Symposium: Pandemics and the Constitution: Tiered Scrutiny in a Pandemic

During this spring of COVID-19, Americans are facing numerous state and local government-imposed restrictions that would have seemed implausible a few short months ago. While many of these restrictions seem to be unquestionably warranted, there have been others that have the potential to negatively impact fundamental rights. From abortion restrictions to gun control, these actions threaten liberty in the name of police powers. During this time of crisis, there is a need for courts to be especially vigilant. Throughout the nation’s history, the concept of emergency power has been used to justify restrictions on the rights of Americans, with tragic results. In order to protect rights, however, courts must understand the framework. While many cases seem to suggest that government action in the face of an emergency should be given a deferential standard of review, this is an incorrect reading of the precedent, at least where fundamental rights are concerned. Instead, emergency regulations that burden fundamental rights are subject to the same tiered scrutiny that applies in normal times. While an emergency may create a “compelling interest” that would allow government to invade rights in a manner it might not in normal times, the standard does not change. Rather, the nature of the emergency is already “baked in” to the tiered scrutiny test. Under a correct application of tiered scrutiny, almost all the emergency regulations that have been enacted would still be constitutional. However, some actions, such as regulations on the sale of firearms and regulations on the provision of abortion deserve a closer look. Fortunately, our constitutional system is already well-equipped to balance rights and safety. Courts simply need to apply it properly

Putting Rationality Back into the Rational Basis Test: Saving Substantive Due Process and Redeeming the Promise of the Ninth Amendment

This article argues for the adoption of a strengthened rational basis test that would allow courts to scrutinize the actual purpose behind legislation and demand that the legislation actually be reasonably related to its valid legislative purpose. Part II looks at the question of why it is desirable to save substantive due process rather than replace it with some other doctrine. Part III examines how substantive due process came to be the dominant form of protection for unenumerated rights, and how it has evolved from its antecedents in English law to the current test. It concludes that substantive due process has been an ever-evolving doctrine, but that the protection of rights has been a constant throughout its history. Part IV examines how the system has become broken in recent years, with the rational basis test and the strict scrutiny test edging further away from each other and the Supreme Court of the United States abandoning the doctrine in hard cases. PartV then advocates for using a strengthened rational basis test to return rationality to the rational basis test, add legitimacy to the doctrine of substantive due process, and better protect unenumerated rights. It explains how the strengthened rational basis test would work in practice, and how the test avoids some of the problems of the other tests, including the Lochner problem

Low-noise 0.8-0.96- and 0.96-1.12-THz superconductor-insulator-superconductor mixers for the Herschel Space Observatory

Heterodyne mixers incorporating Nb SIS junctions and NbTiN-SiO/sub 2/-Al microstrip tuning circuits offer the lowest reported receiver noise temperatures to date in the 0.8-0.96- and 0.96-1.12-THz frequency bands. In particular, improvements in the quality of the NbTiN ground plane of the SIS devices' on-chip microstrip tuning circuits have yielded significant improvements in the sensitivity of the 0.96-1.12-THz mixers relative to previously presented results. Additionally, an optimized RF design incorporating a reduced-height waveguide and suspended stripline RF choke filter offers significantly larger operating bandwidths than were obtained with mixers that incorporated full-height waveguides near 1 THz. Finally, the impact of junction current density and quality on the performance of the 0.8-0.96-THz mixers is discussed and compared with measured mixer sensitivities, as are the relative sensitivities of the 0.8-0.96- and 0.96-1.12-THz mixers

Fundamental Behavior of Electric Field Enhancements in the Gaps Between Closely Spaced Nanostructures

We demonstrate that the electric field enhancement that occurs in a gap between two closely spaced nanostructures, such as metallic nanoparticles, is the result of a transverse electromagnetic waveguide mode. We derive an explicit semianalytic equation for the enhancement as a function of gap size, which we show has a universal qualitative behavior in that it applies irrespective of the material or geometry of the nanostructures and even in the presence of surface plasmons. Examples of perfect electrically conducting and Ag thin-wire antennas and a dimer of Ag spheres are presented and discussed.Comment: 9 pages and 4 figure

On a two variable class of Bernstein-Szego measures

The one variable Bernstein-Szego theory for orthogonal polynomials on the real line is extended to a class of two variable measures. The polynomials orthonormal in the total degree ordering and the lexicographical ordering are constructed and their recurrence coefficients discussed.Comment: minor change

The roles of motivation and ability in controlling the consequences of stereotype suppression

Two experiments investigated the conditions under which previously suppressed stereotypes are applied in impression formation. In Experiment 1, the extent to which a previously suppressed racial stereotype influenced subsequent impressions depended on the race of the target who was subsequently encountered. Whereas impressions of race-unspecified targets were assimilated to the stereotype following its suppression, no such effects were observed when the target belonged to the racial group whose stereotype had been initially suppressed. These results demonstrate that when perceivers are motivated to avoid stereo-typing individuals, the influence of a stereotype that has been previously activated through suppression is minimized. Experiment 2 demonstrated that these processing goals effectively reduce the impact of suppression-activated stereotypes only when perceivers have sufficient capacity to enact the goals. These results suggest that both sufficient motivation and capacity are necessary to prevent heightened stereotyping following stereotype suppression