Law Commons^™

Constitutional Rights And Remedial Consistency, Katherine Mims Crocker

Faculty Publications

When the Supreme Court declined definitively to block Texas’s S.B. 8, which effectively eliminated pre-enforcement federal remedies for what was then a plainly unconstitutional restriction on abortion rights, a prominent criticism was that the majority would have never tolerated the similar treatment of preferred legal protections—like gun rights. This refrain reemerged when California enacted a copycat regime for firearms regulation. This theme sounds in the deep-rooted idea that judge-made law should adhere to generality and neutrality values requiring doctrines to derive justification from controlling a meaningful class of cases ascertained by objective legal criteria.

This Article is about consistency, and …

State Sovereign Immunity And The New Purposivism, Anthony J. Bellia Jr., Bradford R. Clark

William & Mary Law Review

Since the Constitution was first proposed, courts and commentators have debated the extent to which it alienated the States’ preexisting sovereign immunity from suit by individuals. During the ratification period, these debates focused on the language of the citizen-state diversity provisions of Article III. After the Supreme Court read these provisions to abrogate state sovereign immunity in Chisholm v. Georgia, Congress and the States adopted the Eleventh Amendment to prohibit this construction. The Court subsequently ruled that States enjoy sovereign immunity independent of the Eleventh Amendment, which neither conferred nor diminished it. In the late twentieth-century, Congress began enacting …

Unleashing The Guarantee Clause Against The Spirit Of Innovation, Ricardo N. Cordova

William & Mary Bill of Rights Journal

[...] Of special significance is Madison’s defense of the Guarantee Clause in Federalist 43, in which he argued that the Clause is intended to prevent “aristocratic or monarchical innovations” by the states. This phrase is a critical clue to uncovering the full meaning of the Guarantee Clause. Yet scholars have mentioned it only in passing and divorced from its historical context, as part of apocryphal claims that the Clause supports radical modern causes. This is unfortunate because Madison’s phrase, properly construed, speaks volumes.

Preliminarily, the phrase shows that the Guarantee Clause was originally understood to prevent changes of a …

Historians Wear Robes Now? Applying The History And Tradition Standard: A Practical Guide For Lower Courts, Alexandra Michalak

William & Mary Bill of Rights Journal

Never before has the Supreme Court relied on the history and tradition standard to such a magnitude as in the 2021 term to determine the scope of a range of constitutional rights. [...] In reaffirming this standard, the Supreme Court provided no guidance to lower courts on how to apply and analyze the history and tradition standard. Along with balancing the lack of resources in deciding cases with the history and tradition framework, lower courts must face the reality that this standard presents ample opportunity for one-sided historical analysis. To combat the temptation of conducting unbalanced and cursory reviews of …

"There's A New Sheriff In Town": Why Granting Qualified Immunity To Local Officials Acting Outside Their Authority Erodes Constitutional Rights And Further Deteriorates The Doctrine, Josephine Mcguire

William & Mary Bill of Rights Journal

Part I traces the history of qualified immunity and the doctrine’s analytical changes over time, detailing the twofold test as it currently stands. Part II considers Large and Sweetin, comparing the courts’ approaches to essentially similar scenarios and evaluating the differences in outcome. Part III addresses the Supreme Court’s denial of the Large plaintiffs’ petition for certiorari and explicates the “scope of authority” question the Court declined to address. Part IV breaks down the decision in Large and conducts the qualified immunity analysis anew, determining that the court misapplied the doctrine regardless of its failure to consider the scope …

The Philosophy Of Ai: Learning From History, Shaping Our Future. Hearing Before The Committee On Homeland Security And Government Affairs, Senate, One Hundred Eighteenth Congress, First Session., Margaret Hu

Congressional Testimony

No abstract provided.

Sola Scriptura: Slavery, Federalism And The Textual Power To Provide For The General Welfare, Calvin H. Johnson

William & Mary Bill of Rights Journal

This Article argues specifically that under the text of the Constitution, Congress has the general power to provide for the welfare through tax and any other necessary and appropriate means. Clause 1 of the description of powers of Congress in Article I, Section 8, gives Congress the power to tax and spend to provide for the common defense and general welfare. Common defense and domestic welfare are parallel in the text and equally plenary, subject only to restrictions protecting individual rights. The final clause of Section 8 then allows Congress to reach the goal of general welfare by any necessary …

A State Within A State: Re-Examining The Federal Lands Question And Its Effect On State Sovereignty, David Wilde

William & Mary Environmental Law and Policy Review

Though the path of the public lands debate is well-trodden, this Note will seek to answer the question in novel ways. First, it uses the Corpus of Founding Era American English to perform an objective linguistic analysis of the phrase “dispose of” in the Property Clause. Through this analysis, it appears that an ordinary person at the time the Constitution was adopted would most likely have read the phrase “dispose of” in the Property Clause to mean sell, give away, bestow, or put into another’s hand or power.

Next, this Note investigates the historical and philosophical understandings of state sovereignty …

A World Without Roe: The Constitutional Future Of Unwanted Pregnancy, Julie C. Suk

William & Mary Law Review

With the demise of Roe v. Wade, the survival of abortion access in America will depend on new legal paths. In the same moment that Dobbs v. Jackson Women’s Health Organization has constrained access to abortion in the United States, other constitutional democracies have moved in the opposite direction, expanding access to safe, legal, and free abortions. They have done so without reasoning from Roe’s vision of the private zone of unwanted pregnancy. The development of abortion law outside the United States provides critical insights that can inform future efforts to vindicate the constitutional rights of women facing …

The Supreme Court Decisions On Guns And Abortion Relied Heavily On History. But Whose History?, Allison Orr Larsen

Popular Media

No abstract provided.

Originalism's Implementation Problem, Michael L. Smith, Alexander S. Hiland

William & Mary Bill of Rights Journal

Despite the vast body of theoretical work produced by originalist scholars, this literature fails to address how practicing judges and attorneys should apply originalist theories. All too often, academic originalists appear to write for an audience of other originalist scholars. This results in lengthy, technical, and heavily theoretical discussions. The question of how courts and judges are to apply these increasingly technical and theoretical originalist methods is left by the wayside. All too often, judges and attorneys cherry-pick from this body of scholarship to create a veneer of academic legitimacy for their own goal-oriented arguments.

We do not seek to …

Appendix: Board Gender Diversity: A Path To Achieving Substantive Equality In The United States, Kimberly A. Houser, Jamillah Bowman Williams

William & Mary Law Review Online

Appendix to article in William & Mary Law Review vol. 63, no. 2 (2021), "Board Gender Diversity: A Path to Achieving Substantive Equality in the United States" by Kimberly A. Houser and Jamillah Bowen Williams.

Board Gender Diversity: A Path To Achieving Substantive Equality In The United States, Kimberly A. Houser, Jamillah Bowen Williams

William & Mary Law Review

While the European Union (EU) was founded on the concept of equality as a fundamental value in 1993, the United States was created at a time when women were considered legally inferior to men. This has had the lasting effect of preventing women in the United States from making inroads into positions of power. While legislated board gender diversity (BGD) mandates have been instituted in some EU countries, the United States has been loath to take that route, relying instead on the goodwill of corporate boards, with little progress. On September 30, 2018, however, California enacted a law that has …

Education, Antidomination, And The Republican Guarantee, Kip M. Hustace

William & Mary Bill of Rights Journal

This Article offers a new interpretation of the United States Constitution’s republican guarantee and theorizes its protection of a fundamental right to education. Courts and education law scholars have identified the republican guarantee as a plausible source of educational rights but have not detailed how. Drawing on recent work by legal scholars, historians, political scientists, and philosophers, this Article reinterprets the guarantee as the federal government’s obligation to secure freedom as nondomination, and it argues that excellent, equitable public education is necessary to fulfilling this duty. Nondomination, a robust conception of freedom, is freedom from subjection to the will of …

Marriage Equality's Lessons For Social Movements And Constitutional Change, William N. Eskridge Jr.

William & Mary Law Review

The marriage equality movement won its first state victory in 2003, and within a dozen years fifty states were handing out marriage licenses. The swiftness of the constitutional triumph was only possible because public opinion underwent a sea change in that period. Sexual and gender minorities achieved this remarkable turnaround once a critical mass, widely dispersed in the country, came out of their closets as committed couples (often raising children), and mainstream America found their stories more consistent with their own lives than they did a generation earlier. Other lessons of marriage equality’s success, however, are how hard it is …

Reanimating The Foreign Compacts Clause, Thomas Liefke Eaton

William & Mary Environmental Law and Policy Review

On October 23, 2019, the United States Department of Justice (“DOJ”) filed a complaint against the State of California “for unlawfully entering a cap and trade agreement with the Canadian Providence of Quebec.” In many ways, the complaint reflects a conventional disagreement between states and the federal government over the contours of federalism, but the complaint’s second cause of action, alleging a violation of the “Compacts Clause,” Article I, section 10(3) of the United States Constitution, is unique. The body of law and scholarship surrounding the Compacts Clause is often guesswork at best, for jurists and scholars alike, because typically …

Free Speech, Strict Scrutiny And A Better Way To Handle Speech Restrictions, Aaron Pinsoneault

William & Mary Bill of Rights Journal

When it comes to unprotected speech categories, the Roberts Court has taken an amoral and inaccurate approach. When the Court first created unprotected speech categories-- defined categories of speech that are not protected by the First Amendment-- it was unclear what rendered a category of speech unprotected. One school of thought argued that speech was unprotected if it provided little or no value to society. The other school of thought argued that speech was unprotected if it fell into a certain category of speech that was simply categorically unprotected. Then, in 2010, the Court strongly sided with the latter approach, …

George R. R. Martin's Faith Militant In Modern America: The Establishment Clause And A State's Ability To Delegate Policing Powers To Private Police Forces Operated By Religious Institutions, Andrew Gardner

William & Mary Bill of Rights Journal

Since the very founding of the United States, the complex relationship between government and religion has troubled and concerned lawmakers. The Establishment Clause of the First Amendment to the United States Constitution was one of the first attempts to help define and restrain the government's role in that nexus. Thomas Jefferson, in a letter praising the Establishment Clause, famously wrote that the clause "buil[t] a wall of separation between Church [and] State." However, the extent of the protections that the Establishment Clause was intended to provide is unclear, and judges as well as legal scholars have struggled with interpreting the …

Second Amendment Background Principles And Heller's Sensitive Places, Adam B. Sopko

William & Mary Bill of Rights Journal

Judges and commentators have widely acknowledge that history enjoys a privileged status in Second Amendment cases, but its precise role is undertheorized and rarely controls case outcomes. In particular, courts have been unable to decide "sensitive places" cases-- challenges to location-based gun laws-- in a manner that adheres to Supreme Court precedent because existing Second Amendment doctrine lacks a test for sensitive places cases that uses history and tradition in a principled way. This Article proposes a solution to address that problem.

An untapped source of guidance is the Court's takings jurisprudence. Interpreting their respective constitutional provisions, Justice Scalia observed …

From Civil Rights To Blackmail: How The Civil Rights Attorney's Fees Awards Act Of 1976 (42 U.S.C. § 1988) Has Perverted One Of America's Most Historic Civil Rights Statutes, Steven W. Fitschen

William & Mary Bill of Rights Journal

For fourteen years, members of Congress repeatedly introduced legislation directed at a single subject. A key underpinning for the necessity of the legislation was provided by the opinions of two Supreme Court justices. Yet, for the past nine years, Congress has gone silent on the same topic. This Article argues that it is past time for Congress to reconsider this topic, and that if it will not do so, the Supreme Court can rectify the situation without engaging in judicial legislation.

Perhaps the best view of Congress's efforts can be seen by examining the high-water mark of those efforts, which …

The Nature Of Standing, Matthew Hall, Christian Turner

William & Mary Bill of Rights Journal

Most academic studies of standing have focused on restrictions on federal court jurisdiction drawn from Article III of U.S. Constitution and related doctrinal schemes developed by state courts. These rules are constructed atop a few words of the Constitution: "The judicial Power shall extend to all Cases, in Law and Equity," arising under various circumstances. The Supreme Court has interpreted these words to require federal courts to assess whether a plaintiff has suffered an injury in fact that is both fairly traceable to the actions of the defendant and redressable by a favorable ruling before proceeding to the merits of …

Democratizing Education Rights, Joshua E. Weishart

William & Mary Bill of Rights Journal

If the United States is to reverse its creeping, illiberal descent, generations of youth must emerge from this tribal, post-truth, pandemic-shattered era to mend democracy. Hope for that uncertain future lies in re-engineering how schoolchildren learn democracy-- not from a civics textbook but by experiencing it in the classroom. The sad irony is that we still lack a knowledge base, grounded in research, for that type of democratic education. Nearly two and a half centuries into the republic's existence, our commitment to democratic education is honored more in the breach than in observance. And our uninformed, polarized, and disaffected electorate …

Against Congressional Case Snatching, Ronald J. Krotoszynski, Atticus Deprospro

William & Mary Law Review

Congress has developed a deeply problematic habit of aggrandizing itself by snatching cases from the Article III courts. One form of contemporary case snatching involves directly legislating the outcome of pending litigation by statute. These laws do not involve generic amendments to existing statutes but rather dictate specific rulings by the Article III courts in particular cases. Another form of congressional case snatching involves rendering ongoing judicial proceedings essentially advisory by unilaterally permitting a disgruntled litigant to transfer a pending case from an Article III court to an executive agency for resolution. Both practices involve Congress reallocating the business of …

Associations And Cities As (Forbidden) Pure Private Attorneys General, Heather Elliott

William & Mary Law Review

The Supreme Court interprets Article III’s case-or-controversy language to require a plaintiff to show injury in fact, causation, and redressability. A plaintiff who meets that tripartite test has standing to sue and thus a personal stake in pursuing the litigation. Accordingly, in Sierra Club v. Morton, the Supreme Court prohibited pure private attorneys general: litigants who would sue without the requisite personal stake. This limitation extends to organizations. They, too, must show standing on their own account or, under Hunt v. Washington Apple Advertising Commission, identify a member with Article III standing and show how the lawsuit is germane to …

Legislators On Executive-Branch Boards Are Unconstitutional, Period, Douglas Laycock

William & Mary Bill of Rights Journal

Virginia statute makes legislators categorically “ineligible to serve on boards, commissions, and councils within the executive branch of state government who are responsible for administering programs established by the General Assembly.” But with increasing frequency, the General Assembly has enacted exceptions to this policy. There is a general exception for bodies “engaged solely in policy studies or commemorative activities,” and perhaps such bodies need not be in the executive branch at all. But the Assembly has also enacted exceptions for twenty-one specific boards and commissions, many of which clearly have executive authority. This list of exceptions is a miscellany with …

Constitutional Moral Hazard And Campus Speech, Jamal Greene

William & Mary Law Review

One underappreciated cost of constitutional rights enforcement is moral hazard. In economics, moral hazard refers to the increased propensity of insured individuals to engage in costly behavior. This Essay concerns what I call “constitutional moral hazard,” defined as the use of constitutional rights (or their conspicuous absence) to shield potentially destructive behavior from moral or pragmatic assessment. What I have in mind here is not simply the risk that people will make poor decisions when they have a right to do so, but that people may, at times, make poor decisions because they have a right. Moral hazard is not …

The Second Amendment As A Fundamental Right, Timothy Zick

Faculty Publications

The Second Amendment has been suffering from an inferiority complex. Litigants, scholars, and judges have complained that the right to keep and bear arms is not being afforded the respect and dignity befitting a “fundamental” constitutional right. They have asserted that, both on its own terms and relative to rights in the same general class, the Second Amendment has been disrespected, under-enforced, and orphaned. They have argued that courts have treated the Second Amendment as “peripheral,” “fringe,” “anachronistic,” “second rate,” and “second-class.” The Second Amendment has been described as “the Rodney Dangerfield of the Bill of Rights” and even compared …