Law Commons^™

Sacrifice And Sacred Honor: Why The Constitution Is A "Suicide Pact", Peter Brandon Bayer

William & Mary Bill of Rights Journal

Most legal scholars and elected officials embrace the popular cliché that “the Constitution is not a suicide pact.” Typically, those commentators extol the “Constitution of necessity,” the supposition that Government, essentially the Executive, may take any action—may abridge or deny any fundamental right—to alleviate a sufficiently serious national security threat. The “Constitution of necessity” is wrong. This Article explains that strict devotion to the “fundamental fairness” principles of the Constitution’s Due Process Clauses is America’s utmost legal and moral duty, surpassing all other considerations, even safety, security and survival.

The analysis begins with the most basic premises: the definition of …

Campus Citizenship And Associational Freedom: An Aristolelian Take On The Nondiscrimination Puzzle, Chapin Cimino

William & Mary Bill of Rights Journal

Student expressive association on campus is a thorny thicket. Student affinity groups often choose to organize around a shared principle or characteristic of the groups’ members, which, by definition, makes those students different in some way from their peers. In order to preserve the group’s sense of uniqueness, these groups often then wish to control their own membership and voting policies. They feel, in essence, entitled to discriminate—a right arguably embodied by the First Amendment freedom of expressive association. When campus groups actually exercise this right, however, they run into university antidiscrimination policies, which can cost them official campus recognition. …

All A Twitter: Social Networking, College Athletes, And The First Amendment, Davis Walsh

William & Mary Bill of Rights Journal

No abstract provided.

The "Padilla Advisory" And Its Implications Beyond The Immigration Context, Hanh H. Le

William & Mary Bill of Rights Journal

No abstract provided.

Iqbal, Al-Kidd And Pleading Past Qualified Immunity: What The Cases Mean And How They Demonstrate A Need To Eliminate The Immunity Doctrines From Constitutional Tort Law, John M. Greabe

William & Mary Bill of Rights Journal

The Supreme Court’s decisions in Ashcroft v. Iqbal and Ashcroft v. al-Kidd contain issue-framing statements indicating that a constitutional tort plaintiff is required to plead facts sufficient to establish the inapplicability of the qualified immunity defense. Yet, framing the issue in this way ignores the Court’s earlier decisions in Gomez v. Toledo and Crawford-El v. Britton and is at odds with the established law of pleading; a plaintiff is not required to anticipate an affirmative defense and negate its applicabilityin the complaint. These cases thus raise a number of questions—Does the Court really mean what its issue-framing statements suggest? If …

The Auto-Authentication Of The Page: Purely Written Speech And The Doctrine Of Obscenity, Ryen Rasmus

William & Mary Bill of Rights Journal

No abstract provided.

The Religious Liberty Of Judges, Daniel R. Suhr

William & Mary Bill of Rights Journal

This Article begins by reviewing the government employee line of cases, starting with United Public Workers v. Mitchell in 1947.29 The first section concludes that the modified Pickering balancing test set forth in United States v. National Treasury Employees Union (NTEU) is the appropriate level of scrutiny for judicial conduct rules. The body of this Article reviews ways in which the four canons of the ABA Model Code of Judicial Ethics and official interpretations of and rulings regarding them limit the religious activities of judges. I conclude that numerous applications of the Model Code are unconstitutional infringements on judges’ First …

Finding Equilibrium: Exploring Due Process Violations In The Whistleblower Provisions Of The Fraud Enforecement And Recovery Act Of 2009, Laura Hough

William & Mary Bill of Rights Journal

No abstract provided.

The Fading Free Exercise Clause, Rene Reyes

William & Mary Bill of Rights Journal

This Article uses the Supreme Court’s recent opinion in Christian Legal Society
v. Martinez as a point of departure for analyzing the current state of free exercise doctrine. I argue that one of the most notable features of the Christian Legal Society (CLS) case is its almost total lack of engagement with the Free Exercise Clause. For the core of CLS’s complaint was unambiguously about the declaration and exercise of religious beliefs: the group claimed that it was being excluded from campus life because it required its members to live according to shared religious principles and to subscribe to a …

Badmouthing Authority: Hostile Speech About School Officials And The Limits Of School Restrictions, Emily Gold Waldman

William & Mary Bill of Rights Journal

No abstract provided.

Federal Law In State Court: Judicial Federalism Through A Relational Lens, Charlton C. Copeland

William & Mary Bill of Rights Journal

Enforcing federalism is most commonly thought to involve the search for a
constitutional delegation of substantive power. Although in modern times the substantive power might be overlapping or shared authority, federalism enforcement proceeds from a determination about the site of substantive power. This conception of federalism enforcement preserves the Constitution’s commitment to fractionated authority by determining whether power is legitimately possessed. Thus we understand significant federalism disputes in our age as framed by whether Congress has the authority to enact comprehensive health care reform legislation, or whether Congress
has exceeded its authority in reenacting the Voting Rights Act’s preclearance requirements. …

The Dark Side Of The Force: The Legacy Of Justice Holmes For First Amendment Jurisprudence, Steven J. Heyman

William & Mary Bill of Rights Journal

Modern First Amendment jurisprudence is deeply paradoxical. On one hand,
freedom of speech is said to promote fundamental values such as individual selffulfillment, democratic deliberation, and the search for truth. At the same time, however, many leading decisions protect speech that appears to undermine these values by attacking the dignity and personality of others or their status as full and equal members of the community. In this Article, I explore where this Jekyll-and-Hyde quality of First Amendment jurisprudence comes from. I argue that the American free speech tradition consists of two very different strands: a liberal humanist view that emphasizes …