Constitutional Law

The U.S. Supreme Court recently decided City of Grants Pass v. Johnson which held that the Cruel and Unusual Punishments Clause of the Eighth Amendment does not restrict the government from enforcing laws prohibiting camping or sleeping in public against homeless individuals. This issue brief discusses prior precedents relevant to the 8th Amendment, summarizes the Court’s decision in Grants Pass, and describes the impact of the decision in Wisconsin.

In Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, the U.S. Supreme Court held that university admissions policies that consider race outside of an individualized context are impermissible under the Equal Protection Clause of the 14th Amendment to the U.S. Constitution. The Court’s decision effectively, though not expressly, overturned prior decisions that had upheld raceconscious admissions policies if the policies allowed for the consideration of race as one of many factors, as part of a holistic review of each applicant. The Court’s decision does not, however, prevent admissions officers from considering a student’s own discussion of how race has impacted the student’s life. This issue brief describes the Court’s prior precedents on race-conscious admissions policies as well as the Court’s holding in Students for Fair Admissions.

Both the U.S. and Wisconsin Constitutions protect freedom of speech. These protections apply when K-12 public schools restrict the speech or expression of students. However, student speech rights are “not automatically coextensive with the rights of adults in other settings.” This issue brief discusses U.S. Supreme Court decisions establishing the extent of students’ free speech rights, including a recent decision concerning off-campus social media use.

The First Amendment of the U.S. Constitution and Article I, Section 3 of the Wisconsin Constitution prohibit government actors, including elected officials acting in an official capacity, from abridging the freedom of speech. Those constitutional guarantees present special considerations with respect to elected officials’ social media practices, particularly on platforms designed to serve as “official” accounts for communicating with constituents. This issue brief summarizes legal concepts and recent court decisions relating to this rapidly evolving area of law.

State and federal courts have long held that governments may exercise police power over the use of land, for example through local zoning ordinances. However, in rare instances, government regulation may burden property to such a degree as to constitute an unconstitutional “taking,” even if the government did not take any actual ownership or possession of the property. Such “regulatory takings” may be challenged under Article I, Section 13 of the Wisconsin Constitution and the “takings clause” of the Fifth Amendment to the U.S. Constitution, which prohibit governments from taking private property for public use without just compensation. This issue brief provides an overview of the tests courts use when analyzing whether such a “regulatory taking” has occurred. It also summarizes a 2017 U.S. Supreme Court decision, Murr v. Wisconsin, which addressed a question that had arisen in this area of law.

The Second Amendment to the U.S. Constitution provides that: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” The U.S. Supreme Court has interpreted the meaning of and protections afforded by this amendment in three landmark opinions, the most recent of which was issued in June 2022.

The “free speech” clause of the First Amendment to the U.S. Constitution provides that: “Congress shall make no law . . . abridging the freedom of speech.” The legal definition of “speech” is broad and includes various mediums of communication. Thus, government laws or regulations relating to signs have prompted legal challenges on First Amendment grounds. This issue brief discusses the legal standards courts apply in cases involving signs and summarizes recent U.S. Supreme Court decisions on this topic.

In Dobbs v. Jackson Women’s Health Organization, a case decided in June 2022, the U.S. Supreme Court overruled prior case law that had established a right to an abortion under the U.S. Constitution. This issue brief summarizes prior legal precedents, the Dobbs decision, and the decision’s effect on abortion law in Wisconsin.