Constitutional Law Commons^™

Fixing False Truths: Rethinking Truth Assumptions And Free-Expression Rationales In The Networked Era, Jared Schroeder

William & Mary Bill of Rights Journal

The First Amendment makes no mention of truth. Assumptions about truth, however, have become the foundations for free-expression rationales, the very bases for such freedoms in a democratic society. The Supreme Court gradually, over time, wedded Enlightenment assumptions about truth to the marketplace of ideas rationale for free expression. This Article examines, in light of massive, widespread adoption of networked technologies and AI and Supreme Court decisions that have undermined the distinctive role of truth, whether truth should be removed or replaced as a crucial, justifying concept in freedom of expression. The Article examines the marketplace approach’s history and assumptions, …

No Aid, No Agency, Steven K. Green

William & Mary Bill of Rights Journal

Over the past three decades, members of the Supreme Court have demonstrated increasing hostility to the Establishment Clause’s rule against funding religion, first enunciated in 1947. Over the years, the Court has not only narrowed the rule to allow for government aid to flow to religious schools and faith-based charities, it has more recently declared that to enforce that rule may amount to discrimination against religion. This Article argues that a key reason for the decline in the no-aid principle rests on the weakness of the rationale underlying that rule: that funding of religion coerces the conscience of taxpayers. The …

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

William & Mary Bill of Rights Journal

No abstract provided.

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 considering …

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 States. …

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 power …

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 …

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

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 altering the …

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 diffuse influences. By …

Judging History: How Judicial Discretion In Applying Originalist Methodology Affects The Outcome Of Post-Heller Second Amendment Cases, Mark Anthony Frassetto

William & Mary Bill of Rights Journal

This Article aims to assess how the federal appellate courts have applied the originalist methodology in Second Amendment cases in the decade since Heller. It reviews how courts’ varying approaches to historical analysis—specifically, how courts have addressed what historical period to look to, how prevalent a historical tradition must be, and whether to address history at a high or low level of generality—can drastically affect the outcome of cases. As Justice Scalia acknowledged in McDonald, “Historical analysis can be difficult; it sometimes requires resolving threshold questions, and making nuanced judgments about which evidence to consult and how to …

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 so …

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. …

Free Speech, Strict Scrutiny And A Better Way To Handle Speech Restrictions, Aaron Pinsoneault

William & Mary Bill of Rights Journal

When it comes to unprotected speech categories, the Roberts Court has taken an amoral and inaccurate approach. When the Court first created unprotected speech categories-- defined categories of speech that are not protected by the First Amendment-- it was unclear what rendered a category of speech unprotected. One school of thought argued that speech was unprotected if it provided little or no value to society. The other school of thought argued that speech was unprotected if it fell into a certain category of speech that was simply categorically unprotected. Then, in 2010, the Court strongly sided with the latter approach, …

George R. R. Martin's Faith Militant In Modern America: The Establishment Clause And A State's Ability To Delegate Policing Powers To Private Police Forces Operated By Religious Institutions, Andrew Gardner

William & Mary Bill of Rights Journal

Since the very founding of the United States, the complex relationship between government and religion has troubled and concerned lawmakers. The Establishment Clause of the First Amendment to the United States Constitution was one of the first attempts to help define and restrain the government's role in that nexus. Thomas Jefferson, in a letter praising the Establishment Clause, famously wrote that the clause "buil[t] a wall of separation between Church [and] State." However, the extent of the protections that the Establishment Clause was intended to provide is unclear, and judges as well as legal scholars have struggled with interpreting the …

Second Amendment Background Principles And Heller's Sensitive Places, Adam B. Sopko

William & Mary Bill of Rights Journal

Judges and commentators have widely acknowledge that history enjoys a privileged status in Second Amendment cases, but its precise role is undertheorized and rarely controls case outcomes. In particular, courts have been unable to decide "sensitive places" cases-- challenges to location-based gun laws-- in a manner that adheres to Supreme Court precedent because existing Second Amendment doctrine lacks a test for sensitive places cases that uses history and tradition in a principled way. This Article proposes a solution to address that problem.

An untapped source of guidance is the Court's takings jurisprudence. Interpreting their respective constitutional provisions, Justice Scalia observed …

From Civil Rights To Blackmail: How The Civil Rights Attorney's Fees Awards Act Of 1976 (42 U.S.C. § 1988) Has Perverted One Of America's Most Historic Civil Rights Statutes, Steven W. Fitschen

William & Mary Bill of Rights Journal

For fourteen years, members of Congress repeatedly introduced legislation directed at a single subject. A key underpinning for the necessity of the legislation was provided by the opinions of two Supreme Court justices. Yet, for the past nine years, Congress has gone silent on the same topic. This Article argues that it is past time for Congress to reconsider this topic, and that if it will not do so, the Supreme Court can rectify the situation without engaging in judicial legislation.

Perhaps the best view of Congress's efforts can be seen by examining the high-water mark of those efforts, which …

The Nature Of Standing, Matthew Hall, Christian Turner

William & Mary Bill of Rights Journal

Most academic studies of standing have focused on restrictions on federal court jurisdiction drawn from Article III of U.S. Constitution and related doctrinal schemes developed by state courts. These rules are constructed atop a few words of the Constitution: "The judicial Power shall extend to all Cases, in Law and Equity," arising under various circumstances. The Supreme Court has interpreted these words to require federal courts to assess whether a plaintiff has suffered an injury in fact that is both fairly traceable to the actions of the defendant and redressable by a favorable ruling before proceeding to the merits of …

Democratizing Education Rights, Joshua E. Weishart

William & Mary Bill of Rights Journal

If the United States is to reverse its creeping, illiberal descent, generations of youth must emerge from this tribal, post-truth, pandemic-shattered era to mend democracy. Hope for that uncertain future lies in re-engineering how schoolchildren learn democracy-- not from a civics textbook but by experiencing it in the classroom. The sad irony is that we still lack a knowledge base, grounded in research, for that type of democratic education. Nearly two and a half centuries into the republic's existence, our commitment to democratic education is honored more in the breach than in observance. And our uninformed, polarized, and disaffected electorate …

You Must Present A Valid Form Of (Gender) Identification: The Due Process And First Amendment Implications Of Tennessee's Birth Certificate Law, Brooke Lowell

William & Mary Bill of Rights Journal

This Note analyzes Tennessee’s prohibition against transgender people changing their gender markers on their birth certificates under both Fourteenth Amendment Substantive Due Process and the First Amendment. Part I discusses the relevant terms related to transgender rights, the importance of birth certificates, and the relevant laws at play. Part II focuses on the Substantive Due Process argument. It lays out the foundational cases and then applies them to analyze whether gender identity is a fundamental right. Part III explores the First Amendment analysis, focusing on gender as speech. It also discusses how government speech affects the analysis. The Note concludes …

"Buy One Get One Free": How Reindictment Policies Permit Excessive Searches, Katie Carroll

William & Mary Bill of Rights Journal

When the government decides to stop prosecuting a case, it files a nolle prosequi with the court. Nolle prosequis are slightly different from motions to dismiss. Unlike a motion to dismiss with prejudice, a prosecutor may later reindict a defendant with the same crime without a double jeopardy issue arising after dropping the same case through nolle prosequi. Furthermore, many states do not require judicial approval for a nolle prosequi. Therefore, prosecutors can gain a number of advantages by using nolle prosequi, like avoiding speedy trial deadlines or having a second chance to win important evidentiary hearings.

The advantages of …

Preventing Parkland: A Workable Fourth Amendment Standard For Searching Juveniles' Smartphones Amid School Threats In A Post-Parkland World, Andrew Mueller

William & Mary Bill of Rights Journal

On February 14, 2018, Nikolas Cruz, age nineteen, went to the Marjory Stoneman Douglas High School campus in Parkland, Florida, armed with an AR-15 rifle. He opened fire, killing seventeen students. His unspeakable actions culminated in an attack, which eclipsed the 1999 Columbine High School Massacre to become the deadliest school shooting at a high school in American history. In the immediate months following this still-recent tragedy, schools across the United States were flooded with “copycat” threats of violence. Terroristic threat charges levied against juveniles have likewise skyrocketed.

These recent events have resulted in new and burdensome pressures for schools …

Secondary Meaning And Religion: An Analysis Of Religious Symbols In The Courts, Eric D. Yordy, Elizabeth Brown

William & Mary Bill of Rights Journal

In the Supreme Court’s most recent freedom of religion case, Justice Alito and Justice Ginsburg disagreed about the actual and potential meaning of the Latin cross, a traditional symbol of Christianity in which the upright leg of the cross is longer than the horizontal arms of the cross. Justice Alito stated that the Latin cross, while not losing its religious meaning, has acquired what might be called a “secondary meaning” as a symbol of World War I. He couched his analysis in language suggesting that a religious symbol’s meaning may depend on its circumstances. While he also denied that he …

The Death Of Non-Resident Contribution Limit Bans And The Birth Of The New Small, Swing State, George J. Somi

William & Mary Bill of Rights Journal

New Hampshire’s 1st Congressional District race in 2018 featured an eye-popping number: 96.7. That figure represents the percentage of candidate Maura Sullivan’s individual contributions derived from out-of-state, non–New Hampshire donors. In August 2018, of the $1.37 million USD of individual contributions that Sullivan had raised, only 3.3%—$46,648 USD—originated from in-state contributors. Sullivan had received individual donations amounting to $497,405 USD from Boston, $216,359 USD from New York City, $101,562 USD from the Washington, D.C. metropolitan area, and $92,371 USD from San Francisco.

In nearby Maine, campaign finance reports filed on October 15, 2019, with the Federal Election Commission (FEC) indicate …

Tasing The Constitution: Conducted Electrical Weapons, Other Forceful Arrest Means, And The Validity Of Subsequent Constitutional Rights Waivers, Andreas Kuersten

William & Mary Bill of Rights Journal

Conducted electrical weapons (CEWs)—the most famous and widely used of which are offered under the TASER brand—are ubiquitous tools of law enforcement, carried by the vast majority of law enforcement officers and routinely deployed. These devices subdue targets by coursing electric current through their bodies, thereby causing individuals to collapse as their muscles involuntarily contract. Yet this method of operation has raised concerns—voiced by researchers, advocates, and criminal defendants alike—that CEWs influence cognitive capacity in addition to muscle function as electric current potentially transits through the brain via the central nervous system. In the context of an arrest, this implicates …

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 …

Not Gill-Ty: Challenging And Providing A Workable Alternative To The Supreme Court's Gerrymandering Standing Analysis In Gill V. Whitford, Colin Neal

William & Mary Bill of Rights Journal

No abstract provided.

Information Gathering Or Speech Creation: How To Think About A First Amendment Right To Record, Jared Mullen

William & Mary Bill of Rights Journal

No abstract provided.

Understanding The Spirit Of The Constitution On Corruption: Emoluments, Impeachment, And The Primacy Of Political Virtue, Lea Mano

William & Mary Bill of Rights Journal

No abstract provided.