This Article argues that the Preamble to the Constitution of the United States of America deserves a primary place in constitutional law, in federal judicial decision-making, and in the nation’s civic discourse. The Preamble does more than set forth general, vague aspirations. It epitomizes the particular purposes behind the adoption of the Constitution that were desperately needed to repair and replace the faltering Articles of Confederation. The Preamble’s words were specifically and methodically chosen, both in the Preamble itself and often within the body of the Constitution. Based on their prompt affirmative vote, all members of the Constitutional Convention, which drafted the version of the Constitution that was submitted to the thirteen states for ratification, readily embraced the Preamble. Some delegates stated explicitly that it should be used as the key to interpreting the Constitution, its meanings, intentions, purposes, and limitations. Indeed, it is doubtful that the Constitution would have been ratified without the text of the Preamble prominently standing at the top of the proposed document, and the Preamble occupied a dominant and valuable position at the head of constitutional analysis throughout the nineteenth century.
In 1905, however, the United States Supreme Court decided the case of Jacobson v. Massachusetts. This case has been rarely discussed at any length and is only cited summarily. Perhaps somewhat unwittingly, the Court used language that has been understood to relegate the Preamble to a minor, insubstantial role: “Although that Preamble indicates the general purposes for which the people ordained and established the Constitution, it has never been regarded as the source of any substantive power conferred on the Government of the United States or on any of its Departments.” The Court then went on summarily to treat the Preamble as irrelevant to the case.
In 1897, a half-dozen great powers claimed sovereignty over nearly half the world’s land and souls, and these empires were expanding. The British Empire alone had grown by fifty million souls and two million square miles since 1891. The eminent naval strategist Alfred T. Mahan feared that the United States was dangerously secluded, in comparison, and sidelined in the global land rush underway. He also worried that the Atlantic Ocean no longer adequately protected the U.S. against European powers in an age of steamships. Like his fellow Republicans Theodore Roosevelt and Massachusetts Senator Henry Cabot Lodge, Mahan influentially advocated U.S. expansionism. He envisioned the United States ruling acquired lands as colonies. Their residents were as politically unfit for rule as children, criminals, women, and African Americans, he believed. But the Constitution presented a problem. Nearly three decades had passed since the last U.S. annexation. As Mahan complained, “any project of extending the sphere of the United States, by annexation or otherwise, is met by the constitutional lion in the path.”
Bobby James Moore was twenty years old when he “fatally shot a store clerk” while robbing a grocery store in April 1980. On paper, this is a tragic felony murder, but behind the scenes lies a different story. Bobby was not a typical twenty-year-old; he did not understand “the days of the week, the months of the year, [or] the seasons.” Bobby could barely tell time, and he could not understand standard measurements or that subtraction is the opposite of addition. Bobby suffered an “abuse-filled childhood.” Bobby dropped out of high school due to “his limited ability to read and write,” and he lived on the streets after being kicked out of his home for being “stupid.” Bobby is intellectually disabled, and despite the evidence put forth demonstrating his disability, he was sentenced to death pursuant to a set of factors used by a Texas court; these factors are largely based on stereotypes and caricatures from literature. As the United States Supreme Court decided in 2017, this was a gross violation of the Eighth Amendment’s protection against cruel and unusual punishment to rely on “wholly nonclinical” factors rather than the “medical community’s diagnostic framework.”
One of the cornerstones of First Amendment doctrine is the general rule that content-based restrictions on all speech—apart from a few narrow categories of low-value speech—are evaluated under strict scrutiny. As many have observed, this rule has produced considerable strain within the doctrine because it applies the same onerous standard throughout the vast and varied expanse of all non-low-value speech, which includes not only the core, highest-value speech for which such stringent protection is clearly warranted, but also less valuable speech to which the application of strict scrutiny is often dissonant. Nevertheless, traditional accounts maintain that this blunt, highly prophylactic approach is necessary given the significant costs and risks associated with granting courts greater discretion to make value-based speech distinctions.
This Article challenges these accounts. I argue that courts should more explicitly recognize a broad conceptual category of what I call “middle-value speech”—that is, speech that falls within the hazy center of the speech-value spectrum between clearly high-value speech, like political speech or truthful news reporting, and clearly low-value speech, like true threats or incitement. The scope of such speech is vast, potentially encompassing speech as diverse as public disclosures of sensitive private data, sexually explicit speech, professional advice, search engine results, and false statements of fact. Yet current First Amendment doctrine broadly fails to recognize middle-value speech as a discrete conceptual category, and this failure has produced substantial costs in the form of doctrinal distortion and a lack of analytical transparency. These costs have grown precipitously—and will continue to grow—in conjunction with the First Amendment’s broad expansion beyond the familiar precincts of core ideological expression into increasingly eclectic varieties of speech.
Constitutional law is committed to a principle of geographic self-government: congressional districts and states are separately located and entitled to select different officials to send to Congress. James Madison explained in The Federalist Papers that checks and balances would only work if different places and their different politics were empowered to compete with and constrain one another. While constitutional law makes place significant for congressional elections, campaign finance law does not. Those with the resources to contribute often and in large amounts to congressional campaigns primarily reside in a few neighborhoods in a few metropolitan areas. Campaign finance law imposes no limitations and minimal disclosure on contributions from these places to other districts and states—places quite different than the ones where contributors reside. The result is that a few metropolitan areas dominate contributions to congressional campaigns.
Campaign finance law thus allows Congress to be controlled by very few places, dramatically undermining geographic self-government. While scholars have devoted substantial attention to other problematic features of money in politics, the geography of campaign finance law is a different constitutional problem justifying different constitutional solutions. This Article considers two types of legal responses: those that focus special attention on where campaign contributions are beginning and those that focus special attention on where campaign contributions are ending. While both types of solutions have their own respective constitutional benefits and negatives, they both share a common insight. Only by making campaign finance law conscious of place can we begin to address the problems of the geography of campaign finance law.
The Second Amendment, like other federal constitutional rights, is a restriction on government power. But what role does the Second Amendment have to play—if any—when a private party seeks to limit the exercise of Second Amendment rights by invoking private law causes of action? Private law—specifically, the law of torts, contracts, and property—has often been impacted by constitutional considerations, though in seemingly inconsistent ways. The First Amendment places limitations on defamation actions and other related torts, and also prevents courts from entering injunctions that could be classified as prior restraints. On the other hand, the First Amendment plays almost no role in contractual litigation, even when courts are called on to enforce contractual provisions that directly restrict speech. The Equal Protection Clause was famously interpreted to bar the enforcement of a racially restrictive covenant in Shelley v. Kraemer, but in the years since, courts have largely limited that case to its facts.
This is the digital age. As “the ratings machine, DJT [Donald J. Trump],” says, “all I know is what’s on the internet,” or “the cyber,” as he calls it. People’s use of and dependency on the Internet has made data breaches a serious and widespread threat to people’s privacy and security. In 2016, there were 1,093 data breaches, up from 780 in 2015. 75.6% of companies suffered at least one successful attack. Essentially “there are only two types of companies left in the United States, according to data security experts: ‘those that have been hacked and those that don’t know they’ve been hacked.’”
Major companies such as LinkedIn, Target, Ebay, Yahoo, Anthem, and Ashley Madison have been subject to data breaches, and subsequently to lawsuits. Not only can data breaches threaten people’s financial security, but breaches like Ashley Madison’s—a dating site whose slogan up until July 2016 was “Life is Short. Have an Affair”—can threaten people’s home lives and shatter careers. The government is not immune to dangerous cyber attacks either. Both the U.S. Office of Personnel Management and the Democratic National Committee (“DNC”) have suffered breaches. Presidential candidate Hillary Clinton’s e-mails were leaked as part of the DNC breach, which became a source of controversy throughout her campaign. Further, the U.S. intelligence community has concluded that the hack was tied to and possibly directed by the Russian government, which sets a troubling precedent for future hacks by hostile foreign governments.
Plaintiffs whose information has been exposed due to a company data breach have attempted to sue the hacked companies storing their information based on causes of action such as negligence, breach of contract, unjust enrichment, breach of fiduciary duty, unfair and deceptive business practices, invasion of privacy, violation of the federal Fair Credit Reporting Act (“FCRA”), and violations of various state consumer protection and data breach notification laws.
Business is booming for criminal justice monitoring technology: these days “ankle bracelet” refers as often to an electronic monitor as to jewelry. Indeed, the explosive growth of electronic monitoring (“EM”) for criminal justice purposes—a phenomenon which this Article terms “mass monitoring”—is among the most overlooked features of the otherwise well-known phenomenon of mass incarceration.
This Article addresses the fundamental question of whether EM is punishment. It finds that the origins and history of EM as a progressive alternative to incarceration—a punitive sanction—support characterization of EM as punitive, and that EM comports with the goals of dominant punishment theories. Yet new uses of EM have complicated this narrative. The Article draws attention to the expansion of EM both as a substitute for incarceration and as an added sanction, highlighting the analytic importance of what it terms the “substitution/addition distinction.” The Article argues that, as a punitive sanction, EM can be justified when used as a substitute for incarceration, but that its use as an added sanction may result in excessive punishment and raises significant constitutional and policy concerns.
As adversary lawyers, prosecutors seek to convict defendants. But as government officials who take an oath of office, prosecutors must interpret and apply the Constitution in good faith. These two roles are at odds. The first pushes prosecutors to argue for narrow readings of defendants’ constitutional rights, while the second pushes prosecutors to enforce the Constitution evenhandedly. The crucial question is: when should prosecutors be adversary advocates, and when should they be quasi-judicial implementers of constitutional protections? This Article argues that prosecutors should adopt the latter role in situations where the adversary system fails to fully protect constitutional rights. This happens when judges are unable to effectively control prosecutors’ actions (for example, with regard to the duty to reveal exculpatory evidence), and also when judges underenforce constitutional rights out of concern for the separation of powers or the limitations of judicial doctrine (for example, with regard to charging decisions and plea bargains). In such situations, prosecutors should preserve defendants’ constitutional rights even if judicial doctrine does not require it, and even if doing so lowers the chance of obtaining a conviction.
A girlfriend hacks her boyfriend’s computer and discovers evidence of tax evasion. She contacts a local law enforcement officer who arrives at her house and looks at the files she found. Without a warrant, the officer opens other files in the same folder the girlfriend had searched. The officer notices another folder labeled “xxx.” He opens the folder and discovers child pornography. The officer seizes the computer based on what he found. The boyfriend is indicted for possession of child pornography and tax evasion. Before trial, the boyfriend moves to suppress all evidence obtained pursuant to the officer’s warrantless search of the computer. What evidence should the judge suppress?
The answer turns on the Fourth Amendment’s private-search exception. Under this exception, a government agent may recreate a search conducted by a private individual so long as the agent does not “exceed the scope” of the prior private search. The question under the existing framework is: at what point did the officer exceed the scope of the prior search—if at all? Was it when he viewed files the girlfriend had not viewed, when he opened files in a different folder, or did he stay within the scope of the girlfriend’s search by only searching the computer’s hard drive? This is what I will refer to as the denominator problem, which asks what courts should use as the unit of analysis to measure the scope of a digital search.
There are at least four competing approaches to the denominator problem, discussed in Part II, and the Supreme Court has provided little guidance on how the private-search doctrine applies to digital searches, resulting in a circuit split. Until this issue is resolved, law enforcement has little guidance on when to obtain a warrant following a private search and can unknowingly subject individuals to unreasonable invasions of privacy, which may result in suppression of relevant evidence. One recent example is United States v. Lichtenberger.