Digital Commons Network^™

From The Protection Of Children Against Sexual Exploitation Act Of 1977 To The Adam Walsh Child Protection And Safety Act Of 2006: How Congress Went From Censoring Child Pornography To Censoring Protected Sexual Speech, Onki Kwan

UC Law Constitutional Quarterly

Congress first outlawed child pornography in the Protection of Children Against Sexual Exploitation Act of 1977. The statute was amended in 1984 because Congress found that the 1977 Act did not adequately protect children from sexual exploitation and abuse. In 1988, Congress introduced record-keeping requirements as codified in 18 U.S.C. § 2257 to supplement existing the 1984 statute. Since 1988, § 2257 has been amended several times, broadening in scope each time. Today, the statute is so broad that it infringes on constitutionally protected speech. As such, in Keisler v. Connection Distribution Company the Sixth Circuit held that § 2257 …

Boumediene V. Bush And Extraterritorial Habeas Corpus In Wartime, Riddhi Dasgupta

UC Law Constitutional Quarterly

How did the United States Supreme Court in Boumediene v. Bush conclude that the detention facility in Guantdnamo Bay, Cuba is indeed American territory for the purpose of habeas corpus? Why did the Court extend habeas to non-citizens as well? Which legal provisions and precedents guided the Supreme Court's analysis? The United States Constitution's Suspension Clause, precluding the suspension of habeas corpus except in well defined and discrete national security urgencies, is the controlling trump card raised by the detainees. This Commentary sets the stage for a multivariable conversation about the interplay among separation of powers, rejection of executive supremacy, …

Heller And Constitutional Interpretation: Originalism's Last Gasp, Rory K. Little

Faculty Scholarship

No abstract provided.

Fixing Free Exercise: A Compelling Need To Relieve The Current Burdens, Eric D. Yordy

UC Law Constitutional Quarterly

Using the dispute between the native tribes of northern Arizona and the federal government regarding land controlled by the federal government, but held sacred by Native American tribes, this Article demonstrates how the U.S. Supreme Court's 1990 decision in Employment Division v. Smith and the subsequent activities of courts and legislative bodies disrupted free exercise jurisprudence and created a quagmire of confusion related to religious freedom. The Article looks briefly at the history of the Free Exercise clause in the courts, the evisceration of free exercise jurisprudence in Smith and the subsequent enactment of the Religious Freedom Restoration Act.

The …

The Myth Of Laissez-Faire Constitutionalism: Liberty Of Contract During The Lochner Era, David N. Mayer

UC Law Constitutional Quarterly

The Article examines the U.S. Supreme Court's protection of liberty of contract as a fundamental constitutional right during the forty-year period from 1897 until 1937, the so-called "Lochner era," named for the Court's best-known liberty-of-contract decision in 1905, Lochner v. New York. The Article shatters many myths about this era, particularly the notion that the Court was engaged in so-called "laissez-faire constitutionalism," which was derived from Justice Oliver Wendell Holmes's famous dissent in Lochner. Although Holmes's characterization of the majority's decision in Lochner as activist has shaped the orthodox view, both Holmes and the orthodox view are clearly wrong-unfair caricatures …

Web-Assisted Suicide And The First Amendment, Ellen Luu

UC Law Constitutional Quarterly

The proliferation of online social networking websites such as MySpace, Facebook, and message boards has introduced a new threat in the form of suicidepromoting cyber-speech. In countries such as the United States, Japan, and the United Kingdom, individuals have used these social networks to access advertisements for suicide partners, feedback on self-murder plans, and guides on how to commit suicide. In light of claims that this cyber-speech serves the legitimate purpose of providing an open forum for discussion on such topics, is such speech protected under the First Amendment?

While the Supreme Court has upheld the prohibition of assisted suicide, …

Transnational Wiretaps And The Fourth Amendment, Kristopher A. Nelson

UC Law Constitutional Quarterly

The Fourth Amendment protects Americans within the borders of the United States, but its applicability outside American territory is less clear. This Note maintains that Fourth Amendment protections should cover wiretap evidence seized abroad, not just that gathered domestically. These protections should apply whenever a prosecutor seeks to admit such evidence in criminal prosecutions in the United States. Such protections are fundamental whenever the government acts to gather or use evidence, whether that evidence was obtained outside the territorial jurisdiction of the United States or not.

The practical application of these protections for evidence gathered abroad presents problems, however. For …

Homeless But Not Hopeless: How The Tibetan Constitution Governs A People In Exile, Tsering Kheyap

UC Law Constitutional Quarterly

In 1991, the Tibetan Government in Exile adopted the Tibetan Constitution. This is a living document that is widely recognized by the Tibetan community inside Tibet and those living in exile. Since its adoption, it has been amended eleven times and successfully provides for the democratic elections of exile leaders.

This Note argues that formal and informal international recognition of the importance and potential value of this document can help secure environmental and political stability, effective communication and democratic development throughout the region. In order for the Tibetan Constitution to achieve international acceptance as the legitimate governing document of the …

Legal Claims As Private Property: Implications For Eminent Domain, Jeremy A. Blumenthal

UC Law Constitutional Quarterly

May the government use eminent domain to take a private citizen's right to sue? May the government take a citizen's right to sue and exercise it, or take that right to sue and deliberately not exercise it? Even more controversial, may the government use eminent domain to condemn your legal claim and, consistent with its broad powers as delineated in Kelo, transfer that claim to another private party to pursue (or not)?

This Article explores these questions by examining the Takings Clause implications of considering the right to sue as private property. Specifically, the Article shows that legal claims are …

Circumventing Non-Appropriation: Law And Development Of United States Space Commerce, Nikhil D. Cooper

UC Law Constitutional Quarterly

International space-commerce is booming. Presently, a series of international treaties proscribe the United States from "appropriating" space. However, as future technologies enable more commercial uses for space, what is the status of present United States legislation governing space-commerce and how might such legislation conflict with existent United States treaty obligations? In answering this question, this Note argues that although there is an argument that space-commerce conducted within the United States might violate the spirit of international treaty obligations, it is unlikely that such tension rises to the level of an express conflict that would illegitimate current domestic space-commerce legislation.

Still, …

A Picture Is Worth A Thousand Words: The Effect Of Spectators' Display Of Victim Photographs During A Criminal Jury Trial On A Criminal Defendant's Fair Trial Rights, Elizabeth Lyon

UC Law Constitutional Quarterly

Spectators at criminal jury trials have displayed photographs of a deceased victim inside the courtroom on items such as on buttons, T-shirts, or collages. Courts have recognized that these photographs simply function as grief occasioned by the loss of a victim. Consequently, courts have allowed photographs inside the courtroom, like many other emotional expressions of spectators that are permissible.

This Note argues that victim photographs in the courtroom go beyond an ordinary showing of emotion, serving to elicit sympathy from jurors and calling on them to vindicate the victim's loss. For these reasons, such photographs violate a criminal defendant's constitutional …

In Re Marriage Cases: The Fundamental Right To Marry And Equal Protection Under The California Constitution And The Effects Of Proposition 8, Richard Salas

UC Law Constitutional Quarterly

This issue of whether or not to legalize marriage for same-sex couples has been one of the most socially and legally visible issues of the past decade. The controversy surrounding the legalization of gay marriage will continue to be a hot-button political and social issue for at least a considerable length of time into the future. Marriage is mostly an institution governed by state laws, and, as the traditional definitions and limitations on marriage change, it will occur mostly on a state-by-state basis.

California has a history of leading the nation in social progression at the judicial and legislative level. …

Rights, Remedies And Facial Challenges, Maya Manian

UC Law Constitutional Quarterly

This brief Comment extends upon a key point raised by Caitlin Borgmann's article, Holding Legislatures Constitutionally Accountable Through Facial Challenges, which argues in part that the Roberts Court takes an outcome-driven approach to facial challenges. Building on Borgmann's analysis, this Comment further suggests that the Court not only manipulates the law in an outcome determinative manner, but also exploits the rules regarding the use of as-applied and facial challenges as a means to rewrite substantive law without having to openly overrule prior precedent. This Comment focuses on Gonzales v. Carhart as an illustration of the Roberts Court's manipulation of procedural …

Defining Empirical Frames Of Reference In Constitutional Cases: Unraveling The As-Applied Versus Facial Distinction In Constitutional Law, David L. Faigman

UC Law Constitutional Quarterly

As well illustrated by the litigation in Brown v. Board of Education, it is incumbent on the Supreme Court to identify the empirical frame of reference it uses to evaluate the constitutionality of some challenged action. In Brown, this required the Court to determine whether the proper frame of reference through which to measure constitutionality were the general effects of segregation, or whether constitutionality had to be assessed based on segregation's effects on the children involved in the specific cases before the Court. The Court chose the general frame, thus invalidating school segregation generally. This framing problem occurs throughout constitutional …

Frames Of Reference And The Turn To Remedy In Facial Challenge Doctrine, Kevin C. Walsh

UC Law Constitutional Quarterly

This symposium contribution responds to Professor David L. Faigman's article, Defining Empirical Frames of Reference in Constitutional Cases: Unraveling the As- Applied Versus Facial Distinction in Constitutional Law. The response supplements Professor Faigman's descriptive account of how facial challenge doctrine functions in constitutional adjudication, finding that the deployment of facial challenge doctrine in the Roberts Court is largely continuous with prior case law that neglects the interdependence of facial challenge doctrine with the underlying substantive constitutional law that it implements. Yet there are signs of the emergence of a more promising approach that treats the scope of invalidation as a …

Looking Through Both Ends Of The Telescope: Facial Challenges And The Roberts Court, David L. Franklin

UC Law Constitutional Quarterly

This Article explores how the Roberts Court has negotiated the choice between as-applied and facial review in its cases, and what those cases tell us about how the justices view the ongoing project of translating constitutional meaning into constitutional doctrine. Part I of the Article describes the traditional model of judicial review, which strongly favors as-applied challenges over facial ones, and then canvasses several recent cases in which the Court has reaffirmed its adherence to that model. Part II discusses two categories of cases that have been described as exceptions to the traditional modeloverbreadth cases and abortion rights cases-and discovers …

The Supreme Court's New Public-Private Distinction Under The Dormant Commerce Clause: Avoiding The Traditional Versus Nontraditional Classification Trap, Bradford Mank

UC Law Constitutional Quarterly

In its 2007 decision United Haulers Association, Inc. v. Oneida-Herkimer Solid Waste Management Authority, the Supreme Court for the first time held the "dormant" Commerce Clause doctrine ("DCCD") allows for a distinction between appropriate laws establishing local government monopolies providing public services such as waste disposal, and inappropriate laws favoring the self-interest of in-state private businesses over out-of-state competition. In addition, the Court emphasized that courts should apply the DCCD more leniently in the area of waste disposal because it is a traditional local government function. In its 2008 decision Department of Revenue of Kentucky v. Davis, the Court reaffirmed …

Theocracy In America: Should Core First Amendment Values Be Permanent, Miriam Galston

UC Law Constitutional Quarterly

Recent attempts to craft constitutions in Iraq and Afghanistan have focused attention on problems that emerge in countries with a governmentsponsored religion that attempt to organize as constitutional democracies. The tension inherent in combining theocratic and democratic principles seems foreign in the United States because of the nation's longstanding commitment to the First Amendment's guarantee of free exercise of religion for individuals and disestablishment of religion on the part of government entities. Yet the United States is not totally immune from this tension.

In the last several decades, there has been increasing pressure to adopt amendments for the purpose of …

Warrantless Wiretapping: The Bush Administration's Failure To Jam An Elephant Into A Mousehole, Adrienne Ratner

UC Law Constitutional Quarterly

From 2002 through 2005, President George W. Bush unilaterally authorized the "Terrorist Surveillance Program" ("TSP"), a program of dragnet surveillance targeting hundreds of thousands of domestic telephone and email communications. Without the consent of Congress, the TSP subverted the statutory requirement for a judicial warrant for domestic surveillance and thereby violated the Foreign Intelligence Surveillance Act ("FISA"). The Bush Administration and the Obama Administration attempted to justify warrantless wiretapping with a number of post-hoc arguments that maximized the power of the executive branch in the face of heightened national security concerns.

Drawing on constitutional scholarship, Supreme Court cases, and legislative …

Muddy Waters: Congressional Consent And The Great Lakes - St. Lawrence River Basin Water Resources Compact, Sonya F. Palay

UC Law Constitutional Quarterly

After nearly a century of negotiations among the Great Lakes states, tribes, and provinces, a promising new agreement was recently ratified by the parties and recognized by Congress, this is the Great Lakes-St. Lawrence River Basin Water Resources Compact. Interstate compacts, may serve as a particularly useful tool for solving regional environmental problems, which the federal government lacks the interest to resolve. However, due to constitutional strictures, interstate compacts are not binding unless Congress grants consent to the compact. This Note focuses on the recent Great Lakes Compact as a means to examine the current state of the law surrounding …

Protecting The Innocent: Post-Conviction Dna Exoneration, Sophia S. Chang

UC Law Constitutional Quarterly

Eight states in the nation do not have laws allowing post-conviction DNA exoneration: Alabama, Alaska, Massachusetts, Mississippi, Oklahoma, South Carolina, South Dakota, and Wyoming. Without such laws, most wrongly convicted prisoners have no chance at proving their innocence because their defense depends on the exculpatory, yet unattainable, evidence that DNA provides. Denial of access to DNA evidence, whether prior to or after conviction, is an unconstitutional violation of due process. Additionally, forcing innocent people to remain in prison denies basic rights of prisoners and constitutes cruel and unusual punishment.

This Note argues that the prohibition of post-conviction DNA exoneration defeats …

Holding Legislatures Constitutionally Accountable Through Facial Challenges, Caitlin E. Borgmann

UC Law Constitutional Quarterly

The Roberts Court has viewed facial challenges with skepticism and hostility. The Court issued one early decision suggesting that its primary concern with facial challenges was the breadth of the remedy. More recently, however, the Court has simply denied facial challenges outright without considering the possibility of more limited relief. In these cases, the Court has focused more on the pre-enforcement and broadranging nature of facial challenges, expressing a preference for concrete evidence that a law has harmed, or will harm, particular classes of individuals. While placing a heavy burden on plaintiffs to demonstrate actual or likely harm, the Court …

The Domestic Violence Clause In New Originalist Theory, Mark S. Stein

UC Law Constitutional Quarterly

In this brief essay, I address the way in which "new originalists" Jack Balkin and Lawrence Solum use the Domestic Violence Clause in Article IV, Section 4 of the Constitution to support their theories. Balkin uses the Domestic Violence Clause to provide an example of an impermissible departure from original meaning: Surely, he claims, it would be wrong to interpret the constitutional term "domestic violence" as referring to spousal abuse. Solum uses the same example to support his thesis that the semantic meaning of the Constitution is fixed at the time of origin.

In fact, the constitutional term "domestic violence" …

Second-Class Citizens: The Schism Between Immigration Policy And Children's Health Care, John A. Castro

UC Law Constitutional Quarterly

This article argues that two courses of American politics, immigration policy and children's health care, have developed in such a way so as to cause a string of conflicts that ultimately deprives citizen children of undocumented immigrants of rights and privileges enjoyed by their native-parented counterparts. Such a result, the author argues, is nothing short of a deprivation of Fourteenth Amendment citizenship rights. The article begins with a historical overview of the birth of children's health care, a cause that has its roots in child labor and immigration. The article then provides an overview of how the conflicts between immigration …

The Adam Walsh Act: Un-Civil Commitment, Emily Eschenbach Barker

UC Law Constitutional Quarterly

Recently, the Supreme Court granted certiorari on question of whether or not enactment of the Commitment Provision of the Adam Walsh Child Protection and Safety Act of 2006 Was within Congress's authority. This note will show that Congress lacked the authority to enact the Commitment Provision under either its enumerated or incontestable federal powers.

The discussion will begin with and overview of the relevant Supreme Court precedents bearing on a constitutional determination of this kind. This note will show that proper reading of these precedents demonstrates that the clause upon which the federal government most often defends its power to …