Constitutional Law Commons^™

Superb History, Dubious Constitutional And Political Theory: Comments On Uviller And Merkel, The Militia And The Right To Arms, Sanford Levinson

William & Mary Bill of Rights Journal

No abstract provided.

Introduction: Ancients, Moderns And Guns, Mark A. Graber

William & Mary Bill of Rights Journal

No abstract provided.

Gun Rights And The Constitutional Significance Of Violent Crime, Jonathan Simon

William & Mary Bill of Rights Journal

No abstract provided.

Confidentiality And Juvenile Mental Health Records In Dependency Proceedings, David R. Katner

William & Mary Bill of Rights Journal

Providing children's disclosures to their mental health therapists greater protection in juvenile dependency cases recognizes the importance of privacy in therapeutic communications. Numerous children are required by juvenile courts to divulge the most intimate details of their lives to mental health experts only to have those disclosures revealed in court proceedings. Reversing the presumption that children's mental health records may be discussed openly in dependency litigation and requiring courts to perform in camera reviews affords children the dignity and respect adults take for granted. Ensuring greater confidentiality for children's mental health records is one step the legal system should take …

Symbolic Counter-Speech, Harold M. Wasserman

William & Mary Bill of Rights Journal

No abstract provided.

What The Supreme Court Could Learn About The Child Online Protection Act By Reading Playboy, Shaun Richardson

William & Mary Bill of Rights Journal

Due to the ease of Internet searching, Congress has passed the Child Online Protection Act to protect children from sexually explicit material. Although the Supreme Court has not directly decided the issue, it has hinted that the Act may survive a First Amendment challenge. In this Note, the author argues reasons why the Act should not survive a First Amendment challenge, and that measures such as parental empowerment via government-facilitated use of Internet filtering software are preferable

The Jurisprudential Revolution: Unlocking Human Potential In Grutter And Lawrence, Wilson Huhn

William & Mary Bill of Rights Journal

No abstract provided.

Privacy Rights Versus Foia Disclosure Policy: The "Uses And Effects" Double Standard In Access To Personally-Identifiable Information In Government Records, Michael Hoefges, Martin E. Halstuk, Bill F. Chamberlin

William & Mary Bill of Rights Journal

The U.S. government maintains a vast amount of personally-identifiable information on millions of American citizens. Much of this information is contained in electronic databases maintained by federal agencies. Various Freedom of Information Act (FOIA) requesters, such as journalists, marketers, and union organizers seek this information for different purposes including investigative reporting and targeted solicitations. These kinds of uses are known as "derivative uses" because this government-compiled information is requested for purposes other than the official purposes for which the information was originally gathered. These and other derivative uses of personally-identifiable information often implicate privacy concerns. Conversely, restrictions on public access …

The Revival Of "Privileges Or Immunities" And The Controversy Over State Bar Admission Requirements: The Makings Of A Future Constitutional Dilemma?, Wilson Pasley

William & Mary Bill of Rights Journal

The Supreme Court's 1999 decision in Saenz v. Roe relied upon the long ignored Privileges or Immunities Clause of the Fourteenth Amendment, which had laid dormant since the Slaughter-House Cases of more than a century ago. The Saenz decision sparked considerable debate as to the meaning of the Privileges or Immunities Clause and caused speculation as to the statutes vulnerable to a constitutional challenge under the Clause. This Note examines the potential impact of the Privileges or Immunities Clause on state bar admission requirements and other restrictions on the practice of law. It concludes that the Clause does not create …

Mandatory Fingerprinting Of Public School Teachers: Fascilitating Background Checks Or Infringing On Individuals' Constitutional Rights?, Christina Buschmann

William & Mary Bill of Rights Journal

With the continuing growth of governmental intrusions into the private lives of its citizens, critics increasingly have taken aim at state actions which unnecessarily burden an individual's right to be let alone. One group in particular - public school teachers - often endure tedious examinations of their private affairs as a condition of employment. This Note examines the current state of privacy concerns, specifically in the realm of public school teachers, and argues that a compromise must be struck that better balances the public's need to protect children from dangerous teachers with the individual teacher's right to privacy. The Note …

Federalism And Formalism, Allison H. Eid

William & Mary Bill of Rights Journal

Many commentators have criticized the Supreme Court's New Federalism decisions as "excessively formalistic. " In this Article, Professor Eid argues that this "standard critique" is wrong on both a descriptive and normative level. Descriptively, she argues that the standard critique mistakenly downplays the extent to which the New Federalism decisions consider the values that federalism serves, and contends that they employ the same sort of formalism/functionalism blend that is found in the Court's separation of powers jurisprudence. Professor Eid then contends that the standard critique's normative prescription - a case-by-case balancing test that would weigh the federal interest against the …

Congress, Civil Liberties, And The War On Terrorism, Neal Devins

William & Mary Bill of Rights Journal

In exercising his war-making powers, the President has historically pursued war-related initiatives that implicate civil liberties. Meanwhile, the Congress, with little incentive to resist these initiatives, has played a steadily declining role in warmaking. In this Essay, Professor Devins examines this dynamic, and argues that with Congress largely standing on the sidelines as the President leads the nation in war, it is the American public that has become the principal check on the powers of the President in wartime.

What If I Want My Kids To Watch Pornography?: Protecting Children From "Indecent" Speech, Ashutosh Bhagwat

William & Mary Bill of Rights Journal

Under current First Amendment doctrine, a law directed at indecent speech is treated as "content-based" regulation of speech, and thus must satisfy the "strict scrutiny" test to survive constitutional challenge - the regulation must be narrowly tailored to advance a compelling state interest. A number of laws regulating indecent speech have been passed in recent years, and when challenged, the government has defended these regulations on the ground that the State has a compelling interest in the protection of children from harmful materials. Underlying this argument, however, is a deep ambiguity regarding the precise nature of the government's legitimate objectives …

The Living Commerce Clause: Federalism In Progressive Political Theory And The Commerce Clause After Lopez And Morrison, Eric R. Claeys

William & Mary Bill of Rights Journal

"Living Constitution " ideas are most often associated with individual-rights guarantees like equal protection and due process, but they were originally developed in the early twentieth century to revolutionize the law of the structural Constitution - including the Commerce Clause. In this Article, Professor Claeys interprets Progressive political theory, which played a crucial role in legitimating the expansion of the national government. As applied to federalism, Progressive living-Constitution theory required that the Commerce Clause be interpreted as a constitutional transmitter letting the national government regulate whatever the American people deem to be a national problem. He suggests that this notion …

Terrorism And The Bill Of Rights, Rodney A. Smolla

William & Mary Bill of Rights Journal

This year is the Tenth Anniversary of the William & Mary Bill of Rights Journal, and the Journal is very fortunate and honored to have Professor Rodney Smolla publish an article in this year's volume. Professor Smolla played an integral role in the founding and organizing of not only the Journal, but also the Institute of Bill of Rights Law at William & Mary Law School. The Journal extends its most appreciative thanks to Professor Smolla for all his help.

In this Article, Professor Smolla examines the right to free speech in the context of Black v. Commonwealth, a case …

Spheres Of Autonomy: Reforming The Content Neutrality Doctrine In First Amendment Jurisprudence, Steven J. Heyman

William & Mary Bill of Rights Journal

Modern First Amendment jurisprudence almost exclusively prohibits laws restricting freedom of speech based on the content of the speech. In this Article, Professor Steven Heyman takes exception to the content neutrality doctrine, arguing that its strict application both minimizes other interests competing with speech and fails to elevate the premises on which the First Amendment stands.

Antebellum Perspectives On Free Speech, Mark A. Graber

William & Mary Bill of Rights Journal

In his book, Free Speech, "The People's Darling Privilege": Struggles for Freedom of Expression in American History, Professor Michael Kent Curtis documents the political struggles over free speech rights that took place between the ratification of the Bill of Rights in 1791 and the adoption of the Fourteenth Amendment in 1868. Professor Curtis looks to these early free speech fights to help define the contours of contemporary speech rights. In this review, Professor Mark A. Graber discusses Professor Curtis's contribution to constitutional history, and the implications of The People's Darling Privilege for constitutional theorists

Speech, Press, And Democracy, Paul Finkelman

William & Mary Bill of Rights Journal

Professor Michael Kent Curtis's latest book, Free Speech, "The People's Darling Privilege": Struggles for Freedom of Expression in American History, chronicles the efforts of ordinary Americans to protect their right to freedom of expression from 1791-1865. Professor Paul Finkelman reviews this book, focusing primarily on Curtis's discussions of suppression of speech prior to and during the Civil War period and additionally providing some thoughts concerning the appropriateness of revoking free speech rights during times of war.

Bits And Bytes: The Carnivore Initiative And The Search And Seizure Of Electronic Mail, Sandy D. Hellums

William & Mary Bill of Rights Journal

This Note examines the application of Fourth Amendment search and seizure doctrines to the interception of electronic mail within the context of the FBI Carnivore initiative. The author argues that the traditional law of electronic surveillance's understanding of communication is outdated and never contemplated new technologies like Carnivore and their far reaching implications. Consequently, the author argues, that to protect our long-understood expectations of privacy, the search and seizure of electronic documents should be analyzed under the traditional papers analysis. To do so, the Supreme Court would afford the interception electronic documents the highest form of constitutional protect available under …

The Idea Of Public Reason Resuscitated, James P. Madigan

William & Mary Bill of Rights Journal

In this Article, James Madigan examines the role of public reason in a democratic government, including what views should play a role in determining public reason. Madigan criticizes John Rawls for including comprehensive views in constitutional debates, and argues that only reasons grounded in political values should be used when debating constitutional issues and fundamental rights.

The Rhetoric Of Judicial Critique: From Judicial Restraint To The Virtual Bill Of Rights, Michael J. Gerhardt

William & Mary Bill of Rights Journal

Professor Michael Gerhardt traces the rhetoric employed by national leaders and commentators over the past century to describe popular conceptions of the judicial function. In particular, Professor Gerhardt examines the evolution of the terminology used in popular and political rhetoric, revealing their inconsistent application to political ideologies through time. Professor Gerhardt argues that such shifts in usage correspond with transfers of power between the political authorities controlling the central interests at stake in constitutional adjudication. Professor Gerhardt applies the shortcomings of traditional political rhetoric to the issues surrounding technological advancements, concluding that the proper treatment of technology by the Supreme …

The Business Of Expression: Economic Liberty, Political Factions And The Forgotten First Amendment Legacy Of Justice George Sutherland, Samuel R. Olken

William & Mary Bill of Rights Journal

In The Business of Expression: Economic Liberty, Political Factions And The Forgotten First Amendment Legacy of Justice George Sutherland, Samuel Olken traces the dichotomy that emerged in constitutional law in the aftermath of the Lochner era between economic liberty and freedom of expression. During the 1930s, while a deeply divided United States Supreme Court adopted a laissez faire approach to economic regulation, it viewed with great suspicion laws that restricted the manner and content of expression. During this period, Justice George Sutherland often clashed with the majority consistently insisting that state regulation of private economic rights bear a close and …

Ake V. Oklahoma And An Indigent Defendant's 'Right' To An Expert Witness: A Promise Denied Or Imagined?, Carlton Bailey

William & Mary Bill of Rights Journal

Since the Supreme Court's decision in Ake v. Oklahoma, it has attempted to determine and clarify the rights of an indigent defendant. Over the past sixteen years, many questions concerning an indigent defendant's access to expert witnesses have been answered, but many questions still remain. In this article, Professor Carlton Bailey attempts to clarify the Ake decision by arguing that an indigent defendant should be able to secure, upon a proper showing, psychiatric and non-psychiatric assistance at state expense.

The Constitution And The Other Constitution, Michael Kent Curtis

William & Mary Bill of Rights Journal

In this article, Professor Michael Kent Curtis examines how laws that shape the distribution of wealth intersect with and affect popular sovereignty and free speech and press. He presents this discussion in the context of the effect of the Other Constitution on The Constitution. Professor Curtis begins by taking a close-up look at the current campaign finance system and the concentration of media ownership in a few corporate bodies and argues that both affect the way in which various political issues are presented to the public, if at all. Professor Curtis continues by talking about the origins of our constitutional …

Assessing The Legitimacy Of Governmental Regulation Of Modern Speech Aimed At Social Reform: The Importance Of Hindsight And Causation, Kenneth J. Brown

William & Mary Bill of Rights Journal

When governmental regulation or punishment of speech occurs subsequent to the speech itself, such regulation is conducted with the benefit of hindsight. This is important because hindsight enables us to discern whether the expression in question has caused any legally cognizable harm. When speech is responsible for such a harm, its punishment is justfied by this causal connection. Yet conversely, when we know that speech is consequence-free, its ex post punishment is conceptually indefensible. In the first part of this article, Mr. Brown criticizes the imminent lawless action standard articulated in Brandenburg v. Ohio for failing to embrace fully this …

Individualized School Searches And The Fourth Amendment: What's A School District To Do?, Jason E. Yearout

William & Mary Bill of Rights Journal

As high-profile incidents of school violence appear to become more frequent and severe, public perception has deteriorated to the point where many citizens believe that schools are unsafe and administrators lack the power to control student activity. In their efforts to promote a safe learning environment, many school administrators have attempted to create strict guidelines concerning the power of school personnel to prevent illegal and unsafe activity from taking place at school. However, as administrators devise the rules by which to implement these standards, they are given little guidance by the Supreme Court regarding the application of the Fourth Amendment …

The Bush Administration And Appeals Court Nominees, Carl Tobias

William & Mary Bill of Rights Journal

No abstract provided.

The "Blue Slip": Enforcing The Norms Of The Judicial Confirmation Process, Brannon P. Denning

William & Mary Bill of Rights Journal

No abstract provided.

Introduction To The Symposium: The Judicial Process Appointments Process, Carly Van Orman

William & Mary Bill of Rights Journal

No abstract provided.

Comparing Judicial Selection Systems, Lee Epstein, Jack C. Knight, Olga Shvetsova

William & Mary Bill of Rights Journal

No abstract provided.