Constitutional Law Commons^™

Cooperation, Commandeering, Or Crowding Out?: Federal Intervention And State Choices In Health Care Policy, Jonathan H. Adler

Faculty Publications

This Article's analysis proceeds in three parts. Part II of this article outlines the policy considerations in determining the proper federal and state balance in health care policy. There are strong arguments for state primacy in health care policy, but also substantial justifications for federal intervention. Part III discusses the concept of "cooperative federalism," under which the federal government encourages state governments to implement policies in accord with federal priorities, and identifies constitutional limitations on the federal government's ability to direct or even influence state policy choices. Even if the constitutional challenges to the individual mandate fails, federalism-based challenges to …

Badmouthing Authority: Hostile Speech About School Officials And The Limits Of School Restrictions, Emily Gold Waldman

William & Mary Bill of Rights Journal

No abstract provided.

Federal Law In State Court: Judicial Federalism Through A Relational Lens, Charlton C. Copeland

William & Mary Bill of Rights Journal

Enforcing federalism is most commonly thought to involve the search for a
constitutional delegation of substantive power. Although in modern times the substantive power might be overlapping or shared authority, federalism enforcement proceeds from a determination about the site of substantive power. This conception of federalism enforcement preserves the Constitution’s commitment to fractionated authority by determining whether power is legitimately possessed. Thus we understand significant federalism disputes in our age as framed by whether Congress has the authority to enact comprehensive health care reform legislation, or whether Congress
has exceeded its authority in reenacting the Voting Rights Act’s preclearance requirements. …

The Dark Side Of The Force: The Legacy Of Justice Holmes For First Amendment Jurisprudence, Steven J. Heyman

William & Mary Bill of Rights Journal

Modern First Amendment jurisprudence is deeply paradoxical. On one hand,
freedom of speech is said to promote fundamental values such as individual selffulfillment, democratic deliberation, and the search for truth. At the same time, however, many leading decisions protect speech that appears to undermine these values by attacking the dignity and personality of others or their status as full and equal members of the community. In this Article, I explore where this Jekyll-and-Hyde quality of First Amendment jurisprudence comes from. I argue that the American free speech tradition consists of two very different strands: a liberal humanist view that emphasizes …

The Fading Free Exercise Clause, Rene Reyes

William & Mary Bill of Rights Journal

This Article uses the Supreme Court’s recent opinion in Christian Legal Society
v. Martinez as a point of departure for analyzing the current state of free exercise doctrine. I argue that one of the most notable features of the Christian Legal Society (CLS) case is its almost total lack of engagement with the Free Exercise Clause. For the core of CLS’s complaint was unambiguously about the declaration and exercise of religious beliefs: the group claimed that it was being excluded from campus life because it required its members to live according to shared religious principles and to subscribe to a …

Party Polarization And Congressional Committee Consideration Of Constitutional Questions, Neal Devins

Faculty Publications

No abstract provided.

Systematic Negligence In Jury Operations: Why The Definition Of Systematic Exclusion In Fair Cross Section Claims Must Be Expanded, Paula Hannaford-Agor

Faculty Publications

This Article argues that in the context of fair cross section jurisprudence, courts' ability to control, or at least greatly mitigate, the extent of minority underrepresentation due to nonsystematic factors is greatly underestimated. Over the past forty years, courts have implemented a number of effective practices to ensure an inclusive and representative master jury list and to minimize undeliverable, nonresponse and failure-to-appear, and excusal rates. All of these techniques demonstrably improve the demographic representation of the jury pool. The vast majority of courts employ these techniques on a routine basis. By perpetuating the misconception that courts have no responsibility to …

Negotiating Federalism, Erin Ryan

Faculty Publications

Bridging the fields of federalism and negotiation theory, Negotiating Federalism analyzes how public actors navigate difficult federalism terrain by negotiating directly with counterparts across state-federal lines. In contrast to the stylized, zero-sum model of federalism that pervades political discourse and judicial doctrine, the Article demonstrates that the boundary between state and federal power is negotiated on scales large and small, and on an ongoing basis. It is also the first to recognize the procedural tools that bilateral federalism bargaining offers to supplement unilateral federalism interpretation in contexts of jurisdictional overlap.

The Article begins by situating its inquiry within the age-old …

Same-Sex Marriage And The New Judicial Federalism: Why State Courts Should Not Consider Out-Of-State Backlash, Neal Devins

Faculty Publications

No abstract provided.

Cooperative Federalism And Police Reform: Using Congressional Spending Power To Promote Police Accountability, Kami Chavis Simmons

Faculty Publications

Police misconduct and corruption persist in our nation's local police departments. Recognizing the organizational roots of police misconduct, Congress granted the U.S. Department of Justice (the "DOJ") the authority to seek injunctive relief to implement institutional reforms within local law enforcement agencies. While the federal government's current strategy represents a promising model for reform, the DOJ's efforts cannot reach many local police departments that require intervention. Furthermore, the local primacy of criminal-justice issues, particularly issues related to police practices, implicates important federalism concerns. Although federal intervention is appropriate to address persistent patterns of misconduct, states and local entities must play …

The State (Never) Rests: How Excessive Prosecutor Caseloads Harm Criminal Defendants, Adam M. Gershowitz, Laura R. Killinger

Faculty Publications

No abstract provided.

A Response To Justice Thomas Brennan's Remarks At The Thomas M. Cooley Law School Article V Symposium, William W. Van Alstyne

Faculty Publications

No abstract provided.

Glenn Beck Bad News For Religious Conservatism, Nathan B. Oman

Popular Media

No abstract provided.

Dodging A Bullet: Mcdonald V. City Of Chicago And The Limits Of Progessive Originalism, Dale E. Ho

William & Mary Bill of Rights Journal

The Supreme Court’s decision in last term’s gun rights case, McDonald v. City of Chicago, punctured the conventional wisdom after District of Columbia v. Heller that “we are all originalists now.” Surprisingly, many progressive academics were disappointed. For “progressive originalists,” McDonald was a missed opportunity to overrule the Slaughter-House Cases and to revitalize the Privileges or Immunities Clause of the Fourteenth Amendment. In their view, such a ruling could have realigned progressive constitutional achievements with originalism and relieved progressives of the albatross of substantive due process, while also unlocking long-dormant constitutional text to serve as the source of new unenumerated …

The Melendez-Diaz Dilemma: Virginia's Response, A Model To Follow, Anne Hampton Andrews

William & Mary Bill of Rights Journal

No abstract provided.

Faulty Foundations: How The False Analogy To Routine Fingerprinting Undermines The Argument For Arrestee Dna Sampling, Corey Preston

William & Mary Bill of Rights Journal

No abstract provided.

Huppert, Reilly, And The Increasing Futility Of Relying On The First Amendment To Protect Employee Speech, John Q. Mulligan

William & Mary Bill of Rights Journal

No abstract provided.

Constantly Approximating Popular Sovereignty: Seven Fundamental Principles Of Constitutional Law, Wilson R. Huhn

William & Mary Bill of Rights Journal

No abstract provided.

Reconceptualizing The Fifth Amendment Prohibition Of Adverse Comment On Criminal Defendants' Trial Sentence, Jeffrey Bellin

Faculty Publications

Griffin v. California holds that the Fifth Amendment privilege against compelled self-incrimination prohibits a prosecutor from arguing that a defendant’s failure to testify supports an inference of guilt. In the four decades since Griffin was decided, Griffin’s doctrinal underpinnings have been strongly criticized by prominent jurists and commentators, and even Griffin’s contemporary defenders struggle to place the constitutional prohibition of adverse comment on defendant silence within a coherent doctrinal framework.

In light of these largely unanswered criticisms, this Article posits that the current Fifth Amendment-based prohibition of adverse comment is untenable and must be recast in a more narrowly tailored …

Hate Speech And Harassment: The Constitutionality Of Campus Codes That Prohibit Racial Insults, Alan E. Brownstein

William & Mary Bill of Rights Journal

No abstract provided.

Government Identity Speech And Religion: Establishment Clause Limits After Summum, Mary Jean Dolan

William & Mary Bill of Rights Journal

This Article offers in-depth analysis of the opinions in Pleasant Grove v. Summum. Summum is a significant case because it expands “government speech” to cover broad, thematic government identity messages in the form of donated monuments, including the much-litigated Fraternal Order of Eagles-donated Ten Commandments. The Article explores the fine distinctions between the new “government speech doctrine”— a defense in Free Speech Clause cases that allows government to express its own viewpoint and to reject alternative views—and “government speech” analyzed under the Establishment Clause, which prohibits government from expressing a viewpoint on religion, and from favoring some religions over others. …

The Inherent Structure Of Free Speech Law, Joshua P. Davis, Joshua D. Rosenberg

William & Mary Bill of Rights Journal

To date no one has discovered a set of organizing principles for free speech doctrine, an area of the law that has been criticized as complex, ad hoc, and even incoherent. We provide a framework that distills free speech law down to three judgments: the first about the role of government; the second about the target of government regulation; and the third a constrained cost-benefit analysis. The framework can be summarized by three propositions: first, the Constitution constrains government if it regulates private speech, but not if government speaks, sponsors speech or restricts expression in managing an internal governmental function; …

Section 8: Federalism, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Section 7: Individual Rights, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Balanced Budget Amendment Is Dangerous Gimmick, Not Solution, Nathan B. Oman

Popular Media

No abstract provided.

Burying The “Continuing Body” Theory Of The Senate, Aaron-Andrew P. Bruhl

Faculty Publications

In the U.S. Senate, only one-third of the members stand for election every two years; the rest carry over from one congressional term to the next. In this regard the Senate differs from the House of Representatives, where all members stand for election every two-year cycle. That much is familiar, but what legal consequences flow from this structural difference? According to some legislators, courts, and commentators, this difference is very important in that it makes the Senate, but not the House, a "continuing body." The continuing-body idea is invoked to defend highly controversial aspects of Senate practice. By far the …

Fundamentalism, The First Amendment, And The Rise Of The Religious Right, Randall Balmer

William & Mary Bill of Rights Journal

No abstract provided.

The Nonproblem Of Fundamentalism, Andrew Koppelman

William & Mary Bill of Rights Journal

No abstract provided.

Family Values, Courts, And Culture War: The Case Of Abstinence-Only Sex Education, John E. Taylor

William & Mary Bill of Rights Journal

No abstract provided.

God Of Our Fathers, Gods For Ourselves: Fundamentalism And Postmodern Belief, Frederick Mark Gedicks

William & Mary Bill of Rights Journal

No abstract provided.