Volume 30, Issue 1

Volume 30, Number 1                                                                                                     Fall 2002

Introduction

Comments on Constitutional Law Quarterly’s 30th Edition
By Vikram Amar

ARTICLES

Religious Discrimination, Public Funding, and constitutional Values
By Steven K. Green

TitleVII of the 1964 Civil Rights Act allows religious institutions to discriminate on the basis of religion in their employment practices, even in those situations where employees are not engaged in religious functions or duties. This exemption, while part of the law since 1972, has become more controversial since the enactment of Charitable Choice legislation that allows religious organizations to contract with the government to administer funded social services. Even though the Supreme Court upheld the exemption against an Establishment Clause challenge in 1987, that decision did not involve government funded programs. An examination of the legislative history behind the exemption and the 1987 Supreme Court decision indicate that the constitutional values underlying the exemption do not apply in situations involving public funding, and that permitting religious organizations to discriminate under Charitable choice violates the Equal Protection and Establishment Clauses.

Coerced Confessions and the Fourth Amendment
By Michael J. Zydney Mannheimer

Coerced confessions in State criminal prosecutions have been thought to implicate the Due Process Clause of the Fourteenth Amendment, as well as the Self-Incrimination Clause of the Fifth Amendment. However, pursuant to Graham v. Connor, if an interest is addressed by one of the specific clauses of the Bill of Rights that has been incorporated against the States, only the standards associated with that provision- and not the more generalized notions of Due Process- apply to a claim that the interest has been infringed. Accordingly, one might think that the law of coerced confessions is governed entirely by the Self-Incrimination Clause. However, by its very terms, the Self-Incrimination Clause forbids a State only from forcing a person to "be a witness against himself" in a "criminal case." Thus, the Clause is violated, if ever, only in a formal judicial proceeding, and the victim of police torture whose statements are never used against him would have no constitutional redress. In this Article, Mr. Mannheimer argues that the coerced confession should be viewed primarily as a Fourth Amendment event: it is the product of an unreasonable continuing seizure of the suspect, and, in addition, the product of an unreasonable search of his or her mind. Mr. Mannheimer further argues that, in order to determine whether a confession was coerced, courts should utilize a Fourth Amendment reasonableness analysis, which departs in some significant ways from current law.

NOTES

By Andrea Pallios

This Note addresses the question of the constitutionality of President Bush’s charitable choice initiative. Under this plan, the federal government would provide funding to faith-based organizations that provide community services. The constitutional question is difficult to assess for two reasons. First, most Supreme Court Establishment Clause cases address federal funding of religious schools, not charities. The Supreme Court has only considered the funding of religious charities twice, and only once during the 20th century. Neither of these cases is dispositive in the case of charitable choice. Second, over the past thirty years, the Supreme Court has used a variety of tests in Establishment Clause cases, without overruling any of them. Because there is no telling which test the Supreme Court will use in any given case, this Note analyzes charitable choice under each of the Supreme Court’s tests. It concludes that regardless of which test is used, the charitable choice plan is unconstitutional.

Access to the Airways After September 11: Do Aviation Businesses Devastated by the Restrictions Have a Fifth Amendment Remedy?
By Elton Ueoka Dodson

The terrible events of September 11, 2001, led to a great fear that our airspace would again be used as a tool of terror. Unfortunately, general aviation, a sector of aviation not involved in the attacks, was disproportionately affected by the severe and sometimes questionable airspace restrictions that followed. Arguably, Americans have a right to use our nation’s airspace, much like a public highway, subject only to reasonable government regulations. This Note sets out the historical and legal Fifth Amendment takings arguments which may grant general aviation business owners severely affected by the airspace restrictions a remedy.

Specifically, this Note argues that some of the restrictions imposed after the attacks constitute a regulatory taking of general aviation aircraft for public use, for which compensation is due under the Fifth Amendment of the United States Constitution.