Digital Commons Network^™

The President And Individual Rights, Mark Tushnet

William & Mary Bill of Rights Journal

No abstract provided.

Executive Unilateralism And Individual Rights In A Federalist System, Meredith Mclain, Sharece Thrower

William & Mary Bill of Rights Journal

Presidents have a wide array of tools at their disposal to unilaterally influence public policy, without the direct approval of Congress or the courts. These unilateral actions have the potential to affect a variety of individual rights, either profitably or adversely. Governors too can employ unilateral directives for similar purposes, often impacting an even wider range of rights. In this Article, we collect all executive orders and memoranda related to individual rights issued between 1981 and 2018 at the federal level, and across the U.S. states, to analyze their use over time. We find that chief executives of all kinds …

The Epistemic Function Of Fusing Equal Protection And Due Process, Deborah Hellman

William & Mary Bill of Rights Journal

The fusion of equal protection and due process has attracted significant attention with scholars offering varied accounts of its purpose and function. Some see the combination as productive, creating a constitutional violation that neither clause would generate alone. Others see the combination as merely strategic, offered to make a claim acceptable at a particular historical moment but not genuinely necessary. This Article offers a third alternative. Judges have and should bring both equal protection and due process together to learn what each clause independently requires. On this Epistemic vision of constitutional fusion, a focus on equality helps judges learn what …

Four Responses To Constitutional Overlap, Michael Coenen

William & Mary Bill of Rights Journal

Sometimes government action implicates more than one constitutional right. For example, a prohibition on religious expression might be said to violate both the Free Speech Clause and the Free Exercise Clause, a rule regarding same-sex marriage might be said to violate both equal protection and substantive due process, an exercise of the eminent domain power might be said to violate both procedural due process and the Takings Clause, a disproportionate criminal sentence based on judge-found facts might be said to violate both the defendant’s right to trial by jury and that defendant’s right against cruel and unusual punishment, and so …

The Father Of Modern Constitutional Liberalism, John Lawrence Hill

William & Mary Bill of Rights Journal

No abstract provided.

The New Jim Crow’S Equal Protection Potential, Katherine Macfarlane

William & Mary Bill of Rights Journal

In 1954, the Supreme Court’s Brown v. Board of Education opinion relied on social science research to overturn Plessy v. Ferguson’s separate but equal doctrine. Since Brown, social science research has been considered by the Court in cases involving equal protection challenges to grand jury selection, death penalty sentences, and affirmative action. In 2016, Justice Sotomayor cited an influential piece of social science research, Michelle Alexander’s The New Jim Crow: Mass Incarceration in the Age of Colorblindness, in her powerful Utah v. Strieff dissent. Sotomayor contended that the Court’s holding overlooked the unequal racial impact of suspicionless …

Good Faith Discrimination, Girardeau A. Spann

William & Mary Bill of Rights Journal

The Supreme Court’s current doctrinal rules governing racial discrimination and affirmative action are unsatisfying. They often seem artificial, internally inconsistent, and even conceptually incoherent. Despite a long and continuing history of racial discrimination in the United States, many of the problems with the Supreme Court’s racial jurisprudence stem from the Court’s willingness to view the current distribution of societal resources as establishing a colorblind, race-neutral baseline that can be used to make equality determinations. As a result, the current rules are as likely to facilitate racial discrimination as to prevent it, or to remedy the lingering effects of past discrimination. …

The Quiet Army: Felon Firearm Rights Restoration In The Fourth Circuit, Robert Luther Iii

William & Mary Bill of Rights Journal

Most states afford felons the opportunity to have their political disabilities removed or “rights restored” after they are released from incarceration. In every state within the jurisdiction of the U.S. Court of Appeals for the Fourth Circuit, save Virginia, a felon’s rights are partially restored automatically upon the completion of his sentence, parole, and probation. Absent a pardon, Virginia requires the felon to petition the Governor in writing through the Office of the Secretary of the Commonwealth in order to obtain a partial restoration of rights. One such right that may or may not be restored upon a state-convicted felon’s …

Of Fat People And Fundamental Rights: The Constitutionality Of The New York City Trans-Fat Ban, Katharine Kruk

William & Mary Bill of Rights Journal

No abstract provided.

Appeal To Heaven: On The Religious Origins Of The Constitutional Right Of Revolution, John M. Kang

William & Mary Bill of Rights Journal

No abstract provided.

A Welfare State Of Civil Rights: The Triumph Of The Therapeutic In American Constitutional Law, Daniel F. Piar

William & Mary Bill of Rights Journal

This Article examines the influence of the therapeutic culture on the modem constitutional law of civil rights. The therapeutic culture is defined as one in which the central moral question is individual fulfillment. That culture has sprung up to replace older cultures such as Protestantism and classical republicanism, which are no longer capable of appealing to a nation as diverse as the United States. Instead of asking whether individuals or the nation conform to some external moral system, the therapeutic culture asks whether individuals are happy or fulfilled. This Article demonstrates that the therapeutic culture has had a significant effect …

Congress, Civil Liberties, And The War On Terrorism, Neal Devins

William & Mary Bill of Rights Journal

In exercising his war-making powers, the President has historically pursued war-related initiatives that implicate civil liberties. Meanwhile, the Congress, with little incentive to resist these initiatives, has played a steadily declining role in warmaking. In this Essay, Professor Devins examines this dynamic, and argues that with Congress largely standing on the sidelines as the President leads the nation in war, it is the American public that has become the principal check on the powers of the President in wartime.

Civil Rights And Civil Liberties: Whose "Rule Of Law"?, William W. Van Alstyne

William & Mary Bill of Rights Journal

No abstract provided.

Introduction To Perspectives On Constitutional Exemptions To Civil Rights Laws: Boy Scouts Of America V. Dale, Bryson J. Hunter

William & Mary Bill of Rights Journal

No abstract provided.

A Story For All Seasons: Akhil Reed Amar On The Bill Of Rights, Michael Kent Curtis

William & Mary Bill of Rights Journal

No abstract provided.

The Bill Of Rights: Creation And Reconstruction By Akhil Reed Amar

William & Mary Bill of Rights Journal

No abstract provided.

Comments On Akhil Reed Amar's The Bill Of Rights: Creation And Reconstruction, Melvin I. Urofsky

William & Mary Bill of Rights Journal

No abstract provided.

The Bill Of Rights, The Fourteenth Amendment, And The Seven Deadly Sins Of Legal Scholarship, Richard L. Aynes

William & Mary Bill of Rights Journal

No abstract provided.

Strengthening Title Vii: 1997-1998 Sexual Harassment Jurisprudence, Elizabeth D. Evans

William & Mary Bill of Rights Journal

No abstract provided.

Civil Rights Without Remedies: Vicarious Liability Under Title Vii, Section 1983, And Title Ix, Catherine Fisk, Erwin Chemerinsky

William & Mary Bill of Rights Journal

The Supreme Court has taken an inconsistent approach to allowing vicarious liability under major civil rights statutes. In recent cases, the Court has permitted qualified vicarious liability for supervisors' sexual harassment under Title VII, but rejected vicarious liability under Title IX. Earlier, the Court rejected vicarious liability for local governments sued under Section 1983. In this Article, Professors Fisk and Chemerinsky describe the Court's inconsistent approaches and argue that they cannot bejustfied by the text or legislative history of these statutes. Professors Fisk and Chemerinsky argue that each of these statutes is meant to achieve the same purpose, deterring civil …

And What Of The Meek?: Devising A Constitutionally Recognized Duty To Protect The Disabled At State Residential Schools, Yama Shansab

William & Mary Bill of Rights Journal

Section 1983 provides a statutory right to a remedy for Fourteenth Amendment due process violations. The Supreme Court has suggested that the state only has a duty to protect when an individual is incarcerated, involuntarily institutionalized, or has other similar restraints of his or her personal liberty. Based on this, courts generally have found that schools have no constitutional duty to protect their students against injury from other students or staff members. Lower courts have struggled with what constitutes other similar restraints, but have generally been unwilling to find that a state has a constitutional duty in all but the …

Justice John Marshall Harlan As Prophet: The Plessy Dissenter's Color-Blind Constitution, Molly Townes O'Brien

William & Mary Bill of Rights Journal

The concept of color-blindness has long elicited much debate over its precise meaning and the role it should play in jurisprudence. Such debate was catalyzed by Justice John Marshall Harlan's well-known Plessy dissent. In the wake of the efforts of both civil rights activists and conservatives to use color-blindness to further their respective goals, Professor O'Brien seeks to clarify Harlan's vision of color-blind jurisprudence and examines the ways in which recent Supreme Court decisions echo Harlan's concepts regarding a color-blind constitution.

Professor O'Brien first provides a brief introduction to the concept of color-blindness. O'Brien then examines Harlan's experiences in politics …

The Constitutionality Of Redlining: The Potential For Holding Banks Liable As State Actors, Joan Kane

William & Mary Bill of Rights Journal

No abstract provided.

The Adoption Of The Bill Of Rights, Maeva Marcus

William & Mary Bill of Rights Journal

No abstract provided.

Rights In The Modern Era: Applying The Bill Of Rights To The States, Stephen J. Wermiel

William & Mary Bill of Rights Journal

No abstract provided.