Penn JCL Online
The official online companion to the Journal of Constitutional Law
JCL Online is part of the Journal’s larger strategic vision of fostering academic discourse on cutting-edge issues in constitutional law. Volume 14 established JCL Online, originally called Heightened Scrutiny, as the Journal’s online supplement, and Volume 15 was the first edition to be formally published as a companion to our print edition.
Essays published on JCL Online may be cited as U. Pa. J. Const. L. Online.
Volume 16 Online Exclusives
Recently, courts have grappled with the question of whether data is speech for purposes of the First Amendment. Google, and other tech giants, have defended their algorithmic outputs under the guise of free speech. This essay considers the next question in this emerging area of the law. What happens if data is speech?
Josh Blackman explores how affording constitutional scrutiny to data-based outputs impacts the validity of data privacy laws. He then considers whether the lack of regulation of search engines or the regulations themselves pose a greater threat to free expression. The essay concludes by offering a framework of how courts should treat algorithmic output for purposes of the First Amendment.
Professor Mark Kende examines the Supreme Court’s decision in Fisher v. University of Texas in light of the journey from Bakke to Grutter and Gratz. Has Justice Powell’s opinion in Bakke assumed the role of “super-precedent” and, if it has, what does that mean for future affirmative action cases?
In 1920, the Supreme Court decided in Missouri v. Holland that the power to make treaties, coupled with the necessary and proper clause of the Constitution, may provide a Constitutional basis for legislation which would otherwise not be within the enumerated powers of Congress. To this day questions rage about both the validity and scope of the Court’s decision in Missouri v. Holland, questions which are set to be argued anew this term before the Supreme Court in Bond v. United States.
This short piece examines the attitudes towards the “treaty power” during one its few documented usages before Missouri v. Holland. In 1879 The Supreme Court held in the Trade-Mark Cases that the 1870 Trademark Act, as amended in 1876, was not a valid exercise of either the Commerce Clause or the Intellectual Property Clause, forcing Congressional sponsors of the 1881 Trademark Act to embrace the novel theory that a treaty providing for reciprocal trademark protection could provide the constitutional justification for a limited federal trademark law under the power to make treaties and the Necessary and Proper Clause.
This Essay explores the views both stated and implied about the scope of the treaty power in this context, and offers a new understanding of the decision in the Trade-Mark Cases as containing a substantive holding regarding the Treaty Power. The Essay concludes that circa 1880 a power to make laws to call into effect treaties existed, premised only on the treaty power and the Necessary and Proper Clause of the Constitution. However, this power was only seen as allowing legislation regarding international activity.