Thirteenth Amendment and the Regulation of Custom

Custom is an underdeveloped concept in Thirteenth Amendment jurisprudence. While a substantial body of work has explored the technical meaning of custom as it applies to § 1983 and, to a lesser extent, Congress’s power to enforce the Fourteenth Amendment, few scholars have offered sustained treatment of custom as a way to understand the meaning and scope of the Thirteenth Amendment. This gap exists despite the fact that Congress specifically identified custom as a subject of regulation when it passed the Civil Rights Act of 1866 and despite the fact that the Thirteenth Amendment operates directly on the behavior of private parties. The fact that the Thirteenth Amendment can be applied to custom has important implications for how the Amendment should be construed. In particular, the concept of custom — especially as it relates to practices that upheld the slave system in the South — helps give shape and content to the other undefined terms the Thirteenth Amendment has generated: the “badges,” “incidents,” and “relics” of slavery. Ultimately, the concept of custom can help guide policymakers and judges who must consider the scope, the limitations, and the continuing relevance of the Thirteenth Amendment in the twenty-first century

Algorithms and Speech

One of the central questions in free speech jurisprudence is what activities the First Amendment encompasses. This Article considers that question in the context of an area of increasing importance – algorithm-based decisions. I begin by looking to broadly accepted legal sources, which for the First Amendment means primarily Supreme Court jurisprudence. That jurisprudence provides for very broad First Amendment coverage, and the Court has reinforced that breadth in recent cases. Under the Court’s jurisprudence the First Amendment (and the heightened scrutiny it entails) would apply to many algorithm-based decisions, specifically those entailing substantive communications. We could of course adopt a limiting conception of the First Amendment, but any nonarbitrary exclusion of algorithm-based decisions would require major changes in the Court’s jurisprudence. I believe that First Amendment coverage of algorithm-based decisions is too small a step to justify such changes. But insofar as we are concerned about the expansiveness of First Amendment coverage, we may want to limit it in two areas of genuine uncertainty: editorial decisions that are neither obvious nor communicated to the reader, and laws that single out speakers but do not regulate their speech. Even with those limitations, however, an enormous and growing amount of activity will be subject to heightened scrutiny absent a fundamental reorientation of First Amendment jurisprudence

The Right of the People : Reconciling Collective and Individual Interests Under the Fourth Amendment

Professor Doernberg examines a tension within fourth amendment jurisprudence and sugqests a means of resolving it. On the one hand, the Supreme Court has conferred fourth amendment standing only upon those whose personal privacy interests have been disturbed. On the other hand, the Court has allowed such persons to invoke the exclusionary rule only in circumstances where, in the Court\u27s view, it would serve as an effective deterrent. Professor Doernberg traces these two po1icies to different conceptions of the fourth amendment: the first interprets the amendment as a guarantor of individual rights; the second construes it as an instrument for securing a collective right. He then shows how the Court, by oscillating between these two conceptions, has eroded fourth amendment protections more severely than it could have done under either conception. The author suggests that the atomistic and collectice views of the fourth amendment be harmonized and sets forth a view of the proper scope of standing to invoke the exclusionary remedy under a dualistic conception of fourth amendment rights

Do bans help modern public health?

A century ago, the 18th Amendment to the United States Constitution went into effect, banning the “manufacture, sale, or transportation of intoxicating liquors.” Fourteen years after its ratification, the 18th Amendment was repealed by the 21st Amendment. What did Prohibition teach us about banning hazardous products like alcohol, tobacco, or e-cigarettes

The Sleeper Wakes: The History and Legacy of the Twenty-Seventh Amendment

No provision of the United States Constitution has a more drawn-out, tortured history than the Twenty-seventh Amendment, which was ratified more than two centuries after Representative James Madison introduced it in the First Congress. In this Article; Professor Bernstein traces the Amendment\u27s origins to the legislative political culture of the late eighteenth century, as influenced by the controversy over ratifying the Constitution. He then examines the perennial controversies over congressional compensation in American historiy elucidating how in the 1980s and 1990s public anger at Congress reached critical mass sufficient to propel the 1789 compensation amendment into the Constitution. Finally, this Article demonstrates that the adoption of the Amendment has consequences beyond its effects on congressional compensation-both for the unresolved issues of the Article V amending process and for the practice of amendment politics

Constitutional Law: Circuit Court Determines a Relationship Between First and Fifth Amendments in Context of Organizational Disclosure

Negating the Communist Party\u27s statutory obligation to disclose information inculpatory to its members on the basis of the fifth amendment privilege against self-incrimination, the Court of Appeals for the District of Columbia Circuit adopted a theory of fifth amendment applicability for first amendment groups. An examination of fifth amendment policies supporting this result provides a rationale for granting protection against compelled self-incrimination to all individuals in organizational roles

The Corwin Amendment: The Last Last-Minute Attempt to Save the Union

At around 5:20AM on March 4, 1861—Inauguration Day—the Senate voted 24-12 to pass a proposed amendment to the Constitution that would permanently preserve slavery in the states where it currently existed. If successfully ratified, it would become the 13th Amendment to the United States Constitution—and hopefully avert the secession crisis and the impending Civil War. However, only six states had ratified the amendment by early 1862, and the amendment died soon after. The last attempt to stop the Civil War, an attempt which had been in the works since shortly after the presidential election, had failed

Two Conceptions of the Ninth Amendment

The Ninth Amendment has been largely ignored by the Supreme Court of the United States. Because the Ninth Amendment is unquestionably a part of our written Constitution, ignoring it would not have been possible without some theory that renders it without any function. This paper will first examine this theory, which is based on what the author calls the rights-powers conception of constitutional rights, a conception of constitutional rights that is applied only to the Ninth Amendment. Then he describes an alternative to this view of the Ninth Amendment, one that is based on what I call the power-constraint conception of constitutional rights, the conception that we normally use with constitutional rights., Lastly the author briefly addresses the topic of this part of the Symposium: The Ninth Amendment and its Relationship to Natural Rights

From Theory to Doctrine: An Empirical Analysis of the Right to Keep and Bear Arms After Heller

As a matter of constitutional doctrine, the right to keep and bear arms is coming of age. But although the doctrine has begun to mature in the decade since District of Columbia v. Heller , scholars, advocates, and judges disagree about (and sometimes simply do not know) how to characterize it. This Article is the first comprehensive empirical analysis of post- Heller Second Amendment doctrine. Beginning with a set of more than one thousand Second Amendment challenges, we have coded every available Second Amendment opinion—state and federal, trial and appellate—from Heller up until February 1, 2016. The dataset is deep as well as broad, including dozens of variables regarding the content of each challenge, not just whether it prevailed. Our findings help provide an objective basis for characterizing Second Amendment doctrine and framing new scholarly inquiries. This is a particularly important task now, as the Amendment becomes a part of “normal” constitutional law and increasingly susceptible to the standard tools of legal analysis