Constitutional Law Commons^™

Physician-Assisted Suicide: State Legislation Teetering At The Pinnacle Of A Slippery Slope, Eunice Park

William & Mary Bill of Rights Journal

Physician-assisted suicide has become the subject of a hotly contested legal and political debate, both in the United States and abroad. In 1997, the United States Supreme Court rendered two decisions concerning physician-assisted suicide, and two states recently enacted legislation on this issue: Oregon in 1997 and Virginia in 1998. Nevertheless, the legality of physician-assisted suicide remains unclear as doctors, pharmacists, legal commentators, and a growing segment of the general population continue to argue over the line between "letting die" and "killing." This Note analyzes both the constitutional and political aspects of the right-to-die debate, focusing primarily on the political …

The Moral Failure Of The Clear And Present Danger Test, David R. Dow

William & Mary Bill of Rights Journal

The clear and present danger test has been used for almost a century to determine the speech the government may restrain. This test assumes that at some point speech transforms into an act and at that moment the speech becomes punishable. Under the clear and present danger test, the First Amendment does not protect speech that is an incitement to imminent lawless action. Professor Dow suggests that the clear and present danger test protects too little speech. He posits that speech should be protected unless the following three conditions are met: (1) the speaker's specific intent in uttering the words …

Justice Or Injustice For The Poor?: A Look At The Constitutionality Of Congressional Restrictions On Legal Services, J. Dwight Yoder

William & Mary Bill of Rights Journal

Upon enacting the Legal Services Corporation Act in 1974, Congress created the Legal Services Corporation (LSC), which provides federal funding to grantees that perform legal services for low-income individuals. In recent years, Congress has enacted restrictions upon grantees' receipt of such federal funding, limiting the legal services these legal aid attorneys can provide to their clients. This move has sparked great debate. Proponents of the restrictions argue that they are needed to correct abuse and misuse of the legal services program, while opponents argue that the restrictions only harm low-income individuals.

In this Note, the author addresses this controversial issue …

Murder In The Abstract: The First Amendment And The Misappropriation Of Brandenburg, Amy K. Dilworth

William & Mary Bill of Rights Journal

When Paladin Enterprises published Hit Man, a manual about murder for hire, it knew and intended that the book would be used for such a purpose. When James Perry used the information contained in Hit Man to murder three innocent persons, he started a legal debate about the scope of First Amendment protections for books that instruct how to commit criminal acts. Many scholars and commentators indicated that Brandenburg v. Ohio contains the applicable constitutional standard; however, in litigation against Paladin, the survivors of the decedents challenged the conventional wisdom.

This Note examines the Brandenburg test for its applicability to …

Aggravating And Mitigating Factors: The Paradox Of Today's Arbitrary And Mandatory Capital Punishment Scheme, Jeffrey L. Kirchmeier

William & Mary Bill of Rights Journal

Over twenty years ago, the United States Supreme Court held that both mandatory capital sentencing schemes and total discretionary capital sentencing schemes violate the Eighth Amendment. According to Jeffrey Kirchmeier, the "guided discretion" capital sentencing scheme of sentencing factors that has developed, however, has the constitutional problems of both mandatory death penalties and unlimited discretion death penalties.

Justices Scalia, Blackmun, and Thomas have noted that the mandate of unlimited mitigating circumstances has resulted in an arbitrary system. Kirchmeier argues that today's sentencing scheme is arbitrary also because of undefined aggravating factors, unlimited nonstatutory aggravating factors, and victim impact evidence. According …

Board Of County Commissioners V. Umbehr: The Inadequacies Of Extending Pickering Analysis To Government Contractors, Luther D. Tupponce

William & Mary Bill of Rights Journal

This Note challenges the restrictive First Amendment free speech protection that the Supreme Court gave to government contractors in Board of County Commissioners v. Umbehr when it applied the Pickering balancing test, developed nearly thirty years ago in Pickering v. Board of Education in the context of government employees. It does so by first questioning whether the First Amendment free speech protections given to government employees should be similar for government contractors. It then explores whether the Pickering balancing test should be applied to cases involving government contractors as it was in Umbehr.

The author concludes that the Court improperly …

The Narrow And Shallow Bite Of Romer And The Eminent Rationality Of Dual-Gender Marriage: A (Partial) Response To Professor Koppelman, Richard F. Duncan

William & Mary Bill of Rights Journal

In this response to Professor Koppelman, Professor Duncan takes issue with the assertions Koppelman makes in Romer v. Evans and Invidious Intent. Though Duncan agrees with Koppelman's summary of the rule of Romer and the ongoing effects of Bowers v. Hardwick, he rejects Koppelman's claims that laws that discriminate against gays will always be constitutionally doubtful because they disadvantage an unpopular class.

Duncan claims that Koppelman has tried, without success or authority, to fill in the "missing pages" left in Romer by the Supreme Court. Finally, he argues that traditional marriage laws are valid and will survive under Romer and …

Playing Defense, Robert F. Nagel

William & Mary Bill of Rights Journal

Noting that the Romer opinion condemns the motives behind Amendment 2 without pausing even briefly to examine the social context in which it was enacted, Professor Nagel describes the decision as a model of the intolerant impulse in action. He traces this impulse to the Justices' unwillingness to examine their own role--and that of the rest of the constitutional law establishment- in creating the underlying conditions that produced Amendment 2.

In order to identify those conditions, Professor Nagel analyzes the primary document used by Colorado for Family Values during its campaign on behalf of the initiative. He argues that this …

Romer V. Evans And Invidious Intent, Andrew Koppelman

William & Mary Bill of Rights Journal

In this Essay, Professor Koppelman argues that, notwithstanding numerous scholarly claims to the contrary, the Supreme Court's decision in Romer v. Evans was based on the invalidated law's impermissible purpose. Professor Koppelman examines the Court's understanding of the Fourteenth Amendment, and concludes that its current doctrine is designed to ferret out unconstitutional intent. Such impermissible intent, Koppelman argues, was evident in the law challenged in Romer. Nonetheless, Koppelman acknowledges, Romer is a hard case, and its precedential significance is unclear, particularly in light of Bowers v. Hardwick, which upheld the constitutionality of laws against homosexual sodomy. Laws that facially disadvantage …

High Wall Or Lines Of Separation?, James J. Knicely

William & Mary Bill of Rights Journal

The issue of religion and the role it should play in government has long evoked spirited debate. Recently, an argument has been made that the "separation" between religion and politics has played a large factor in what many consider to be our nation's "moral decay. " Such an argument, however, is not new.

In reviewing Religion and Politics in the Early Republic: Jasper Adams and the Church-State Debate, edited by Daniel L. Dreisbach, James Knicely examines the power of elected government to act benevolently toward religion and the moral values associated with it in light of today's social ills. Religion …

The Equal Protection Clause: A Note On The (Non)Relationship Between Romer V. Evans And Hunter V. Erickson, Jay S. Bybee

William & Mary Bill of Rights Journal

In this Article, Professor Bybee uses the debate surrounding Romer v. Evans to reexamine the Supreme Court's decision in Hunter v. Erickson and the principle that a political majority may not restructure the political process to make it more difficult for a political minority to obtain favorable government action. Professor Bybee explains the questionable bases of Hunter and succeeding cases, and then turns to the Romer decision and discusses its incongruity with Hunter. After analyzing the meaning of Romer in light of Hunter and other "equal process" cases, Professor Bybee concludes that although the Court's analysis of Colorado's Amendment 2 …

Justice George Sutherland And Economic Liberty: Constitutional Conservatism And The Problem Of Factions, Samuel R. Olken

William & Mary Bill of Rights Journal

Most scholars have viewed Justice George Sutherland as a conservative jurist who opposed government regulation because of his adherence to laissez-faire economics and Social Darwinism, or because of his devotion to natural rights. In this Article, Professor Olken analyzes these widely held misperceptions of Justice Sutherland's economic liberty jurisprudence, which was based not on socio-economic theory, but on historical experience and common law. Justice Sutherland, consistent with the judicial conservatism of the Lochner era, wanted to protect individual rights from the whims of political factions and changing democratic majorities. The Lochner era differentiation between government regulations enacted for the public …

Nothing And Everything: Race, Romer, And (Gay/Lesbian/Bisexual) Rights, Robert S. Chang, Jerome Mccristal Culp Jr.

William & Mary Bill of Rights Journal

In this Article, Professors Chang and Culp propose that the Supreme Court's decision in Romer v. Evans, viewed by some scholars as a progressive case about gay/lesbian/bisexual rights, has little to do with gay/lesbian/bisexual rights as such. They argue that whatever protection Romer provides to gays, lesbians, and bisexuals is provided not because of *their sexuality but, rather, despite it. The authors demonstrate their thesis by examining the racial underpinnings of the Court's opinion, which begins with Justice Harlan's famous dissent in Plessy v. Ferguson and which relies on a specific vision of color-blindness. This submerged racial jurisprudence provides the …

Exploring The Dark Matter Of Judicial Review: A Constitutional Census Of The 1990s, Seth F. Kreimer

William & Mary Bill of Rights Journal

Most debate about the power of judicial review proceeds as if courts primarily invoke the Constitution against the considered judgment of elected legislatures; most constitutional commentary focuses on confrontations between the United States Supreme Court and state or federal legislatures. In fact, the federal courts most often enforce constitutional norms against administrative agencies and street-level bureaucrats, and the norms are enforced not by the Supreme Court but by the federal trial courts. In this Article, Professor Kreimer surveys this "dark matter" of our constitutional universe.

The Article compares the 292 cases involving constitutional claims decided by the Supreme Court during …

Loyal Lieutenant, Able Advocate: The Role Of Robert H. Jackson In Franklin D Roosevelt's Battle With The Supreme Court, Stephen R. Alton

William & Mary Bill of Rights Journal

Before his appointment to the Supreme Court, Justice Robert H. Jackson played a highly visible role in Franklin D. Roosevelt's failed "court packing plan. " Roosevelt's legislation would have increased the size of the Supreme Court and could have dramatically altered the functioning of our government. Jackson supported the plan from his post as Assistant Attorney General. This Article uses a chronological narrative to examine Jackson's role in Roosevelt's court fight. The Article examines his role in light of the surrounding history and the tension between the backers of the New Deal and the Supreme Court. Jackson's testimony before the …

It Takes A Militia: A Communitarian Case For Compulsory Arms Bearing, Brannon P. Denning, Glenn Harlan Reynolds

William & Mary Bill of Rights Journal

During the last year, both Communitarianism and private militias have received a considerable amount of attention in the popular press and in law reviews; nevertheless, few observers have discussed the similarities between these two seemingly dissimilar movements. In this Essay, the authors demonstrate that Communitarians and militias actually have more in common than it might at first appear. Summarizing the Communitarian agenda, the authors note that Communitarians speak a language that would be readily understood by the Framers, who saw militias as an important vehicle through which civic virtue could be transmitted. The importance the Framers placed upon militias is …

Toward A Religious Minority Voice: A Look At Free Exercise Law Through A Religious Minority Perspective, Samuel J. Levine

William & Mary Bill of Rights Journal

Legal scholars have recently advanced theories emphasizing the importance of perspectives in the law. Perspective scholarship recognizes that laws are necessarily shaped by society's dominant forces, including its biases and preconceptions. Perspective scholars attempt to understand how these forces have shaped our laws, and they suggest changes to accommodate those affected by society's biases.

In this Article, Professor Levine introduces the concept of a religious minority perspective. He develops the concept of a religious minority perspective in the context of several, prominent Free Exercise cases. Professor Levine discusses these cases in his presentation of the central themes of a religious …

A Clash Of Fundamental Rights: Conflicts Between The Fifth And Sixth Amendments In Criminal Trials, Roderick R. Ingram

William & Mary Bill of Rights Journal

The United States Constitution's Fifth and Sixth Amendments protect the rights of criminal defendants and witnesses. The Fifth Amendment's privilege against self-incrimination protects witnesses from forced self-incrimination, and the Sixth Amendment provides criminal defendants with the right to cross-examine prosecution witnesses and to have compulsory process for obtaining witnesses. These fundamental rights conflict when a prosecution witness invokes the Fifth Amendment privilege on cross-examination or when a defense witness invokes the privilege on direct-examination. A grant of either use or transactional immunity would remove the potential for self-incrimination, but courts are split on whether they possess the authority to grant …

Lynching And The Law In Georgia Circa 1931: A Chapter In The Legal Career Of Judge Elbert Tuttle, Anne S. Emanuel

William & Mary Bill of Rights Journal

Elbert Parr Tuttle joined the federal bench in 1954, shortly after the Supreme Court decided Brown v. Board of Education. In 1960, he became the Chief Judge of the United States Court of Appeals for the Fifth Circuit, the court with jurisdiction over most of the deep south. As Chief Judge, he forged a jurisprudence that proved effective in overcoming the intransigence and outright rebellion of those who had long denied fundamental constitutional rights to African Americans.

This Essay traces an episode that occurred in 1931, when Tuttle spearheaded an effort to obtain a fair trial for John Downer, a …

A Constitutional Bibliography, Thomas E. Baker

William & Mary Bill of Rights Journal

No abstract provided.

Tortious Interference: The Limits Of Common Law Liability For Newsgathering, Sandra S. Baron, Hilary Lane, David A. Schulz

William & Mary Bill of Rights Journal

Media lawyers have recently been confronted with a relatively new source of litigation: the tort of intentional interference with contractual relations, which arises out of confidentiality agreements. In this Article, the authors identify the elements of tortious interference with contracts and examine the key issues presented when this tort is applied to newsgathering. The authors then consider a potential defense based on the First Amendment. In light of the public and constitutional interests at stake, the authors conclude that the breach of a confidentiality agreement should not sustain a tortious interference claim when the press is involved in newsgathering activity.

The Juvenile Curfew: Unconstitutional Imprisonment, Tona Trollinger

William & Mary Bill of Rights Journal

Faced with rising crime rates, many municipalities in recent years have enacted juvenile curfews. Professor Tona Trollinger uses an ordinance enacted in Dallas, Texas, as a framework for analyzing juvenile curfews. The author discusses various prudential and constitutional objections to these curfews, including both substantive and procedural due process challenges. The author concludes that the admittedly valid governmental objectives underlying such curfews do not override their constitutional infirmities.

Tainted Sources: First Amendment Rights And Journalistic Wrongs, Robert M. O'Neil

William & Mary Bill of Rights Journal

The issue of news organizations' potential liability for their newsgathering practices has garnered significant attention in several recent cases. Robert M. O'Neil discusses several such cases which have focused on the balance between the First Amendment interests at stake and the improper or possibly illegal manner in which the media obtained its information. The author concludes by suggesting principles to guide in balancing these interests

Media Misbehavior And The Wages Of Sin: The Constitutionality Of Consequential Damages For Publication Of Ill-Gotten Information, John J. Walsh, Steven J. Selby, Jodie L. Schaffer

William & Mary Bill of Rights Journal

Driven by competitive forces and enabled by technological advances such as hidden cameras, the media have become increasingly intrusive in their newsgathering techniques. Claims against the media for unlawful acts such as invasion of privacy, trespass, and fraud highlight the severe tension existing between the rights of the victims of media misconduct and the principles of the First Amendment. The authors contend that by acting unlawfully in their newsgathering, the media forfeit First Amendment protection. They emphasize that the newsworthiness of the information unlawfully obtained by the media should not be considered when determining liability, and conclude that the media …

Freedom To Speak Unintelligibly: The First Amendment Implications Of Government-Controlled Encryption, Jill M. Ryan

William & Mary Bill of Rights Journal

The emergence of the computer has revolutionized communications, allowing quick dissemination of information to large numbers of people. Information transmitted electronically is often safeguarded through a widely available method known as encryption, which renders the information unintelligible to anyone without the ability to decrypt the message. Law enforcement agencies argue that unregulated encryption hinders their ability to prevent crime by providing criminals with a method of communication that cannot be accessed by police departments and government agencies. Proponents of encryption argue that privacy, security, and constitutional concerns outweigh law enforcement's fears, guaranteeing the ability to communicate confidentially.

In 1994, the …

The Substantial Burden Of Municipal Zoning: The Religious Freedom Restoration Act As A Means To Consistent Protection For Church-Sponsored Homeless Shelters And Soup Kitchens, Marc-Olivier Langlois

William & Mary Bill of Rights Journal

Despite the increase in poverty and homelessness in the United States, many municipalities are attempting to use zoning regulations to limit the spread of church-sponsored programs that minister to the poor. Although the Religious Freedom Restoration Act of 1993 (RFRA) suggests that courts should find churchsponsored programs exempt from the burdens of municipal zoning, recent decisions in federal courts demonstrate that church-sponsored homeless shelters and soup kitchens will receive the same inconsistent protection they received under traditional Free Exercise Clause analysis. This Note argues that enforcement of zoning regulations places a substantial burden on church-sponsored programs that minister to the …

The Conflict Between "Fair Housing" And Free Speech, Mary Caroline Lee

William & Mary Bill of Rights Journal

Under the Fair Housing Act and its 1988 amendments, the Department of Housing and Urban Development has the power to investigate alleged discrimination in public housing. The targets of these investigations are often neighborhood organizations and community groups voicing their opposition to the placement of public housing in their neighborhoods. The alleged discrimination can be nothing more than group meetings and the petitioning of local government officials. Mindful that such investigations have sometimes adversely affected the exercise of First Amendment rights, in 1994 HUD issued guidelines for handling fair housing complaints when such rights are at issue.

This Note will …

Vanity And Vexation: Shifting The Focus To Media Conduct, Jane E. Kirtley

William & Mary Bill of Rights Journal

Lawsuits brought by corporations against news organizations during the last few years demonstrate that it is no longer sufficient for the press to get its facts straight. With some industries literally fighting for their lives, a new legal climate has encourage litigation that deflects bad publicity by shifting the focus away from the traditional issue of accuracy to a critical examination of the news media's newsgathering techniques. Concerns about the reaction of courts to unorthodox reporting methods may prompt news organizations to censor themselves, but the author argues that facing the threat of mega-verdicts or contempt citations should be regarded …

The Constitutional Interest In Getting The News: Toward A First Amendment Protection From Tort Liability For Surreptitious Newsgathering, Paul A. Lebel

William & Mary Bill of Rights Journal

No abstract provided.

Association, Advocacy, And The First Amendment, Victor Brudney

William & Mary Bill of Rights Journal

No abstract provided.