Constitutional Law Commons^™

Less Fisher More Doe: Non-Testimonial Mental Content And A New Rule For Unlocking Digital Devices, Jordan Wallace-Wolf

William & Mary Bill of Rights Journal

Roughly fifteen years ago, courts started to regularly confront a fact pattern that I refer to as the unlocking scenario. In this kind of case, the government seeks evidence on a criminal defendant’s digital device, but it cannot access it due to a sufficiently strong system of password protection or encryption. May the government compel the defendant to unlock the device, or would this compulsion make the defendant “a witness against himself”?

Courts gave different answers to this question right from the start, but their answers have started to diverge even more markedly in recent years, notwithstanding two formative papers …

Free Speech Trapped In Amber: The Rise Of The 'History And Tradition' Test, From Unregulated Guns To Highly Regulated Speech, Matthew D. Bunker, Emily Erickson

William & Mary Bill of Rights Journal

An insidious virus appears poised to invade First Amendment free speech doctrine. “History and tradition,” a deeply flawed variant of originalism, threatens to transform speech law from a rational enterprise, employing tiers of scrutiny to evaluate potential infringements on speech, to a random scavenger hunt through the distant past that could upend numerous vital First Amendment principles.

Traditionalism’s ascendence to the forefront of history-centric constitutional interpretation was heralded in three dramatic cases decided at the end of the U.S. Supreme Court’s October 2021 term. New York State Rifle & Pistol Ass’n v. Bruen elicited particular concern among First Amendment scholars, …

Does Article I Of The Constitution Prohibit The States From Creating Their Own Cryptocurrencies?, Kevin Fontenot

William & Mary Bill of Rights Journal

The market for cryptocurrency (crypto) has exploded in size since the first cryptocurrency, Bitcoin, was created in 2009. As of September 4, 2024, the value of all existing cryptocurrency was $2.02 trillion. On November 14, 2024, this value reached a high of $3.2 trillion, apparently in response to the election of pro-crypto President Donald Trump. Despite the fact that cryptocurrencies have been at the forefront of many high profile scandals, consumers still flock to them. For example, celebrities including Hailey Welch (colloquially known as “Hawk Tuah girl”), Logan Paul, and Jason Derulo have been criticized for allegedly goading consumers into …

Confronting Imitation: Questioning Fair Use After Warhol, Genevieve Stegner-Freitag

William & Mary Bill of Rights Journal

The Constitution’s Intellectual Property Clause (IP Clause) contains a mandated goal of “progress” for copyright. Efforts to address what progress means move between some understanding it to be a specific Enlightenment-oriented term, progress as a forward-moving, Judeo-Christian ideal, to others viewing the term as strictly economic, understanding the goal of copyright is to get as many different products in the market as possible. Defining what progress means in copyright law is a necessary step, as courts are increasingly considering market forces in granting or denying authorial property rights. This Note addresses what progress means, how imitative art factors in, and …

Beyond Equality To Belonging: The Missing Value In Equal Protection Law Involving Education, Danieli Evans

Washington Law Review

Belonging is a fundamental need without which people cannot function optimally. Accordingly, school belonging—students’ perceptions of mattering or feeling cared about, accepted, respected and valued by faculty, staff, and peers—impacts students’ well-being, academic motivation and outcomes.

Equal Protection jurisprudence governing education largely overlooks the value of school belonging. Instead, it centers on a formal conception of equality, or an “anti-classification” principle, which essentially prohibits purposeful discrimination based on a fixed set of suspect traits. This formalistic “anti-classification” approach permits many policies and practices that undermine students’ sense of school belonging and inhibits schools from taking certain measures to foster belonging. …

Clark Memorandum: Spring 2026, J. Reuben Clark Law School, Byu Law School Alumni Association, J. Reuben Clark Law Society

The Clark Memorandum

• Going Forward with Religious Freedom and Nondiscrimination
• Saving Our Democracy
• Contention Is of the Devil; Confrontation Is of God
• Mystery, Faith, and Law

Beyond Precedent: Leveraging Non-Precedential Writings In Pursuit Of Social Justice Advocacy, Marissa C. Meredith

Marquette Benefits and Social Welfare Law Review

The role of law in society is complex and often intersects with evolving societal norms, politics, technology, etc. Despite this complexity, students, especially our current Gen-Z students, enroll in law school, hoping to enact positive change within their communities through the legal system. As noted by recent studies, law students' reasons for attending law school have shifted from a “desire to have a challenging and rewarding career” to a focus on “helping others or uplifting their communit[ies]” and addressing “social justice” issues. With this change in purpose, students' expectations about the education they will receive in law school have shifted, …

Our Eviction Court Clients Need This Treaty: The U.S. Must Finally Ratify The International Covenant On Economic, Social, And Cultural Rights, Fran Quigley

Marquette Benefits and Social Welfare Law Review

Anyone enduring poverty in the U.S. or working with persons enduring poverty–as we do in our law school eviction clinic–is aware that housing, healthcare, food, and sufficient income are essential to human survival and dignity. Yet those basic necessities are not rights guaranteed under U.S. law. Instead, discretionary, underfunded efforts to address economic needs have led to widespread U.S. poverty and a toxic one-step-forward/one-step-backward policy dance, characterized by safety net programs expanding only to be cut when political winds shift.

The U.S. should join nearly every other nation in the world by ratifying the International Covenant on Economic, Social, and …

Keynote: Going Forward After Grants Pass, Joseph W. Mead

William & Mary Law Review

In this keynote, I explain the decision—and the stakes—of City of Grants Pass v. Johnson. In Grants Pass, the Supreme Court held that the Eighth Amendment’s Cruel and Unusual Punishments Clause posed no barrier to cities making it a crime for their homeless residents to sleep outdoors with as little as a blanket, even when those residents have no other option. Grants Pass, Oregon undertook an aggressive campaign to drive unhoused residents out of the city through punitive ordinances that criminalized unavoidable human conduct, such as sleeping with a blanket. The plaintiffs challenged the narrowest version of these …

Grants Pass And The Innocence Limit, Gregory Cui, Emily Clark

William & Mary Law Review

This Article examines City of Grants Pass v. Johnson as an important development in the Supreme Court’s doctrine concerning the Constitution’s “innocence limit.” This limit is a fundamental boundary on the state’s power to punish; it provides that criminal punishment may only apply to that which is morally culpable or blameworthy and thus may not apply to wholly innocent conduct. This principle was famously expressed in Robinson v. California, but this Article identifies a broader network of cases in which the Court has consistently effectuated the innocence limit and intervened against prosecutions of the innocent. This Article observes that …

The Presence And Persistence Of Social Rights In U.S. Constitutional Law, Mila Versteeg, Emily Zackin

William & Mary Law Review

Although the U.S. Constitution is widely described as lacking enforceable social rights, a recent line of cases from the Ninth Circuit recognizes a limited right to shelter. Relying on the Eighth Amendment, the Ninth Circuit held that individuals who lack access to shelter have a limited right to stay on public land with their belongings. The Supreme Court reversed in 2024, portraying the Ninth Circuit’s approach as an anomalous departure from accepted constitutional norms.

This Article argues that the Ninth Circuit’s decisions were not an aberration but instead exemplify a longstanding and globally common mode of social-rights adjudication. The common …

After Grants Pass: The Case For Recentering The Criminal Legal System And Its Constitutional Constraints, Scout Katovich

William & Mary Law Review

In City of Grants Pass v. Johnson, the Supreme Court held that the Eighth Amendment does not prohibit cities from punishing unhoused people for sleeping outside when they have nowhere else to go. While the holding was legally narrow, the Court’s rhetoric framed criminalization as sound policy rather than punishment, obscuring the criminal legal system implications at the heart of the case. Cities responded not to the narrow holding but to the rhetorical message: In the year following the decision, they enacted hundreds of new laws criminalizing homelessness and dramatically intensified enforcement.

This Article argues for the recentering of …

Setting The Stage For Grants Pass (& A Moral Constitutional Reckoning), Sara K. Rankin

William & Mary Law Review

The U.S. Supreme Court’s decision in City of Grants Pass v. Johnson marked a seismic shift in the legal landscape governing homelessness throughout the country. By permitting the criminalization of involuntary acts, such as sleeping or resting in public when no shelter is available, the Court foreclosed constitutional protections under the Eighth Amendment’s Cruel and Unusual Punishments Clause and signaled judicial deference to punitive local policies targeting unhoused people. But Grants Pass was not spontaneous; it was seeded over time. This Article situates Grants Pass within the broader legal and nonlegal contexts that made its outcome possible. Part I explores …

Immigration’S Prejudice Problem, S. Ellie Norton

Nevada Law Journal

With immigration enforcement sharply rising, noncitizens increasingly face deportation with few constitutional protections. Yet many remain at least entitled to a fundamentally fair hearing before an immigration court. Even before the current administration, however, immigration courts had become notorious for systematically violating noncitizens’ due process rights. And while other scholars have suggested broadscale reforms to tackle this problem, statutory and regulatory change has become all but unachievable. This Article offers a new and timely solution: reforming the framework for direct review of immigration court due process violations. In most jurisdictions, noncitizens asserting these violations must prove on appeal not only …

Exception To Abolition: Reforming Prison Labor Through Constitutional And State-Level Change, Caren Abourjeily

Nevada Law Journal

No abstract provided.

All The King’S Lawyers, Rebecca Aviel

Fordham Law Review

No abstract provided.

Unacceptable In Any Era: The Unusual And Unconstitutional Effort To Criminalize Sleeping While Homeless, Joseph W. Mead, Shelby Calambokidis

William & Mary Law Review

Grants Pass, Oregon, effectively made it a crime for some of its homeless residents to sleep—a universal and unavoidable biological necessity. In a 2024 decision, the Supreme Court held that the Eighth Amendment’s Cruel and Unusual Punishments Clause posed no obstacle to this law, but it emphasized that other constitutional provisions could place important limits on how cities treat their homeless residents.

This Article argues that modern laws criminalizing sleeping— especially when no shelter is available—represent an unprecedented and unconstitutional departure from centuries of American legal tradition. Tracing the evolution of vagrancy, poor relief, and settlement laws from the Statute …

Selective Service And The Separation Of Powers, Jeremy K. Kessler

Faculty Scholarship

The legal history of the U.S. military draft is a case study in creative statutory interpretation. Throughout the twentieth century, this interpretive creativity tended both to expand draft registrants’ substantive and procedural rights, and to recalibrate the roles played by Congress, the courts, and various executive branch factions in the governance of tens of millions of young men. Today’s Military Selective Service Act (“MSSA”) reads much like the law that governed the land when the country last went to war with conscripts during the 1950s and 1960s. But between U.S. entry into the Korean War and its withdrawal from Vietnam, …

Discriminatory Effect(S), W. Kerrel Murray

Faculty Scholarship

In constitutional law, “discriminatory effect” often matters. So it’s surprising how often we don’t quite know what it means. That opacity is trans-substantive; it has been a recent pitfall in contexts as diverse as admissions-policy challenges under the Equal Protection Clause, personal-jurisdiction disputes under the “dormant” Commerce Clause, and, under the Free Exercise Clause, requests for exemptions from facially neutral laws.

This Article’s first corrective is a novel typology. Constitutional discriminatory effect is murky, in part, because it has many types; we perceive it in myriad ways across constitutional domains. Comprehending this complexity enhances our understanding of what discriminatory-effect rules …

The History Of Multi-Member Commissions At The Founding, 1789-1840: New Evidence On Independent Agencies, Victoria Frances Nourse

Georgetown Law Faculty Publications and Other Works

The executive removal power figures prominently on the Supreme Court’s current agenda. That agenda is beset, however, by a historical misunderstanding, when it comes to multi-member bodies, which too often are assumed to be modern creatures. This paper provides crucial new historical evidence showing that the Founders, indeed a who’s who list of Founders, approved and even sat on commissions in the Republic’s early years. In some cases, the Founders called these early commissions “independent,” deferred to their judgments as “final,” and demanded that the members be “impartial.” Given the vast discretion given these commissions, these characteristics are best described …