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Historians Wear Robes Now? Applying The History And Tradition Standard: A Practical Guide For Lower Courts, Alexandra Michalak

William & Mary Bill of Rights Journal

Never before has the Supreme Court relied on the history and tradition standard to such a magnitude as in the 2021 term to determine the scope of a range of constitutional rights. [...] In reaffirming this standard, the Supreme Court provided no guidance to lower courts on how to apply and analyze the history and tradition standard. Along with balancing the lack of resources in deciding cases with the history and tradition framework, lower courts must face the reality that this standard presents ample opportunity for one-sided historical analysis. To combat the temptation of conducting unbalanced and cursory reviews of …

Unleashing The Guarantee Clause Against The Spirit Of Innovation, Ricardo N. Cordova

William & Mary Bill of Rights Journal

[...] Of special significance is Madison’s defense of the Guarantee Clause in Federalist 43, in which he argued that the Clause is intended to prevent “aristocratic or monarchical innovations” by the states. This phrase is a critical clue to uncovering the full meaning of the Guarantee Clause. Yet scholars have mentioned it only in passing and divorced from its historical context, as part of apocryphal claims that the Clause supports radical modern causes. This is unfortunate because Madison’s phrase, properly construed, speaks volumes.

Preliminarily, the phrase shows that the Guarantee Clause was originally understood to prevent changes of a …

"There's A New Sheriff In Town": Why Granting Qualified Immunity To Local Officials Acting Outside Their Authority Erodes Constitutional Rights And Further Deteriorates The Doctrine, Josephine Mcguire

William & Mary Bill of Rights Journal

Part I traces the history of qualified immunity and the doctrine’s analytical changes over time, detailing the twofold test as it currently stands. Part II considers Large and Sweetin, comparing the courts’ approaches to essentially similar scenarios and evaluating the differences in outcome. Part III addresses the Supreme Court’s denial of the Large plaintiffs’ petition for certiorari and explicates the “scope of authority” question the Court declined to address. Part IV breaks down the decision in Large and conducts the qualified immunity analysis anew, determining that the court misapplied the doctrine regardless of its failure to consider the scope …

The Philosophy Of Ai: Learning From History, Shaping Our Future. Hearing Before The Committee On Homeland Security And Government Affairs, Senate, One Hundred Eighteenth Congress, First Session., Margaret Hu

Congressional Testimony

No abstract provided.

Sola Scriptura: Slavery, Federalism And The Textual Power To Provide For The General Welfare, Calvin H. Johnson

William & Mary Bill of Rights Journal

This Article argues specifically that under the text of the Constitution, Congress has the general power to provide for the welfare through tax and any other necessary and appropriate means. Clause 1 of the description of powers of Congress in Article I, Section 8, gives Congress the power to tax and spend to provide for the common defense and general welfare. Common defense and domestic welfare are parallel in the text and equally plenary, subject only to restrictions protecting individual rights. The final clause of Section 8 then allows Congress to reach the goal of general welfare by any necessary …

A State Within A State: Re-Examining The Federal Lands Question And Its Effect On State Sovereignty, David Wilde

William & Mary Environmental Law and Policy Review

Though the path of the public lands debate is well-trodden, this Note will seek to answer the question in novel ways. First, it uses the Corpus of Founding Era American English to perform an objective linguistic analysis of the phrase “dispose of” in the Property Clause. Through this analysis, it appears that an ordinary person at the time the Constitution was adopted would most likely have read the phrase “dispose of” in the Property Clause to mean sell, give away, bestow, or put into another’s hand or power.

Next, this Note investigates the historical and philosophical understandings of state sovereignty …