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Liberty As Entitlement In The Common Law, Joshua C. Tate

San Diego Law Review

In recent decades, some Justices of the U.S. Supreme Court have questioned the broad definition of liberty that is the basis for the doctrine of substantive due process.  In his dissenting opinion in Obergefell v. Hodges, for example, Justice Thomas argued that liberty in the common-law tradition “has long been understood as individual freedom from governmental action, not as a right to a particular governmental entitlement.”  This Article will argue that such a narrow definition excludes many instances in which the common law used “liberty” as a synonym for “privilege” or “entitlement.”  Treatises that were well-known to the Framers …

Book Review: Judicial Originalism As A Byproduct Of An Overly Difficult Amendment Process: Jill Lepore's We The People, Charles Britton

ConLawNOW

This essay reviews the book by Jill Lepore, We the People: A History of the U.S. Constitution, winner of the 2026 Pulitzer Prize for history.  It explains how Lepore examines the history of constitutional amendment—both successes and failures—to argue that frequent amendment was the democratic intent of the Framers. And shows how this amendment philosophy contradicts the originalism of the current Supreme Court.

Book Review: After Apprendi And Erlinger, The Jury - Not The Judge - Determines Whether Or Not The Defendant Is A Habitual Traffic Offender, Harvey Gee

ConLawNOW

This book review discusses Justice Abandoned: How the Supreme Court Ignored the Constitution and Enabled Mass Incarceration by Rachel Barkow. The review concludes that the book persuasively argues that from the 1960s through the 1980s, the Supreme Court repeatedly departed from constitutional text, history, and precedent in expanding the government’s power to arrest, prosecute, and detain. And contends that these trends both curtailed individual liberty and worsened racial inequality. The review then builds on Barkow’s important scholarship to extend her conversation to cover criminal litigation in general jurisdiction state courts—where people are compelled to go when they are cited or …

Rules Of Public Service: Between The Domain Of Law And The Regulatory Domain, Mohamed Acherki

Revue Marocaine de Droit, d'Economie et de Gestion (Moroccan Journal of Law, Economics and Management)

This paper examines the constitutional distribution of legislative and regulatory powers concerning public service rules in Morocco. Under the 1962 Constitution, only "basic guarantees granted to civil and military state employees" fell within the legislative domain, with all other public service rules relegated to the regulatory sphere. The 1970 Constitution maintained this approach. Despite constitutional provisions allowing for the adoption of organic laws to clarify and delimit these domains, no such laws were ever enacted for public service. Consequently, between 1962 and 1972, most public service rules remained within the regulatory domain, including some initially adopted by legislative acts, which …

The Holy Trinity: Religion Clauses And Education Funding On The Roberts Court, Philip T.K. Daniel, Jeffrey C. Sun

ConLawNOW

The Supreme Court’s trinity of education subsidy cases have created an emergent pattern in education funding cases that extend much further than just emphasizing rules of neutrality and accommodation. These also potentially harm minoritized perspectives and identities by moving far beyond historic doctrinal groundings of separation of church and state. In three key cases all authored by Chief Justice Roberts, Trinity Lutheran Church of Columbia, Inc. v. Comer (2017),  Espinoza v. Montana Department of Revenue (2020), and Carson v. Makin (2022), the Court in this “Holy Trinity” of decisions moved from a theory of benevolent neutrality to policy abdication, relinquishing …

The Contested Contingent Constitution: Plutocrats, Right-Wing Populists, And Labor Rights In The U.S., Kate Andrias

Faculty Scholarship

Constitutional labor rights have long been negligible in the United States. Now, with the ascendance of Donald Trump’s right-wing authoritarianism, even statutory labor rights are under threat. Yet there is an apparent paradox: While the Trump Administration seeks to declare the NLRB unconstitutional and has decimated federal workers’ rights, Trump’s “Make America Great Again” (MAGA) movement rose to power in part by invoking the plight of the American worker. The more populist wing of the American Right does not expressly challenge the constitutionality of labor law. Indeed, some right-wing populists urge an expansion of labor rights, emphasizing such goals as …

The President As Agent: Reframing The Major Questions Doctrine, Matthew Collins

ConLawNOW

On the heels of the Learning Resources v. Trump decision, this Essay argues that agency theory provides an important framework for understanding the major questions doctrine. This perspective has received little attention in legal scholarship. The Essay casts the major questions doctrine in a new light by framing it as a constraint on the president acting as Congress’s agent. By highlighting this bridge between private-law agency principles and public law, the piece offers two novel insights. First, it reconceptualizes the relationship between the major questions and nondelegation doctrines: the former addresses the unfaithful execution of Congress’s directives by the executive …

The Recent Moroccan Parliamentary Experience During The Term Of The House Of Representatives From 14 October 1977 To 13 October 1983, Abderrahman El Kadiri

Revue Marocaine de Droit, d'Economie et de Gestion (Moroccan Journal of Law, Economics and Management)

This article studies Morocco's parliamentary experience during the legislative term of the House of Representatives extending from 14 October 1977 to 13 October 1983. It examines the functioning of the parliamentary institution, its legislative activity, its relationship with the executive power, and its oversight practices. The article also reflects on the political and constitutional conditions that shaped the performance and limits of this parliamentary experience.

Report On The Specialized Study Days On Parliamentary Experience And Legislative Practice In Morocco: Faculty Of Law, Rabat, May 24–26, 1984, Mohamed Moatassim

Revue Marocaine de Droit, d'Economie et de Gestion (Moroccan Journal of Law, Economics and Management)

This report presents and discusses the specialized study days devoted to parliamentary experience and legislative practice in Morocco, held at the Faculty of Law in Rabat from May 24 to 26, 1984. The author summarizes the central questions raised during the meeting, including the assessment of the Moroccan parliament, the relationship between politics and law, the limits between public and private law, and the role of legal and social sciences in analyzing legislative institutions. The report reviews the diversity of contributions and debates, highlighting the importance of interdisciplinary reflection on parliamentary practice in the Moroccan context.

Originalism, Official History, And Perspectives Versus Methodologies, Keith N. Hylton

Faculty Scholarship

This paper addresses a well-worn topic: originalism, the theory that judges should interpret the U.S. Constitution in a manner consistent with the intent of its framers. I am interested in the real-world effects of originalism. The primary effect advanced by originalists is the tendency of the approach to constrain the discretion of judges. However, I identify another effect of originalism: the creation of official histories, a practice that imposes a hidden tax on society. Another question I consider is whether originalism should be considered a methodology of analyzing the law or a perspective on the law; I argue that originalism …

The Constitutional Penumbras Of Home Rights, Gerald S. Dickinson

William & Mary Bill of Rights Journal

Justice William Douglas’s famous parable in Griswold v. Connecticut argued that the Bill of Rights contains penumbras—implied zones of privacy protections— that emanate from the First, Third, Fourth, and Fifth Amendments. His penumbral conception of privacy rights has sparked extensive debate among legal scholars, reflecting both its influence and its ongoing controversy. Yet, there is more to Justice Douglas’s penumbra story to explore. In expounding on his privacy innovations in Griswold, Justice Douglas explained that the Fourth and Fifth Amendments protect against all governmental invasions of the sanctity of a man’s home and the privacies of life. Indeed, the …

Locked And Unloaded: The Constitutional And Empirical Case For Firearm Safe Storage Advisories, Hillel Y. Levin, Kay L. Levine

William & Mary Bill of Rights Journal

Constitutional law haunts our efforts to reduce the number of firearm deaths each year. But even with the evolving scope of individual rights, sensible regulation remains possible.

This Article proposes one such regulatory tool. State governments legally can and pragmatically should require firearm sellers to advise their customers of the association between improper gun storage and the risk of accidental death and suicide. Mandatory safe storage advisories implicate two strands of constitutional jurisprudence: the First Amendment’s protection against compelled speech and the Second Amendment’s right to bear arms. While the Supreme Court has strengthened both doctrines in recent years, jurisdictions …

The Constitutional Future Of Trademark Tarnishment, Jake Linford

William & Mary Bill of Rights Journal

This Article is the first to examine whether trademark anti-tarnishment laws should be deemed constitutional after the Supreme Court’s 2024 decision in Vidal v. Elster. Anti-tarnishment laws protect famous brands from uses that could damage their reputation, even when consumers are not confused about who makes the tarnishing product.

The Supreme Court recently declared some trademark registration restrictions unconstitutional in Matal v. Tam and Iancu v. Brunetti. In these cases, the Court struck down federal laws that prevented registration of “disparaging” trademarks and “scandalous or immoral” trademarks because they categorized the registration bars as unconstitutional viewpoint-based restrictions. These …

The Establishment Clause And The Ten Commandments Post-Lemon, Richard Kato

Northern Illinois University Law Review

Louisiana recently passed a law requiring that a display of the Ten Commandments be placed in all public school classrooms in the state. The law is currently facing an Establishment Clause challenge in the Fifth Circuit. This Comment argues that Louisiana’s Ten Commandments law does not violate the original public meaning of the Establishment Clause. The history of the Establishment Clause suggests that noncoercive support of religion was widely accepted before and up through the time of the First Amendment’s enactment. Following Kennedy v. Bremerton School District’s abandonment of the Lemon v. Kurtzman test, the Ten Commandments law must …

The Supreme Court, Regime Politics, And Federalism: From The New Deal To The Trump Era, J. Mitchell Pickerill, Lilly A. Pickerill

Northern Illinois University Law Review

In the 1990s, the conservative majority on the Rehnquist Court championed state sovereignty and autonomy in a series of cases some commentators dubbed a “federalism revolution.” The Supreme Court crafted constitutional doctrines under the Commerce Clause, Tenth and Eleventh Amendments, and Section Five of the Fourteenth Amendment that limited federal powers while protecting or bolstering state powers. The Court’s doctrines in those cases diverged from its approach to constitutional federalism since the New Deal in the 1930s, but it tracked with the conservative Republican political agenda promoting a “new federalism” going back to Presidents Nixon and Reagan. However, as the …

Beyond Skrmetti: A Constitutional Case For Gender-Affirming Care, Mateo-Luis A. Planas, Evan Gerstmann

Honors Thesis

In 2025, roughly 2.1 million adults in America identify as transgender, making up around 1% of the country’s total population. Despite this, the transgender identity has become a focus of political debates and made its way onto the U.S. Supreme Court’s docket in U.S. v. Skrmetti. The issue is not whether transgender people exist, but rather, how they ought to exist legally: if and when one can access medical care to pursue a gender transition. While many American doctors agree that these treatments are life-saving, since 2021, a slew of legislation has limited access for adults 18-21 (AMA, 2021). This …

A Thumb On The Scales: How The Court Creates Presumptions To Change The Law, John Leubsdorf

Northern Illinois University Law Review

In four major recent decisions, the Supreme Court deployed the same technique: it created a presumption in favor of the result it preferred and then concluded that the losing party could not rebut that presumption. This invocation of presumptions enabled the majority to reach the result it preferred, while maintaining the appearance of balance and leaving open the possibility of different rulings in future cases. The asserted grounds for erecting the Court’s presumptions-notably history and governmental structure-likewise combined the appearance of objectivity with the reality of choice. Judicial presumptions are not new, but the current Court deploys them on a …

Rethinking The Scope Of State Power: Territorial Jurisdiction, Popular Sovereignty, And Extraterritorial Legislation, Jeffrey Schmitt

William & Mary Law Review

The Supreme Court applies the territorial framework of international law to resolve disputes over the reach of state power. Under this framework, a state’s power is coterminous with its borders, such that a state’s regulatory power within its territory is limited only by federal law. The Court recently used this framework to overrule an obscure line of Dormant Commerce Clause cases that held that a state regulation of local conduct could have impermissible extraterritorial effects.

This Article argues that the territorial model of state power from international law does not account for the division of sovereignty within our federal system. …

Unconstitutional Cruelty, Michael R. Ulrich

William & Mary Law Review

Despite the long history of transgender people and transgender care, state legislatures suddenly rushed to pass a wave of bans on gender-affirming medical care for trans youth over a three-year period beginning in 2021—an alarming surge within a flurry of legal attacks on the transgender community. In analyzing the constitutionality of these bans, courts and scholars have focused their attention on how to characterize the nature of the rights implicated, and therefore the level of scrutiny warranted. This focus reacts to, and often follows, the current Supreme Court majority’s approach to questions about the rights of historically oppressed and marginalized …

How Maine Beat Strict Scrutiny, Nicholas Glover Esq.

Bates College Undergraduate Law Review

No abstract provided.

How The Roberts Court Killed Originalism, Eric J. Segall

Georgia State University Law Review

Although there are at least five justices who identify as originalists on the Roberts Court, none of them exercise judicial review in an originalist manner, and the Roberts Court as an institution is no less or more originalist than previous Supreme Courts. The important difference between the Roberts Court and previous Supreme Courts is that the current justices claim to be guided by originalism, but decide cases by using a living constitutionalist, pluralistic model of judicial review.

The current chaos plaguing constitutional law and constitutional theory flows directly from this disconnect between the justices saying publicly that they are employing …

American Public Law Revolution, Victoria Frances Nourse

Georgetown Law Faculty Publications and Other Works

The Supreme Court has birthed a public law revolution. This revolution should not be known as a constitutional revolution because it is bigger than constitutional law—it covers statutory and administrative law as well. This revolution has been powered not by social movements, but by an interpretive philosophy known as originalism. Originalism has been deeply misunderstood by its critics. This Article examines three myths about originalism—that it is primarily about history, that it is a traditional theory of adjudication, and that it is democratic. Originalism is a semantic theory, not a theory of history, and it is a theory that privileges …

Article 49, Paragraph 3 Of The French Constitution Of 4 October 1958, Jacques Barde

Revue Marocaine de Droit, d'Economie et de Gestion (Moroccan Journal of Law, Economics and Management)

This article analyzes Article 49, paragraph 3, of the French Constitution of 4 October 1958, a mechanism that allows the government to commit its responsibility for the adoption of a bill unless a motion of censure is passed. The study explains the legal logic of this procedure, its relationship to confidence and censure, and its role in the balance between government and parliament under the Fifth Republic. It also reviews the political uses of the provision in legislative practice and the constitutional debates surrounding its effects on parliamentary deliberation. The article highlights both the efficiency and the democratic tensions associated …

The Political Constraint On Constitutional Law, Abderrahmane Amalou

Revue Marocaine de Droit, d'Economie et de Gestion (Moroccan Journal of Law, Economics and Management)

This article examines the extent to which constitutional law is conditioned by political power and by the concrete structure of the state. It argues that constitutional norms cannot be understood in isolation from the historical, ideological, and institutional context in which they operate. The paper studies how political forces shape the meaning, scope, and effectiveness of constitutional rules, especially in states where formal institutions coexist with strong political constraints. It thus presents constitutional law not as a purely autonomous legal order, but as a field deeply marked by relations of power.

Article 31 Of The 1972 Constitution And Treaty Law, Hassan Ouazzani Chahdi

Revue Marocaine de Droit, d'Economie et de Gestion (Moroccan Journal of Law, Economics and Management)

This study examines the provisions of Article 31 of the Moroccan Constitution of 1972 in relation to treaty law. It analyzes the constitutional allocation of powers in the negotiation, ratification, and approval of international agreements, and discusses the categories of treaties that require prior legislative authorization. The article places the Moroccan constitutional framework in comparative perspective and evaluates its ambiguities regarding simplified agreements, parliamentary control, and the place of treaties within the domestic legal order. It thus sheds light on the relationship between constitutional law and international commitments in Morocco.

Organic Laws In Morocco: A Comparative Study, Mohammed Acharki

Revue Marocaine de Droit, d'Economie et de Gestion (Moroccan Journal of Law, Economics and Management)

This study examines the emergence and legal status of organic laws in Morocco in comparative perspective. It discusses how this category of norms relates to the constitution, ordinary legislation, and the organization of public powers, while also comparing Moroccan developments with other constitutional systems. The article explores the definition, fields of application, adoption procedures, and constitutional effects of organic laws, emphasizing their special place within the legal hierarchy. It argues that organic laws play an important role in shaping constitutional practice and institutional organization.

Reference To Spain’S Most Modern Agrarian Laws And The Constitutional Norms That Inform Spanish Agrarian Law, Juan Jose Sanz Jarque

Revue Marocaine de Droit, d'Economie et de Gestion (Moroccan Journal of Law, Economics and Management)

This paper provides an overview of the principal modern agrarian laws in Spain and the constitutional principles that shape Spanish agrarian law. It identifies major legislative texts on agrarian reform and development, cooperatives, rural leases, agrarian transformation societies, and family farming, and then relates them to constitutional provisions adopted in 1978. The article shows how constitutional norms concerning property, social rights, environmental protection, regional development, and public intervention influence the interpretation and orientation of agrarian legislation. It offers a concise legal framework linking statutory reform to broader constitutional objectives in agriculture.

Constitutional Structure And Election Law, Manoj Mate

William & Mary Bill of Rights Journal

Since Bush v. Gore, scholarship on election law has centered on a theoretical debate between rights-based and structural theory approaches, and the appropriate role and scope of judicial intervention in election law cases. However, these debates have not fully assessed the degree to which the Court’s approach to constitutional structure has fundamentally reshaped election law. Over the past two decades, the Court has increasingly emphasized the importance of constitutional structure-based approaches in election law cases.

This Article analyzes these dynamics and advances a typology of constitutional structure-based approaches in election law. Drawing on scholarship on modalities of interpretation and …

Does Article I Of The Constitution Prohibit The States From Creating Their Own Cryptocurrencies?, Kevin Fontenot

William & Mary Bill of Rights Journal

The market for cryptocurrency (crypto) has exploded in size since the first cryptocurrency, Bitcoin, was created in 2009. As of September 4, 2024, the value of all existing cryptocurrency was $2.02 trillion. On November 14, 2024, this value reached a high of $3.2 trillion, apparently in response to the election of pro-crypto President Donald Trump. Despite the fact that cryptocurrencies have been at the forefront of many high profile scandals, consumers still flock to them. For example, celebrities including Hailey Welch (colloquially known as “Hawk Tuah girl”), Logan Paul, and Jason Derulo have been criticized for allegedly goading consumers into …

Communicative Legitimacy: The Supreme Court's Hidden Cultural Binaries In The U.S. Civil Sphere, Steven Arrigg Koh

Faculty Scholarship

How does the U.S. Supreme Court establish its legitimacy? Over the last two hundred years in U.S. society, the Court has interpreted the U.S. Constitution on watershed issues such as slavery, segregation, and marriage equality. And yet the Constitution is just 7,591 words. A puzzle thus emerges: how does the Court intelligibly interpret this short text for U.S. society? This article develops a new theoretical and empirical cultural sociological account of such Supreme Court decision-making, which it calls “communicative legitimacy.” According to this theory, which draws on Jeffrey Alexander’s civil sphere theory, the Court consistently and inevitably draws on a …