Constitutional Law Commons^™

The Quiet Army: Felon Firearm Rights Restoration In The Fourth Circuit, Robert Luther Iii

William & Mary Bill of Rights Journal

Most states afford felons the opportunity to have their political disabilities removed or “rights restored” after they are released from incarceration. In every state within the jurisdiction of the U.S. Court of Appeals for the Fourth Circuit, save Virginia, a felon’s rights are partially restored automatically upon the completion of his sentence, parole, and probation. Absent a pardon, Virginia requires the felon to petition the Governor in writing through the Office of the Secretary of the Commonwealth in order to obtain a partial restoration of rights. One such right that may or may not be restored upon a state-convicted felon’s …

Governmental Sovereignty Actions, Ann Woolhandler

William & Mary Bill of Rights Journal

No abstract provided.

The Real Constitutional Problem With State Judicial Selection: Due Process, Judicial Retention, And The Dangers Of Popular Constitutionalism, Martin H. Redish, Jennifer Aronoff

William & Mary Law Review

In Caperton v. A.T. Massey Coal Co., decided in 2009, the Supreme Court held for the first time that conduct related to a judicial election campaign violated a litigant’s right to procedural due process because the opposing litigant had contributed an inordinate amount of money to the campaign of one of the justices ruling on the case. The due process danger recognized in Caperton rests on a fear of retrospective gratitude—that is, the fear that the Justice would decide his contributor’s case differently because he was grateful for the litigant’s generous support. The Court’s focus on retrospective gratitude is …

Justifying A Prudential Solution To The Williamson County Ripeness Puzzle, Katherine Mims Crocker

Faculty Publications

No abstract provided.

Climate Balkanization: Dormant Commerce And The Limits Of State Energy Policy, Jonathan H. Adler

Faculty Publications

Through the imposition of mandates on what sorts of energy may be produced or sold, state regulatory efforts have imposed burdens on interstate energy markets. In some cases, these burdens are explicit, as when states have privileged in-state energy sources at the expense of out-of-state producers or sellers. In other cases, these burdens are the inevitable consequence of state efforts to reduce the environmental impacts of energy consumed within the state. Such restrictions, and their associated burdens on interstate commerce, raise serious constitutional questions. Under the so-called "Dormant Commerce Clause," state regulations that discriminate against out-of-state actors are presumptively unconstitutional, …

The Inverse Relationship Between The Constitutionality And Effectiveness Of New York City "Stop And Frisk", Jeffrey Bellin

Faculty Publications

New York City sits at the epicenter of an extraordinary criminal justice phenomenon. While employing aggressive policing tactics, such as “stop and frisk,” on an unprecedented scale, the City dramatically reduced both violent crime and incarceration – with the connections between these developments (if any) hotly disputed. Further clouding the picture, in August 2013, a federal district court ruled the City’s heavy reliance on “stop and frisk” unconstitutional. Popular and academic commentary generally highlights isolated pieces of this complex story, constructing an incomplete vision of the lessons to be drawn from the New York experience. This Article brings together all …

Robert Bork & Commercial Speech, Jonathan H. Adler

Faculty Publications

Before he redefined antitrust, Judge Robert Bork took aim at the First Amendment. Though his work in this area was not nearly as influential, it received substantial attention, particularly after President Ronald Reagan nominated Judge Bork to replace Justice Lewis Powell on the Supreme Court in 1987. Judge Bork's 1971 article, Neutral Principles and Some First Amendment Problems challenged the prevailing wisdom on the proper scope of First Amendment protections. In this article, published seven years before The Antitrust Paradox, Bork maintained that only "explicitly political" speech warranted constitutional protection. Other types of speech or expression, including much indisputably …

Future Of The Fourth Amendment: The Problem With Privacy, Poverty And Policing, Kami Chavis Simmons

Faculty Publications

For decades, the reasonable expectation of privacy has been the primary standard by which courts have determined whether a "search" has occurred within the meaning of the Fourth Amendment. The Supreme Court's recent decision in U.S. v. Jones, however, has reinvigorated the physical trespass doctrine's importance when determining whether there has been a "search" triggering constitutional protection. Recognizing the unpredictability of the reasonable expectation of privacy doctrine and that doctrine's bias against the urban poor, many scholars hope that the Jones opinion may ameliorate the class divide that has developed in Fourth Amendment jurisprudence.

This Article argues that while …

Congress's Treaty-Implementing Power In Historical Practice, Jean Galbraith

William & Mary Law Review

Historical practice strongly influences constitutional interpretation in foreign relations law, including most questions relating to the treaty power. Yet it is strikingly absent from the present debate over whether Congress can pass legislation implementing U.S. treaties under the Necessary and Proper Clause. Drawing on previously unexplored sources, this Article considers the historical roots of Congress’s power to implement U.S. treaties between the Founding Era and the seminal case of Missouri v. Holland in 1920. It shows that time after time, members of Congress understood the Necessary and Proper Clause to provide a constitutional basis for a congressional power to implement …

Section 2: Congress & The Obama White House, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Section 5: First Amendment, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Hobby Lobby And Corporate Social Responsibility: A View From The Right, Alan J. Meese

Popular Media

No abstract provided.

United States Of America, Plaintiff-Appellee, V. Charles Williams Jr., Defendant-Appellant: Reply Brief Of Appellant, Gregory Davis, Patricia E. Roberts, Brittany Sadler, Andrew L. Steinberg, Tillman J. Breckenridge, Thomas W. Ports Jr.

Appellate and Supreme Court Clinic

No abstract provided.

United States Of America, Plaintiff-Appellee, V. Charles Williams Jr., Defendant-Appellant: Brief Of Appellant, Gregory Davis, Patricia E. Roberts, Brittany Sadler, Andrew L. Steinberg, Tillman J. Breckenridge, Thomas W. Ports Jr.

Appellate and Supreme Court Clinic

No abstract provided.

Hobby Lobby, Corporate Law, And Rfra, Alan J. Meese

Popular Media

No abstract provided.

Hobby Lobby, Corporate Law, And The Theory Of The Firm: Why For-Profit Corporations Are Rfra Persons, Alan J. Meese, Nathan B. Oman

Faculty Publications

No abstract provided.

A Liberal Communitarian Approach To Security Limitations On The Freedom Of The Press, Amitai Etzioni

William & Mary Bill of Rights Journal

No abstract provided.

Forgetting Furman: Arbitrary Death Penalty Sentencing Schemes Across The Nation, Sarah A. Mourer

William & Mary Bill of Rights Journal

No abstract provided.

Death By Irrelevance: The Unconstitutionality Of Virginia’S Continued Exclusion Of Prison Conditions Evidence To Assess The Future Dangerousness Of Capital Defendants, Andrew Lindsey

William & Mary Bill of Rights Journal

This Note argues that Virginia statutory and case law requiring the exclusion of prison conditions evidence in capital trials where the jury must determine defendants’ future dangerousness is unconstitutional. In Part I, I present certain portions of a hypothetical capital trial in Virginia to introduce readers to the concepts of prison conditions evidence and future dangerousness, and why they are important to capital defendants. In Part II, I trace the development of the constitutional right that is violated by the exclusion of this evidence, as well as how Virginia has come to justify its exclusionary stance based on a flawed …

Parental Exclusion From The Education Governance Kaleidoscope: Providing A Political Voice For Marginalized Students In Our Time Of Disruption, Tiffani N. Darden

William & Mary Bill of Rights Journal

This Article develops how the judiciary should play an instrumental part in amplifying the parent’s voice as a citizenship broker for their child. The Supreme Court scrutinizes school-board actions with little consideration of parents’ substantive due process right to control their child’s education through the political process. Through representative school boards, effective participation models, and an enforcement framework, parents could hold the power to affect education policies. Parents deserve full citizenship recognition in the tiered processes controlling public education policy. In addition to recognizing “quality” education as a government interest, the Supreme Court should also take into account the political …

Specificity Or Dismissal: The Improper Extension Of Rule 9(B) To Negligent Misrepresentation As A Deprivation Of Plaintiffs’ Procedural Due Process Rights, Julie A. Cook

William & Mary Bill of Rights Journal

No abstract provided.

Eating Hot Peppers To Avoid Hiv/Aids: New Challenges To Failing Abstinence-Only Programs, Erica Woebse

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

This Note examines abstinence-only education curricula, including its history, criticisms against it, and the failure of judicial challenges to end its promotion and federal funding. It addresses how abstinence-only education has managed to remain a central means of teaching sexual education, despite its ineffective and controversial nature. Finally, this Note will discuss how abstinence-only education curricula may fall out of favor or be modified with new state and federal requirements that sexual educational curricula be medically accurate. This is demonstrated by the American Academy of Pediatrics v. Clovis Unified School District case in California.

Presidential Constitutionalism And Civil Rights, Joseph Landau

William & Mary Law Review

As the judicial and legislative branches have taken a more passive approach to civil rights enforcement, the President’s exercise of independent, extrajudicial constitutional judgment has become increasingly important. Modern U.S. presidents have advanced constitutional interpretations on matters of race, gender, HIV-status, self-incrimination, reproductive liberty, and gun rights, and President Obama has been especially active in promoting the rights of lesbian, gay, bisexual, and transgender (LGBT) persons—most famously by refusing to defend the Defense of Marriage Act (DOMA). Commentators have criticized the President’s refusal to defend DOMA from numerous perspectives but have not considered how the President’s DOMA policy fits within …

The Mechanics Of First Amendment Audience Analysis, David S. Han

William & Mary Law Review

When the government seeks to regulate speech based on its content, it generally assumes that listeners will process the speech in a manner that produces social harm. Because the chain of causation for such speech-based harm runs through the filter of an audience, courts must constantly make judgments regarding the audience’s reception of such speech. How will the speech be interpreted by the audience? To what extent will the speech cause the audience either to suffer direct emotional harm or to react physically to the speech in a harmful manner? Although this sort of inquiry—which I refer to as “audience …

Standing Outside Article Iii, Tara Leigh Grove

Faculty Publications

The U.S. Supreme Court has insisted that standing doctrine is a “bedrock” requirement only of Article III. Accordingly, both jurists and scholars have assumed that the standing of the executive branch and the legislature, like that of other parties, depends solely on Article III. But I argue that these commentators have overlooked a basic constitutional principle: federal institutions must have affirmative authority for their actions, including the power to bring suit or appeal in federal court. Article III defines the federal “judicial Power” and does not purport to confer any authority on the executive branch or the legislature. Executive and …

In Sight, It Must Be Right: Judicial Review Of Va Decisions For Reasons And Bases Vs. Clear Error, David E. Boelzner

Faculty Publications

No abstract provided.

Personal Curtilage: Fourth Amendment Security In Public, Andrew Guthrie Ferguson

William & Mary Law Review

Do citizens have any Fourth Amendment protection from senseenhancing surveillance technologies in public? This Article engages a timely question as new surveillance technologies have redefined expectations of privacy in public spaces. It proposes a new theory of Fourth Amendment security based on the ancient theory of curtilage protection for private property. Curtilage has long been understood as a legal fiction that expands the protection of the home beyond the formal structures of the house. Based on custom and law protecting against both nosy neighbors and the government, curtilage was defined by the actions the property owner took to signal a …

Why Arizona V. Gant Is The Wrong Solution To The Warrantless Cell Phone Search Problem, Adam M. Gershowitz

Faculty Publications

No abstract provided.

The Transformative Twelfth Amendment, Joshua D. Hawley

William & Mary Law Review

Scholars have long treated the Twelfth Amendment as a constitutional obscurity, a merely mechanical adjustment to the electoral college—and perhaps a less than successful one at that. This consensus is mistaken. In fact, the Twelfth Amendment accomplished one of the most consequential changes to the structure of our constitutional government yet. It fundamentally altered the nature of the Executive and the Executive’s relationship to the other branches of government. The Amendment changed the Executive into something it had not been before: a political office. The presidency designed at Philadelphia was intended to be neither a policymaking nor a representative institution, …

In Search Of Justice: An Examination Of The Appointments Of John G. Roberts And Samuel A. Alito To The U.S. Supreme Court And Their Impact On American Jurisprudence, Alberto R. Gonzales

William & Mary Bill of Rights Journal

During 2005, President George W. Bush appointed Federal Circuit Court Judges John G. Roberts and Samuel A. Alito to the U.S. Supreme Court. These appointments were the culmination of years of examination of the work, character, and temperament of both men commencing during the 2000 presidential transition. Our evaluation included face-to-face interviews; an analysis of judicial opinions, speeches, and writings; and conversation with friends, colleagues, and court experts. Based on this work, a select group of Bush Administration officials developed a set of predictors that formed the basis of our recommendation to President Bush that he elevate Circuit Court Judges …