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Dangerous Dicta, David Gray

David C. Gray

In United States v. Heller, the Court held that individuals have a Second Amendment right to keep and bear arms apart from their associations with state militias. Although that holding was and remains controversial, less attention has been paid to what the Heller Court had to say about the Fourth Amendment. Writing for the Court in Heller, Justice Scalia asserts that the phrase “right of the people” in the Fourth Amendment “unambiguously refers to individual rights, not ‘collective’ rights or rights that may only be exercised through participation in some corporate body.” By any definition, this is dicta. It is …

California Supreme Court Unanimously Upholds Inclusionary Zoning As Land Use Regulation And Not An Exaction, Tim Iglesias

Tim Iglesias

Local governments, housing advocates, and people who need affordable housing won a solid victory in the California Supreme Court's unanimous opinion in California Bldg. Indus. Ass'n v. City of San Jose. In a complex 64-page opinion that is clearly drafted and rigorously argued, the court held that inclusionary zoning is a constitutionally permissible strategy to produce affordable housing and to promote economic integration that is subject to rational basis review and not heightened scrutiny.

This article outlines the factual and legal background of the case and discusses the court's reasoning in reaching its decision, including the court's refusal to find …

Why Personhood Matters, Tamara R. Piety

Tamara R. Piety

One of the most controversial aspect of the Supreme Court's decisions in Citizens United and Hobby Lobby is its treatment of corporate personhood. Many members of the public object to the notion that corporations should have the same rights as human beings. Yet many scholars claim that this concern is misplaced. In this article I argue that concern about corporate personhood is not misplaced because the personhood metaphor conceals the degree to which there has not been an adequate justification given for extending fundamental rights to corporations. Focusing on personhood allows us to push on the metaphor to ask whether …

Conscience And Complicity: Assessing Pleas For Religious Exemptions After Hobby Lobby, Amy Sepinwall

Amy J. Sepinwall

In the paradigmatic case of conscientious objection, the objector claims that his religion forbids him from actively participating in a wrong (e.g., by fighting in a war). In the religious challenges to the Affordable Care Act’s employer mandate, on the other hand, employers claim that their religious convictions forbid them from merely subsidizing insurance through which their employees might commit a wrong (e.g., by using contraception). The understanding of complicity underpinning these challenges is vastly more expansive than what standard legal doctrine or moral theory contemplates. Courts routinely reject claims of conscientious objection to taxes that fund military initiatives, or …