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Attachment Issues: Assessing the Relationship Between Newcomers and the Constitution
Get PDFAre you attached to the principles of the U.S. Constitution? How do you prove it—do you feel it, or just know it? What role does it play in your daily life as a citizen? Ever since one of the first acts of the U.S. Congress, the Naturalization Act of 1795, applicants for citizenship have been required to demonstrate that they are “attached to the principles of the [C]onstitution of the United States.” This requirement has been at the forefront of fierce debates in U.S. constitutional history and, although it has had limited usage after WWII, it has recently been brought up again. In 2021, President Biden announced a new bill (Citizenship Act 2021) which if passed by Congress would facilitate the pathway to citizenship for 11 million undocumented migrants that would need to show attachment as part of their naturalization requirements. Attachment requirements have also mushroomed in other liberal democracies, which have had the U.S. model in mind when designing their naturalization procedures. This Article is the first to present a systematic updated legal analysis of the attachment requirement in U.S. constitutional law and citizenship policy from a comparative perspective. The Article tracks the historical roots of the attachment requirement since the American colonies to date, demonstrates the controversies and disputes over its essence, and assesses its underlying theory, purpose, content, and methods. Overall, the Article provides normative insights, comparative lessons, and historical contexts to one of the most fundamental questions of the political community—who belongs, under what conditions, and why
Second Amendment Exceptionalism: Public Expression and Public Carry
Get PDFIn New York State Rifle & Pistol Ass’n v. Bruen, the Supreme Court recognized a right to carry firearms in public places. The scope of that right will depend on where, why, and how governments regulated public carry during the eighteenth and perhaps nineteenth centuries. The Court claimed that its turn to history for determining the scope of Second Amendment rights “accords with” and “comports with” how the Court has interpreted First Amendment rights. This Article examines and rejects that claim, both in general and specifically as it applies to the public exercise of Second Amendment rights. Although Bruen purports to seek interpretive parity, the Court is construing the Second Amendment as an exceptional super-right. Second Amendment doctrines are shaping up to be the mirror opposite of First Amendment public forum and time, place, and manner doctrines. Although governments will retain broad authority to restrict and sometimes ban public expression, they may have very limited authority to restrict or ban public carry. Indeed, if courts apply a rigid historical standard to public carry laws, Americans will have stronger rights to carry firearms in public places than to speak there—an anomalous and astonishing result in a democracy committed to peaceful discourse. Recognizing a public carry super-right will produce dangerous disparities in terms of the scope of fundamental rights, chill public expression, and privilege self-defense over self-government
The Superfluous Rules of Evidence
Get PDFThere are few American legal codifications as successful as the Federal Rules of Evidence. But this success masks the project’s uncertain beginnings. The drafters of the Federal Rules worried that lawmakers would not adopt the new rules and that judges would not follow them. As a result, they included at least thirty rules of evidence that do not, in fact, alter the admissibility of evidence. Instead, these rules: (1) market the rules project, and (2) guide judges away from anticipated errors in applying the (other) nonsuperfluous rules.
Given the superfluous rules’ covert mission, it should not be surprising that the rules’ drafters were not transparent about their nature. Instead, the drafters incorporated these rules so seamlessly into the overall project that their evidentiary insignificance goes largely unnoticed. This Essay pulls back the curtain to reveal the superfluous nature of many of the celebrated rules of evidence. The presence of so many superfluous rules says something interesting about the rules project and sheds light on how the evidence rules should be taught, interpreted, and applied
On Inmates and Friendship
Get PDFThat humanity both cherishes friendship and finds it to be fundamental for its own good should be reason enough to justify its legal protection. Yet, there is a serious deficiency of legal discourse on the rights and liberties of friends in America’s courts. In the absence of such discourse—perhaps partially because of it—friendship as a social institution experiences a lack of legal protection in the United States. Though all friends may be exposed to abuses as a result of deficient safeguards, inmates and their unincarcerated friends suffer with particular severity.
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Part I of this Note will further discuss the nature of friendship for the purpose of showing its personal and legal value, with particular attention paid to Aristotle’s account of friendship in Nicomachean Ethics. Part II will provide background on associational liberties pertaining to friendship protections under the Supreme Court’s ruling in Roberts v. United States Jaycees. Part II will also discuss the divisions between courts on whether Roberts actually extends associational liberty protections to friends and outline a legal argument that could be used in support of friendship protections. Part III will discuss potential legal definitions courts could use in making friendship determinations, arguing that the best definition would be found under judicial determinations using the Leib test. Finally, Part IV will analyze the available visitation and contact protections for friends in the inmate context in and beyond the scope of Overton v. Bazzetta.
This abstract has been taken from the author\u27s introduction
Regulating CO2 Emissions Post-West Virginia v. Environmental Protection Agency
Get PDFIn West Virginia v. Environmental Protection Agency, the Supreme Court expressly adopted the major questions doctrine and used it to invalidate the Clean Power Plan, a rule intended to reduce carbon dioxide emissions from power plants. This opinion has been controversial and has left many commentators concerned that it may hamper the ability of administrative agencies to aggressively and flexibly regulate.
This Article analyzes this opinion and the impact it may have on ongoing efforts to regulate carbon dioxide emissions at the federal level. It then examines economic theory underpinning environmental regulation, developing technologies to reduce carbon dioxide emissions, and how they can be applied under the Clean Air Act. While the major questions doctrine may limit the Environmental Protection Agency’s regulatory flexibility, we argue that existing technological options do exist that allow for aggressive federal carbon dioxide emissions guidelines within the limits of the Supreme Court’s ruling in West Virginia v. Environmental Protection Agency