Showing papers on "Substantive due process published in 2010"

The One and Only Substantive Due Process Clause

Abstract: The nature and scope of the rights protected by the Due Process Clauses of the Fifth and Fourteenth Amendments is one of the most debated topics in all of constitutional law At the core of this debate is the question of whether these Clauses should be understood to protect only “procedural” rights, such as notice and the opportunity for a hearing, or whether the due process guarantee should be understood to encompass certain “substantive” protections as well An important, though little explored assumption shared by participants on both sides of this debate is that the answer to the substantive-due-process question must be the same for both provisions This article questions that assumption by separately examining the historical evidence regarding the original public meaning of the Due Process Clauses of both the Fifth and Fourteenth Amendments with a single question in mind: Did the original meaning of each Clause, at the time of its enactment, encompass a recognizable form of substantive due process‘ At the time of the Fifth Amendment’s ratification in 1791, the phrase “due process of law,” and the closely related phrase “law of the land,” were widely understood to refer primarily to matters relating to judicial procedure with the second phrase having a somewhat broader connotation referring to existing positive law Neither of these meanings was broad enough to encompass something that would today be recognized as “substantive due process” Between 1791 and the Fourteenth Amendment’s enactment in 1868, due process concepts evolved dramatically, both through judicial decisions at the state and federal levels and through the invocation of due-process concepts by both pro-slavery and abolitionist forces in the course of constitutional arguments over the expansion of slavery By 1868, a recognizable form of substantive due process had been embraced by courts in at least 20 of the 37 then-existing states as well as by the United States Supreme Court and by the authors of the leading treatises on constitutional law As a result, my conclusion is that the original meaning of one, and only one, of the two Due Process Clauses – the Due Process Clause of the Fourteenth Amendment – was broad enough to encompass a recognizable form of substantive due process

The One and Only Substantive Due Process Clause

Abstract: The nature and scope of the rights protected by the Due Process Clauses of the Fifth and Fourteenth Amendments is one of the most debated topics in all of constitutional law At the core of this debate is the question of whether these Clauses should be understood to protect only “procedural” rights, such as notice and the opportunity for a hearing, or whether the due process guarantee should be understood to encompass certain “substantive” protections as well An important, though little explored assumption shared by participants on both sides of this debate is that the answer to the substantive-due-process question must be the same for both provisions This article questions that assumption by separately examining the historical evidence regarding the original public meaning of the Due Process Clauses of both the Fifth and Fourteenth Amendments with a single question in mind: Did the original meaning of each Clause, at the time of its enactment, encompass a recognizable form of substantive due process‘ At the time of the Fifth Amendment’s ratification in 1791, the phrase “due process of law,” and the closely related phrase “law of the land,” were widely understood to refer primarily to matters relating to judicial procedure with the second phrase having a somewhat broader connotation referring to existing positive law Neither of these meanings was broad enough to encompass something that would today be recognized as “substantive due process” Between 1791 and the Fourteenth Amendment’s enactment in 1868, due process concepts evolved dramatically, both through judicial decisions at the state and federal levels and through the invocation of due-process concepts by both pro-slavery and abolitionist forces in the course of constitutional arguments over the expansion of slavery By 1868, a recognizable form of substantive due process had been embraced by courts in at least 20 of the 37 then-existing states as well as by the United States Supreme Court and by the authors of the leading treatises on constitutional law As a result, my conclusion is that the original meaning of one, and only one, of the two Due Process Clauses – the Due Process Clause of the Fourteenth Amendment – was broad enough to encompass a recognizable form of substantive due process

Guns, Inc.: Citizens United, McDonald, and the Future of Corporate Constitutional Rights

Abstract: The Supreme Court began its 2009 Term by addressing the constitutional rights of corporations. It ended the Term by addressing the incorporated rights of the Constitution. In Citizens United v. Federal Election Commission, a five-member majority of the Court held that corporations have a First Amendment right to spend their own money on political advocacy. A corporation generally is no different than a natural person when it comes to the First Amendment - at least as it relates to political speech. In McDonald v. City of Chicago, a plurality of the Court held that the Second Amendment to the United States Constitution is incorporated through the Due Process Clause and applies to states and municipalities. Neither the federal government nor states may prevent persons from keeping and bearing arms in their homes for self-defense. Given this new world in both senses of incorporation, the time has come to explore the issue of Second Amendment rights and the corporate form. This Article will offer an analysis of the potential Second Amendment rights of the corporation. And it will, in the process, offer a more systematic critique of corporate constitutional rights in general.

Corporal Punishment in the Public Schools: An Analysis of Federal Constitutional Claims

Abstract: I INTRODUCTION Victims of corporal punishment in public schools have challenged the infliction of their resulting injuries under a variety of constitutional provisions, specifically, the Eighth Amendment, the procedural-due-process clause of the Fourteenth Amendment, the substantive-due-process clause of the Fourteenth Amendment, and the Fourth Amendment. In Ingraham v. Wright, (1) the Supreme Court foreclosed the Eighth Amendment argument and minimized the possibilities for a successful procedural-due-process claim. (2) Yet because the Court denied certiorari of the Ingraham plaintiffs' substantive-due-process claim, (3) later litigants turned to substantive due process for protection against excessive corporal punishment. With no guidance from the Supreme Court, the majority of the circuit courts (4) confronted with these claims determined that excessive corporal punishment can violate substantive due process, but only if the punishment meets an exceptionally high standard. Recently, in several cases challenging excessive corporal punishment, the Seventh and Ninth Circuits strayed from the substantive-due-process framework and evaluated the school officials' conduct under the Fourth Amendment's "reasonableness" standard, which was developed and applied to the public-school setting in New Jersey v. T.L.O. (5) This note will document the deficiencies of a substantive-due-process challenge to excessive corporal punishment and offer support for the emerging Fourth Amendment analysis that may provide litigants with an infrequently received remedy. II FEDERAL CONSTITUTIONAL CLAIMS A. Ingraham, the Eighth Amendment, and Procedural Due Process In 1971, James Ingraham and Roosevelt Andrews, two Florida junior-high-school students, challenged the use of disciplinary corporal punishment in the Dade County public schools. (6) Ingraham was subjected to more than twenty "licks" with a paddle after he was slow to respond to a teacher's instructions. (7) The beating was so severe that he suffered a hematoma and missed several days of school after the incident. Andrews was paddled several times, and, after being struck on his arms, he was unable to use one of his arms for a full week. Their case challenging corporal punishment, Ingraham v. Wright, (8) was ultimately heard by the United States Supreme Court. (9) Noting that the instances of paddling were "exceptionally harsh," (10) the Court nevertheless denied the students' constitutional claims. (11) In response to the plaintiffs' Eighth Amendment challenge, (12) the Court reviewed the Amendment's historical roots and determined that its protection was limited to those convicted of crimes; thus, school children paddled as a means of maintaining discipline could not avail themselves of Eighth Amendment protection. (13) Additionally, the Court held that the procedural safeguards available under Florida common law (14) "considered in light of the openness of the school environment" were sufficient to afford procedural due process." Further procedural safeguards, such as prior notice or a hearing, were not required by the due-process clause because "[s]uch a universal constitutional requirement would significantly burden the use of corporal punishment as a disciplinary measure." (16) Finally, the Court denied certiorari on the issue of "whether or under what circumstances" such punishment of a public-school child could give rise to a substantive-due-process claim. (17) Consequently, the circuit courts were left to resolve this question. B. Substantive Due Process 1. Substantive Due Process and Section 1983 The Due-Process Clause of the Fifth and Fourteenth Amendments provides that neither the United States nor state governments shall deprive any person of "life, liberty, or property, without due process of law." (18) This clause imposes two separate limits on the government: procedural due process and substantive due process. …

The Origins of Due Process in India: The Role of Borrowing in Personal Liberty and Preventive Detention Cases

Abstract: This paper explores the origins of the anomalous development of substantive due process in the Indian Supreme Court in the area of personal liberty and preventive detention cases, given that the framers of the Indian Constitution deliberately chose to omit a due process clause to preclude substantive due process jurisrpudence. It proceeds to examine the important role of judicial "borrowing" in this process, in which justices relied on foreign precedent and legal scholarship, as well as international legal norms, to help overcome constitutional constraints. The paper analyzes personal liberty and preventive detention cases in order to gain a better understanding of the processes by which judges employ borrowing to advance "universalist" (versus particularist) legal norms, and then seeks to generalize from the Indian case by proposing a theoretical approach for understanding how judicial borrowing can be understood as a dynamic process that changes over time in new developing constitutional systems.

Corporate Capacity for Crime and Politics: Defining Corporate Personhood at the Turn of the Twentieth Century

Abstract: Traditional historical accounts of corporate personhood in the early twentieth century portray corporate law as the extension of a doctrinal conflict between the real entity and artificial entity theories of the corporation. Artificial entity theory posited that the corporation was a creature of the state, and could therefore be regulated with impunity. Real entity theory maintained that corporations existed independently of the state, and therefore possessed rights, duties, and morality, as would any natural person. In the traditional narrative, corporate power expanded because real entity theory triumphed over artificial entity theory. This Note rejects that either real entity or artificial entity theory were foundational doctrines in early twentieth century corporate law as applied by American courts, and uses corporate crime and politics as a platform for debunking that myth.After 1905, Congress and state legislatures passed laws banning corporate political expenditures. Around the same time, lawmakers enacted groundbreaking statutes subjecting entire corporations to criminal liability. The American judiciary reacted favorably to both legislative movements, contemporaneously citing elements of artificial entity theory to justify bans against political contributions, and real entity theory to rationalize corporate criminal liability. This suggests that the real entity and artificial entity theories were more instrumental than foundational concepts in the courts.The judiciary, however, was not without doctrinal ballast. It defined corporate personhood and constitutional rights through the property interests entangled in the corporation. Corporate personhood thus emerged in the decades preceding and following the turn of the twentieth century through the substantive due process analysis that characterized much of the Lochner Era jurisprudence. This concept of corporations as repositories of property interests ultimately explains why courts were willing to uphold bans on corporate political contributions and recognize corporate criminal liability.The Note concludes by examining the continued relevance of property interests with regard to corporate personhood in the recent and controversial Citizens United decision. In particular, without directly challenging the First Amendment policies of the present Court, this Note seeks to add historical depth to the debate in Citizens United and demonstrate that affording corporations the right to political expenditures was neither doctrinally mandated nor historically inevitable.

The Origins of Due Process in India: The Role of Borrowing in Personal Liberty and Preventive Detention Cases

Abstract: This paper explores the origins of the anomalous development of substantive due process in the Indian Supreme Court in the area of personal liberty and preventive detention cases, given that the framers of the Indian Constitution deliberately chose to omit a due process clause to preclude substantive due process jurisrpudence. It proceeds to examine the important role of judicial "borrowing" in this process, in which justices relied on foreign precedent and legal scholarship, as well as international legal norms, to help overcome constitutional constraints. The paper analyzes personal liberty and preventive detention cases in order to gain a better understanding of the processes by which judges employ borrowing to advance "universalist" (versus particularist) legal norms, and then seeks to generalize from the Indian case by proposing a theoretical approach for understanding how judicial borrowing can be understood as a dynamic process that changes over time in new developing constitutional systems.

Liberating Copyright: Thinking Beyond Free Speech

Abstract: Scholars have often turned to the First Amendment to limit the scope of ever-expanding copyright law. This approach has mostly failed to convince courts that independent review is merited and has offered little to individuals engaged in personal rather than political or cultural expression. In this Article, I consider the value of an alternative paradigm using the lens of substantive due process and liberty to evaluate users’ rights. A liberty-based approach uses this other developed body of constitutional law to demarcate justifiable personal, identity-based uses of copyrighted works. Uses that are essential for mental integrity, intimacy promotion, communication, or religious practice implicate fundamental rights. In such circumstances the application of copyright law deserves heightened scrutiny. The proposed liberty-based approach shores up arguments that some personal uses should be lawful and suggests that such uses should not be limited to those that are private and not for profit.

Privileges or Immunities

Abstract: What was meant by the Fourteenth Amendment’s Privileges or Immunities Clause? Did it incorporate the U.S. Bill of Rights against the states? Long ignored evidence clearly shows that the Clause was an attempt to resolve a national dispute about the Comity Clause rights of free blacks. In this context, the phrase “the privileges or immunities of citizens of the United States” was a label for Comity Clause rights, and the Fourteenth Amendment used this phrase to make clear that free blacks were entitled to such rights.

The Reconstruction Power

Abstract: This essay argues that modern doctrine has not been faithful to the text, history and structure of the Thirteenth, Fourteenth, and Fifteenth Amendments. These amendments were designed to give Congress broad powers to protect civil rights and civil liberties; together they form Congress’s Reconstruction Power.Congress gave itself broad powers because it believed it could not trust the Supreme Court to protect the rights of the freedmen. The Supreme Court soon realized Congress’s fears, not only limiting the scope of the Reconstruction Amendments but also Congress’s powers to enforce them in decisions like United States v. Cruikshank, 92 U.S. 542 (1875) and the Civil Rights Cases 109 U.S. 3 (1883). Due to these early cases, Congress was often forced to use its Commerce Power to protect civil rights. Modern decisions beginning with City of Boerne v. Flores, 521 U.S. 507 (1997) and United States v. Morrison, 529 U.S. 598 (2000) have compounded these errors.When we strip away these doctrinal glosses and look at the original meaning and structural purposes underlying the Reconstruction amendments, we will discover that the Reconstruction Power gives Congress all the authority it needs to pass modern civil rights laws, including the Civil Rights Act of 1964. That was the original point of these amendments, and that should be their proper construction today.When it enforces the Reconstruction Amendments, Congress is not limited to remedying or preventing state violations of rights. It has long been recognized that Congress may reach private conduct through its Thirteenth Amendment powers to eradicate the badges and incidents of slavery. But Congress also has the power to enforce the 14th Amendment’s Citizenship Clause-- a guarantee of equal citizenship that, like the Thirteenth Amendment, contains no state action requirement. The Citizenship Clause, designed to secure equality of citizenship for freedmen, gives Congress the corresponding power to protect the badges and incidents of citizenship. Congress may therefore ban discriminatory private conduct that it reasonably believes will contribute to or produce second-class citizenship.In addition to its powers to enforce the Citizenship Clause, Congress may also reach private action to prevent interference with federal constitutional rights. In conjunction with its powers to enforce the Guarantee Clause, Congress may therefore reach private violence designed to deter political participation, terrorize political opponents, or undermine representative government.The failure of state and local governments to guarantee equal protection of the laws was a central concern of the framers of the Fourteenth Amendment, and giving Congress the power to remedy this violence was one of the central purposes of the Fourteenth amendment. Today this same power enables Congress to pass laws banning violence directed at women and other federal hate crimes legislation.Finally, because of institutional differences between courts and legislatures, Congress may implement the state action requirement more broadly than courts currently do, for example, by imposing antidiscrimination norms on government contractors and operators of public accommodations. For this reason Title II of the 1964 Civil Rights Act, which bans discrimination in public accommodations, is not only a legitimate exercise of Congress’s power to enforce the Fourteenth Amendment; it is a paradigmatic example of that power.The Supreme Court did not reach these questions in 1964 because it feared that overturning old precedents like the 1883 Civil Rights Cases would encourage Southern resistance to the new Civil Rights Act. But we should have no such compunction today. It is long past time to remedy the Supreme Court’s errors, and reconstruct the great Reconstruction Power of the Constitution.

Judicial Discretion in Constitutional Cases

Abstract: A popular but damaging dichotomy is hindering citizens' ability to talk intelligently and constructively about the constitutional work of the courts. The "legitimacy dichotomy" holds that, when adjudicating constitutional disputes, judges either obey the sovereign people’s determinate constitutional instructions or illegitimately trump the sovereign people’s value judgments with their own. The legitimacy dichotomy leaves little or no room for the possibility that an array of conflicting interpretations of the Constitution might be reasonably available to a judge; it leaves little or no room, in other words, for judicial discretion. This article begins by examining the legitimacy dichotomy from three different vantage points: evidence which suggests that rhetorical invocations of the legitimacy dichotomy mask more complex beliefs about the role of judicial discretion in constitutional adjudication; Justice Kagan’s critique of the now-famous umpire analogy during her confirmation hearing in June 2010; and the debate between Justice Stevens and Justice Scalia in McDonald v. City of Chicago about the extent to which judges may properly exercise their discretion when adjudicating questions of substantive due process. The article then suggests that law schools are inadvertently encouraging at least some of their students to believe that judges’ discretion is almost entirely unconstrained and that judges often behave as democratically illegitimate actors. Finally, in an effort to provide law students and others with an understanding of constitutional adjudication and of constitutional change that is both descriptively accurate and democratically legitimate, the article draws connections between democratic constitutionalism and judicial discretion, and then offers metaphors for explaining that relationship.

Punitive Damages after Philip Morris USA v. Williams

Abstract: Philip Morris USA v. Williams has struck some commentators as hypertechnical, but it is in fact among the Court’s most significant pronouncements on the topic of punitive damages. At its center is the “Nonparty Harm Rule”: it is a violation of due process for a court to permit a jury in a tort case to use punitive damages to punish a defendant for harming persons who are not parties in the litigation. The holding is difficult to understand because the Court simultaneously stated that it is permissible to augment a punitive damages award in light of a defendant’s heightened reprehensibility and it is permissible to infer heightened reprehensibility from the numerosity of the persons injured by defendant’s conduct, including nonparties. It is surprising because it appears to sound more in process, while prior cases have focused on the magnitude of the award. For both of these reasons, it is challenging to lower courts, who must craft jury instructions implementing Williams’ mandate. This article tackles all three problems. At a theoretical level, it utilizes civil recourse theory and my prior theory of punitive damages to explain and justify the nonparty harm rule along with the possibility of augmenting punitives for reprehensibility. At an interpretive level, it conjectures that Chief Justice Roberts and Justice Alito wish to retain the Court’s punitive damages doctrine, but are more attracted to versions of constitutional punitive damages law that are visibly distinct from substantive due process. And at a practical level, it reviews several jurisdictions proposed jury instructions, post-Williams, and identifies those approaches to jury instruction that are most defensible.

Gender Autonomy, Transgender Identity and Substantive Due Process: Finding a Rational Basis for Lawrence V. Texas

Abstract: In a 2001 law review article, I suggested that there is a fundamental right to “gender autonomy” that protects people with transgender and transsexual identity. I grounded this in what was then called the “right to privacy,” an outgrowth of substantive due process. There have been significant developments in the law since then, and many commentators have discussed the possibility of a right to gender autonomy. This article looks to review the work that has been done since that time. It also focuses on how the groundbreaking, but widely misunderstood, 2003 decision in Lawrence v. Texas impacts this right. Lawrence has made it possible to argue successfully that laws and policies impacting gender autonomy are not rationally related to state interests. This would impact gender restrictions such as those found regarding birth certificates, laws requiring or permitting sex segregation in public facilities, employment or sports, restrictions on crossdressing or transition for youth, in divorce custody situations and in prisons, health insurance exclusions, marriage restrictions, and military service laws.

The Ninth Amendment as a Rule of Construction

Abstract: The past two decades have seen a wealth of scholarship addressed to recovering the original meaning of the Ninth Amendment. This scholarship has focused almost exclusively upon identifying the original meaning of the Amendment’s reference to “other[] [rights] retained by the people.” Scholars who have addressed this question have tended to proceed on the assumption that such “other” rights, once properly identified, are entitled to the same level of protection that is accorded to enumerated constitutional rights. This assumption is wrong. This article contends that regardless of the original meaning of the Amendment’s reference to rights “retained by the people,” the Amendment itself does not compel treating such rights as if they were constitutional rights. Rather, the original meaning of the Ninth Amendment does nothing more than state a narrow and precise rule of construction targeted at a specific form of constitutional argument. Recovering the Ninth Amendment’s limited role as a rule of construction serves two important functions. First, renewed attention to the Ninth Amendment as a rule of construction may allow interpreters to more clearly identify constitutional arguments that should be ruled out-of-bounds by the Ninth Amendment’s interpretive command. Second, recognizing the Ninth Amendment’s limited domain may refocus the debate over the constitutional status of “unenumerated” rights on other textual or extra-textual sources. Though the Ninth Amendment’s reference to “other” rights might provide evidentiary support to arguments seeking to ground such rights in some alternative source, the Ninth Amendment itself neither implies the existence of extratextual rights nor provides a sufficient basis for judicial invalidation of duly enacted federal or state law.

Can't Buy a Thrill: Substantive Due Process, Equal Protection, and Criminalizing Sex Toys

Abstract: This Comment explores the split between the Fifth and Eleventh Circuits on the issue of sexual privacy and statutes that ban the sale and distribution of sexual devices. Through a discussion centered around Lawrence v. Texas, the Comment argues that the statutes, although perhaps silly or repugnant, are not unconstitutional as a matter of privacy, substantive due process liberty, equal protection, nor First Amendment sexual expression. In fact, a finding of unconstitutionality could potentially do more harm than good to the greater goals of understanding female sexuality and providing sexual realization and autonomy. Those goals will be best served, as they have been thus far, via legislative means and further scientific research into the role and nature of sex and orgasm in modern relationships.

Is Equality a Totally Empty Idea

Abstract: Comments on Westen article The Empty Idea of Equality. The only way we know what direction to move in making reductions and increases in burdens is to have a concept of equality in mind. The only way we can know that one burden is 'great' and another burden is 'considerably lesser,' to use the words in Westen's standard, is to compare the burdens. But comparison presupposes a measure of equality, for we cannot know that one burden is greater than another unless we first have a concept of when the two burdens are equal. Westen's standard, therefore, is logically posterior to the concept of equality. If we start with the Equal Protection Clause, then a standard such as Westen's, which he attempts to ground in substantive due process, can be given operative content.

Future children as property

Abstract: Between Skinner v. Oklahoma and the advent of modern substantive due process, procreation, at least in the eyes of many courts and commentators, became entrenched as a fundamental, if not absolute, right. And yet ironically, the establishment of this right, often taken as symbolic of personal liberty, has diminished autonomy for those persons inevitably caught on the other end of it--our,future children. Expanding procreative autonomy has diminished public norms that might otherwise ensure that future children are born into circumstances that also expand their autonomy. Instead, the broad, modern, privacy-based version of the right to procreate leaves the matter exclusively and privately to the whims of prospective parents, allowing them to create any number of children in any manner of circumstances. This tends to institutionalize the classification of a group of persons, albeit future persons, who exist morally and legally though not yet physically, as property. It does so because it gives prospective parents exclusive and absolute power over members of the class; power to freely access them, use them, and determine their future relations, and to do so in exclusion of others' power, including the constructive power of the members themselves. This power over future children, which the privacy-based right to procreate vests in prospective parents, is the unmistakable hallmark of one class of persons treating another as property. This article maintains that the most common notion of the right to procreate, the one seemingly derived from constitutional precedent and today taken as largely beyond question, tends to treat future children largely as a class of property, assigned as such to prospective parents. This article also traces the historical development of the right as part of the larger tradition of treating existing children as the property of those who create them. Throughout, this article suggests that the right to procreate so conceived is in tension with an embedded constitutional principle that prohibits one class of persons from treating another as property. This tension, which may be called the "property objection," demands that we change the way we think about the right to procreate. INTRODUCTION Near the middle of the twentieth century, after the Supreme Court had decided both Skinner v. Oklahoma (1) and Buck v. Bell, (2) the nature of the right to procreate--at least as it was protected under the United States Constitution -was relatively undetermined. While Skinner overturned a statute that authorized the involuntary sterilization of convicted felons, it merely distinguished itself from Buck, which fifteen years earlier had upheld a similar statute for "mental defectives." (3) Skinner also made clear that the reason the sterilization statute was unconstitutional was because it, unlike the statute in Buck, conspicuously and arbitrarily exempted "'offenses arising out of the violation of the prohibitory laws, revenue acts, embezzlement, or political offenses'" (4) and because "strict scrutiny of the classification which a State makes in a sterilization law is essential." (5) At that time, with all of the questions Skinner and Buck left unanswered, there was still ample room for the Court to articulate in detail the contours of an unenumerated right to procreate. Today, after decades filled with modern substantive due process jurisprudence establishing the fundamental right not to procreate, (e.g., the right to obtain and use contraception, or to terminate one's pregnancy) it is largely accepted that the right to have or to not have children is part of a broad liberty or privacy-based right, or as Laurence Tribe put it, "whether one person's body shall be the source of another life must be left to that person and that person alone to decide." (6) How did this shift, from the gap left by Skinner and Buck to the comprehensive modern broad notion of the right, come about? …

Incorporating the Supreme Court's Eighth Amendment Framework into Substantive Due Process Jurisprudence Through the Introduction of a Contingent-Based and Legislatively-Driven Constitutional Theory

Abstract: Interpreting the Constitution to “invoke its principles in [our] own search for greater freedom,” is vital to a progressive democracy that seeks to extend liberty, privacy, and autonomy to all of its citizens. It must, however, be done through processes that reflect institutional balance and recognize diverse notions of liberty. The federal and state legislatures are vested with the constitutional authority to make different choices about values, liberty, freedom, and justice. Of course, legislative law-making power is not unfettered, and the Supreme Court stands as an active guardian against arbitrary laws. But "dumb" or "silly" laws are not inherently arbitrary, and decisions by the Court that disregard the distinction between arbitrary state conduct and unwise policy transgress the Court's Article III power.

Liberating Copyright: Thinking beyond Free Speech

Abstract: Scholars have often turned to the First Amendment to limit the scope of ever-expanding copyright law. This approach has mostly failed to convince courts that independent review is merited and has offered little to individuals engaged in personal rather than political or cultural expression. In this Article, I consider the value of an alternative paradigm using the lens of substantive due process and liberty to evaluate users’ rights. A liberty-based approach uses this other developed body of constitutional law to demarcate justifiable personal, identity-based uses of copyrighted works. Uses that are essential for mental integrity, intimacy promotion, communication, or religious practice implicate fundamental rights. In such circumstances, the application of copyright law deserves heightened scrutiny. The proposed libertybased approach shores up arguments that some personal uses should be lawful and suggests that such uses should not be limited to those that are private and not for profit.

Unborn children as constitutional persons.

Abstract: In Roe v. Wade, the state of Texas argued that "the fetus is a 'person' within the language and meaning of the Fourteenth Amendment." To which Justice Harry Blackmun responded, "If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment." However, Justice Blackmun then came to the conclusion "that the word 'person,' as used in the Fourteenth Amendment, does not include the unborn." In this article, it is argued that unborn children are indeed "persons" within the language and meaning of the Fourteenth and Fifth Amendments. As there is no constitutional text explicitly holding unborn children to be, or not to be, "persons," this argument will be based on the "historical understanding and practice, the structure of the Constitution, and thejurisprudence of [the Supreme] Court." Specifically, it is argued that the Constitution does not confer upon the federal government a specifically enumerated power to grant or deny "personhood" under the Fourteenth Amendment. Rather, the power to recognize or deny unborn children as the holders of rights and duties has been historically exercised by the states. The Roe opinion and other Supreme Court cases implicitly recognize this function of state sovereignty. The states did exercise this power and held unborn children to be persons under the property, tort, and criminal law of the several states at the time Roe was decided. As an effect of the unanimity of the states in holding unborn children to be persons under criminal, tort, and property law, the text of the Equal Protection Clause of the Fourteenth Amendment compels federal protection of unborn persons. Furthermore, to the extent Justice Blackmun examined the substantive law in these disciplines, his findings are clearly erroneous and as a whole amount to judicial error. Moreover, as a matter of procedure, according to the due process standards recognized in Fifth Amendment jurisprudence of the Supreme Court, Roe v. Wade should be held null and void as to the rights and interests of unborn persons.

The Virginia Gardasil Law:A Constitutional Analysis of MandatedProtection forSchoolchildren Against the HumanPapillomavirus

Abstract: II. Enforcing Gardasil Vaccinations in Public Schools: To What Extent Can the Government Constitutionally Require Schoolchildren to be Vaccinated with Gardasil? 231 A. Gardasil Vaccination is a Proper Use of Virginia’s Police Power Under the Tenth Amendment 231 B. Gardasil Vaccination Does Not Violate Substantive Due Process Through an Invasion of Bodily Privacy and Unwanted Bodily Intrusion 235 C. Exemptions from Mandated Vaccination and

Can Congress Overturn Kennedy V. Louisiana

Abstract: As recently illustrated in Kennedy v. Louisiana, the Supreme Court regularly interprets the Eighth Amendment based on the perceived existence of "national consensus." Although this practice has been the topic of extensive commentary and criticism, the existing debate has overlooked the most natural implication of the Court's consensus-based argumentation--namely, the possibility that recent Eighth Amendment jurisprudence is subject to federal legislative override. This Article argues from existing case law that Kennedy should be susceptible to democratic correction via countervailing federal legislation. Such legislation would demonstrate that no "national consensus" supports the Court's holding, thereby suggesting that the punishment in question does not actually violate the Eighth Amendment. One might respond that Kennedy would have found a constitutional violation based on the Court's "independent judgment," regardless of whether a supportive national consensus existed. But even assuming that is true, federal legislation could address the concerns that underlie the Court's independent judgment analysis. Either way, Kennedy's contingent reasoning would permit at least some correction by the democratic branches. Exploring these possibilities allows us to better understand and justify recent Eighth Amendment jurisprudence, as well as recent substantive due process cases like Lawrence v. Texas that also look to state and federal practice as sources of constitutional law. Ultimately, though, the most important consequence of appreciating Kennedy's democratic reversibility has more to do with the President than with the professoriate. As a candidate for President, Barack Obama pointedly criticized Kennedy's holding. If this Article is correct, then the President and Congress now have an opportunity to engage the Court in a dialogue regarding the Eighth Amendment" s contemporary practical meaning. INTRODUCTION I. WOULD COUNTERVAILING FEDERAL LEGISLATION SHOW THAT NO CONSENSUS EXISTS? A. Situating Kennedy in Eighth Amendment Jurisprudence B. Legislative Trends and Actually Imposed Sentences C. The Overriding Importance of Federal Legislation D. Justifying Kennedy's Methodology: Take One E. Was Consensus Necessary in Kennedy? F. Conclusion II. HOW MIGHT CONGRESS ADDRESS THE COURT'S INDEPENDENT JUDGMENT? A. Justifying Kennedy's Methodology: Take Two B. Enforcing the Eighth Amendment C. Addressing the Court's Independent Judgment 1. Reasons Within the Judiciary's Expertise 2. Reasons Outside the Judiciary's Expertise: Empirics 3. Reasons Outside the Judiciary's Expertise: Value Judgments D. Conclusion III. WHY CAN'T CONGRESS ALSO OVERTURN LAWRENCE V. TEXAS? A. Early Use of Objective Consensus B. The Eighth Amendment as Substantive Due Process C. Absence of Consensus as a Necessary Condition D. Contingency in Substantive Due Process Case Law E. Conclusion IV. DOES KENNEDY STAND UP TO CRITICISM? A. State-based Efforts to Overturn Kennedy B. Identifying Mechanisms for Reconsideration C. Chilling and Limbering Eighth Amendment Jurisprudence D. Originalism versus Reversible Eighth Amendment Doctrine E. Conclusion CONCLUSION: FIVE WAYS OF READING KENNEDY INTRODUCTION In June 2008, the Supreme Court invalidated a Louisiana statute that made the rape of a child a capital offense. (1) The Court held that "the Eighth Amendment prohibits the death penalty" for child rape offenses that do not entail a victim's actual or intended death. (2) Therefore, the Court held that the Louisiana law "is unconstitutional." (3) When courts invoke the Constitution in this way, their edicts are typically received as final pronouncements. …

In Search of "Laissez-Faire Constitutionalism"

Abstract: This article is a response to Professor Jed Shugerman’s Economic Crisis and the Rise of Judicial Elections and Judicial Review, HARVARD LAW REVIEW (2010). Professor Shugerman argues that the widespread adoption of judicial elections in the 1850’s and the embrace by the first generation of elected judges of countermajoritaran rationales for judicial review helped to effect a transition from the active, industry-building state of the early nineteenth century to the "laissez-faire constitutionalism" of the Lochner era. This response argues that Professor Shugerman overstates the causal relationship between the elected judiciary’s robust constitutional defense of "vested rights" and the iconic, if unrepresentative, "substantive due process" of the late nineteenth and early twentieth centuries. If we are to draw a line of historical causation between the mid-century vested rights decisions and the so-called "laissez-faire constitutionalism" of the Lochner era, it must necessarily run through the watershed historical events of slave emancipation and the industrialization of labor, as well as the transformative constitutional changes set in motion by the Reconstruction amendmnets. To the exent that Lochner-era courts did constitutionalize economic liberty in a manner that warrants the label "laissez-faire constitutionalism," they were inspired less by the "Jacksonian" vested rights jurisprudence that preceded the Civil War than by the constitutional and industrial revolutions that followed it.

Dispatch from the Supreme Court Archives: Vagrancy, Abortion, and What the Links Between Them Reveal about the History of Fundamental Rights

Abstract: This Essay explores the implications for constitutional history of several documents I found in the archives of Supreme Court Justices William O. Douglas, William J. Brennan, Jr., Thurgood Marshall, Potter Stewart, and Harry Blackmun. In particular, I discuss (1) portions of an early draft of Justice Douglas’s opinion in the 1972 vagrancy case of Papachristou v. City of Jacksonville; (2) memoranda from Justices Brennan and Stewart about that opinion; and (3) memoranda between Justices Brennan and Douglas about Roe v. Wade. These documents - which I have reproduced in an appendix - shed new light on several apparently disparate issues in constitutional law: the Supreme Court’s use of void-for-vagueness doctrine; the social and constitutional history of vagrancy law; the possibility and contours of constitutional regulation of substantive criminal law; the relationship between Papachristou and Roe; and the development and conceptualization of substantive due process. These documents invite us to think both more deeply and more broadly about who was engaged in constructing the intellectual framework of modern fundamental rights, about where in the constitution such rights would be located, and about what the contours of such rights would be.

Nonimmigrants, Equal Protection, and the Supremacy Clause

Abstract: I. INTRODUCTION At the intersection of immigration and equal protection lies a judicial vortex. This area of law is a twilight zone of sorts, where established constitutional principles do not follow their regular paths.1 The Equal Protection Clause of the Fourteenth Amendment applies to all who fall within the jurisdiction of a state, including noncitizens.2 Generally, the same equal protection restrictions placed on state laws through the Fourteenth Amendment also restrict federal law through the Due Process Clause of the Fifth Amendment.3 But the Constitution gives Congress exclusive power over immigration, which the Supreme Court has interpreted as a plenary power that is not subject to traditional judicial review.4 Thus, discriminatory laws that would incur rigorous judicial review if passed by state legislatures are given, at most, a rational basis review if passed by Congress.5 Furthermore, laws passed by the states, whether discriminatory or not, are invalid under the Supremacy Clause if they impose upon Congress's exclusive authority to regulate immigration. If Congress expressly grants certain privileges to noncitizens, state laws that revoke those privileges will be preempted. The Supremacy Clause, therefore, is an unwitting companion to the Equal Protection Clause in striking down discriminatory state laws. Courts handling cases of state discrimination against noncitizens typically review the offending state law under both the Equal Protection Clause and the Supremacy Clause. But the courts either evaluate the two clauses separately, as alternative holdings, or they blur the line between the two clauses by using Supremacy Clause justifications to invalidate state laws under the Equal Protection Clause. More disconcerting, however, is that courts differ on the proper equal protection review standard to apply to one particular class of noncitizen: nonimmigrants. How equal protection applies to discriminatory state laws depends on the immigration status of the noncitizen who protests the law - some are given more protection than others. There are three broad classes of noncitizens in the United States: permanent residents, nonimmigrants, and illegal immigrants. Permanent residents are most similar to citizens.6 They are entitled to live in the United States permanently.7 Nonimmigrants enter the country for a variety of reasons and under a variety of conditions, but are generally only here temporarily.8 Illegal immigrants, as the title suggests, are noncitizens who enter or stay in the United States without permission. State laws have discriminated against all three of these classes, but the standard of equal protection review is not always clear. The Supreme Court has held that state laws that discriminate based on "alienage" are subject to strict scrutiny review under the Equal Protection Clause. But the Court has not defined "alienage" and has only applied strict scrutiny when permanent residents challenge discriminatory state laws. With one specific exception, the Court has stated that laws discriminating against illegal immigrants are only subject to a rational basis review. Nonimmigrants, however, do not enjoy a well-defined standard of review. The Supreme Court has avoided the issue, leaving a legal gap that has led to disagreement among lower courts. Some courts argue that laws discriminating against nonimmigrants should only be given a rational basis review because the Supreme Court has applied strict scrutiny only when permanent residents protest discriminatory laws. Other courts, however, argue that these discriminatory laws should be reviewed using strict scrutiny because "alienage" discrimination includes all aliens and general language used by the Supreme Court does not limit that interpretation. This debate, however, frequently ignores the rationale for giving any class heightened equal protection scrutiny. Supreme Court cases have identified characteristics of discrete classes that justify heightened scrutiny, but lower court cases discussing nonimmigrants as a class have brushed over these characteristics. …

Assisted Suicide, Morality, and Law: Why Prohibiting Assisted Suicide Violates the Establishment Clause

Abstract: This Article argues that general prohibitions against assisted suicide violate the Establishment Clause because they support a particular and religiously based moral position. Many laws overlap with religious proscriptions, of course. The conclusion that laws against assisted suicide are unconstitutional because of their religious origin is based on the specific historical context of these laws within our existing culture. Over the course of Western civilization, attitudes about suicide have oscillated from positive approbation in many Greek and Roman sources, to outright and unalterable opposition by Christian writers, to acceptance and limited approval by contemporary secular thinkers and health practitioners. At present, traditional, Christian-based morality and an emerging secular morality centered on the value of self-fulfillment are in conflict within our society, a conflict that probably reflects a slow historical transition from the first to the second. The intense debate about the morality of assisted suicide is one aspect of this conflict. Blanket prohibitions of assisted suicide support one side of this debate, a side that happens to be allied with the Christian religion. Consequently, these laws violate the Establishment Clause. For the past several decades, American policymakers and judges have been grappling with the closely related issues of assisted suicide and euthanasia. These issues gain drama from the permanence of death and terror that accompanies it. They gain poignancy from the fact that unlike capital punishment - another purposeful termination of life - the laws governing assisted suicide and euthanasia potentially affect us all as we head toward the decrepitude that frequently accompanies our final years. Emotion runs high on these subjects, making them unusually difficult to resolve, and the complex imbrications of ethical, metaphysical, and jurisprudential theories that address them seem to add complexity without providing clarity. The injection of these subjects into the congressional debate over the seemingly separate topic of health care reform is only the latest indication of the controversy and confusion that accompanies them.1 This Article is directed to the question of assisted suicide, and specifically to the constitutionality of laws prohibiting that practice. The Supreme Court has addressed the issue several times over the past few decades. In Cruzan v. Director, Missouri Department of Health,2 the Court held that the Due Process Clause provides people with a constitutional right to refuse life-saving medical treatment. But soon thereafter, in Washington v. Glucksberg and Vacco v. Quill, the Court held that neither the Due Process Clause nor the Equal Protection Clause prohibits states from making it a crime to assist a person in committing suicide.3 Most recently, in Gonzales v. Oregon, the Court invalidated a Bush Administration effort to preempt the state of Oregon's Death with Dignity Act, which authorizes physicians to provide lethal drugs to an adult suffering from an incurable disease.4 The Gonzales decision, quite properly, does not address the constitutional issues, since the question that was raised involved the statutory authority of the Attorney General to preempt state law.5 But the majority opinion and the two dissents are clearly written with the awareness that these issues lie just below the legal surface of the case. Thus Gonzales, when viewed in conjunction with the controversy surrounding Terri Schiavo's death,6 the prosecution of Dr. Jack Kevorkian,7 a second state's legalization of assisted suicide by voter initiative,8 and the current health care debate, indicates that the question of assisted suicide is likely to occupy a central place in public discourse for some time.9 The most commonly stated legal rationale for arguing that the Constitution protects people's ability to obtain assistance in ending their lives is the so-called right to die, which is grounded on either substantive due process or the right of privacy, that is, the penumbra of the first eight amendments. …

The First Individual Mandate: What the Uniform Militia Act of 1792 Tells Us about Fifth Amendment Challenges to Healthcare Reform

Abstract: Beginning in 2014, the Patient Protection and Affordable Care Act (PPACA) will require many to purchase a private health insurance policy or pay a monetary fine. Once considered an unprecedented Act of Congress, the debate over this "individual mandate" recently rediscovered a very similar provision in the Uniform Militia Act of 1792 (UMA). The Act made militia service compulsory for every white, able-bodied male citizen between 18 and 45, and required they supply themselves with a field-ready musket and other gear.This paper first establishes historical and legislative context for the Militia Act, then analyzes how the UMA might affect Fifth Amendment-based challenges to healthcare reform. The two mandates are indistinguishable under current Fifth Amendment doctrine, which permits both. The UMA also provides a strong historical argument against the addition of new substantive rights that would prohibit federally-mandated purchases.

The huck finn syndrome in history and theory: the origins of family privacy

Abstract: This article is concerned with understanding the historical and theoretical origins of the concepts of “parents rights” and “family privacy.” Neither is explicitly mentioned in the Constitution, but both concepts were among the earliest substantive due process rights recognized by the Supreme Court in the 1920s. Unlike other substantive due process rights that originated in the Lochner era, such as the right to contract or the right to an occupation, parental and family rights survived well past the New Deal era to the present day. But as Barbara Bennett Woodhouse recognized seventeen years ago, the originating cases of Meyer and Pierce had darker sides to them than previously recognized. Since Woodhouse published her article, we have had more detailed studies of the progressive era, out of which flowed the laws struck down as interfering with parents rights. And more importantly, a heretofore-unpublished memoir of one of Justice McReynolds’s law clerks has been made available. McReynolds authored both Meyer and Pierce, and thus the memoir serves as a unique insight into his views on family life and privacy rights. These new sources confirm Woodhouse’s earlier findings that “parents rights” and “family privacy” originated as reactionary and elitist doctrines. Following this historical examination (and because the constitutional origins are so troubling), the article then examines family privacy from a theoretical perspective to understand whether such a concept can be squared with our liberal and democratic traditions. Specifically, the theories of Hobbes and Locke permit us to fully examine parent-state conflicts with one eye toward the consequences for democracy, and the other directed at the consequences for individual rights. The article ends with some thoughts about the future of the Supreme Court’s unfortunate parents-rights jurisprudence and how abandonment of it might better serve both democracy and liberty.

Multicultural (Mis)understanding

Abstract: From 2005 to 2007, Debbie Almontaser, an Arab-American, led the development of the Khalil Gibran International Academy, a New York City public high school offering classes in Arab language and culture to prepare students for careers in international affairs and diplomacy and to foster multicultural understanding. It is one of several themed schools in New York, including others that specialize, for example, in the arts, social justice, and Chinese. In February 2007, the New York City Department of Education approved the new school and Almontaser as interim acting principal. Criticism immediately ensued, associating the school and Almontaser with radical Islam. On Aug. 3, 2007, an Internet-based group called Stop the Madrasa Coalition issued a press release claiming that Almontaser was connected to t-shirts bearing the words "Intifada NYC" and sold by Arab Women Active in the Arts and Media. Although Almontaser wasn't affiliated with this group, New York Post reporter Chuck Bennett tried to interview her about the organization and its t-shirts. Although she tried to avoid the interview, the department's chief press officer instructed Almontaser to participate, but not to address the t-shirts. Later that day, Bennett interviewed Almontaser by telephone with department press officer Melody Meyer on the line. Almontaser told Bennett that neither she nor the school had any connection to the Arab Women group. When Bennett questioned her about the meaning of the Arabic word "intifada," Almontaser accurately explained that the root of the word means "shaking off." She also said the word has been associated with violence and the Palestinian/Israeli conflict, emphasizing that she would never affiliate herself with an organization that condones violence. Meyer interjected only once during the call to emphasize that Almontaser does not believe in violence. Immediately after the interview, Meyer called Almontaser to tell her that she had done a good job. The next day, the New York Post ran an article titled "City Principal Is 'Revolting.' "It featured a picture of Almontaser with the caption, "Furor: The pro-violence shirt is being defended by Principal Debbie Almontaser (above)." The article reported that "[a]ctivists with ties to the principal of the city's controversial new Arabic-themed school are hawking t-shirts that glorify Palestinian terror" and that Almontaser "downplayed the significance of the t-shirts." The article correctly reported Almontaser's disavowal of violence and her explanation about the root of the word "intifada." But the article incorrectly and misleadingly added the phrase, "and shaking off oppression" to her statement: "I think [the t-shirts are] pretty much an opportunity for girls to express that they are part of New York City society." The New York Post and other media subsequently published stories and letters to the editor characterizing the statements attributed to Almontaser in the article as a defense of violence against Israel. Within days, the Deputy Mayor for Education and Community Development met with Almontaser on behalf of the Department of Education and insisted on her resignation. On Aug. 10, under pressure from department officials, Almontaser issued an apology, which the department had drafted, and resigned as the school's interim acting principal. On Oct. 12, when the department opened the position of permanent principal for the school, Almontaser applied. Two days later, The New York Times reported that the department's chief press officer stated that Almontaser "would not be placed as principal at the school." The office that conducted the first level of review for the position annotated Almontaser's application as not recommended. As a result, it did not go forward to the second round of consideration. Soon thereafter, Almontaser filed suit in federal court, alleging retaliation in violation of her First Amendment rights and infringement of her Fourteenth Amendment right to substantive due process. …