A spate of illiberal legislation has recently emerged in state legislatures. A dangerous form of law with a dark past lurks among the troubling proposals: the criminalization of movement. In Missouri and Idaho, legislators have proposed draconian laws that would burden or criminalize residents who leave the state for purposes the state deems immoral. These proposals are incongruous to a fundamental, associative right to travel that is embedded in the American constitutional tradition. Idaho lawmakers are pushing legislation to ban gender-affirming healthcare for transgender children as a form ..read more

In America, the people are sovereign and straightjacketed. Faced with a problem — passing, like a pandemic, or persistent, like poverty — they can call on their government to answer it. But, when they act, courts can tell them they’ve overstepped their Constitution’s grant of powers. Recently, several federal district courts, faced with a novel national eviction ban, have tried to assess if the people have erred. Two — in Georgia, and Louisiana — upheld the eviction order; three others — in Ohio, Tennessee, Texas — struck it down. Only one, though, reached the constitutional question ..read more

In America, the people are sovereign and straightjacketed. Faced with a problem — passing, like a pandemic, or persistent, like poverty — they can call on their government to answer it. But, when they act, courts can tell them they’ve overstepped their Constitution’s grant of powers. Recently, several federal district courts, faced with a novel national eviction ban, have tried to assess if the people have erred. Two — in Georgia, and Louisiana — upheld the eviction order; three others — in Ohio, Tennessee, Texas — struck it down. Only one, though, reached the constitutional question: in Terke ..read more

Second Amendment doctrine—perhaps more than any other constitutional right save the Seventh Amendment civil jury—has become intensely preoccupied with genealogy. Ever since Chief Justice John Roberts in District of Columbia v. Heller remarked during oral argument (almost to himself) that, just as there appears to be “lineal descendants” of colonial-era weaponry, there could be “lineal descendants” of gun regulations, the Second Amendment bar have all become antiquarians.  Today, gun rights advocates trundle out esoterica like an English patent from 1718 for a multi-shot “Puckle Gun ..read more

Introduction In our earlier post, we described how the legal bases for countries’ coronavirus responses typically fall into three broad categories. First, some countries have declared a state of emergency under their constitutions, which allow them to take special measures, including restrictions of civil liberties, for the duration of the emergency. Second, some countries have relied on existing legislation relating to communicable diseases, health, and/or national disasters and used these laws as the basis for their COVID-19 response. Third, some countries have (also) passed brand new legisl ..read more

 Introduction The fight against COVID-19 has led many countries, including liberal democracies, to take extraordinary measures that would undoubtedly be constitutionally problematic in normal times. Around the world, we have witnessed entire countries being locked-down, with mass surveillance of cellphones, suspended religious services, restricted travel, and military-enforced curfews. While these measures are widely supported by the publics in many countries, some scholars and activists have raised the alarm that these might lead to a deterioration of civil liberties and constitutional d ..read more

Not surprisingly, local and state government orders aimed at mitigating the spread of novel coronavirus have already provoked a series of objections grounded in civil liberties. Just as quickly, courts entertaining challenges to these orders have stumbled into the central (and long-running) normative debate over emergency powers: Should constitutional constraints on government action be suspended in times of emergency (because emergencies are “extraconstitutional”), or do constitutional doctrines forged in calmer times adequately accommodate exigent circumstances? In one of the first challenge ..read more

As governors and mayors rush to stem the spread of COVID-19 throughout the country, and as healthcare workers make difficult resource allocation decisions, they are often treating some people differently from others. “Essential” businesses or establishments are permitted to stay open and fight for economic survival, while “non-essential” ones are forced to close, perhaps forever. Some jurisdictions, like Alaska and Rhode Island, are requiring that people traveling from elsewhere self-quarantine for a period of time. How do we tell which policies are compatible with our guarantee of equality an ..read more

Not since 1918 has the United States faced the kind of wide-scale public health crisis that Americans face today. The novel coronavirus pandemic of 2020 jeopardizes multiple millions of Americans’ lives, especially the elderly and immunocompromised. It also stands to cripple the American economy with the real prospect of the nation plunging into a depression. The virus itself is more easily transmitted than other seasonal diseases like the flu. Each non-isolated case of novel coronavirus will infect 2 to 2.5 additional people compared to the flu, where each additional case will infect 1.3 othe ..read more

In 2018, Florida voters ratified Amendment 4, a state ballot initiative granting the right to vote to most formerly incarcerated people in the state “upon completion of all terms of sentence.”  Initially, many thought the amendment would re-enfranchise more citizens than any law passed in at least the last 50 — and possibly the last 100 — years. But two subsequent developments blunted the potentially revolutionary effect of Amendment 4.  First, the Florida legislature enacted a law (“SB 7066”) interpreting Amendment 4 to require payment of all restitution, fines, and fees ordered by ..read more