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2006

Washington University in St. Louis

Washington University Journal of Law & Policy

United States Constitution

Articles 1 - 10 of 10

Full-Text Articles in Law

The Endorsement Court, Jay D. Wexler Jan 2006

The Endorsement Court, Jay D. Wexler

Washington University Journal of Law & Policy

The Rehnquist Court was the first to apply the so-called “endorsement test” to evaluate the constitutionality of government-sponsored religious symbols and displays. The test asks whether a “reasonable observer” would feel that the government has sent “a message to non-adherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.” Although the Supreme Court itself has applied the endorsement test in only a handful of cases, the test has played an extremely important role in how courts throughout the country have evaluated government ...


Some Animals Are More Equal Than Others: The Rehnquist Court And “Majority Religion”, Garrett Epps Jan 2006

Some Animals Are More Equal Than Others: The Rehnquist Court And “Majority Religion”, Garrett Epps

Washington University Journal of Law & Policy

This Essay explores the evolution of the remarkable new view of religion and the Constitution during the Rehnquist Court era. Part II analyzes Justice Scalia’s dissent in Lee v. Weisman, which set out the agenda for the religious caucus of the Court in the early years. Part III shows how the rhetoric of equality and historical grievance has been used to dismantle the boundary—for old time’s sake, let us call it a “wall of separation”—that separated religious institutions from the public fisc. Part IV analyzes Justice Scalia’s dissent in McCreary County v. American Civil Liberties ...


Trumping The First Amendment?, Lee Epstein, Jeffrey A. Segal Jan 2006

Trumping The First Amendment?, Lee Epstein, Jeffrey A. Segal

Washington University Journal of Law & Policy

The primary goal of this Essay is to assess whether the relationship between the ideology of Supreme Court Justices and their support for the First Amendment guarantees of speech, press, assembly, and association has declined, such that left-of-center Justices no longer consistently support those guarantees, and right-of-center Justices no longer consistently support their regulation. Utilizing data drawn from the 1953 through 2004 terms of the Court, we show that, in disputes in which only First Amendment claims are at issue, the more liberal the Justice, the higher the likelihood that he or she will vote in favor of litigants alleging ...


Property And Speech, Robert Allen Sedler Jan 2006

Property And Speech, Robert Allen Sedler

Washington University Journal of Law & Policy

This Essay analyzes the impact of the First Amendment’s guarantee of freedom of speech on the use, enjoyment and control of property. The Essay analyzes this impact with reference to “The First Amendment as Sword” and “The First Amendment as Shield.” In “The First Amendment as Sword,” the Essay discusses how the First Amendment has been asserted to interfere with a property owner’s use or control of tangible property and to limit the protection of an owner’s property interests. The following areas will be covered: (1) Picketing and Protests; (2) Boycotts; (3) Governmental Economic Regulation; (4) Home ...


A Property Rights View: Commentary On “Property And Speech” By Robert A. Sedler, Shelley Ross Saxer Jan 2006

A Property Rights View: Commentary On “Property And Speech” By Robert A. Sedler, Shelley Ross Saxer

Washington University Journal of Law & Policy

I begin by exploring whether the First Amendment, as a sword, obscures the difference between state and private action by constitutionally preventing private property owners from interfering with an individual’s free expression rights. Thus, private property owners, who are not otherwise held to constitutional standards, cannot block activities of others that invade their property interests because these activities are protected by the First Amendment. This Commentary will address an additional category, not mentioned by Professor Sedler in his Essay—the government’s use of eminent domain, which can be used as a “sword” against land uses protected by the ...


The Apparent Consistency Of Religion Clause Doctrine, Abner S. Greene Jan 2006

The Apparent Consistency Of Religion Clause Doctrine, Abner S. Greene

Washington University Journal of Law & Policy

A hallmark of religion clause scholarship is the complaint that the doctrine is a hopeless muddle. However, the Rehnquist Court brought a considerable amount of consistency—well, apparent consistency— to the doctrine. I say “apparent consistency” because, just as a paradox is only a seeming contradiction, so was the Rehnquist Court’s religion clause jurisprudence only seemingly consistent. The doctrine focuses on whether the government singles out religion for special benefit (generally problematic under the Establishment Clause) or for special burden (generally problematic under the Free Exercise Clause). If, on the other hand, the government benefits religion as part of ...


What's Right And Wrong With “No Endorsement”, Thomas C. Berg Jan 2006

What's Right And Wrong With “No Endorsement”, Thomas C. Berg

Washington University Journal of Law & Policy

Contrary to Professor Wexler, I argue that unless the endorsement test is properly understood and limited, it has the critical flaw of putting the Establishment Clause at war with the other religion guarantee of the First Amendment, the Free Exercise Clause. If the Establishment Clause forbade government endorsement of religion in all contexts, it would undermine the government’s ability to give special accommodation to religious practice and thus would severely impair free exercise values. “No endorsement of religion” thus must function, not as the general requirement of the Establishment Clause, but only as a rule for the particular class ...


The Rehnquist Court And The Groundwork For Greater First Amendment Scrutiny Of Intellectual Property, Mark P. Mckenna Jan 2006

The Rehnquist Court And The Groundwork For Greater First Amendment Scrutiny Of Intellectual Property, Mark P. Mckenna

Washington University Journal of Law & Policy

In the last few years, many pages have been devoted to retrospectives on Justice Rehnquist and the Rehnquist Court, a fair number of which focused on Justice Rehnquist’s First Amendment jurisprudence. I focus here not on Justice Rehnquist specifically, but on the Supreme Court as a whole during Rehnquist’s tenure. Specifically, I want to address the Court’s view of the role of the First Amendment in intellectual property cases. My thesis is a modest one: while one certainly cannot describe the Rehnquist Court as eager to find a conflict between intellectual property laws and the First Amendment ...


Justice Scalia And The Religion Clauses: A Comment On Professor Epps, Eric R. Claeys Jan 2006

Justice Scalia And The Religion Clauses: A Comment On Professor Epps, Eric R. Claeys

Washington University Journal of Law & Policy

In this Comment, I hope to identify the areas in which Professor Epps makes novel and important insights, and the areas in which originalists and religionists will disagree with how he evaluates those insights.


Speech And Institutional Choice, Thomas B. Nachbar Jan 2006

Speech And Institutional Choice, Thomas B. Nachbar

Washington University Journal of Law & Policy

Even if an authoritarian state cannot successfully control all of the conduits by which information crosses its borders, successfully targeting a few of the largest ones is likely to bring enough of a return to justify the effort, a point at the heart of John Palfrey and Robert Rogoyski’s Essay for this conference. What is true of states and regulation for political gain will be true of private interests and regulation for financial gain. Control over the means of creating and sharing the digital content would provide any firm substantial rents, either in the form of higher prices or ...