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Abstract:
In recent years, constitutional scholars have deployed originalist arguments both to attack and to defend the vast twentieth-century expansion of constitutional civil rights under the Fourteenth Amendment. Remarkably, few of these scholars have attempted a coherent justification of originalism itself. The radically different results that these scholars have reached highlight the indeterminacy of the historical record, which does not permit satisfactory answers to the crucial questions of modern equal protection and due process jurisprudence. The article concludes that the currently dominant common-law approach to constitutional adjudication provides far broader and more determinate protection than originalism for individual rights and democratic institutions.

Constitutional Law, Fourteenth Amendment, Originalism, Equal Protection, Due Process, Incorporation Doctrine

Abstract:
In this article, I present a comparative study of constitutional obscenity doctrine in the United States and Canada, and argue that the community standards test that has long been the touchstone of this jurisprudence cannot be reconciled with fundamental principles of freedom of expression and conscience.

In the United States, the imposition of community standards of morality is at odds with the U.S. Supreme Court’s increasingly explicit rejection of mere majoritarian morality as a basis for criminal regulation, especially in the private sexual sphere. Moreover, the Court’s embrace of local standards was always constitutionally anomalous and is increasingly so in the internet age.

The Supreme Court of Canada has tried to develop an alternative approach, insisting on a national standard grounded not in morality but in harm, especially harm to women. However, this national standard is largely a fiction, and the claim that whatever the community does not tolerate is by definition harmful is both theoretically and empirically untenable. The Canadian Court has implicitly recognized these difficulties in a recent decision that appears to jettison the community standards test altogether, and to focus purely on the question of harm caused by “degrading” and “dehumanizing” materials. It is not clear, however, that this new approach rescues the doctrine from the vagueness that has led in practice to repressive and discriminatory enforcement, which, ironically, has been targeted especially against gays, lesbians, and feminists.

Both the U.S. and Canadian experiences thus suggest that the obscenity prosecutions have been arbitrary and highly political. The article concludes that the prohibition of obscenity is incompatible with free expression, whether such prohibition is based on community standards, or on the harms that are said to flow from “degrading” and “dehumanizing” material. Bans on sexually explicit materials that involve only consenting adults in their production and distribution cannot be justified in societies committed to the freedom of speech and conscience.

Constitutional Law, Comparative Law, Comparative Constitutional Law, United States, Canada, First Amendment, freedom of speech, freedom of expression, obscenity, pornography, censorship

Abstract:
The nature and scope of the right to property has been one of the most controversial issues of constitutional law, not only in the United States, but throughout the world. Modern U.S. “takings” jurisprudence, which has been characterized by contradictory pronouncements on the constitutional definition or property and a proliferation of seemingly inconsistent categorical and balancing tests, is widely regarded as incoherent. Internationally, as judicial review has gained increasingly wide acceptance, the question whether the right to property ought to be regarded as a fundamental constitutional right has proved controversial. This Article explores the emergence and development of the right to property as a fundamental constitutional right in the hope of illuminating these issues. It surveys the philosophical and legal debate that formed the background for the emergence of the constitutional right to property, exploring the intellectual matrix in which property was inscribed as a fundamental right in the first modern constitutions in France and America. It then examines how the debate over property as a natural or a conventional right has continued to shape constitutional doctrine in the United States. The Article concludes that an absolutist rhetoric of property as a purely individual and natural right has tended to impoverish our constitutional discourse, and that a recovery of the notion of property as a conventional, civic, and social right holds the promise of enriching it.

Constitutional Law, Comparative Constitutional Law, France, United States, Property, Takings, Natural Rights

Abstract:
The most contentious issue in constitutional free exercise doctrine is whether exemptions for religiously motivated conduct are constitutionally required or permitted. For decades, the Supreme Court’s jurisprudence in this area has been in considerable disarray. In recent years the Court has increasingly rejected the notion of constitutionally required religious exemptions, but shown considerable indulgence for legislative exemptions. This Article argues that while the Free Exercise Clause confers the highest protection on religious belief, expression, and association, it requires equal treatment of all in the regulation of conduct, regardless of their religious beliefs or lack thereof.

The common claim that the original understanding of free exercise requires exemptions is unsupportable, and the claim that it permits such exemptions is less than convincing. While some exemptions were enacted in the founding era, their significance and probative value is limited, especially because the First Amendment did not apply to the states. Significantly, many objected to such exemptions as violations of religious equality. Nor is there significant historical support for the widely-accepted claim that the Fourteenth Amendment, under which the Religion Clauses have been applied to the states, was understood to alter their original meaning.

The textual, religious, and theoretical arguments advanced to justify constitutionally compelled exemptions are unpersuasive. Proponents of such exemptions typically argue that they are required unless the government interest at stake is compelling, which would eviscerate the rule of law by making compliance optional in most cases. They also argue that even where not required, such exemptions should be permitted unless they create incentives to practice religion. But this is incoherent - all religious exemptions create such incentives.

Recent congressional statutes such as RFRA and RLUIPA have sought to resuscitate the application of the compelling interest standard to a vast range of federal and state legislation. Recent Supreme Court decisions upholding such measures are deeply troubling. The Court’s decision extending immunity from the drug laws under RFRA on a religiously discriminatory basis embroiled it in policy determinations which it was ill-suited to make. Its decision upholding RLUIPA in the prison context extended special privileges to violent and racist religious organizations that are not enjoyed by their peaceful secular counterparts. These decisions pay scant regard to the constitutional requirement of equal treatment. The free exercise of religion requires equal and impartial treatment of all regardless of their beliefs, not a patchwork of special privileges, favors and exemptions.

Constitution, First Amendment, Fourteenth Amendment, Free Exercise, Religion, Religious Exemptions, RFRA, RLUIPA