Constitutional Law

Virtual Assembly

John D. Inazu

We value groups for many reasons, but we value them constitutionally—under the First Amendment—because we believe that they help secure self-realization, self-governance, and dissent from majoritarian politics.  Most of us believe the groups that we form (or at least some of them) are for us and not for the state… Read More »

Pleading Guilty to Death: Protecting the Capital Defendant’s Sixth Amendment Right to a Jury Sentencing After Entering a Guilty Plea

Sarah Breslow

On September 23, 2010, Teresa Lewis became the first woman to be executed in Virginia in nearly a century. As individuals at Greensville Correctional Center inserted intravenous lines into Lewis’s arms, she sang hymns. She offered her last words to her stepdaughter: “I love you and I’m very sorry.” Eighteen… Read More »

Demystifying Conceptual Severance: A Comparative Study of the United States, Canada, and the European Court of Human Rights

Angela Chang

When a land-use regulation restricts a landowner’s freedom to use the land, at what point does that regulation overly burden the landowner, such that property has been effectively taken and compensation is due?  Under the Takings Clause of the 5or shall private property be taken for public use, without just… Read More »

Have No Fear (“Of Piling Inference Upon Inference”): How United States v. Comstock Can Save the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act

Margaret K. O'Leary

I. Introduction
In United States v. Comstock, the Supreme Court upheld under the Necessary and Proper Clause Congress’s creation of a post-sentence federal civil-commitment scheme for sexually dangerous individuals in federal custody.  Comstock sparked a number of questions, including what effect the fungible five-consideration test the Court used to uphold the… Read More »

Hidden or on the Hip: The Right(s) to Carry After Heller

James Bishop

The right to carry a loaded firearm—either openly or concealed—has never been more controversial.  The country is still reeling from shootings in Florida and Arizona by gunmen who obtained and carried their weapons in accordance with permissive state laws, and a national debate is raging over self-defense and access to handguns. …READ MORE » Read More »

DNA PROFILES, COMPUTER SEARCHES, AND THE FOURTH AMENDMENT

Catherine W. Kimel

Pursuant to federal statutes and to laws in all fifty states, the United States government has assembled the Combined DNA Index System (CODIS), a database containing DNA profiles of over eleven million citizens. Without judicial authorization, the government searches these profiles one hundred thousand times every day, seeking to link… Read More »

Knowledge is Power: The Fundamental Right to Record Present Observations in Public

Travis Gunn

Americans seeking to record public life often find themselves victims of government suppression. Police have used physical methods to prevent journalists from recording public protest events. Police have trained their guns on unarmed citizens for recording their activities in public. Citizens have been arrested for recording police officers’ public conduct.… Read More »

The Age of Consent: When is Sexting No Longer “Speech Integral to Criminal Activity?”

Antonio M. Haynes

Jane met her boyfriend Jim at a high school football game. Jane was just a few days shy of sixteen at the time, and she and Jim, seventeen, instantly connected. They began dating, and, a few months later but before Jim’s eighteenth birthday, the two had sex together for the… Read More »

  • 21 January 2013

Double Jeopardy as a Limit on Punishment

Carissa Byrne Hessick & F. Andrew Hessick

The Double Jeopardy Clause provides that no “person be subject for the same offense to be twice put in jeopardy of life or limb.” As the Supreme Court has recognized, the Clause protects not only against multiple trials, but also against “multiple punishments for the same offense.” Even so, courts have… Read More »

Intentional Blindness

Ian Haney-López

Interpreting the Fourteenth Amendment’s guarantee of “equal protection,” the Supreme Court applies two basic approaches to charges of racial discrimination. If the challenged action expressly invokes race, the Court employs a colorblindness rule. Absent a direct reference to race, the Court demands proof of a discriminatory purpose under intent doctrine.… Read More »