Protests are woven into the history and social fabric of the United States. Whether the topic involves racial inequity, abortion, police brutality, oil and gas pipelines, war, or allegedly stolen elections, Americans will voice their opposition—occasionally, in frightening or destructive ways. Politicians, in turn, have a history of using their lawmaking power to discourage protest by creating crimes like unlawful assembly, riot, civil disorder,...
Constitutional Law
The functional absence of the Assembly Clause in First Amendment law and constitutional discourse fundamentally distorts our analysis of the proper scope of constitutional protection for political assemblies. This Symposium Piece develops a much-needed independent Assembly Clause doctrine. An independent Assembly Clause doctrine would not only be consistent with the text and original understanding of the Founders but also allow for a jurisprudence...
Both emerging claims of constitutionally protected cognitive liberty and expanding state efforts to address alleged psychological harms associated with technology use necessitate deeper thinking about state interests that might be sufficient to justify regulation of constitutionally protected cognitive activity. Drawing from precedent recognizing state interests in other contexts, this Piece suggests a research agenda of five challenging questions...
Freedom of thought has long been revered as a fundamental right, yet its doctrinal contours have remained underdeveloped. Two recent Supreme Court decisions—National Institute of Family and Life Advocates v. Becerra (NIFLA) and 303 Creative LLC v. Elenis—suggest a nascent but expansive free thought jurisprudence, one that increasingly shields religious actors not just from government interference in belief but also compliance...
In constitutional liberties cases, the Supreme Court has tried to reduce balancing, understood loosely to mean determining a right’s contours based on sweeping political-moral considerations, not just text and history. It fears that today’s balancing would displace a balance struck by the Founders. Balancing is indeed problematic—but this campaign to end it is...
Throughout the twentieth century, several states adopted a new type of laws: Anti-Corporate Farming (ACF) laws. These laws generally prohibit corporations from owning farmland or engaging in the business of farming. They were originally intended to “encourage and protect the family farm as a basic economic unit” and “insure it as the most socially desirable mode of agricultural production.” While subject to criticism, these laws generally...
The Supreme Court has adopted divergent interpretations of the Equal Protection Clause as applied to race and redistricting. Vote dilution doctrine requires mapmakers to consider race to ensure that racial minorities are not packed or cracked. Congress, moreover, has embraced vote dilution doctrine in Section 2 of the Voting Rights Act. By contrast, racial gerrymandering doctrine triggers strict scrutiny if mapmakers subordinate traditional redistricting...
From subtle shifts in the procedural mechanics of self-defense doctrine to substantive expansions of justified lethal force, legislatures are delegating larger amounts of “violence work” to the private sphere. These regulatory innovations layer on top of existing rules that broadly authorize private violence—both defensive and offensive—for self-protection and the ostensible maintenance of law and order. Yet such significant authority for...
There are currently over a million people enslaved in the United States. Under threat of horrendous punishment, they cook, clean, and even fight fires. They do this not in the shadow of the law but with the express blessing of the Thirteenth Amendment’s Except Clause, which permits enslavement and involuntary servitude as punishment for a crime.
Despite discussions of this exception in law reviews, news reports, and Netflix documentaries,...
In a historical moment defined by massive economic and political inequality, legal scholars are exploring ways that law can contribute to the project of building a more equal society. Central to this effort is the attempt to design laws that enable the poor and working class to organize and build power with which they can countervail the influence of corporations and the wealthy. Previous work has identified ways in which law can, in fact, enable...