This Article will demonstrate that the originalist argument in Carroll is based on an incorrect historical interpretation of the history of the Fourth Amendment. As discussed in greater detail below, the Carroll argument hinges on the allowance of warrantless ship searches by the First Congress (the same Congress that proposed the Fourth Amendment), coupled with a further analytic step of analogizing ship searches to land vehicle searches. This Article will show that warrantless ship searches were considered permissible under the Fourth Amendment because they were confined to federal admiralty jurisdiction at the time of the Founding. In contrast, land searches were treated differently by the First Congress. Thus, as this Article will demonstrate, the originalist argument in Carroll fails.

Finally, this Article will refute the pragmatic policy arguments offered by the Supreme Court to justify the vehicle exception. While policy arguments are not necessarily meritless, they are the weakest justifications in this instance, because the vehicle exception goes against both the text and the original intent of the Fourth Amendment. There are two main arguments in favor of a warrantless search exception: (1) the mobility of vehicles and (2) the substantial government regulation of vehicles. This Article will demonstrate that both rest on faulty premises that do not justify the abrogation of the Fourth Amendment warrant requirement.

Even upon its creation in 1925, the vehicle exception to the Fourth Amendment has always rested on a shaky ground. The time has come for the Supreme Court to overturn this exception and instead apply the text and history of the Fourth Amendment to require warrants for the search of vehicles.

Part I traces the evolution of First and Fourteenth Amendment jurisprudence and examines the existing doctrine as it pertains to the NFL’s anthem policy. Although the Court has developed a patchwork of state action tests over the years, this Note focuses specifically on the impact and necessity of expanding the state encouragement theory. Part II proposes that the President unconstitutionally coerced and influenced the NFL to change its longstanding anthem policy by unleashing a calculated media firestorm, encouraging fans to boycott games, and threatening to revoke the league’s tax-exempt status. Trump’s success in employing these unprecedented tactics to suppress speech he deemed objectionable exemplifies his willingness to disregard constitutional principles and norms in pursuit of unfettered executive control. Overall, the government’s ability to influence the NFL to depart from its longstanding position, and censor player protests, sets a frightening precedent. Part III focuses on the vulnerability of three private actors: universities, news outlets, and social media and technology companies, and assesses the mounting danger of outsourced censorship beyond the NFL. Part IV argues that the Court has abdicated a core part of its role as a co-equal branch of government by abandoning formerly-broad notions of state action and allowing the Executive Branch to hide behind private actors.

In order to combat the growing threat of outsourced censorship, the Court must revive the state encouragement theory and unequivocally apply the doctrine to cases in which the government has manifestly coerced or influenced a private actor’s speech restrictions. The future of the First Amendment is at a crossroads, and if the Court continues to turn a blind eye to the Executive’s constitutional abuses, truly meaningful speech or press protections will cease to exist.

In this Note, I offer a summary, a realization, a conclusion, and an explanation: a summary of what I found to be the most convincing arguments of each side, noting both the plaintiffs’ and defendant’s efforts to characterize history as uniquely supporting their favored interpretation; a realization of the impossibility of perfect historical consistency in any interpretation; a conclusion that in light of unavoidable historical inconsistency, the Foreign Emoluments Clause does indeed apply to President Trump’s hotel revenues; and an explanation of one possible way to view the inconsistent application of the clause in view of my conclusion that it does apply.
Under my proposed view, the fact patterns of all the introductory stories fall within the scope of the Emoluments Clause(s) —they are all “emoluments” under the broad definition—but the difference in the propriety of the behavior is based primarily on what is outside the fact patterns: the appearance of the possibility of corruption. The reason these cases are being brought against the forty-fifth president and not the first has much more to do with the perception of who the presidents were and are, and the public’s corresponding intuitive sense of the possibility of corruption. This understanding is one possible explanation of how Washington could purchase land at a public auction designed to raise funds for the founding of the new capital without raising flags, but Trump cannot similarly lease hotel space from the government and avoid scrutiny.

From warnings of the “entitlement epidemic” brewing in our homes to accusations that Barack Obama “replac[ed] our merit-based society with an Entitlement Society,” entitlements carry new meaning these days, with particular negative psychological and behavioral connotation. As Mitt Romney once put it, entitlements “can only foster passivity and sloth.” For conservatives, racial entitlements emerge in this milieu as one insidious form of entitlements. In 2013, Justice Scalia, for example, famously declared the Voting Rights Act a racial entitlement, as he had labeled affirmative action several decades before.

In this Article, I draw upon and upend the concept of racial entitlement as it is used in modern political and judicial discourse, taking the concept from mere epithet to theory and setting the stage for future empirical work. Building on research in the social sciences on psychological entitlement and also on theories and research from sociology on group-based perceptions and actions, I define a racial entitlement as a state-provided or backed benefit from which emerges a belief of self-deservedness based on membership in a racial category alone. Contrary to what conservatives who use the term would have us believe, I argue that racial entitlements can be identified only by examining government policies as they interact with social expectations. I explain why the Voting Rights Act and affirmative action are not likely to amount to racial entitlements for blacks and racial minorities, and I present one way in which antidiscrimination law today may amount to a racial entitlement—for whites.
Theorizing racial entitlements allows us a language to more accurately describe some of the circumstances under which racial subordination and conflict emerge. More importantly, it gives us a concrete sense of one way in which laws can interact with people to entrench inequality and foster conflict. It uncovers the psychological and emotional elements of racial entitlements that can turn seemingly neutral laws as well as those that explicitly rely on racial classifications against broader nondiscrimination goals. This conceptual gain, in turn, can open up new avenues for research and thought. And it can provide practical payoff: ability to isolate laws or government programs that are likely to amount to racial entitlements for targeted change.