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Volume 9, Number 1, Winter 2003


Moralism, The Fear of Social Chaos: The Dissent in Lawrence and the Antitodes of Vermont and Brown, 1
Daniel Gordon

This article reviews the majority and concurring opinions in Lawrence, discusses the doctrinal problems identified by Scalia’s dissent, and analyzes the ideological bases of Scalia’s critique. The article discusses Scalia’s implicit view of homosexuals as threats to American society. The author argues for a more exacting rational basis standard that includes an empirical component, like the analysis used by the Supreme Court in Brown or the Vermont Supreme Court in Baker v. Vermont rather than a mainstream, tradition-based model.


The Technicolor Constitution: Popular Constitutionalism, Ethical Norms, and Legal Pedagogy, 23
Shannon D. Gilreath

Gilreath criticizes legal pedagogy by arguing that popular consideration of the Constitution as a tool for social betterment should be more highly valued and encouraged. The article recounts paradigmatic episodes in which the people’s view of the Constitution
triumphed over a more restrictive interpretation by the courts. The author encourages law schools to motivate their students to not only learn the current state of the law, but to dissect and evaluate it. Thus, constitutional norms can be changed for the better.


The Law on Providing Material Support to Terrorist Organizations: The Erosion of Constitutional Rights or a Legitimate Tool for Preventing Terrorism?, 45
Sahar F. Aziz

In her Note, "The Laws on Providing Material Support to Terrorist Organizations: The Erosion of Constitutional Rights or a Legitimate Tool for Preventing Terrorism?", Sahar Aziz critiques post-9/11 legislation intended to prohibit the material support of terrorist organizations. Aziz finds that the process by which Foreign Terrorist Organizations are designated lends itself to abuse. Specifically, Aziz holds that the process risks depriving Americans of due process and First Amendment rights. To prevent anti-terror laws from suppressing an individual’s right to donate to charitable Middle Eastern causes, Aziz offers three suggestions: suspected terrorist organizations under investigation should be given the opportunity to provide counter-evidence in a judicially reviewable record, a longer period in which organizations can dispute their terrorist designation, and moving from a standard of knowledge to intent for criminal charges for providing material support to terrorism on intent.


School Safety v. Free Speech: The Seesawing Tolerance Standards for Students’ Sexual and Violent Expressions, 93
Louis P. Nappen

Nappen discusses three leading Supreme Court cases which explore the limits and controls of a student’s free expression within an educational setting: Tinker v. Des Moines Independent Community School District, Hazelwood School District v. Kuhlmeier, and Bethel School District No. 403 v. Fraser. These cases maintain that a student’s First Amendment rights may be restrained toward the interests of discipline and school safety, but that students do not completely shed these rights upon entering school campuses.

In this context, Nappen poses the following questions: when are the limits on free expression considered reasonable, fair, or necessary? At what point do school restrictions go too far? Should preemption mean that administrators should re-adopt the theory of
bad tendencies?

Nappen is concerned with the increasing limitations on symbolic gestures, communication, and expression by primary and secondary school students that has resulted from the Columbine shooting, the 9/11 terrorist attacks, and “The Sniper” attacks. The article is not concerned with actual assaults, vandalism and other unacceptable or disruptive behaviors. Nor is the article concerned with cases involving actual weaponry, as the author believes, in arguendo, that schools should require and should retain power over such issues. Nappen argues that two issues should be addressed regarding censorship and/or punishment of student expression. First, to what extent does a child know and understand the rules. Second, to what extent can a child predict or understand the consequences of
his or her actions.

In order to answer these questions, the author surveys what actions have been categorized as “disruptive” expressions and analyzes the collateral consequences of zero-tolerance disciplining of symbolic expression. Nappen concludes by proposing a three-pronged test by which to judge students who have been accused of being disruptive.