Constitutional Law Commons^™

Face Off: Overcoming The Fifth Amendment Conflict Between Cybersecurity And Self-Incrimination, Zachary E. Jacobson

Journal of Law and Health

The Founders included the privilege against self-incrimination in the Constitution to protect individual privacy and ensure a fair judicial process. Courts have failed U.S. citizens by neglecting to protect them from compelled unlocking of biometrically encrypted devices. This inaction has created a loophole that contradicts the framework of the privilege against self-incrimination. To correct this mistake courts should reconsider the trend they have set for the Constitution and the Fifth Amendment and consider adopting a forward-thinking cybersecurity lens to conclude that biometric authentication is testimonial. Courts should consider that biometric encryption is akin to a compelled password entry for the …

Batson V. Kentucky Guidelines And The Use Of Peremptory Challenges In Arkansas Courts: A Case Study, Abigail Lindsey

Political Science Undergraduate Honors Theses

The peremptory challenge is a method by which attorneys can strike a potential juror from the jury pool without a valid reason. With Batson v. Kentucky (1986), the Supreme Court ruled that peremptory challenges cannot be issued on the basis of race, however, there are many problems with the way this precedent has been followed in various states. The goal of this research is to analyze how Arkansas courts implement the Batson precedent. This research also studies whether the way in which Arkansas courts utilize the peremptory challenge creates ideologically imbalanced juries.

Masthead

UC Law Constitutional Quarterly

No abstract provided.

Preserving Constitutional Integrity In The Age Of Cyberwarfare: A Paper Tiger, Or Death By A Thousand Cuts?, Darren Singh

UC Law Constitutional Quarterly

The Constitution is meant to serve as a necessary constraint on unilateral Executive military actions. Today, nation-states and non-state actors can launch devastating cyberattacks on the infrastructure, economy, military, and democratic systems of the United States. These attacks do not fall within the realm of “hostile actions” necessary to constitute war. Cyberattacks from adversaries are best deterred with offensive cyberattacks of our own. The President is the best actor to superintend and direct this active defense. Neither the Constitution nor the War Powers Resolution, however, offer a framework for how the United States may respond to these threats while also …

Superfluous Judicial Activism: The Takings Gloss, Michael Allan Wolf

UF Law Faculty Publications

In the summer of 2021, the Supreme Court released opinions in three Takings Clause cases. The Justices did not focus primarily on the dozen words that compose that Clause. Instead, the Court considered the expansive judicial gloss on those words, the extratextual aspects established by takings opinions over the last 100 years, since the “too far” test introduced by Justice Holmes in Pennsylvania Coal. The “Takings Gloss” is the product of holdings expanding the meaning and reach of the Takings Clause, a tangled web of opinions that have troubled lawyers, judges, and commentators for several decades. With the latest contributions, …

Plaintiff's Problem: Constitutional Concerns With Service Of Process Under Alaska Rule Of Civil Procedure 4(D)(7)-(8), Casey Sawyer

William & Mary Bill of Rights Journal

Rule 4 of Alaska’s Rules of Civil Procedure prescribes how service of process must be completed for a civil lawsuit, much like Rule 4 of the Federal Rules of Civil Procedure. When filing suit against the State of Alaska or one of its agencies or officers, Alaska Civil Rule 4(d)(7)–(8) require that service of process be delivered to multiple locations. The plaintiff will usually have to serve the Attorney General’s office in the district of filing (either Anchorage or Fairbanks) and also must deliver service of process to the Attorney General’s office in Alaska’s capital city of Juneau. If they …

Serious Value, Prurient Appeal, And "Obscene" Books In The Hands Of Children, Todd E. Pettys

William & Mary Bill of Rights Journal

Controversy has erupted across the country concerning sexually explicit books that are available to children in bookstores, schools, and libraries. Many have called for tough enforcement of obscenity laws, with some saying librarians and schoolteachers who distribute certain books to children should face jail time. Using four controversial books as examples, this Article takes today’s book wars as an opportunity to achieve two things. First, the Article explains the narrow circumstances in which the First Amendment permits the government to block the distribution of books to children due to concerns about the books’ prurient appeal. The Article’s second aim is …

Let My People Go, Part Two: The Second Amendment Political Necessity Defense And The Storming Of Capital Hill, Kindaka Sanders

William & Mary Bill of Rights Journal

The Article examines the traditional political necessity defense, extracting elements that are compatible with the Second Amendment and discarding elements that are not. The Article also explores the historical and legal background of the right to rebel and then uses the right to rebel to define the contours of the Second Amendment political necessity defense. Finally, the Article applies the Second Amendment political necessity defense to the storming of the Capitol on January 6, 2020.

Part I of this Article discusses the constitutional basis for the political necessity defense. Part II articulates the political necessity doctrine refined by its Second …

The Fourth Amendment's Constitutional Home, Gerald S. Dickinson

William & Mary Bill of Rights Journal

The home enjoys omnipresent status in American constitutional law. The Bill of Rights, peculiarly, has served as the central refuge for special protections to the home. This constitutional sanctuary has elicited an intriguing textual and doctrinal puzzle. A distinct thread has emerged that runs through the first five amendments delineating the home as a zone where rights emanating from speech, smut, gods, guns, soldiers, searches, sex, and self-incrimination enjoy special protections. However, the thread inexplicably unravels upon arriving at takings. There, the constitutional text omits and the Supreme Court’s doctrine excludes a special zone of safeguards to the home. This …

Attachment Issues: Assessing The Relationship Between Newcomers And The Constitution, Ashley Mantha-Hollands

William & Mary Bill of Rights Journal

Are you attached to the principles of the U.S. Constitution? How do you prove it—do you feel it, or just know it? What role does it play in your daily life as a citizen? Ever since one of the first acts of the U.S. Congress, the Naturalization Act of 1795, applicants for citizenship have been required to demonstrate that they are “attached to the principles of the [C]onstitution of the United States.” This requirement has been at the forefront of fierce debates in U.S. constitutional history and, although it has had limited usage after WWII, it has recently been brought …

Freedom In The Balance: Procedural Due Process Rights And The Burden Of Proof In Detention Hearings In Immigration Removal Proceedings, Colin Brady

William & Mary Bill of Rights Journal

Part I of this Note considers the statutory and regulatory basis for immigration detention. Part II reviews prior cases decided by the Board of Immigration Appeals (BIA) that bear on the question. Part III discusses how the Supreme Court has addressed previous procedural due process concerns within the immigration system and how lower courts have reacted. Part IV lays out how the Supreme Court has conceptualized the constitutional due process rights extended to noncitizens and how that has changed over the years. Part V considers how other categories of individuals are treated with respect to involuntary detention and the burden …

Foreword: Fifty Years Later, An Editor Looks Back, Alan Charles Dell'ario

UC Law Constitutional Quarterly

No abstract provided.

The Imagination Unbound: On The New Anti-Rights Trajectory Of The U.S. Supreme Court, Joshua J. Schroeder

UC Law Constitutional Quarterly

In the summer of 2022, the U.S. Supreme Court overruled an individual right for the first time in Dobbs v. Jackson Women’s Health Org. The Dobbs Court also suggested that several rights-affirming decisions including Loving v. Virginia, Griswold v. Connecticut, and Obergefell v. Hodges should be systematically reviewed to similarly determine their lasting effect, if any. The idea that decades-old precedent should be systematically reviewed by the Court to decide whether it should be overruled under the new Janus v. AFSCME balancing test is uncharted territory.

Using an ad hoc balancing test to systematize the overruling of longstanding decisions is …

A Critical And Historical Analysis Of Ohio’S Post-Millennium Regression To Major-Party Monopoly, Mark R. Brown

UC Law Constitutional Quarterly

No abstract provided.

Misapplication Of Inverse Condemnation Liability: A Legal Analysis Of The Application Of Inverse Condemnation Liability On Electrical Utilities, Nadra Mamou

UC Law Constitutional Quarterly

No abstract provided.

The Constitutionality Of Brain Searches, Wayne Unger

UC Law Constitutional Quarterly

If technology could read your mind and capture your thoughts as storable and processable data, would that frighten you? Recent advancements in brain-computer interfaces will likely make mind-reading a reality, and if it does, it presents the last stand or final frontier in the battle for privacy protections. It is well established that an individual must be able to retreat into their home and be free from government intrusion. But if an individual cannot retreat into their own mind free from government intrusion, then true solitude will become extinct. In a future state where braincomputer interfaces can actively decode an …

Progressive State Constitutionalism, Jorge M. Farinacci-Fernós

Buffalo Law Review

Unlike the U.S. Constitution, many state constitutions are truly modern documents that address important social, economic, and political issues from a progressive perspective. This is due to the combination of several key features, including: socially oriented historical circumstances; democratic creation processes; significant substantive content guided by ideas of social justice; and adequate judicial enforcement that takes into account these crucial normative elements. As a result, these progressive state constitutions can become powerful allies in the search for a transformative constitutionalism in the United States that facilitates the goals of social justice and collective prosperity.

The constitutional processes in California (1880), …

Contradiction Over The Application Of Corporate Liability In Corruption Court Decisions In Indonesia, Budi Suhariyanto, Cecep Mustafa

Indonesia Law Review

This paper presents and critically analyses the application of corporate criminal liability in the decisions of corruption crimes in Indonesia from 1999 to 2019. Of the seven corporate cases that have been prosecuted and convicted in this period. We identify 4 (four) corporate criminal liability models as follows. First, the corporation is accused, prosecuted, and convicted after the management has been convicted through a final and binding decision. Secondly, the corporation is excluded from the indictment but included in the sentencing. Third, the prosecution of corporate crimes negates the criminal liability of its management. Fourth, a portion of corporate criminal …

Examining The Principle Of Ignorantia Facti Excusat, Ignorantia Iuris Non Excusat In The Corruption Case Nizzadro Fabio, Simplexius Asa

Indonesia Law Review

This study was designed as a normative research based on documentary research while the data is analyzed based on the court decisions and is presented in a qualitative descriptive manner, aiming to find out the essential meaning of the teachings of ignorantia facti excusat, ignorantia iuris non excusat, and to knowing the implementation of the principles of ignorantia facti excusat, ignorantia iuris non excusat. This is in the regulations and judicial practice in Indonesia through the views of the judges in decision Number 20/Pid.Sus-TPK/2022/PN. Kpg. The study found three main conclusions, namely first, the principle of ignorantia facti …

Promotion Of Citizenship Through Migration: Taking Into Cognizance The Peculiarities Of Migrant, Uche Nnawulezi, Hilary Nwaechefu

Indonesia Law Review

This study arose out of the growing interest in citizenship issues that have remained an intractable problem in the global migration community. The main objective this study is to examine the realities of global migration which has necessitated expansion on citizenship policies of admission, acquisition of rights, responsibilities, and interest of migrants or residents contained in statutory provisions or frameworks of migrant's country of residence. This is against the backdrop driven by the desire to create stability in the international migration system. It becomes imperative to examined the benefits and protections accorded to migrant in his place of residence which …