All Online Essays

The sudden emergence and prominence of the Tea Party movement raises important questions about the role of the Constitution in popular politics. More than any political movement in recent memory, the Tea Party movement is centrally focused on the meaning of the Constitution. Tea Party supporters believe that the nation is facing a crisis because it has abandoned the Constitution, and they seek to restore the government to what they believe are its foundational principles.

There is, of course, no single template for “Tea Party Constitutionalism,” given that it is a large, somewhat inchoate movement that inevitably contains different, often conflicting, strains. As someone from Texas, I am tempted to focus on some of the more extreme ideas associated with various politicians wishing to take advantage of the anger projected by many Tea Partiers toward the national government. Thus at least two candidates for the 2010 Republican nomination for the Texas governorship (including the ultimately successful incumbent, Rick Perry) endorsed or at least flirted with nineteenth century ideas of “nullification” and even secession as a potential response to what is perceived as an overreaching national government. More striking, presumably, was the proclamation by the (unsuccessful) Republican candidate for the Senate from Nevada, Sharron Angle: “Our Founding Fathers, they put that Second Amendment in [the Constitution] for a good reason, and that was for the people to protect themselves against a tyrannical government . . . . In fact, Thomas Jefferson said it’s good for a country to have a revolution every 20 years. I hope that’s not where we’re going, but you know, if this Congress keeps going the way it is, people are really looking toward those Second Amendment remedies.”

The Tea Party movement and its constitutional vision for the United States is perhaps the hottest topic in American public law today. The rising tide of popular support for the Tea Party movement has transformed what was once cast aside as a fleeting faction into a formidable force in American politics—one that could augur significant consequences for the contours of American constitutional law in the years ahead.

International remittances—”cross-border person-to-person payments of relatively low value” sent primarily by international migrants to family members in developing countries—alleviate poverty, support entrepreneurship, and foster the development of financial systems. Until recently, aside from prohibitions on financial interactions with countries such as Cuba or Burma, U.S. regulators have only indirectly addressed these monetary transfers. The Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank) changes this, providing direct, substantive regulation of the industry for the first time. Dodd-Frank calls on the Board of Governors of the Federal Reserve System (Board) to craft more than a dozen regulations to enforce Dodd-Frank’s remittance provisions within eighteen months. These regulations can either stifle progress in the remittance industry or help it become more efficient. This Article recommends regulations that would enable a thriving business environment for transfer providers and preserve reasonable consumer protections. Part I describes the international remittance industry, including its role in enabling economic development and in alleviating poverty. Part I then predicts the changes that the industry is likely to undergo in the near future. Part II explains Dodd-Frank’s remittance provisions. Part III provides recommendations to the Board on how it can design regulations that best enable global economic development.

In a recent article Professors Lawrence Rosenthal and Joyce Lee Malcolm provided an intriguing debate over the standard of scrutiny that should be applied to restrictions on the Second Amendment in the wake of McDonald v. City of Chicago. This Article sets forth to illuminate two aspects of that debate. The first is Professor Rosenthal’s concern on the constitutionality of open-carry or conceal-carry prohibitions. He inaccurately claims that the founders left insufficient historical evidence to support such prohibitions. Thus this Article addresses those concerns through the use of “historical guideposts.” The second aspect this Article sets forth to address is Rosenthal and Malcolm’s characterization of the Second Amendment’s “well-regulated militia” language, for it highlights a historical and legal error that continues to pollute contemporary Second Amendment jurisprudence. As this Article will explain, a “well-regulated militia” does not merely equate to “well-trained,” nor is it a vehicle to analyze gun control regulations in the constraints of the opinion in District of Columbia v. Heller.

How did the American body politic allow business corporations to threaten members of Congress by saying, credibly, “Do what we want or we’ll bury you!”? On January 21, 2010, the Supreme Court’s 5-4 decision in Citizens United v. Federal Election Commission interpreted the U.S. Constitution’s First Amendment to permit corporations to spend unlimited amounts of money to support or oppose their chosen candidates. “[A] lobbyist,” said the front page of the next day’s New York Times, “can now tell any elected official that [if you vote wrong,] my company, labor union or interest group will spend unlimited sums explicitly advertising against your re-election.” The headline read, “Lobbies’ New Power: Cross Us, And Our Cash Will Bury You.”

In an October 2009 Term marked by several significant constitutional rulings, the Supreme Court quietly continued an important multi-term effort towards defining which legal rules properly should be called “jurisdictional.” In each of four cases that considered the issue, the Court unanimously rejected a jurisdictional characterization of the challenged legal rule. These cases continue an almost uninterrupted retreat from the Court’s admittedly “profligate” and “less than meticulous” use of the term. The Court now rejects “drive-by jurisdictional rulings,” in which a legal rule has been labeled as jurisdictional only through “unrefined” analysis, without rigorous consideration of the label’s meaning or consequence.

The American criminal justice system is often envisioned as one in which public prosecutors pursue public prosecutions on behalf of the public—leaving no room for crime victims’ involvement. However, state and federal statutes and state constitutional amendments have challenged this vision. Perhaps the best example of such a challenge comes from the Crime Victims’ Rights Act (“CVRA”), a federal statute passed by Congress in 2004 that guarantees victims a series of rights in federal criminal proceedings.