Showing papers in "William and Mary Bill of Rights Journal in 2020"

Democratizing Education Rights

Abstract: If the United States is to reverse its creeping, illiberal descent, generations of youth must emerge from this tribal, post-truth, pandemic-shattered era to mend democracy. Hope for that uncertain future lies in re-engineering how schoolchildren learn democracy—not from a civics textbook but by experiencing it in the classroom. The sad irony is that we still lack a knowledge base, grounded in research, for that type of democratic education. Nearly two and a half centuries into the republic’s existence, our commitment to democratic education is honored more in the breach than in observance. And our uninformed, polarized, and disaffected electorate is no happy coincidence. As calls to “reimagine education” mount in the time of coronavirus, this Article is the first to propose a constitutional remedy—an individualized education plan (IEP)—for all schoolchildren to bring democracy directly to the classroom. This IEPs-for-all remedy animates an affirmative duty long neglected but firmly established in the text, history, and precedents of state constitutions: the duty to educate democratically. This Article is the first to distinguish this duty apart from constitutional obligations of equality and adequacy, contending that the duty to educate democratically guarantees public schooling for and through democracy. Borrowing a process from its namesake in special education law, the IEPs-for-all remedy signals that all education is special by giving students a voice in their own education and teachers more autonomous choices over how to address their students’ needs, capacities, and interests. Such forms of democratic participation can empower teachers to teach and students to learn democracy through experience. Retooled for data collection, the IEP can also amass a knowledge base about educational needs, interventions, and effective instructional practices to inform democratic decision-making—locally at first in the classrooms, schools, districts, and then eventually in the states charged with the constitutional duty to educate democratically.

Dissent, Disagreement and Doctrinal Disarray: Free Expression and the Roberts Court in 2020

Abstract: Using the United States Supreme Court’s 2019 rulings in Manhattan Community Access Corp. v. Halleck, Nieves v. Bartlett, and Iancu v. Brunetti as analytical springboards, this Article explores multiple fractures among the Justices affecting the First Amendment freedoms of speech and press. All three cases involved dissents, with two cases each spawning five opinions. The clefts compound problems witnessed in 2018 with a pair of five-to-four decisions in National Institute of Family and Life Advocates v. Becerra and Janus v. American Federation of State, County, and Municipal Employees. Partisan divides, the Article argues, are only one problem with First Amendment jurisprudence as the Court enters the third decade of the twenty-first century. Other troubles range from vehement disagreement in Nieves about crafting a federal rule impacting both speech and press rights to a split in Brunetti over when and how the Court should save a statute via a narrowing construction. Furthermore, perceived political partisanship separates the Justices today not only on the standard of scrutiny that applies in a case—Becerra and Janus rendered this vivid—but also on a case’s framing and the concomitant selection of precedent to steer the inquiry, as occurred in Halleck. Ultimately, the Article concludes that the rifts render free-expression jurisprudence even more muddled today than in the past. The Justices simply are not operating from the same First Amendment playbook. Worse yet, they function at times—particularly in cases such as Halleck—in a manner that strips away the increasingly thin veneer that personal ideologies are set aside when deciding cases.

Saving the Marketplace from Market Failure: Reorienting Marketplace Theory in the Era of AI Communicators

Abstract: Artificially Intelligent (AI) communicators represent a new type of actor within public discourse. These entities have played influential roles in recent elections in the U.S. and Europe. This Article examines expression rights for AI actors through the lenses provided by the foundational assumptions of the marketplace of ideas theory and existing free-expression-related rationales regarding non-human actors in the U.S. and European legal systems. The Article contends that the fundamental assumptions of the marketplace model must be revised to focus on the flow of information, the development of truth, rather than the more Enlightenment-oriented competition of ideas that leads to the discovery of truth. Such a shift would allow limitations on AI that harm the flow of ideas, but otherwise protect AI expression that contributes to democratic discourse.

Understanding the Spirit of the Constitution on Corruption: Emoluments, Impeachment, and the Primacy of Political Virtue

Abstract: INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 767 I. LEGAL HISTORY OF POLITICAL CORRUPTION . . . . . . . . . . . . . . . . . . . . . . . 769 A. Corruption: A Classical View . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 770 B. Political Corruption at Common Law: From Gifts to Bribery to Impeachment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 771 C. The Framers: Influence of the Classical & Common Law Views . . . . 773 II. THE FRAMERS’ FRAMEWORK: A CORRUPT-FREE EXECUTIVE. . . . . . . . . . . 775 A. The Foreign Emoluments Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 776 B. The Domestic Emoluments Clause. . . . . . . . . . . . . . . . . . . . . . . . . . . . 777 C. The Impeachment Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 778 III. INTERPRETING THE FRAMEWORK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 779 A. The Emoluments Clauses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 779 1. Office of Profit or Trust Under the United States . . . . . . . . . . . . . 780 2. Emoluments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 782 3. Congressional Approval . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 788 B. The Impeachment Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 791 1. Bribery. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 791 2. High Crimes & Misdemeanors . . . . . . . . . . . . . . . . . . . . . . . . . . . 794 IV. APPLYING THE FRAMEWORK: PRIMACY OF POLITICAL VIRTUE AS ALLEGIANCE TO THE LAW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 798 A. Political Virtue. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 798 B. Allegiance to the Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 799 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 800

You Must Present a Valid Form of (Gender) Identification: The Due Process and First Amendment Implications of Tennessee's Birth Certificate Law

Abstract: ly an alleged liberty interest could be defined.” This case concerned a woman who was married to a man, Gerald, and conceived a child with a different man, Michael. While the child was biologically Michael’s, the woman wanted her current husband to act as the child’s father. Michael thereafter argued that he had a Substantive Due Process right to act as the child’s natural father. A plurality of the Court held against Michael H. and framed the right as “the rights of the natural father adulterously conceived” at the most specific level, instead of a right relating to “emotional attachments in general.” The arguments against Justice Scalia’s framework stem from the idea it would be unlikely that any tradition would exist at this level of specificity. As a background of Lawrence v. Texas, it is essential to see how the intimacy right was defined before it overruled Bowers v. Hardwick. Bowers and Lawrence both tackled the right of homosexual sodomy. The Court in Bowers framed the right as just that: a right to homosexual sodomy, which of course was not deeply rooted in tradition. When overruling this case, the Lawrence majority fought against that characterization of the right and went as far as to say “that statement, we now conclude, discloses the Court’s own failure to appreciate the extent of the liberty at stake.” The Court in Lawrence instead framed the right more broadly as the right to engage in “the most private human conduct, sexual behavior, and in the most private of places, the home.” This right, like the others relating to intimacy, can also be seen as supporting an even broader right to bodily integrity and autonomy. While analyzing tradition, the Court did something new—showing evidence of support by looking at emerging global views. Moreover, the majority found that laws against sodomy were general and did not target the gay population until the 1970s. Interestingly, the State’s main interest in this case was morals. While 96 Yoshino, supra note 87, at 154. 97 Michael H., 491 U.S. at 113–14. 98 Id. 99 Id. at 113. 100 Id. at 127–28 n.6. 101 Id. 102 Yoshino, supra note 87, at 156. 103 See Bowers v. Hardwick, 478 U.S. 186, 190 (1986), overruled by Lawrence v. Texas, 539 U.S. 558 (2003). 104 See Lawrence, 539 U.S. at 570; Bowers, 478 U.S. at 190. 105 Bowers, 478 U.S. at 192 (“It is obvious to us that neither of these formulations would extend a fundamental right to homosexuals to engage in acts of consensual sodomy.”). 106 Lawrence, 539 U.S. at 567. 107 Id. 108 See id. at 562 (“Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.”). 109 Id. at 573. 110 Id. at 570. 111 See id. at 571. 2020] YOU MUST PRESENT A VALID FORM OF (GENDER) IDENTIFICATION 1143 the Court did not state a standard of review, it did find that morals are not legitimate interests even under rational basis review. Justice Scalia, in his dissent, on the other hand, believed that interests should be able to be based on morality. 3. Gay Rights and Obergefell The most relevant Substantive Due Process case in recent history is Obergefell v. Hodges. In this seminal case, the Supreme Court ruled in favor of gay marriage. This case is important not just for its broad discussion of liberty interests, but also in that the majority moves away from the traditional history test. Similar to Lawrence, Justice Kennedy focused on notions of individual autonomy. Comparing the case to Lawrence, he stated that “the right to personal choice regarding marriage is inherent in the concept of individual autonomy.” Yoshino, writing about Obergefell, likewise observed that marriage and intimacy as fundamental rights are “exemplary rather than exhaustive.” Moreover, Kennedy took Lawrence and the rights of same-sex couples and extended them further when he wrote: “But while Lawrence confirmed a dimension of freedom that allows individuals to engage in intimate association without criminal liability, it does not follow that freedom stops there. Outlaw to outcast may be a step forward, but it does not achieve the full promise of liberty.” This broad notion of liberty can be imagined to extend to LGBTQ+ (Lesbian, Gay, Bisexual, Transgender, and Queer (or Questioning), Plus) rights in general, not just same-sex marriage. Countering the tradition requirement and again echoing Lawrence, the majority in Obergefell held: “The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights . . . did not presume to know the extent of freedom in all of its dimensions . . . .” As a result of this discussion, Yoshino speculated that “[w]hile tradition remains important in this four-part analysis, it plays a much less rigid role than it [did in earlier cases].” In addition to loosening the reigns on the role that tradition plays in the analysis, the Obergefell Court was also, similarly to Lawrence, looking to emerging ideas. The Court noted that it was not until the end of the twentieth century that homosexuality was no longer thought of as an illness. The Court continued for paragraphs about 112 Id. at 583. 113 See id. at 599 (Scalia, J., dissenting). 114 135 S. Ct. 2584 (2015). 115 See id. 116 Yoshino, supra note 87, at 164. 117 Obergefell, 135 S. Ct. at 2621 (Roberts, J., dissenting). 118 Id. at 2599 (majority opinion). 119 Yoshino, supra note 87, at 166. 120 Obergefell, 135 S. Ct. at 2600. 121 Id. at 2598. 122 Yoshino, supra note 87, at 164. 123 See Obergefell, 135 S. Ct. at 2615 (Roberts, J., dissenting). 124 Id. at 2596 (majority opinion). 1144 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 28:1133 how these ideas have changed and acknowledged state laws and court cases that have been favorable to gay rights. All in all, the Obergefell Court discusses liberty rights with much more generality. It also departed from the rigid tradition test. It is important to note that this opinion is unique in its “double helix” approach of Substantive Due Process and Equal Protection because the Court relied on how the two work together. B. Applying the Fundamental Rights Test to Gender Identity 1. Identifying and Describing the Right If a case on transgender gender markers were to come to the Supreme Court, there are two potential ways it would characterize the right based on precedent. The first, if a majority of the Court were perhaps more in favor of the right, would characterize the right broadly. The second, if the majority were more attuned to Scalia’s framework, would characterize the right narrowly. A broad right would likely be defined as the right to identify as one’s preferred gender, or even more broadly, a right to identity generally. A narrow right would make it clear there is no deeply rooted history for such a specific issue, i.e. the right of transgender individuals to change their gender markers on their birth certificates. Regardless of how the Court frames the right, it will be necessary to see how or if transgender individuals are deeply rooted in history and tradition. 2. Is the Right “Fundamental”? Again, regardless of how the right is characterized, the Court would likely spend a large amount of time on whether the right is deeply rooted in history and tradition. So, how long has the concept of “transgender” been around? Actually, for a very long time. While the term was not yet coined at this point in history, Native American 125 Id. at 2596–97. 126 See Yoshino, supra note 87, at 166. 127 Id. at 164. 128 Obergefell, 135 S. Ct. at 2590 (“The Due Process Clause and the Equal Protection Clause are connected in a profound way. Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always co-extensive, yet each may be instructive as to the meaning and reach of the other.”). 129 Compare Lawrence v. Texas, 539 U.S. 558, 567 (2003) (defining a broad right to marry), with Bowers v. Hardwick, 478 U.S. 186, 195 (1986) (defining a more narrow right to “intimate sexual conduct”). 130 See Lawrence, 539 U.S. at 567. 131 See Bowers, 478 U.S. at 195. 132 See, e.g., Lawrence, 539 U.S. at 568–75 (discussing history and tradition in regards to homosexual individuals). 133 See, e.g., id. 2020] YOU MUST PRESENT A VALID FORM OF (GENDER) IDENTIFICATION 1145 tribes prior to the 1800s did not recognize a strict gender binary as we have today. In fact, “Native Americans have often held intersex, androgynous people, feminine males and masculine females in high respect.” The term used to describe these individuals in modern times is “two-spirits,” but in the past, they were referred to as “berdache.” In the twentieth century, however, “two-spirits” were often forced by European Christians to conform to more traditional gender roles. The lesbian and gay movement in the 1960s allowed for the re-emergence of androgyny within Native American communities which continued into the 1990s. While Native American tribes continued to be an inspiration to movements advocating for same-sex marriage and challenging gender norms, the American Colonies stood in stark contrast. Those who lived as a different gender in the seventeenth and eighteen centuries were usually condemned, and those individuals were even arrested for such behavior. One of the first recorded examples of a transgender individual during the colonial era was Thomas/Thomasine Hall. What happened to Hall in Jamestown is described aptly in Trans Bodies, Trans Selves: Perhaps because it took Hall at his or her word that he or she was bigendered (what we would call intersex today), the court ordered Hall in 1629 to wear both a man’s breeches and a woman’s apron and cap. In a sense, this unique ruling affirmed Hall’s dual nature and subverted traditional gender categories. But by fixing Hall’s gender and denying him or her the freedom to switch between male and female identities, the decision punished Hall and reinforced gender boundaries. In the nineteenth ce

Arbitrary Arbiters: Evaluating the Right to Be Informed of Eligibility for Discretionary Relief in Removal Proceedings

Abstract: In 2007, Emilio Estrada, a lawful permanent resident, “pleaded guilty to possession of a firearm by an unlawful user of a controlled substance.” He was subsequently placed in removal proceedings and deported. While it was possible that Mr. Estrada had an avenue of relief from deportation under section 212(h) of the Immigration and Nationality Act, he was never informed of this possibility—either by the immigration judge (IJ) or his attorneys—despite the fact that the IJ is obligated under federal regulations to “inform the alien of his or her apparent eligibility to apply for any of the benefits enumerated in this chapter,” including “[r]elief from removal.” In a subsequent appeal, Mr. Estrada argued that the failure of his attorneys to inform him of his possible relief under section 212(h) violated his Fifth Amendment due-process rights. To succeed, Mr. Estrada had to show that his deportation proceeding was “fundamentally unfair,” or, in other words, he had to “show both a due process violation emanating from defects in the underlying deportation proceeding and resulting prejudice.” Further, to find a due-process violation, Mr. Estrada would

Not Gill-ty: Challenging and Providing a Workable Alternative to the Supreme Court's Gerrymandering Standing Analysis in Gill v. Whitford

Abstract: In Gill v. Whitford, the Supreme Court denied standing to a group of Wisconsin voters challenging the partisan gerrymander entrenching Republican politicians by “cracking” and “packing” Democratic voters to increase safe Republican seats. In an opinion authored by Chief Justice Roberts, the Court unanimously determined that the voters had not sufficiently shown their votes were diluted by being “packed” or “cracked” in their specific districts. In a concurrence joined by three other members of the Court, Justice Kagan laid out her theory of a First Amendment freedom of association claim that she believes may provide a separate, albeit more attenuated, standing claim. Justice Kagan wrote that “an active member of the Democratic Party in Wisconsin who resides in a district that a partisan gerrymander has left untouched” may not have his vote directly diluted by the gerrymander, “[b]ut if the gerrymander ravaged the party he works to support, then he indeed suffers harm, as do all other involved members of that party.” Per Justice Kagan, this is an associational harm sufficient to create standing to challenge a statewide districting plan, regardless of an individual voter’s “packed” or “cracked” status. Analyzing both the Gill majority opinion and Justice Kagan’s concurrence, this Note argues that the distinction of harms between vote

The Death of Non-Resident Contribution Limit Bans and the Birth of the New Small, Swing State

Abstract: Political engagement across state lines has become a noteworthy development in pivotal federal elections like Maine’s 2020 U.S. Senate race, state-level races, and campaign finance law as a whole. Today, despite various efforts by states to legislate restrictions on out-of-state individual campaign contributions, only Hawaii maintains such laws. In the aftermath of the recent Ninth Circuit ruling in Thompson v. Hebdon and the proliferation of campaign contributions by out-of-state donors in recent federal and state elections, smaller swing states in the United States are at a crossroads. They can remain “separate polities” or continue to transform into “platforms for national political struggle” for out-of-state residents. This article, therefore, seeks to analyze the latest developments in campaign finance laws pertaining to state residency-based limits, especially in swing states. While smaller, swing states may disproportionately impact the national political landscape, the prospect of increased out-of-state fundraising could allow citizens of larger, inelastic states to heavily impact those races and guide the disproportionate influence of citizens in those smaller states through data analysis and a concerted effort.

Gender-Stereotyping Theory, Freedom of Expression, and Identity

Abstract: This Article argues that the expressive components of gender-stereotyping theory serve to delink the equality protections afforded by that theory from fixed and predetermined identity categories in helpful and positive ways. Many have viewed American antidiscrimination law as being normatively grounded in the notion that there are certain identities that, because of their stable and immutable characteristics, deserve equality-based protections. Gender-stereotyping theory can help make the normative case for a more pluralistic understanding of equality, one that is grounded in the need to protect the fluid and multiple ways in which gender is performed or expressed rather than focusing, as American antidiscrimination law has traditionally done, on protecting limited categories of essentialized, fixed, and finite identity categories. In short, gender-stereotyping theory, properly understood, offers a practical way of articulating and implementing a theory of equality that does not depend on the existence of a limited number of privileged identities. A proper understanding of gender-stereotyping theory—one that focuses on how expressive performances of gender and sexuality identities may trigger responses by defendants that are motivated by sex stereotypes—can help antidiscrimination law move away from the notion that plaintiffs must identify according to certain fixed, stable, and predetermined categories in order to succeed in their equality claims. I. GENDER-STEREOTYPING THEORY AND FREE EXPRESSION . . . . . . . . . . . . . 236 II. GENDER-STEREOTYPING THEORY AND IDENTITY CATEGORIES. . . . . . . . . . 245 A. The Non-essentiality of Identity Categories in Gender-Stereotyping Theory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 247 * Distinguished Professor of Law and Judge Frederick Lacey Scholar, Rutgers Law School. I would like to thank Timothy Zick for inviting me to participate in the Symposium and for encouraging participants to think about the intersectionality of constitutional rights. I do not believe I would have written this Article in the way that I did had I not been encouraged by Tim and his impressive body of scholarship to think harder about the intersection of equality and free speech rights. I also would like to thank Jessica Clarke, Katie Eyer, and Sonia Katyal for comments and suggestions that helped me clarify some of my claims. Any factual or analytical errors that may remain are my responsibility alone. This Article is dedicated to David Lopez, Rutgers Law School Co-Dean and former general counsel of the Equal Employment Opportunity Commission, for his decades-long advocacy on behalf of equal opportunities in America’s workplaces.

Preventing Parkland: A Workable Fourth Amendment Standard for Searching Juveniles' Smartphones Amid School Threats in a Post-Parkland World

Abstract: On February 14, 2018, Nikolas Cruz, age nineteen, went to the Marjory Stoneman Douglas High School campus in Parkland, Florida, armed with an AR-15 rifle. He opened fire, killing seventeen students. His unspeakable actions culminated in an attack, which eclipsed the 1999 Columbine High School Massacre to become the deadliest school shooting at a high school in American history. In the immediate months following this still-recent tragedy, schools across the United States were flooded with “copycat” threats of violence. Terroristic threat charges levied against juveniles have likewise skyrocketed. These recent events have resulted in new and burdensome pressures for schools and juveniles alike. In an age in which smart phones and social media are ubiquitous hallmarks of American youth culture, saturating nearly every grade level and socioeconomic stratum, schools must respond to the contemporary and evolving challenge * Emory University School of Law, JD, 2020; Furman University, BA, 2014. I would like to thank Professor Randee J. Waldman for her invaluable direction. More than that, I would like to thank her for her efforts defending indigent juvenile children in Chicago, New York, and Atlanta and the example she sets as a mentor, practitioner, and professor. I might not remember Property, and I might not want to remember Contracts, but I will always remember the Barton Juvenile Defender Clinic. I would also like to thank my loving wife, Katherine Martin Mueller, a brilliant attorney and the sharpest writer I know. Finally, special thanks to the William & Mary Bill of Rights Journal staff for its hard work amid the COVID19 pandemic and corresponding uncertainty. 1 America’s Deadliest Mass Shootings Over Last 2 Years, POLITICO (Aug. 4, 2019, 11:42 AM), https://www.politico.com/story/2019/08/04/deadly-shootings-1445953 [https://perma.cc /KYT9-L9A4]; Elizabeth Chuck et al., 17 Killed in Mass Shooting at High School in Parkland, Florida, NBC NEWS (Feb. 15, 2018, 10:20 AM), https://www.nbcnews.com/news/us-news/po lice-respond-shooting-parkland-florida-high-school-n848101 [https://perma.cc/JYE5-ZP82]. 2 America’s Deadliest Shootings Over Last 2 Years, supra note 1. 3 Id. 4 Tawnell D. Hobbs, Schools Take Zero-Tolerance Approach to Threats After Parkland Shooting, WALL STREET J. (Apr. 22, 2018, 7:00 AM), https://www.wsj.com/articles/schools -take-zero-tolerance-approach-to-threats-after-parkland-shooting-1524394800 [https://perma .cc/XP4K-ZABX]. 5 See id. (indicating there were 350 charges nationwide during the first two months after the Parkland shootings).