Constitutional Law Commons^™

Arbitrary Arbiters: Evaluating The Right To Be Informed Of Eligibility For Discretionary Relief In Removal Proceedings, Michael Jordan

William & Mary Bill of Rights Journal

No abstract provided.

Kidnapping Reconsidered: Courts Merger Tests Inadequately Remedy The Inequities Which Developed From Kidnapping's Sensationalized And Racialized History, Samuel P. Newton

William & Mary Bill of Rights Journal

No abstract provided.

Steps Toward Abolishing Capital Punishment: Incrementalism In The American Death Penalty, Melanie Kalmanson

William & Mary Bill of Rights Journal

While scholars seem united on the sentiment that abolition is the ultimate resting place for capital sentencing in the United States, their arguments vary as to how the system will reach that point. For example, Carol and Jordan Steiker argue that the systemic disarray of capital sentencing in the United States is a result of the U.S. Supreme Court’s attempt to constitutionalize capital sentencing. This Article contends that the U.S. Supreme Court’s constitutional jurisprudence that has developed since 1972, when the Court reset capital sentencing in Furman v. Georgia, has aided the Court in gradually narrowing capital punishment, as a …

The Bad News Of Good News Club: Obliterating The Wall Between Church & State, Kevin W. Connell

William & Mary Bill of Rights Journal

No abstract provided.

Contracting Away The First Amendment?: When Courts Should Intervene In Nondisclosure Agreements, Abigail Stephens

William & Mary Bill of Rights Journal

No abstract provided.

Considerations Of History And Purpose In Constitutional Borrowing, Robert L. Tsai

William & Mary Bill of Rights Journal

No abstract provided.

Sex-Segregation, Economic Opportunity, And Roberts V. U.S. Jaycees, Elizabeth Sepper

William & Mary Bill of Rights Journal

No abstract provided.

Constitutional Conflict And Sensitive Places, Darrell A. H. Miller

William & Mary Bill of Rights Journal

No abstract provided.

Political And Non-Political Speech And Guns, Gregory P. Magarian

William & Mary Bill of Rights Journal

No abstract provided.

The Deliberative-Privacy Principle: Abortion, Free Speech, And Religious Freedom, B. Jessie Hill

William & Mary Bill of Rights Journal

No abstract provided.

The Epistemic Function Of Fusing Equal Protection And Due Process, Deborah Hellman

William & Mary Bill of Rights Journal

The fusion of equal protection and due process has attracted significant attention with scholars offering varied accounts of its purpose and function. Some see the combination as productive, creating a constitutional violation that neither clause would generate alone. Others see the combination as merely strategic, offered to make a claim acceptable at a particular historical moment but not genuinely necessary. This Article offers a third alternative. Judges have and should bring both equal protection and due process together to learn what each clause independently requires. On this Epistemic vision of constitutional fusion, a focus on equality helps judges learn what …

Four Responses To Constitutional Overlap, Michael Coenen

William & Mary Bill of Rights Journal

Sometimes government action implicates more than one constitutional right. For example, a prohibition on religious expression might be said to violate both the Free Speech Clause and the Free Exercise Clause, a rule regarding same-sex marriage might be said to violate both equal protection and substantive due process, an exercise of the eminent domain power might be said to violate both procedural due process and the Takings Clause, a disproportionate criminal sentence based on judge-found facts might be said to violate both the defendant’s right to trial by jury and that defendant’s right against cruel and unusual punishment, and so …

Doctrinal Dynamism, Borrowing, And The Relationship Between Rules And Rights, Joseph Blocher, Luke Morgan

William & Mary Bill of Rights Journal

The study of “Rights Dynamism,” exemplified in Timothy Zick’s new book on the First Amendment’s relationship with the rest of the Bill of Rights, can enrich our understanding of constitutional rights. It also opens a door to another potentially fruitful arena: what we call “Doctrinal Dynamism.” Constitutional rights often interact and generate new meanings and applications by way of importing and exporting one another’s doctrinal rules, even when the rights themselves do not intersect directly in the context of a single case. Focusing on these doctrinal exchanges can illuminate the strengths and weaknesses of various rules, the specific interests underlying …

The Conscience Of The Baker: Religion And Compelled Speech, Ashutosh Bhagwat

William & Mary Bill of Rights Journal

No abstract provided.

Protecting The States From Electoral Invasions, Drew Marvel

William & Mary Bill of Rights Journal

Since the 2016 U.S. presidential election, the threat of foreign interference in U.S. elections has loomed large in the minds of the American public. During the 2016 campaign season, Russian government-backed hackers infiltrated the networks and computers of the Democratic National Committee (DNC), the Democratic Congressional Campaign Committee (DCCC), and various campaign officials, harvesting private information and installing spyware and malware for ongoing intelligence purposes. U.S. intelligence officials have indicated that, using similar tactics, the Russian hackers also targeted election systems and officials in all fifty states, successfully breaching at least two of those states’ election systems, Illinois and Florida. …

"When The Enemy Drew Our Attention": Reconsidering Prior Restraint In The Context Of Dual Use Research Of Concern, Caine Caverly

William & Mary Bill of Rights Journal

Through 2016 and 2017, a team led by Canadian virologist David Evans, and funded by an American pharmaceutical company, attempted to synthesize the previously extinct horsepox virus. After just six months and an expenditure of $100,000, the research team was able to successfully construct the virus “using only commercially available information, technology and tools.” In January of 2018, the team went on to publish their information in an American-based journal, PLOS ONE.

The publication was controversial because it included a potential “blueprint” for the synthesis of a genetic strand in the same viral family as the highly lethal, albeit eradicated, …

Western Reconstruction And Woman Suffrage, Lorianne Updike Toler

William & Mary Bill of Rights Journal

The normal narrative of woman suffrage in the United States begins in Seneca Falls, New York, and steadily marches along through the lives and papers of the most noteworthy national suffragettes—Elizabeth Cady Stanton, Susan B. Anthony, Lucy Stone, and a handful of other women until the hard-fought passage of the Nineteenth Amendment. The six-volume History of Woman Suffrage tomes tells just such a story.

Yet the dominant narrative “overgeneralizes the experiences of the national, largely eastern leadership” and “generally neglect[s] the West, or fail[s] to evaluate its significance within the national movement.” Although the American Woman Suffrage Association was organized …

Is The "Hire American" Executive Order A Suspect Classification?, Michael H. Leroy

William & Mary Bill of Rights Journal

President Trump’s Executive Order 13,788 declares a “Hire American” policy for H-1B visas. This action discriminates against Indians to benefit white American workers. The technology workforce in the United States has 4.6 million jobs. Most employees in this large workforce—about 76%—are U.S.-born. In this domestic segment, 85% of employees are white. Among foreign-born workers (11.6% of all workers), Asians make up 66%, with Indians predominating.

“Hire American” renews a mostly forgotten history of discrimination against Indian workers. The Immigration Act of 1917 enacted an “Asiatic Barred Zone.” Indian immigration was curtailed to 100 annual arrivals. Typical of the period, the …

"Great Variety Of Relevant Conditions, Political Social And Economic": The Constitutionality Of Congressional Deadlines On Amendment Proposals Under Article V, Danaya C. Wright

William & Mary Bill of Rights Journal

Within a year or two, the thirty-eighth state is likely to ratify the Equal Rights Amendment (ERA), setting up an unprecedented constitutional challenge. The ERA was proposed with a seven-year deadline in the resolving clause, establishing the mode of ratification. That was a shift from earlier precedents in which a deadline had been placed in the text of the amendment proposal itself. Article V is annoyingly silent on the issue of congressional deadlines in amendment proposals, and the Supreme Court has never addressed the issue of a deadline that could void an otherwise properly ratified amendment. The practice of placing …

Safeguarding Fair Use Through First Amendment's Asymmetric Constitutional Fact Review, Amanda Reid

William & Mary Bill of Rights Journal

This Article proposes a novel procedural safeguard for copyright fair use. Two courts recently overturned jury verdicts on the question of fair use. In Corbello v. De Vito, the trial court overturned a jury verdict that had rejected a fair use defense. In Oracle America, Inc. v. Google LLC, the Federal Circuit reversed a jury verdictthat had found in favor of a defendant's fair use defense. While this Article offers a new perspective on these cases, the main goal is more ambitious: a theoretical framework to heighten protection for the free expression interests of users of copyrighted works. Specifically, appellate …

Legislators On Executive-Branch Boards Are Unconstitutional, Period, Douglas Laycock

William & Mary Bill of Rights Journal

Virginia statute makes legislators categorically “ineligible to serve on boards, commissions, and councils within the executive branch of state government who are responsible for administering programs established by the General Assembly.” But with increasing frequency, the General Assembly has enacted exceptions to this policy. There is a general exception for bodies “engaged solely in policy studies or commemorative activities,” and perhaps such bodies need not be in the executive branch at all. But the Assembly has also enacted exceptions for twenty-one specific boards and commissions, many of which clearly have executive authority. This list of exceptions is a miscellany with …

Time For A Change In Eminent Domain: A “Dirt Farmer’S” Story Shows Why Just Compensation Should Include Lost Profits, Edward Walton

William & Mary Bill of Rights Journal

No abstract provided.

Servitude And Captivity In The Common Law Of Master-Servant: Judicial Interpretations Of The Thirteenth Amendment’S Labor Vision Immediately After Its Enactment, Lea Vandervelde

William & Mary Bill of Rights Journal

This Article first takes a closer look at Blackstone’s chapter on master and servant. Second, it examines the anti-subordination agenda of the Reconstruction Congress, which abolished involuntary servitude and engaged in structuring a free labor system—a republican system of labor—to replace the slave labor system and to bring the freedmen into parity with their former masters. Third, this Article looks at how the courts interpreted the Thirteenth Amendment’s scope in the years immediately after its enactment. This Part demonstrates that the federal courts effectively closed off the path to develop the Thirteenth Amendment as an economic right by limiting the …

The Popular Constitutional Canon, Tom Donnelly

William & Mary Bill of Rights Journal

Popular constitutionalism scholarship has often left out the American people. Sure, ordinary citizens make cameo appearances—often through the actions of elected officials and elite movement leaders. However, focusing on high politics among elite actors—even if those actors are not judges—simply is not enough. If popular constitutional views do, indeed, matter, then we can expect constitutional partisans to try to manipulate the processes through which these views emerge. Some constitutional scholars have made a start, reflecting on the importance of the constitutional canon. However, these scholars focus mostly on the legal canon and often ignore its popular analog. At the same …

A Century In The Making: The Glorious Revolution, The American Revolution, And The Origins Of The U.S. Constitution’S Eighth Amendment, John D. Bessler

William & Mary Bill of Rights Journal

The sixteen words in the U.S. Constitution’s Eighth Amendment have their roots in England’s Glorious Revolution of 1688–89. This Article traces the historical events that initially gave rise to the prohibitions against excessive bail, excessive fines, and cruel and unusual punishments. Those three proscriptions can be found in the English Declaration of Rights and in its statutory counterpart, the English Bill of Rights. In particular, the Article describes the legal cases and draconian punishments during the Stuart dynasty that led English and Scottish parliamentarians to insist on protections against cruelty and excessive governmental actions. In describing the grotesque punishments of …

Universal Human Rights And Constitutional Change, David Sloss, Wayne Sandholtz

William & Mary Bill of Rights Journal

Scholars have written volumes about the dramatic constitutional changes that occurred in the United States in the decades after World War II. Several leading scholarly accounts adopt an internal perspective, focusing primarily on domestic factors that drove constitutional change. Other scholars adopt a more transnational perspective, linking domestic constitutional change in the United States to Cold War politics, or to the rise of totalitarianism. This Article builds on the work of scholars like Mary Dudziak and Richard Primus who have emphasized the transnational factors that contributed to constitutional change in the United States. However, our account differs from both Dudziak …

In Defense Of Hybrid Representation: The Sword To Wield And The Shield To Protect, Kelly Rondinelli

William & Mary Bill of Rights Journal

No abstract provided.

Broken Platforms, Broken Communities? Free Speech On Campus, Stephen M. Feldman

William & Mary Bill of Rights Journal

Free speech disputes have broken out on numerous college and university campuses. In several incidents, protesters have attempted to block the presentations of well-known and controversial speakers who threaten the communal status of societal outsiders. These events have sparked not only widespread media coverage but also the publication of multiple scholarly books and articles. None of this scholarship, however, has recognized that the interrelated histories of free expression and democracy can shed considerable light on these matters. This Article takes on that challenge. Specifically, this Article explores the ramifications of the historical interrelationship between free expression and democracy for campus …

Prior Restraint In The Digital Age, Ariel L. Bendor, Michal Tamir

William & Mary Bill of Rights Journal

In this Article we argue that the digital revolution requires a reshaping of the Doctrine of Prior Restraint, which prohibits the implementation of any regulations that prevent the publication of speech prior to its distribution. We describe the prohibition on prior restraint of speech, its rationales and its exceptions; present the characteristics of the media in the digital age; suggest that the traditional design of the Doctrine does not fit these characteristics; and describe the reshaping that we propose in order to adapt the Doctrine to the age of the Internet and social networking.

Merging Offensive-Speech Cases With Viewpoint-Discrimination Principles: The Immediate Impact Of Matal V. Tam On Two Strands Of First Amendment Jurisprudence, Clay Calvert

William & Mary Bill of Rights Journal

This Article examines flaws with the U.S. Supreme Court’s 2017 decision in Matal v. Tam that equated giving offense with viewpoint discrimination. Already, the Court’s language in Tam that “giving offense is a viewpoint” is being cited by multiple lower courts. This Article argues, however, that giving offense is not synonymous with viewpoint discrimination. This Article contends that the Court in Tam conflated two distinct strands of First Amendment jurisprudence—namely, its offensive-speech cases with principles against viewpoint discrimination. The Article proposes two possible paths forward to help courts better clarify when a case such as Tam should be analyzed as …