University of Pennsylvania journal of constitutional law最新文献

{"title":"The New Fighting Words?: How U.S. Law Hampers the Fight Against Information Warfare","authors":"Jill I. Goldenziel, M. Cheema","doi":"10.2139/SSRN.3286847","DOIUrl":"https://doi.org/10.2139/SSRN.3286847","url":null,"abstract":"The United States prides itself on freedom of speech and information. However, enemy states have weaponized these prized freedoms against the United States. The First Amendment, the Privacy Act, and other U.S. laws designed to protect Americans’ civil liberties paradoxically constrain the United States’ ability to combat information warfare by its enemies. This Article argues that the United States must reform laws and doctrine concerning speech, information, and privacy in order to protect the democratic process and national security. By exploring the example of the Russian threat to the U.S. electoral process, this Article will illustrate how enemy states wield the United States’ own laws against it. It will also explain how justifiable concerns with infringement on civil liberties have hindered the United States’ response. The Article concludes with recommendations on how courts, legislatures, and policymakers should balance First Amendment and privacy rights with national security interests to combat enemy information warfare.","PeriodicalId":90761,"journal":{"name":"University of Pennsylvania journal of constitutional law","volume":"22 1","pages":"81"},"PeriodicalIF":0.0,"publicationDate":"2019-02-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49188544","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Constitutionality of Immigration Sanctuaries and Anti-Sanctuaries: Originalism, Current Doctrine, and a Second-Best Alternative","authors":"N. Lund","doi":"10.2139/SSRN.3302818","DOIUrl":"https://doi.org/10.2139/SSRN.3302818","url":null,"abstract":"The Supreme Court’s immigration jurisprudence is fundamentally misguided, in the sense that it has little basis in the original meaning of the Constitution. In this essay, I will explain why I think so, and what the Court might do to ameliorate the effects of its past mistakes without overruling a raft of settled precedents. \u0000 \u0000Part I analyzes the text of the Constitution, which offers a reasonably clear allocation of authority over immigration between the state and federal governments. The Foreign Commerce Clause empowers Congress to limit the entry of aliens onto American soil, and the Naturalization Clause authorizes Congress to set uniform criteria for admission to American citizenship. Nothing on the face of the Constitution permits Congress to displace the states’ residual authority over aliens, which includes the power to exclude or expel unsuitable persons from their own territory. \u0000 \u0000Part II reviews early debates in Congress about the scope and nature of federal power over immigration. There were important disagreements, some of which resemble today’s policy debates, but Congress generally refrained from going much beyond what the text of the Constitution pretty clearly authorizes. \u0000 \u0000Part III traces the evolution of Supreme Court doctrine. The Court began by rooting federal immigration authority primarily in the Foreign Commerce Clause, where it belongs, but then misinterpreted that Clause. In the late nineteenth century, the Justices made a dramatic and largely unexplained shift to a non-textual theory under which broad federal authority over immigration and aliens is treated as an inherent aspect of American sovereignty. \u0000 \u0000Part IV shows that this doctrinal shift may not have had much practical significance. In non-immigration contexts, the Court eventually interpreted the Commerce Clause itself in a way that gave Congress practically the same far-reaching authority that the inherent power theory bestows in the immigration field. Thus, even if the Court had stuck with the Foreign Commerce Clause as the primary source of federal authority over immigration, the result would likely have been much the same as what the Court has mistakenly put in its place. \u0000 \u0000Part V assumes that the Court is very unlikely to reconsider the well-established inherent power theory. In recent decades, however, the Justices have been experimenting with doctrinal devices designed to put some limits on the almost unlimited Commerce Clause authority that previous cases had mistakenly conferred on Congress. The paper concludes with two examples showing how these limiting doctrines can and should be used to resolve recent controversies in which some states have desired to pursue policy objectives to which federal officials object.","PeriodicalId":90761,"journal":{"name":"University of Pennsylvania journal of constitutional law","volume":"21 1","pages":"991"},"PeriodicalIF":0.0,"publicationDate":"2018-12-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42039597","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Campus Discourse and Democracy: Free Speech Principles Provide Sound Guidance Even after the Tumult of 2017","authors":"Catherine J. Ross","doi":"10.2139/ssrn.3228056","DOIUrl":"https://doi.org/10.2139/ssrn.3228056","url":null,"abstract":"This Article argues that First Amendment doctrine provides a nuanced and adequate framework for responding to contemporary challenges involving the intersection of free speech, protests, outside agitators, and the risk of violence on college campuses. The Article places contemporary events and concerns in the context of classic free speech doctrine—which binds all public colleges and universities and which many privately-run colleges voluntarily commit to respecting. It also analyzes the import of the unique mission of universities as set out in three seminal university reports on freedom of expression that emphasize intellectual freedom, “full freedom of dissent,” and the imperative of protecting views that many find deeply offensive. Using three highly publicized examples of what many regard as the transformation of colleges into political battlegrounds—events in 2017 at the University of California, Berkeley, the Unite the Right rally in Charlottesville, Virginia and Richard Spencer’s talk at the University of Florida—this Article provides taxonomies of how outsiders come to speak at campuses, and how they come to be disinvited or prevented from speaking, along with explanations of what the Speech Clause prohibits and permits. The Article provides constitutional and pragmatic guidance respecting best practices for balancing the need to preserve safety in the face of imminent violence (including the presence of weapons)—which requires a real, proximate risk attributable to the speaker before expression can be silenced—against the requirements of the Speech Clause and the sometimes competing imperatives of respecting dignity and equality for all members of the campus community.","PeriodicalId":90761,"journal":{"name":"University of Pennsylvania journal of constitutional law","volume":"20 1","pages":"787"},"PeriodicalIF":0.0,"publicationDate":"2018-07-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44691408","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Litigating Alternative Facts: School Mandates in the Courts","authors":"Dorit R. Reiss","doi":"10.2139/SSRN.3119970","DOIUrl":"https://doi.org/10.2139/SSRN.3119970","url":null,"abstract":"In June 2015, California's governor signed into law SB277, which removed the personal belief exemption to school immunization requirements, making medical exemptions the only valid way to send an unvaccinated child in the affected categories to school. Naturally, vaccine-hesitant parents opposed the legislation. After their efforts failed in the legislature, they turned to the courts, raising arguments old and new. To date, the five lawsuits opponents filed against the new law failed. This Article explains why courts in the United States, which consistently upheld school immunization requirements, are correct to do so. These requirements are supported by strong policy reasons, since they dramatically reduce the risk of outbreaks of potentially deadly diseases, and fit with our basic principles of state police power, reasonable limits on individual rights, and protecting children. They are also supported by over a hundred years of jurisprudence. Using the opponents' arguments to identify the strongest claims against SB277, the Article explains why those arguments - including claims based in the First Amendment, in parental rights, and in the right to education - cannot stand.","PeriodicalId":90761,"journal":{"name":"University of Pennsylvania journal of constitutional law","volume":"21 1","pages":"207"},"PeriodicalIF":0.0,"publicationDate":"2018-02-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42786279","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Other Half of the Abortion Right","authors":"Thomas B. Colby","doi":"10.2139/SSRN.3269572","DOIUrl":"https://doi.org/10.2139/SSRN.3269572","url":null,"abstract":"Planned Parenthood v. Casey’s undue burden test provides that an abortion regulation will be unconstitutional if it has “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” Although Casey phrased the inquiry as a disjunctive two-pronged test—purpose or effect—courts and commentators alike have essentially ignored half of the test—the purpose prong—altogether. This is perhaps not surprising, given that Casey’s discussion of wrongful purpose was both cursory and seemingly incoherent. Commentators have long been mystified by the fact that Casey simultaneously precludes the states from enacting a law whose “purpose . . . is to place a substantial obstacle in the path of a woman seeking an abortion” and permits the states to enact “regulation[s] aimed at the protection of fetal life,” notwithstanding the fact that it would seem that every abortion restriction is designed to limit access to abortion in order to protect fetal life. Courts cannot build coherent doctrine around an incoherent premise, and they eventually give up trying. But, in an age in which hundreds of abortion restrictions are being enacted nationwide each year—many of which are demonstrably designed to cut back on abortion rights and access to abortion services—it is high time to revitalize the other half of the abortion right. This Article attempts to do just that—to provide a much needed theoretical and doctrinal framework for applying the maligned and too-often-ignored purpose prong of the undue burden test.","PeriodicalId":90761,"journal":{"name":"University of Pennsylvania journal of constitutional law","volume":"20 1","pages":"1043"},"PeriodicalIF":0.0,"publicationDate":"2018-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68580271","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Sanctuary Corporations: Should Liberal Corporations Get Religion?","authors":"Elizabeth Brown, Inara K. Scott","doi":"10.2139/SSRN.3033929","DOIUrl":"https://doi.org/10.2139/SSRN.3033929","url":null,"abstract":"Spurred on by the Trump administration’s aggressive deportation policies and open hostility to immigrants, the “sanctuary” movement has seen rapid growth across a variety of sectors. With a clear religious foundation, churches, synagogues, and individuals associated with the sanctuary movement have pledged to offer housing, support, and assistance to vulnerable individuals at risk for deportation. Some businesses have publicly expressed their support for undocumented people; we now see sanctuary restaurants, sanctuary homes (for domestic workers), and sanctuary unions. But what happens if these businesses run afoul of immigration laws? Can they claim religious freedom as a defense for their actions? Following the logic of Hobby Lobby v. Burwell, we argue that the Religious Freedom Restoration Act (RFRA) could provide a shield for businesses, provided they act out of a sincere religious belief. Given this conclusion, we discuss the expanded role religion has begun to play in business today, and how this may ultimately be a dangerous result for civil society.","PeriodicalId":90761,"journal":{"name":"University of Pennsylvania journal of constitutional law","volume":"20 1","pages":"1101"},"PeriodicalIF":0.0,"publicationDate":"2017-08-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.3033929","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46275909","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Stings and Scams: ‘Fake News,’ the First Amendment, and the New Activist Journalism","authors":"Michael C. Dorf, S. Tarrow","doi":"10.2139/SSRN.2906444","DOIUrl":"https://doi.org/10.2139/SSRN.2906444","url":null,"abstract":"Constitutional law, technological innovations, and the rise of a cultural “right to know” have recently combined to yield “fake news,” as illustrated by an anti-abortion citizen-journalist sting operation that scammed Planned Parenthood. We find that the First Amendment, as construed by the Supreme Court, offers scant protection for activist journalists to go undercover to uncover wrongdoing, while providing substantial protection for the spread of falsehoods. By providing activists the means to reach sympathetic slices of the public, the emergence of social media has returned journalism to its roots in political activism, at the expense of purportedly objective and truthful investigative reporting. But the rise of “truthiness” — that is, falsehoods with the ring of truth, diffused through new forms of communication — threatens the integrity of the media. How to respond to these contradictions is a growing problem for advocates of free speech and liberal values more generally.","PeriodicalId":90761,"journal":{"name":"University of Pennsylvania journal of constitutional law","volume":"20 1","pages":"1"},"PeriodicalIF":0.0,"publicationDate":"2017-03-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2906444","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45269527","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Time, Death, and Retribution","authors":"Chad W. Flanders","doi":"10.2139/SSRN.2754215","DOIUrl":"https://doi.org/10.2139/SSRN.2754215","url":null,"abstract":"The heart of a Lackey claim is that when a death row inmate is kept waiting too long for his execution, this delay can amount to cruel and unusual punishment — either because they delay is itself cruel and unusual, or because the execution on top of the delay is. All Lackey claims brought by death row inmates have failed, but not for want of trying. The usual complaint against Lackey claims is that those who, by their own appeals, delay their execution date cannot turn around and use that delay as an argument against their death sentences. I agree with other scholars that this argument is incorrect. However, even if it is true that prisoner choice cannot make an otherwise unconstitutional sentence constitutional, Lackey claims can — and should — fail if the courts adopt a certain theory of retribution, what I call “intrinsic desert retribution”. Examining that type of retribution, distinguishing it from other retributive theories, and showing how intrinsic desert retribution can refute most Lackey claims, is one of this article’s major contributions. In doing so, it breaks with most of the scholarly literature, which tends to be sympathetic to Lackey claims. But the fact that Lackey claims may survive given a certain theory of retribution does not make that theory something the state may permissibly pursue. And this is the second major contribution of the article: to make the case that retribution may in fact not be a permissible state purpose. In short, Lackey claims do not fail because they are too strong — they fail because they are not strong enough. The Supreme Court has traditionally held that the state may permissibly put someone to death because of retribution. But the Court has also said, in other contexts, that the state may not pursue certain aims. The state cannot promote religion, for one; nor can it adopt policies based solely on “animus” against a certain class of persons. My article suggests that when the state adopts retribution as a goal in capital punishment, and pursues that goal even after years of delay, then retribution starts to look more and more like something that, while it may be morally right, cannot be a goal the state can legitimately pursue.","PeriodicalId":90761,"journal":{"name":"University of Pennsylvania journal of constitutional law","volume":"94 1","pages":"431"},"PeriodicalIF":0.0,"publicationDate":"2016-03-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68291112","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Was Cleburne an Accident","authors":"William D. Araiza","doi":"10.2139/SSRN.2738572","DOIUrl":"https://doi.org/10.2139/SSRN.2738572","url":null,"abstract":"City of Cleburne v. Cleburne Living Center is a seminal case. It marked the last time the Supreme Court performed a serious analysis of whether a group should be denominated a suspect class, and thus receive heightened judicial protection from discrimination. At the same time, its application of a heightened variant of rational basis review, and its conclusion that the challenged government action was based in “irrational prejudice,” has generated three decades of academic and judicial speculation about the conditions under which such heightened rational basis review would or should be performed. Cleburne has also served as a font of the Court’s emerging “animus” doctrine, which has been at least responsible for, among other things, the remarkable string of victories gay rights plaintiffs have won at the Court over the last two decades.And yet, important parts of this consequential case may have been accidents – that is, they may have emerged as consequences not intended by a majority of the justices. Examination of several justices’ papers reveals that the majority originally planned to decide only the suspect class question, and to remand the case to the lower court for application of rational basis review. It was only late in their deliberations – and late in the 1984-85 term – when Justice White, the author of Cleburne, was prevailed upon to add the final substantive section of what became the majority opinion, which performed the rational basis review it had called for, and struck down the government’s action on that basis.Those papers also reveal a late-erupting dispute between Justices White and Powell over whether that rational basis analysis ought to have resulted in a decision striking down the Cleburne ordinances on their face, or merely as applied to the plaintiffs’ particular group home. The resolution of that dispute ostensibly in favor of the latter approach helped create the more stringent, record-based, tone of the majority opinion’s rational basis analysis. Thus, the as-applied nature of the decision – a decision Justice White defended as allowing municipalities more leeway to regulate – helped color the opinion’s tone in a way that has since been interpreted as imposing stricter judicial review.This Article examines the publicly-available justices’ papers to recount their deliberations in Cleburne and to consider what those deliberations tell us, not just about the case, and not just about equal protection, but about constitutional law doctrine and legal doctrine more generally. In addition to revealing and investigating the “accidents” described above, the Article also explains how the phenomena described here can have important impacts on the path of legal doctrine. This is especially true when the text – the opinion – tells a superficially logical but misleading story, as Cleburne does. For these reasons, it is both revealing and important to revisit the scene of Cleburne’s accidents.","PeriodicalId":90761,"journal":{"name":"University of Pennsylvania journal of constitutional law","volume":"19 1","pages":"621"},"PeriodicalIF":0.0,"publicationDate":"2016-02-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68281552","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Originalist Myth of the Unitary Executive","authors":"P. Shane","doi":"10.2139/SSRN.2735094","DOIUrl":"https://doi.org/10.2139/SSRN.2735094","url":null,"abstract":"Both Executive Power Vesting Clauses and clauses equivalent to Article II’s Faithful Execution Clause were prevalent in early state constitutions that nonetheless fractured gubernatorial control over state bureaucracies. Originalist defenders of a unitary executive reading of the federal Constitution nonetheless dismiss the interpretive significance of the pre-1787 state constitutions. These early texts supposedly paid only lip service to separation of powers principles, while presenting the Framers chiefly with examples of government structure to avoid. The core problem with this originalist stance is that state constitutions written in the first decades after 1789 persisted in using the same clauses, now found also in Article II, to describe state governments in which governors continued to lack unitary control. Close study of the state constitutions and state administrative practice under them thus belie any “unitary executive” reading of Article II that purports to be based on “original public meaning.” These findings are also consistent with the early history of federal public administration, which corroborates a common understanding that Article II’s vesting of executive power permitted substantial legislative control over the allocation of decisional authority within the executive branch.","PeriodicalId":90761,"journal":{"name":"University of Pennsylvania journal of constitutional law","volume":"19 1","pages":"323"},"PeriodicalIF":0.0,"publicationDate":"2016-02-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2735094","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68279239","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}