Reexamining the Government’s Interest in Border Searches of Digital Devices by Charles W. Gibson

The Fourth Amendment requires that searches be reasonable. Courts effectuate this requirement through a balancing analysis, weighing a search’s harm to privacy against the governmental interest it serves. The results of these balancing exercises are then recast as constitutional requirements and exceptions. For example, the requirement that an ordinary search be backed by a warrant … Continue reading Reexamining the Government’s Interest in Border Searches of Digital Devices by Charles W. Gibson

Clarifying and Reframing the “Ministerial Exception” by Tyler B. Lindley

The First Amendment’s Religion Clauses requires an exemption to certain anti-discrimination laws, like the ADA, for certain employees of religious employers. But lower courts disagree about which employees qualify for the so-called “ministerial exception.” This Essay argues that the exception should apply to any employee of a religious group who fills a religious role.

The Unreasonableness of the Citizenship Distinction: Section 412 of the USA PATRIOT Act and Lessons from Abroad by Nino Guruli

The Case of Adham Hassoun and Section 412 of the USA Patriot Act When it was enacted—a mere seven weeks after the attacks of September 11th—the USA PATRIOT Act provided the government with the authority to detain, possibly indefinitely, non-deportable aliens on US soil that the Attorney General had reason to believe were a threat to … Continue reading The Unreasonableness of the Citizenship Distinction: Section 412 of the USA PATRIOT Act and Lessons from Abroad by Nino Guruli

Fifth Circuit Will Reconsider Constitutionality of ICWA’s Race-Based Burdens by Timothy Sandefur

The Fifth Circuit Court of Appeals announced on November 7 that it will rehear a case called Brackeen v. Bernhardt that weighs the constitutionality of the Indian Child Welfare Act (ICWA). Adopted in 1978, ICWA was written in response to concerns that Native American children were being unjustly taken from their parents by social workers … Continue reading Fifth Circuit Will Reconsider Constitutionality of ICWA’s Race-Based Burdens by Timothy Sandefur

Originalism as Faithfulness by Christopher R. Green

Eric Segall’s Originalism as Faith is a quick, easily-digestible summary of the conventional wisdom about the Supreme Court’s relationship to original meaning for large portions of the legal academy. Prominent textbook authors like Deans Erwin Chemerinsky and Geoffrey Stone tout it as “masterful” and “persuasive.” Originalism is false, Segall contends, because its adherents on the … Continue reading Originalism as Faithfulness by Christopher R. Green

Unequal State Sovereignty: Considering the Equal State Sovereignty Principle Through Nineteenth-Century Election Laws by Zachary Newkirk

Introduction The equal state sovereignty principle may be “our historic tradition,” but it is an ill-defined, unexplored, and ambiguous one. In Shelby County v. Holder, the Supreme Court invalidated Section 4(b) of the Voting Rights Act (“VRA”) as a violation of the “fundamental principle of equal sovereignty.” Section 4(b) contained a formula that required some … Continue reading Unequal State Sovereignty: Considering the Equal State Sovereignty Principle Through Nineteenth-Century Election Laws by Zachary Newkirk

What is a Constitutional Right? by Professor Robert Leider

The word “right” may describe different kinds of legal relationships.  Nowhere has the nature of rights become more confused than in the debate over the Second Amendment’s scope. On Friday, November 2, the First Circuit released its opinion in Gould v O’Leary, No. 17-2202, which upheld Boston and Brookline’s denial of licenses to carry firearms … Continue reading What is a Constitutional Right? by Professor Robert Leider