilized the substantive due process doctrine to find constitutional rights that are not explicit in the text of the Constitution. In 2022, the Court demonstrated a shift in their approach to substantive due process analyses by abandoning their practice of engaging in a balancing test to determine to what extent governments could restrict people’s liberty. Instead, the Court reasoned that for an unenumerated right to be constitutionally recognized, it must be deeply rooted in the nation’s history or essential to ordered liberty. With a change in approach, the right to shelter must be reconsidered. The philosophies of the American Founders acknowledge the importance of assisting the poorest sects of society not only because it fulfills the government’s duty to seek justice, but because it is critical for the legitimacy of a nation. From the Colonial era until the turn of the twentieth century, state and local governments provided sheltering services to their communities’ poorest. These services first came in the form of poorhouses and then via state-run institutions that provided care for people with the highest risk of homelessness, such as abandoned children and people with mental or physical impediments. Throughout the twenty-first century, the federal government stepped into the arena and began providing relief by funding programs that prevent homelessness and by providing grants and contracts to non-profit charities that deliver sheltering services directly to communities. Given the extensive history of government-backed sheltering services, the importance of shelter to the integrity of American justice, and the philosophies of the American Founders, this Article shows that a modern analysis supports the right to shelter despite prior judicial holdings to the contrary. [ABSTRACT FROM AUTHOR]

When the Supreme Court declined definitively to block Texas’s S.B. 8, which effectively eliminated pre-enforcement federal remedies for what was then a plainly unconstitutional restriction on abortion rights, a prominent criticism was that the majority would have never tolerated the similar treatment of preferred legal protections—like gun rights. This refrain reemerged when California enacted a copycat regime for firearms regulation. This theme sounds in the deep-rooted idea that judge-made law should adhere to generality and neutrality values requiring doctrines to derive justification from controlling a meaningful class of cases ascertained by objective legal criteria. This Article is about consistency, and inconsistency, in judicial decision-making—and more specifically, about the extent to which federal courts should provide similar opportunities to obtain relief for wrongs to discrete constitutional rights. The Article explores how a commitment to generality and neutrality values can translate into a paradigm promoting transsubstantivity (meaning consistent applicability across separate substantive concerns) for constitutional remedies (meaning rules for implementing and preventing or punishing the violation of constitutional rights)—and how the Supreme Court has deviated from this paradigm. Supported by an array of examples, the Article proposes a novel framework turning on the notion that remedial inconsistency can be transparent, translucent, or opaque given the clarity of doctrinal inconsistency. Prophylactic remedial doctrines (like the Miranda-warning mandate and First Amendment overbreadth) are transparently inconsistent, for instance, because they apply differently to discrete rights on their faces. And indeterminate remedial standards (like the political question doctrine for justiciability and the “plan of the Convention” doctrine for state sovereign immunity) are opaquely inconsistent because discerning their variable character requires inductive analysis of actual applications. After these descriptive claims, the Article proceeds to a normative examination of how this framework could help improve judicial approaches to constitutional remedies—while recognizing that non-transsubstantive doctrines are desirable in many circumstances. Courts, for example, should work to make doctrines of opaque and translucent inconsistency more transparent so that appropriate institutional actors can more easily assess, affirm, alter, or abandon them. And judges should consider the risk of introducing unnecessary elements of opaque inconsistency before relying on overdeterminative reasoning to reach otherwise established results. Among additional contributions, by providing innovative tools for centering remedial consistency as an important—but not absolute—aspect of constitutional law, this Article offers a potential step toward decreasing perceptions of the Supreme Court’s work as pervasively political, thereby reinforcing its legitimacy at this time of widespread skepticism. [ABSTRACT FROM AUTHOR]

In a series of decisions—Free Enterprise Fund v. Public Company Accounting Oversight Board, Seila Law v. Consumer Financial Protection Bureau, and Collins v. Yellen—the Supreme Court struck down for-cause removal restrictions over agency heads. These rulings fault structural elements of the respective agency—double-layer protections or single directorships—for violating separation of powers because they insulate the agency from presidential review and oversight. But while the Court increasingly relies on agency structures to adjudicate constitutionality, separation of powers scholarship has focused on the division of powers into legislative, executive, and judicial functions. This Article supplies the missing account of separation of structures, and in the process defends the legitimacy of the administrative state against its critics. It argues that an emphasis on an agency’s institutional structure in adjudicating constitutionality is deeply rooted in constitutional design and the Founders’ reception of ancient Greek and Roman political philosophy. By introducing the link between institutional design and the Constitution, separation of structures sketches a doctrinal terrain of how judicial adjudications of agency structure could proceed beyond the formalist approach latent in the Court’s recent decisions. By shifting the doctrinal focus from the nature of political functions to the design of accountability mechanisms in governance structures, this Article provides strong support for the constitutionality of congressional delegation of legislative powers to agencies. This more capacious understanding of structural separation of powers accords with constitutional design and better accommodates the dynamic needs of modern regulation. [ABSTRACT FROM AUTHOR]

The Lochnerism thesis is among the most influential constitutional theories to emerge in recent years. It argues that the judiciary increasingly protects private business from public regulation by enshrining and expanding liberty of contract rights under the First Amendment. Using 303 Creative LLC v. Elenis as a case study, this Essay explores the limits of Lochnerism as a theoretical framework. It argues that, while productively illuminating the judiciary's attack on the administrative state and democratic processes, the theory may also displace concerns over the concrete harms experienced by vulnerable communities. To bring these harms back into view, this Essay suggests a theoretical reorientation: a shift in perspective from concerns over regulation to a more traditional point of focus--the distribution of property rights. [ABSTRACT FROM AUTHOR]

The Supreme Court's decision in Carson v. Makin is the third in a trilogy of cases dramatically upending the meaning of the First Amendment's Religion Clauses. Beginning with Trinity Lutheran v. Comer in 2017 and followed by Espinoza v. Montana Department of Revenue in 2020, the Court has moved forward with an aggressive project of transforming the Religion Clauses into a broad anti-religiousdiscrimination clause. In this paper, I trace this doctrinal devolution and argue that the Court's novel reinterpretation is deeply misguided. By design, the Religion Clauses require discrimination--religion is to be treated differently from non-religion in a broad range of state action. The contemporary Supreme Court, however, has inverted this most basic insight. The Court's new Religion Clause jurisprudence is also on a collision course with its burgeoning government speech doctrine. This doctrine recognizes that in a democratic polity, every policy choice entails paths not chosen. Government must be able to select its own message, and in turn, discriminate against those messages it wishes not to communicate, tempered by accountability at the ballot box. Granted, to say that discrimination is sometimes required under the Religion Clauses and the Government Speech Doctrine is not to say discrimination against religion is always constitutional. Protections against objectionable discrimination remain as vital as ever. The Court's public forum doctrine, for example, protects free expression of religion from content-based discrimination when the government itself is not speaking. The heart of the Court's recent Religion Clause decisions, however, is a jurisprudentially backward constitutional mandate that government actively subsidize religious speech to avoid a Religion Clause "discrimination" claim. It is a command that government express ideas it may not wish to express. The Court's reimagining of the Religion Clauses is inconsistent with the First Amendment's original meaning, potentially harmful to both government and religion, and in direct tension with the Government Speech Doctrine. [ABSTRACT FROM AUTHOR]

As many are aware, the Fourth Amendment protects the people against unreasonable searches and seizures. A warrant is necessary for said activities. While there are a few exceptions to the warrant requirement, the Supreme Court recently held that the community caretaking exception does not extend to the home. Extending this exception to the home would allow police officers to enter and engage in functions that are unrelated to the investigation of a crime. Essentially, this exception would allow police to aid individuals and prevent serious, dangerous situations to protect the community. This Note discusses why the Supreme Court erred in its decision to deny the extension of the community caretaking exception to the home. Further, it argues how denying the extension of this exception to the home could prevent police from being able to intervene and help individuals in need in situations that do not rise to the criteria of an "emergency" which would fall under the exigent circumstances exception. [ABSTRACT FROM AUTHOR]

This paper delves into examining the practical problems facing the police during the implementation of the arrest procedure within the realm of criminal justice administration. Employing a comparative analytical approach, the study juxtaposes the legal framework of the United States of America and the State of Kuwait, where the study traced the legal texts, judicial rulings, and regulations regarding the behavior of police officers in both systems. It has been shown through this study that some of these problems are due to legislative texts, others are related to practical practices, others are due to social problems, and some are related to the scientific (academic) aspect. Through a comprehensive exploration of these critical aspects, the paper contributes valuable insights to the ongoing discourse on the challenges within the arrest process and underscores the need to address unresolved issues to enhance the efficacy of criminal justice administration. [ABSTRACT FROM AUTHOR]

This research paper conducts a thorough comparative analysis of custody assessment criteria employed in the legal systems of the United States and Kuwait. The freedom of the accused during the pre-trial investigation stage is one of the most important issues related to human rights and freedoms. The study adopted the analytical method of legal texts, judicial rulings, and jurisprudential opinions between two systems belonging to different legal families, namely the system in the United States of America and the system in the State of Kuwait. The study showed that the legal system in the United States of America addresses the factors that play a role in determining the decision to detain the accused during the pretrial investigation stage in a better and more in-depth manner than the treatment adopted by the Kuwaiti legislators. The study also indicated that the American legislative treatment is preferable to a procedural reason related to the American system. Finally, this study recommended the need to reorganize the issue in Kuwaiti law by adopting many humanitarian aspects related to the accused in the issue of the decision to release or detain the accused during the pre-trial investigation stage. [ABSTRACT FROM AUTHOR]