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Does The Second Amendment Protect Firearms Commerce?, David B. Kopel Apr 2104

Does The Second Amendment Protect Firearms Commerce?, David B. Kopel

David B Kopel

The Second Amendment protects the operation of businesses which provide Second Amendment services, including gun stores. Although lower federal courts have split on the issue, the right of firearms commerce is demonstrated by the original history of the Second Amendment, confirmed by the Supreme Court in District of Columbia v. Heller, and consistent with the Court's precedents on other individual rights.


Should The Dead Bind The Living? Perhaps Ask The People: An Examination Of The Debates Over Constitutional Convention Referendums In State Constitutional Conventions, John J. Liolos Jul 2021

Should The Dead Bind The Living? Perhaps Ask The People: An Examination Of The Debates Over Constitutional Convention Referendums In State Constitutional Conventions, John J. Liolos

Akron Law Review

Should the United States of America have a constitutional convention? Thomas Jefferson would maintain that one is long overdue; James Madison would argue the contrary. These two luminaries of American constitutional thought took sides in a stirring debate on a fundamental question in constitutionalism: should the dead bind the living? Jefferson advocated for recurrent recourse to the people by holding constitutional conventions in each generation. James Madison disagreed, arguing that stability and constitutional veneration, among other factors, were paramount. Most recall Madison as having won the debate. But at least 18 states throughout American history have adopted a Jeffersonian model ...


Shelter From The Storm: Human Rights Protections For Single-Mother Families In The Time Of Covid-19, Theresa Glennon, Alexis Fennell, Kaylin Hawkins, Madison Mcnulty Jun 2021

Shelter From The Storm: Human Rights Protections For Single-Mother Families In The Time Of Covid-19, Theresa Glennon, Alexis Fennell, Kaylin Hawkins, Madison Mcnulty

William & Mary Journal of Race, Gender, and Social Justice

COVID-19’s arrival, and the changes it has unleashed, reveal how longstanding legal and policy decisions produced structural inequalities that have left so many families, and especially single-parent families with children, all too insecure. The fragility of single-mother families is amplified by the multifaceted discrimination they face. While all single parents, including single fathers and other single relatives who are raising children, share many of these burdens, this Article focuses on the challenges confronting single mothers.

Federal policy choices stand in sharp contrast to the political rhetoric of government support for families. Social and economic policy in the twentieth century ...


Petitions From The Grave: Why Federal Executions Are A Violation Of The Suspension Clause, Taran Wessells Jun 2021

Petitions From The Grave: Why Federal Executions Are A Violation Of The Suspension Clause, Taran Wessells

William & Mary Bill of Rights Journal

This Note will address the intersection of wrongful convictions, the federal death penalty, and habeas corpus to conclude that the federal death penalty is an unconstitutional violation of the Suspension Clause of the United States Constitution. Part I of this Note will establish that Congress may not suspend the writ of habeas corpus outside of wartime. Then, Part II will show that wrongfully convicted prisoners therefore have a constitutional right to a habeas petition if they discover new, exonerating evidence. Part III will argue that because executed prisoners cannot file a habeas petition for release, executing wrongfully convicted prisoners is ...


The President And Individual Rights, Mark Tushnet Jun 2021

The President And Individual Rights, Mark Tushnet

William & Mary Bill of Rights Journal

No abstract provided.


The Emerging Lessons Of Trump V. Hawaii, Shalini Bhargava Ray Jun 2021

The Emerging Lessons Of Trump V. Hawaii, Shalini Bhargava Ray

William & Mary Bill of Rights Journal

In the years since the Supreme Court decided Trump v. Hawaii, federal district courts have adjudicated dozens of rights-based challenges to executive action in immigration law. Plaintiffs, including U.S. citizens, civil rights organizations, and immigrants themselves, have alleged violations of the First Amendment and the equal protection component of the Due Process Clause with some regularity based on President Trump’s animus toward immigrants. This Article assesses Hawaii’s impact on these challenges to immigration policy, and it offers two observations. First, Hawaii has amplified federal courts’ practice of privileging administrative law claims over constitutional ones. For example, courts ...


The Original Meaning Of The Habeas Corpus Suspension Clause, The Right Of Natural Liberty, And Executive Discretion, John Harrison Jun 2021

The Original Meaning Of The Habeas Corpus Suspension Clause, The Right Of Natural Liberty, And Executive Discretion, John Harrison

William & Mary Bill of Rights Journal

The Habeas Corpus Suspension Clause of Article I, Section 9, is primarily a limit on Congress’s authority to authorize detention by the executive. It is not mainly concerned with the remedial writ of habeas corpus, but rather with the primary right of natural liberty. Suspensions of the privilege of the writ of habeas corpus are statutes that vest very broad discretion in the executive to decide which individuals to hold in custody. Detention of combatants under the law of war need not rest on a valid suspension, whether the combatant is an alien or a citizen of the United ...


Destructive Federal Decentralization, David Fontana Jun 2021

Destructive Federal Decentralization, David Fontana

William & Mary Bill of Rights Journal

This Article—written for a symposium hosted by the William & Mary Bill of Rights Journal—focuses on the efforts by the Trump administration to relocate federal officials outside of Washington to reduce the capacity of the federal government. Federalism and the separation of powers are usually the twin pillars of structural constitutional law. Locating federal officials outside of Washington— federal decentralization—has been an additional tool of diffusing power that has started to gain some scholarly attention. These debates largely focus on structural constitutional law as constructive—as improving the capacity and operation of the federal and state governments. The ...


Who Constrains Presidential Exercise Of Delegated Powers?, Rebecca L. Brown Jun 2021

Who Constrains Presidential Exercise Of Delegated Powers?, Rebecca L. Brown

William & Mary Bill of Rights Journal

Building on the work of administrative law scholars who have identified and illuminated the several components of the problem over the years, this Article will seek to show what has happened when a cluster of separate circumstances have come together to create a new and serious threat to individual liberty when the President exercises expansive delegated authority. Several doctrinal components lead to this confluence: First, the moribund “intelligible principle” test has evolved to provide little or no constraint on this or any other delegation. Second, a delegation to the President, specifically, is not subject to the procedural requirements of the ...


Rétrospectives Et Perspectives Sur La Place Du Droit Comparé Dans La Jurisprudence Du Conseil Constitutionnel, Elisabeth Zoller Jun 2021

Rétrospectives Et Perspectives Sur La Place Du Droit Comparé Dans La Jurisprudence Du Conseil Constitutionnel, Elisabeth Zoller

Articles by Maurer Faculty

No abstract provided.


Marriage Mandates: Compelled Disclosures Of Race, Sex, And Gender Data In Marriage Licensing Schemes, Mikaela A. Phillips May 2021

Marriage Mandates: Compelled Disclosures Of Race, Sex, And Gender Data In Marriage Licensing Schemes, Mikaela A. Phillips

William & Mary Journal of Race, Gender, and Social Justice

This Note argues that mandatory disclosures of personal information—specifically race, sex, and gender—on a marriage license application constitute compelled speech under the First Amendment and should be subject to heightened scrutiny. Disclosing one’s race, sex, or gender on a marriage license application is an affirmative act, and individuals may wish to have their identity remain anonymous. These mandatory disclosures send a message that this information is still relevant to marriage regulation. Neither race nor gender is based in science; rather they are historical and social constructs created to uphold a system of white supremacy and heteronormativity. Thus ...


The Thirteenth Amendment And Equal Protection: A Structural Interpretation To "Free" The Amendment, Larry J. Pittman May 2021

The Thirteenth Amendment And Equal Protection: A Structural Interpretation To "Free" The Amendment, Larry J. Pittman

William & Mary Journal of Race, Gender, and Social Justice

The hope is that the Court will one day hold that the Thirteenth Amendment has its own equal protection clause or component and that strict scrutiny will not be used for benign racial classifications designed to eradicate current badges and incidents of slavery. This Article critiques the Court’s decision in the Civil Rights Cases regarding the scope of section 1 of the Amendment and it offers a holistic or structural interpretation of the Amendment to include an equal protection component and a lesser standard of review than strict scrutiny. Essentially, the Thirteenth Amendment, if properly used, could become a ...


Symposium: Examining Black Citizenship From Reconstruction To Black Lives Matter: Black Citizenship, Dehumanization, And The Fourteenth Amendment, Reginald Oh May 2021

Symposium: Examining Black Citizenship From Reconstruction To Black Lives Matter: Black Citizenship, Dehumanization, And The Fourteenth Amendment, Reginald Oh

ConLawNOW

The fight for full Black citizenship has been in large measure a fight against the systematic dehumanization of African Americans. Dehumanization is the process of treating people as less than human, as subhuman. Denying Blacks full and equal citizenship has gone hand in hand with denying their full humanity. To effectively promote equal citizenship for African Americans, therefore, requires an explicit commitment to ending their dehumanization. This essay examines the concept of dehumanization and its connection to formal, political, civil, and social citizenship. It elaborates on the less familiar idea of social citizenship, entailing the right to have personal relationships ...


Brnovich V. Democratic National Committee: Examining Section 2 Of The Voting Rights Act, Arturo Nava May 2021

Brnovich V. Democratic National Committee: Examining Section 2 Of The Voting Rights Act, Arturo Nava

Duke Journal of Constitutional Law & Public Policy Sidebar

In Brnovich, the Court will determine whether Arizona’s out-of-precinct (OOP) policy and its ballot-collection law violate Section 2 of the VRA. The Ninth Circuit held that both voting provisions violate Section 2. The Supreme Court should affirm the Ninth Circuit’s decision, invoking the Section 2 Results Test adopted by multiple circuits, and find that a fact-specific inquiry should be preserved in assessing vote-denial claims. At a minimum, the Court should avoid establishing a bright-line rule as proposed by critics of the Section 2 Results Test. Such a rigid rule runs the risk of masking the nuances that the ...


Child Entertainers And Their Limited Protections: A Call For An Interstate Compact May 2021

Child Entertainers And Their Limited Protections: A Call For An Interstate Compact

Child and Family Law Journal

No abstract provided.


Jury Bias Resulting In Indefinite Commitment: Expanding Procedural Protections In Svp Civil Commitment Proceedings Under The Mathews Test, Alli M. Mentch May 2021

Jury Bias Resulting In Indefinite Commitment: Expanding Procedural Protections In Svp Civil Commitment Proceedings Under The Mathews Test, Alli M. Mentch

William & Mary Law Review

Twenty states, the District of Columbia, and the federal government have enacted Sexually Violent Predator (SVP) laws that permit the civil commitment of sex offenders. Under these laws, imprisoned sex offenders serving criminal sentences are transferred to treatment facilities and held indefinitely. As one individual describes civil commitment, “It’s worse than prison. In prison I wasn’t happy, but I was content because I knew I had a release date.” An estimated 5,400 individuals are currently civilly committed under these laws.

This Note argues that such laws do not adequately protect respondents’ due process rights. To that end ...


Fine(Ing) Wine: Challenging Direct-Shipment Licensing Fees On Dormant Commerce Clause Grounds, Alexander R. Steiger May 2021

Fine(Ing) Wine: Challenging Direct-Shipment Licensing Fees On Dormant Commerce Clause Grounds, Alexander R. Steiger

William & Mary Law Review

This Note advocates for a constitutional challenge to state direct-to-consumer licensing fees, arguing that the licensing fees impose an undue burden on interstate commerce. To this end, this Note will apply the Supreme Court’s dormant Commerce Clause jurisprudence to state DtC wine licensing fees. Under this framework, the Court has almost always invalidated state laws that discriminate against out-of-state interests absent a showing that the law is necessary to achieve a legitimate purpose other than economic protectionism. If the state law is not found to discriminate against out-of-state interests, the Court balances the law’s burdens on interstate commerce ...


Constitutional Structure, Institutional Relationships And Text: Revisiting Charles Black’S White Lectures, Richard C. Boldt May 2021

Constitutional Structure, Institutional Relationships And Text: Revisiting Charles Black’S White Lectures, Richard C. Boldt

Loyola of Los Angeles Law Review

Fundamental questions about constitutional interpretation and meaning invite a close examination of the complicated origins and the subsequent elaboration of the very structure of federalism. The available records of the Proceedings in the Federal Convention make clear that the Framers entertained two approaches to delineating the powers of the central government relative to those retained by the states. The competing approaches, one reliant on a formalist enumeration of permissible powers, the other operating functionally on the basis of a broad dynamic concept of state incompetence and national interest, often are presented as mutually inconsistent narratives. In fact, these two approaches ...


Fitbit Data And The Fourth Amendment: Why The Collection Of Data From A Fitbit Constitutes A Search And Should Require A Warrant In Light Of Carpenter V. United States, Alxis Rodis Apr 2021

Fitbit Data And The Fourth Amendment: Why The Collection Of Data From A Fitbit Constitutes A Search And Should Require A Warrant In Light Of Carpenter V. United States, Alxis Rodis

William & Mary Bill of Rights Journal

No abstract provided.


Deepfakes: A New Content Category For A Digital Age, Anna Pesetski Apr 2021

Deepfakes: A New Content Category For A Digital Age, Anna Pesetski

William & Mary Bill of Rights Journal

Technology has advanced rapidly in recent years, greatly benefitting society. One such benefit is people’s ability to have quick and easy access to information through news and social media. A recent concern, however, is that manipulated media, otherwise known as “deepfakes,” are being released and passed off as truth. These videos are crafted with technology that allows the creator to carefully change details of the video’s subject to make him appear to do or say things that he never did. Deepfakes are often depictions of political candidates or leaders and have the potential to influence voter choice, thereby ...


The Pure-Hearted Abrams Case, Andres Yoder Apr 2021

The Pure-Hearted Abrams Case, Andres Yoder

William & Mary Bill of Rights Journal

One hundred years ago, Justice Oliver Wendell Holmes changed his mind about the right to free speech and wound up splitting the history of free speech law into two. In his dissent in Abrams v. United States, he called for the end of the old order—in which courts often ignored or rejected free speech claims—and set the stage for the current order—in which the right to free speech is of central constitutional importance. However, a century on, scholars have been unable to identify a specific reason for Holmes’s Abrams transformation, and have instead pointed to more ...


Unduly Burdening Abortion Jurisprudence, Mark Strasser Apr 2021

Unduly Burdening Abortion Jurisprudence, Mark Strasser

William & Mary Bill of Rights Journal

The undue burden standard is the current test to determine whether abortion regulations pass constitutional muster. But the function, meaning, and application of that test have varied over time, which undercuts the test’s usefulness and the ability of legislatures to know which regulations pass constitutional muster. Even more confusing, the Court has refused to apply the test in light of its express terms, which cannot fail to yield surprising conclusions and undercut confidence in the Court. The Court must not only clarify what the test means and how it is to be used, but must also formulate that test ...


Who Will Save The Redheads? Towards An Anti-Bully Theory Of Judicial Review And Protection Of Democracy, Yaniv Roznai Apr 2021

Who Will Save The Redheads? Towards An Anti-Bully Theory Of Judicial Review And Protection Of Democracy, Yaniv Roznai

William & Mary Bill of Rights Journal

Democracy is in crisis throughout the world. And courts play a key role within this process as a main target of populist leaders and in light of their ability to hinder administrative, legal, and constitutional changes. Focusing on the ability of courts to block constitutional changes, this Article analyzes the main tensions situated at the heart of democratic erosion processes around the world: the conflict between substantive and formal notions of democracy; a conflict between believers and nonbelievers that courts can save democracy; and the tension between strategic and legal considerations courts consider when they face pressure from political branches ...


International Decision Commentary: Houngue Éric Noudehouenou V. Republic Of Benin, Olabisi D. Akinkugbe Apr 2021

International Decision Commentary: Houngue Éric Noudehouenou V. Republic Of Benin, Olabisi D. Akinkugbe

Articles, Book Chapters, & Popular Press

The judgment in Houngue Éric Noudehouenou v. Republic of Benin adds to the growing body of human rights jurisprudence on national electoral processes in Africa’s international courts. The decision demonstrates the growing importance of Africa’s regional and sub-regional courts as an alternative venue for opposition politicians, activists, and citizens to mobilize and challenge election processes and constitutional amendment processes where the playing field in their state is uneven. In turn, it reinforces the pivotal role of the regional and sub-regional courts in consolidating democratic governance in Africa, and reveals the limits of assessing the performance of Africa’s ...


Constitutional Limits On Administrative Agencies In Cyberspace, Jon M. Garon Apr 2021

Constitutional Limits On Administrative Agencies In Cyberspace, Jon M. Garon

Belmont Law Review

No abstract provided.


Divided Court Issues Bright-Line Ruling On Fourth Amendment Seizures, Jeffrey Bellin Mar 2021

Divided Court Issues Bright-Line Ruling On Fourth Amendment Seizures, Jeffrey Bellin

Popular Media

No abstract provided.


No Amendment? No Problem: Judges, “Informal Amendment,” And The Evolution Of Constitutional Meaning In The Federal Democracies Of Australia, Canada, India, And The United States, John V. Orth, John Gava, Arvind P. Bhanu, Paul T. Babie Mar 2021

No Amendment? No Problem: Judges, “Informal Amendment,” And The Evolution Of Constitutional Meaning In The Federal Democracies Of Australia, Canada, India, And The United States, John V. Orth, John Gava, Arvind P. Bhanu, Paul T. Babie

Pepperdine Law Review

This article considers the way in which judges play a significant role in developing the meaning of a constitution through the exercise of interpretive choices that have the effect of “informally amending” the text. We demonstrate this by examining four written federal democratic constitutions: those of the United States, the first written federal democratic constitution; India, the federal constitution of the largest democracy on earth; and the constitutions of Canada and Australia, both federal and democratic, but emerging from the English unwritten tradition. We divide our consideration of these constitutions into two ideal types, identified by Bruce Ackerman: the “revolutionary ...


Symposium: Examining Black Citizenship From Reconstruction To Black Lives Matter: Rhetoric And Nostalgia In The Criminal Justice Reform Movement, Michael Gentithes Mar 2021

Symposium: Examining Black Citizenship From Reconstruction To Black Lives Matter: Rhetoric And Nostalgia In The Criminal Justice Reform Movement, Michael Gentithes

ConLawNOW

Today’s movement for criminal justice reform and its attendant "defund the police" slogan contain nuanced calls to redirect public funds in ways that will both control crime and support downtrodden neighborhoods. But the language in those calls can easily be misinterpreted. Such poor messaging misleads both the movement’s members and the public in two important ways. First, it repeats many of the mistakes made by protest anthems of the past. For too many Americans enduring today’s all-too-real dystopia, calls to defund sound like calls to anarchy, not arguments for peaceable, sensible reforms. Second, defunding rhetoric contains an ...


Free To Hate: Hate Crimes' Intertwinement With The Evolution Of Free Speech In The United States, Lee F. Paulson Mar 2021

Free To Hate: Hate Crimes' Intertwinement With The Evolution Of Free Speech In The United States, Lee F. Paulson

Honors Theses, University of Nebraska-Lincoln

In response to the growing tension between civil liberties and civil rights, this research investigates the relationship between the relative expansiveness of free speech and a the nationwide propensity for hate crimes. I argue that government’s legal limitations of speech influence the development of linguistic and hierarchical norms in a national culture. Given structural inequality’s association to violence and crimes of intimidation, I hypothesize that as the government expands the legal bounds of free speech, the national propensity for hate crimes decreases. Text analyses of 50 influential freedom of expression rulings in the United States (U.S.) Supreme ...


When Is Police Interrogation Really Police Interrogation? A Look At The Application Of The Miranda Mandate, Paul Marcus Feb 2021

When Is Police Interrogation Really Police Interrogation? A Look At The Application Of The Miranda Mandate, Paul Marcus

Catholic University Law Review

Decades after the Supreme Court’s decision in Miranda v. Arizona, questions abound as to what constitutes interrogation when a suspect is in custody. What appeared a concise, uniform rule has, in practice, left the Fifth Amendment waters muddied. This article addresses a potential disconnect between law enforcement and the courts by analyzing examples of issues arising from Miranda’s application in an array of case law. Ultimately, it attempts to clarify an ambiguity by offering a standard for what conduct classifies as an interrogation.