Law Commons^™

The Evolution Of Sodomy Decriminalization Jurisprudence In Transnational And Comparative Constitutional Perspective, Ayodeji Kamau Perrin

William & Mary Bill of Rights Journal

In this Article, I demonstrate that legal mobilization by activist litigants combined with a comparative methodological jurisprudence has been central to the “transnational legal process” of the generation and diffusion of the sodomy decriminalization norm since the 1950s. My analysis of the transnational comparative jurisprudence relies on a comprehensive legal survey of seven decades of decriminalization jurisprudence (1954–2022), primarily using successful cases. Although the scholarship on the well-known Dudgeon, Toonen, and NCGLE cases often asserts the influence that these cases had on subsequent domestic court constitutional jurisprudence, I suggest that it is the domestic privacy jurisprudence of lobbyists, …

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 …

Undue Deference To States In The 2020 Election Litigation, Joshua A. Douglas

William & Mary Bill of Rights Journal

COVID-19 has wreaked havoc on so much of our lives, including how to run our elections. Yet the federal courts have refused to respond appropriately to the dilemma that many voters faced when trying to participate in the 2020 election. Instead, the courts—particularly the U.S. Supreme Court and the federal appellate courts—invoked a narrow test that unduly defers to state election administration and fails to protect adequately the fundamental right to vote.

In constitutional litigation, a law usually must satisfy a two-part test: (1) does the state have an appropriate reason for the law and (2) is the law properly …

The Protection Of Free Choice And The Right To Passivity: Applying The Privilege Against Self-Incrimination To Physical Examinations And Documents' Submission, Rinat Kitai-Sangero

William & Mary Bill of Rights Journal

This Article addresses the question of whether the privilege against selfincrimination should cover physical examinations as well as the obligation to submit documents. This question requires a serious examination of the justifications underlying the privilege against self-incrimination and is of particular relevance in the current age of technological progress that expands the powers assigned to law enforcement agencies to access knowledge and thoughts stored in individuals’ minds. After addressing the comparative law regarding the applicability of the privilege against selfincrimination to physical examinations and to the obligation to submit documents and discussing key justifications for the privilege against self-incrimination, dividing …

Dissent, Disagreement And Doctrinal Disarray: Free Expression And The Roberts Court In 2020, Clay Calvert

William & Mary Bill of Rights Journal

Using the United States Supreme Court’s 2019 rulings in Manhattan Community Access Corp. v. Halleck, Nieves v. Bartlett, and Iancu v. Brunetti as analytical springboards, this Article explores multiple fractures among the Justices affecting the First Amendment freedoms of speech and press. All three cases involved dissents, with two cases each spawning five opinions. The clefts compound problems witnessed in 2018 with a pair of five-to-four decisions in National Institute of Family and Life Advocates v. Becerra and Janus v. American Federation of State, County, and Municipal Employees. Partisan divides, the Article argues, are only one problem with First Amendment …

The Living Commerce Clause: Federalism In Progressive Political Theory And The Commerce Clause After Lopez And Morrison, Eric R. Claeys

William & Mary Bill of Rights Journal

"Living Constitution " ideas are most often associated with individual-rights guarantees like equal protection and due process, but they were originally developed in the early twentieth century to revolutionize the law of the structural Constitution - including the Commerce Clause. In this Article, Professor Claeys interprets Progressive political theory, which played a crucial role in legitimating the expansion of the national government. As applied to federalism, Progressive living-Constitution theory required that the Commerce Clause be interpreted as a constitutional transmitter letting the national government regulate whatever the American people deem to be a national problem. He suggests that this notion …

The Business Of Expression: Economic Liberty, Political Factions And The Forgotten First Amendment Legacy Of Justice George Sutherland, Samuel R. Olken

William & Mary Bill of Rights Journal

In The Business of Expression: Economic Liberty, Political Factions And The Forgotten First Amendment Legacy of Justice George Sutherland, Samuel Olken traces the dichotomy that emerged in constitutional law in the aftermath of the Lochner era between economic liberty and freedom of expression. During the 1930s, while a deeply divided United States Supreme Court adopted a laissez faire approach to economic regulation, it viewed with great suspicion laws that restricted the manner and content of expression. During this period, Justice George Sutherland often clashed with the majority consistently insisting that state regulation of private economic rights bear a close and …