Wisconsin Law Review has named University of Wisconsin Law School student Tomás Clasen as Editor-in-Chief for 2017–18. He replaces outgoing Editor-in-Chief Bryon Eagon. The student-run journal publishes six times a year, while the journal’s online version publishes throughout the year. Both the print and electronic journal publish student and professional articles on various local, state, […]
Is Assisted Procreation an LGBT Right? by Michael Boucai
Crimmigration and the Void for Vagueness Doctrine by Jennifer Lee Koh
The One-Year Bar to Asylum in the Age of the Immigration Court Backlog by Lindsay M. Harris
Bell v. Itawamba County School Board: Testing the Limits of First Amendment Protection of Off-Campus Student Speech by Margaret Malloy
News of the School
Moving Forward by Looking Back: The Retroactive Application of Obergefell by Lee-ford Tritt
Access to Justice: What to do About the Law of Wills by Iris J. Goodwin
Scaffolding: Using Formal Contracts to Support Informal Relations in Support of Innovation by Gillian K. Hadfield & Iva Bozovic
Exploding Trains in the Wake of the Crude-by-Rail Boom: The Distribution of Liability in Crude-Train Derailments by Jack Huerter
Living to Fight Another Day: Judicial Deferral in Defense of Democracy by Rosalind Dixon & Samuel Issacharoff
The Five Justices of Contract Law by Todd D. Rakoff
The Costs of Staying Put: The Stay-Put Provision’s Competing Interpretations and Financial Implications by James Radcliffe
Decency, Evolved: The Eighth Amendment Right to Transition in Prison by Dan Schneider
Michael D. Ramsey
In his essay, The 1790 Naturalization Act and the Original Meaning of the Natural Born Citizen Clause: A Short Primer on Historical Method and the Limits of Originalism, Professor Saul Cornell uses the debate over the Constitution’s natural born citizen clause to illustrate what he regards as the shortcomings of originalist methodology. He makes three main points: (1) that historians’ methodology is different from and superior to the approach of originalist legal scholars; (2) that originalist scholars have reached an erroneously broad reading of the 1790 Naturalization Act; and (3) that, as a result, originalist scholars have misread the natural born citizen clause. I believe each of these points is mistaken. This response addresses them in turn.
In Bond v. Floyd, the United States Supreme Court held that members of the Georgia Assembly could not deny civil rights activist Julian Bond his oath of office based on his antiwar statements. Bond, duly elected by his constituency, enjoyed “the widest latitude to express [his] views on issues of policy.” Bond’s right to speak was not merely an individual right; rather, his freedom of speech enabled his constituents to “be represented in governmental debates by the person they have elected to represent them.”
Long viewed in a doctrinal silo, Bond in fact dovetails with a maturing opprobrium of the partisan gerrymander. For it seems odd to forbid the state to silence a representative of the people but to permit the state to deprive the people of representation in the first place through the partisan gerrymander. If the First Amendment secured Bond’s speech from censure both in his individual and representative capacity, it makes little sense to permit the state, by use of the partisan gerrymander, to do at an earlier juncture in the electoral process what it could not do after Bond was elected.
Wisconsin Law Review SymposiumOctober 14, 2016Symposium: Modern Federal Judicial SelectionWLR is proud to present its 2016 Symposium. We look forward to seeing you there. Please find the symposium’s schedule below. The Symposium will take place from 8:30 a.m. to 5:00 p.m. in Room 2260 at the Law School. Please register for the event here.Symposium Schedule:Friday, October […]
Richard L. Hasen
In theory, softening of voter identification laws through litigation is a positive development aimed at avoiding disenfranchisement of both voters who face special burdens obtaining an acceptable government-issued identification necessary to vote and of those voters who face confusion or administrative error. In practice, however, softening may do less to alleviate the actual burdens of voter identification laws than to make judges feel better about their Solomonic rulings. In fact, softening devices still leave an uncertain number of voters disenfranchised. These burdens might be justified if there were evidence that state voter identification laws solve a serious problem, but there is no such evidence.
Wisconsin Law Review Symposium October 14, 2016 Symposium: Modern Federal Judicial Selection WLR is proud to present its 2016 Symposium. We look forward to seeing you there. Please find the symposium’s schedule below. The Symposium will take place from 8:30 a.m. to 5:00 p.m. in Room 2260 at the Law School. Please register for the event […]
The 1790 Naturalization Act and the Original Meaning of the Natural Born Citizen Clause: A Short Primer on Historical Method and the Limits of Originalism
During the 2016 Presidential election a number of constitutional scholars debated Ted Cruz’s eligibility to be President. This was not the first time in recent American history that the meaning of the Constitution’s “natural born citizen” clause was a live issue in American law. The answer to this legal question depends on the particular theory of constitutional interpretation one favors. There has been a good deal of speculation on this issue by scholars of different methodological commitments. Much of the debate focuses on the meaning of the 1790 Naturalization Act, which raises deeper questions about the evolving debate over the legitimacy of originalism as a constitutional theory. Rather than approach the meaning of eighteenth-century constitutional and legal texts in a genuinely historical fashion, originalists have adopted a method plagued by anachronism, which invariably leads to distortion.