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The Living Commerce Clause: Federalism In Progressive Political Theory And The Commerce Clause After Lopez And Morrison, Eric R. Claeys

William & Mary Bill of Rights Journal

"Living Constitution " ideas are most often associated with individual-rights guarantees like equal protection and due process, but they were originally developed in the early twentieth century to revolutionize the law of the structural Constitution - including the Commerce Clause. In this Article, Professor Claeys interprets Progressive political theory, which played a crucial role in legitimating the expansion of the national government. As applied to federalism, Progressive living-Constitution theory required that the Commerce Clause be interpreted as a constitutional transmitter letting the national government regulate whatever the American people deem to be a national problem. He suggests that this notion …

Spheres Of Autonomy: Reforming The Content Neutrality Doctrine In First Amendment Jurisprudence, Steven J. Heyman

William & Mary Bill of Rights Journal

Modern First Amendment jurisprudence almost exclusively prohibits laws restricting freedom of speech based on the content of the speech. In this Article, Professor Steven Heyman takes exception to the content neutrality doctrine, arguing that its strict application both minimizes other interests competing with speech and fails to elevate the premises on which the First Amendment stands.

The Idea Of Public Reason Resuscitated, James P. Madigan

William & Mary Bill of Rights Journal

In this Article, James Madigan examines the role of public reason in a democratic government, including what views should play a role in determining public reason. Madigan criticizes John Rawls for including comprehensive views in constitutional debates, and argues that only reasons grounded in political values should be used when debating constitutional issues and fundamental rights.

Procedural Justice: Tempering The State's Response To Domestic Violence, Deborah Epstein

William & Mary Law Review

No abstract provided.

Yet Another Constitutional Crisis?, Keith E. Whittington

William & Mary Law Review

The recent presidential impeachment and the postelection controversy each led many to fear that the United States had either already entered or was about to enter a constitutional crisis. Such concerns seem overwrought. This Article will use those events as a foil for examining the nature of constitutional crises. The Article will distinguish two types of constitutional crises and consider several potential crises in American history, clarifying how crises occur and how they can be averted. Constitutional crises in the United States are rare in large part because of the robustness of the country's informal constitutional practices, reasonably good constitutional …

Terrorism And The Bill Of Rights, Rodney A. Smolla

William & Mary Bill of Rights Journal

This year is the Tenth Anniversary of the William & Mary Bill of Rights Journal, and the Journal is very fortunate and honored to have Professor Rodney Smolla publish an article in this year's volume. Professor Smolla played an integral role in the founding and organizing of not only the Journal, but also the Institute of Bill of Rights Law at William & Mary Law School. The Journal extends its most appreciative thanks to Professor Smolla for all his help.

In this Article, Professor Smolla examines the right to free speech in the context of Black v. Commonwealth, a case …

Antebellum Perspectives On Free Speech, Mark A. Graber

William & Mary Bill of Rights Journal

In his book, Free Speech, "The People's Darling Privilege": Struggles for Freedom of Expression in American History, Professor Michael Kent Curtis documents the political struggles over free speech rights that took place between the ratification of the Bill of Rights in 1791 and the adoption of the Fourteenth Amendment in 1868. Professor Curtis looks to these early free speech fights to help define the contours of contemporary speech rights. In this review, Professor Mark A. Graber discusses Professor Curtis's contribution to constitutional history, and the implications of The People's Darling Privilege for constitutional theorists

The Rhetoric Of Judicial Critique: From Judicial Restraint To The Virtual Bill Of Rights, Michael J. Gerhardt

William & Mary Bill of Rights Journal

Professor Michael Gerhardt traces the rhetoric employed by national leaders and commentators over the past century to describe popular conceptions of the judicial function. In particular, Professor Gerhardt examines the evolution of the terminology used in popular and political rhetoric, revealing their inconsistent application to political ideologies through time. Professor Gerhardt argues that such shifts in usage correspond with transfers of power between the political authorities controlling the central interests at stake in constitutional adjudication. Professor Gerhardt applies the shortcomings of traditional political rhetoric to the issues surrounding technological advancements, concluding that the proper treatment of technology by the Supreme …

Bits And Bytes: The Carnivore Initiative And The Search And Seizure Of Electronic Mail, Sandy D. Hellums

William & Mary Bill of Rights Journal

This Note examines the application of Fourth Amendment search and seizure doctrines to the interception of electronic mail within the context of the FBI Carnivore initiative. The author argues that the traditional law of electronic surveillance's understanding of communication is outdated and never contemplated new technologies like Carnivore and their far reaching implications. Consequently, the author argues, that to protect our long-understood expectations of privacy, the search and seizure of electronic documents should be analyzed under the traditional papers analysis. To do so, the Supreme Court would afford the interception electronic documents the highest form of constitutional protect available under …

Speech, Press, And Democracy, Paul Finkelman

William & Mary Bill of Rights Journal

Professor Michael Kent Curtis's latest book, Free Speech, "The People's Darling Privilege": Struggles for Freedom of Expression in American History, chronicles the efforts of ordinary Americans to protect their right to freedom of expression from 1791-1865. Professor Paul Finkelman reviews this book, focusing primarily on Curtis's discussions of suppression of speech prior to and during the Civil War period and additionally providing some thoughts concerning the appropriateness of revoking free speech rights during times of war.

Easing The Spring: Strict Scrutiny And Affirmative Action After The Redistricting Cases, Pamela S. Karlan

William & Mary Law Review

No abstract provided.

Judicial Review And Institutional Choice, Adrian Vermeule

William & Mary Law Review

No abstract provided.

Preparing For The Clothed Public Square: Teaching About Religion, Civic Education, And The Constitution, Jay D. Wexler

William & Mary Law Review

No abstract provided.

The Business Of Expression: Economic Liberty, Political Factions And The Forgotten First Amendment Legacy Of Justice George Sutherland, Samuel R. Olken

William & Mary Bill of Rights Journal

In The Business of Expression: Economic Liberty, Political Factions And The Forgotten First Amendment Legacy of Justice George Sutherland, Samuel Olken traces the dichotomy that emerged in constitutional law in the aftermath of the Lochner era between economic liberty and freedom of expression. During the 1930s, while a deeply divided United States Supreme Court adopted a laissez faire approach to economic regulation, it viewed with great suspicion laws that restricted the manner and content of expression. During this period, Justice George Sutherland often clashed with the majority consistently insisting that state regulation of private economic rights bear a close and …

The Radical Possibility Of Limited Community-Based Interpretation Of The Constitution, Mark D. Rosen

William & Mary Law Review

No abstract provided.

The Constitution And The Other Constitution, Michael Kent Curtis

William & Mary Bill of Rights Journal

In this article, Professor Michael Kent Curtis examines how laws that shape the distribution of wealth intersect with and affect popular sovereignty and free speech and press. He presents this discussion in the context of the effect of the Other Constitution on The Constitution. Professor Curtis begins by taking a close-up look at the current campaign finance system and the concentration of media ownership in a few corporate bodies and argues that both affect the way in which various political issues are presented to the public, if at all. Professor Curtis continues by talking about the origins of our constitutional …

Assessing The Legitimacy Of Governmental Regulation Of Modern Speech Aimed At Social Reform: The Importance Of Hindsight And Causation, Kenneth J. Brown

William & Mary Bill of Rights Journal

When governmental regulation or punishment of speech occurs subsequent to the speech itself, such regulation is conducted with the benefit of hindsight. This is important because hindsight enables us to discern whether the expression in question has caused any legally cognizable harm. When speech is responsible for such a harm, its punishment is justfied by this causal connection. Yet conversely, when we know that speech is consequence-free, its ex post punishment is conceptually indefensible. In the first part of this article, Mr. Brown criticizes the imminent lawless action standard articulated in Brandenburg v. Ohio for failing to embrace fully this …

Ake V. Oklahoma And An Indigent Defendant's 'Right' To An Expert Witness: A Promise Denied Or Imagined?, Carlton Bailey

William & Mary Bill of Rights Journal

Since the Supreme Court's decision in Ake v. Oklahoma, it has attempted to determine and clarify the rights of an indigent defendant. Over the past sixteen years, many questions concerning an indigent defendant's access to expert witnesses have been answered, but many questions still remain. In this article, Professor Carlton Bailey attempts to clarify the Ake decision by arguing that an indigent defendant should be able to secure, upon a proper showing, psychiatric and non-psychiatric assistance at state expense.

Individualized School Searches And The Fourth Amendment: What's A School District To Do?, Jason E. Yearout

William & Mary Bill of Rights Journal

As high-profile incidents of school violence appear to become more frequent and severe, public perception has deteriorated to the point where many citizens believe that schools are unsafe and administrators lack the power to control student activity. In their efforts to promote a safe learning environment, many school administrators have attempted to create strict guidelines concerning the power of school personnel to prevent illegal and unsafe activity from taking place at school. However, as administrators devise the rules by which to implement these standards, they are given little guidance by the Supreme Court regarding the application of the Fourth Amendment …