Constitutional Law Commons^™

Metaphors And Modalities: Meditations On Bobbit's Theory Of The Constitution, Ian C. Bartrum

William & Mary Bill of Rights Journal

No abstract provided.

Changing State Laws To Prohibit The Display Of Hangman's Nooses: Tightening The Knot Around The First Amendment?, Allison Barger

William & Mary Bill of Rights Journal

No abstract provided.

The Continuing Threshold Test For Free Exercise Claims, Andy G. Olree

William & Mary Bill of Rights Journal

When a claimant challenges some governmental law or action under the Free Exercise Clause of the First Amendment, courts have long required the claimant to make out a prima facie case that the government has burdened the exercise of the claimant's sincerely held religious beliefs. This requirement has been referred to as the threshold test for free exercise claims, since claimants must make this showing as a threshold matter before courts will proceed to evaluate the burden and the governmental interest at stake under some standard of scrutiny. This Article argues that although the Supreme Court of the United States …

Justifying Motive Analysis In Judicial Review, Gordon G. Young

William & Mary Bill of Rights Journal

Motives concern us in ordinary life and in the law of torts and crimes, and that concern is justified by consequentialist ethics. Despite occasional judicial protestations, motive analysis pervades large parts of constitutional law. Illegitimate motives aimed at suspect classes, or "designed to strike" at any number of rights identified as fundamental, presumptively invalidate the official actions that they animate. The consequentialist arguments for the use of motive review in this class of cases are relatively simple. Such illegitimate official motives tend to cause bad distributions of tangible benefits and burdens, or cause direct cognitive or emotional harm to the …

Civil Procedure And The Establishment Clause: Exploring The Ministerial Exception, Subject-Matter Jurisdiction, And The Freedom Of The Church, Gregory A. Kalscheur

William & Mary Bill of Rights Journal

What sort of defense is provided by the ministerial exception to employment discrimination claims? The ministerial exception bars civil courts from reviewing the decisions of religious organizations regarding the employment of their ministerial employees. While the exception itself is widely recognized by courts, there is confusion with respect to the proper characterization of the defense provided by the exception: should it be seen as a subject matter jurisdiction defense, or as a challenge to the legal sufficiency of the plaintiff's claim? This Article argues that articulating the right answer to this question of civil procedure is crucial to a proper …

Death By A Thousand Cases: After Booker, Rita, And Gall, The Guidelines Still Violate The Sixth Amendment, David C. Holman

William & Mary Law Review

No abstract provided.

Tempest In An Empty Teapot: Why The Constitution Does Not Regulate Gerrymandering, Larry Alexander, Saikrishna B. Prakash

William & Mary Law Review

Judges and scholars are convinced that the Constitution forbids gerrymandering that goes "too far"--legislative redistrictings that are too partisan, too focused on race, etc. Gerrymanders are said to be unconstitutional for many reasons-they dilute votes, they are anti-democratic, and they generate uncompetitive elections won by extremist candidates. Judges and scholars cite numerous clauses that gerrymanders supposedly violate- the Equal Protection Clause, the Guarantee Clause, and even the First Amendment. We dissent from this orthodoxy. Most of these claims rest on the notion that the Constitution establishes certain ideals about representation in legislatures and about the outcome and conduct of elections. …

Initiating A New Constitutional Dialogue: The Increased Importance Under Aedpa Of Seeking Certiorari From Judgments Of State Courts, Giovanna Shay, Christopher Lasch

William & Mary Law Review

The Antiterrorism and Effective Death Penalty Act (AEDPA) contains a provision restricting federal courts from considering any authority other than holdings of the Supreme Court in determining whether to grant a state prisoner's petition for habeas corpus. Through an empirical study of cert filings and cases decided by the Supreme Court, we assess this provision's impact on the development of federal constitutional criminal doctrine. Before AEDPA and other restrictions on federal habeas corpus, lower federal courts and state courts contributed to doctrinal development by engaging in a "dialogue" (as described by Robert M. Cover and T. Alexander Aleinikoff in a …

Possession Is Nine Tenths Of The Law: But Who Really Owns A Church's Property In The Wake Of A Religious Split Within A Hierarchical Church?, Meghaan Cecilia Mcelroy

William & Mary Law Review

No abstract provided.

A Darwinist View Of The Living Constitution, Scott Dodson

Faculty Publications

The metaphor of a “living” Constitution imports terms from biology into law and, in the process, relies on biology for its meaning. A proper understanding of biology is therefore central to understanding the idea of “living” constitutionalism. Yet despite its rampant use by both opponents and proponents of living constitutionalism, and despite the current fervent debate over whether biology can be useful to the law, no one has evaluated the metaphor from a biological perspective. This Essay begins that inquiry in an interdisciplinary study of law, science, and philology. The Essay first evaluates the metaphor as it is currently used …

The Iphone Meets The Fourth Amendment, Adam M. Gershowitz

Faculty Publications

Under the search incident to arrest doctrine, police may search the entire body and immediate grabbing space of an arrestee, including the contents of all containers, without any probable cause. Because almost all traffic infractions are arrestable offenses, police have enormous opportunity to conduct such searches incident to arrest. In the near future, these already high-stakes searches will become even more important because millions of drivers will not only possess containers that hold a few scattered papers, such as wallets or briefcases, but also iPhones—capable of holding tens of thousands of pages of personal information. If current Fourth Amendment jurisprudence …

Choice Of Law, The Constitution And Lochner, James Y. Stern

Faculty Publications

No abstract provided.

Pole Dancing: The New Pilates?, Timothy Zick

Popular Media

No abstract provided.

Religion At A Public University, Gerard V. Bradley

William & Mary Law Review

No abstract provided.

Why Church And State Should Be Separate, Erwin Chemerinsky

William & Mary Law Review

No abstract provided.

Introduction: Universities And The First Amendment, William P. Marshall

William & Mary Bill of Rights Journal

No abstract provided.

The Cross At College: Accomodation And Acknowledgment Of Religion At Public Universities, Ira C. Lupu, Robert W. Tuttle

William & Mary Bill of Rights Journal

No abstract provided.

Free Expression And Education: Between Two Democracies, Stephen M. Feldman

William & Mary Bill of Rights Journal

No abstract provided.

Higher Education, Harassment, And First Amendment Opportunism, Kenneth L. Marcus

William & Mary Bill of Rights Journal

No abstract provided.

Intelligent Design In Public University Science Departments: Academic Freedom Or Establishment Of Religion, Frank S. Ravitch

William & Mary Bill of Rights Journal

No abstract provided.

Falsity, Insincerity, And The Freedom Of Expression, Mark Spottswood

William & Mary Bill of Rights Journal

Three decades ago, the Supreme Court announced that false statements of fact are devoid of constitutional value, without providing either a reasoned explanation for that principle or any supporting citations. This assertion has become one of the most frequently repeated dogmas of First Amendment law and theory, endlessly repeated and never challenged. Disturbingly, this idea has provided the theoretic foundation for a regime in which some speakers can be penalized for even honestly believed factual errors. Even worse, this dogma is flat wrong.

False statements often have value in themselves, and we should protect them even in some situations where …

Lest We Regress To The Dark Ages: Holding Voluntary Surgical Castration Cruel And Unusual, Even For Child Molesters, Catherine Rylyk

William & Mary Bill of Rights Journal

No abstract provided.

Mothers Versus Babies: Constitutional And Policy Problems With Prosecutions For Prenatal Maternal Substance Abuse, Meghan Horn

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

This note examines the constitutional and policy implications of criminal prosecutions for prenatal maternal substance abuse under statutes criminalizing drug delivery, child abuse, and manslaughter. Although only one of these convictions has been upheld in the thirty years since a prosecutor first brought such charges, prosecutors continue to propose new and increasingly inventive theories of prosecution. Not only do these cases present procedural due process, substantive due process, and equal protection problems, they also cannot be supported by public policy. The prosecutions are opposed by healthcare workers, pit the interests of mothers and unborn children against each other, and actually …

Political Judges And Popular Justice: A Conservative Victory Or A Conservative Dilemma?, George D. Brown

William & Mary Law Review

Most of the judges in America are elected. Yet the institution of the elected judiciary is in trouble, perhaps in crisis. The pressures of campaigning, particularly raising money, have produced an intensity of electioneering that many observers see as damaging to the institution itself. In an extraordinary development, four justices of the Supreme Court recently expressed concern over possible loss of trust in state judicial systems. Yet mechanisms that states have put in place to strike a balance between the accountability values of an elected judiciary and rule of law values of unbiased adjudication are increasingly invalidated by the federal …

The Failure Of Bowles V. Russell, Scott Dodson

Faculty Publications

The Supreme Court recently decided Bowles v. Russell—perhaps that Term’s most underrated case—which characterized the time to file a civil notice of appeal as jurisdictional and therefore not subject to equitable excuses for noncompliance. In so holding, the Court overstated the supporting precedent, inflated the jurisdictional importance of statutes, and undermined an important recent movement to clarify when a rule is jurisdictional and when it is not. This did not have to be. The Court missed a golden opportunity to chart a middle course—holding the rule mandatory but nonjurisdictional—that would have been more consistent with precedent while resolving the …

Whither Sexual Orientation Analysis?: The Proper Methodology When Due Process And Equal Protection Intersect, Sharon E. Rush

William & Mary Bill of Rights Journal

This Article suggests that there is Proper Methodology that courts apply when reviewing cases at the intersection of due process and equal protection. Briefly, courts operate under a rule that heightened review applies if either a fundamental right or a suspect class is involved in a case, and that rational basis review applies if neither is involved (the "Rule"). Two primary exceptions to the Rule exist, and this Article identifies them as the "Logical" and "Ill Motives" Exceptions. The Logical Exception applies when a court need not apply heightened review because a law fails rational basis review. The Ill Motives …

Baghdad, Tokyo, Kabul….Constitution Making In Occupied States, Zachary Elkins, Tom Ginsburg, James Melton

William & Mary Law Review

No abstract provided.

The Theocratic Challenge To Constitution Drafting In Post-Conflict States, Ran Hirschl

William & Mary Law Review

No abstract provided.

What's In A Name? Reflections On Timing, Naming, And Constitution-Making, Vicki C. Jackson

William & Mary Law Review

No abstract provided.

Conciliatory Institutions And Constitutional Processes In Post-Conflict States, Donald L. Horowitz

William & Mary Law Review

No abstract provided.