Law Commons^™

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 …

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 …