Articles

A FELONY A DAY KEEPS THE DOCTOR AWAY
Kristen Reilly

The opioid crisis is a nationwide issue that has resulted in an increase in overdose deaths and a widespread addiction epidemic. The highly addictive qualities of opiates have landed them in the category of a “controlled substance” under the Controlled Substances Act. Both state and federal politicians and law enforcement agencies have grappled with the issue for decades, with little to show for it. Opiates were originally introduced in the medical field to treat acute pain but developed into a medicinal crutch. Subsequently, law enforcement agencies have begun to crack down on the legal, yet technically illegal distribution of opiates from physicians. The statutory construction of the Controlled Substances Act gives licensed physicians authorization to knowingly and intentionally distribute opiates, which would otherwise be illegal. However, as the epidemic has raged on and law enforcement agencies, presidential administrations, and state and local governments have zeroed in on prosecuting physicians, several questions have arisen as to the standard for establishing culpability. Courts have struggled to define several components of the Act, leading to confusion and ambiguity.

In 2022, the Supreme Court, ruled on a larger issue within the landscape of physician-defendant prosecution: the good faith defense. However, the holding not only furthered prosecutorial confusion, but only addressed a niche portion of the larger issue. This Commentary seeks to remedy that failure by both criticizing the Supreme Court’s holding and proposing a new statutory framework for the Act itself. This framework will focus on defining the ambiguous portions of the Act, such that physicians can avoid prosecution whilst providing the necessary care. Finally, considering the new statutory framework, this Commentary proposes adding the mens rea of “recklessness” to the Act’s preexisting statutory requirements.

THROUGH VIOLENCE, FORCE, OR INTIMIDATION: UNDERSTANDING INSURRECTION AFTER JANUARY 6TH, 2021
Ryan R. Protter

Section Three of the Fourteenth Amendment disqualifies individuals who took an oath to the Constitution and later engaged in insurrection from ever holding any civil or military office. After the attack on the United States Capitol on January 6th, 2021, this Section has attracted significant interest from the media, lawyers, and Congress itself.

In New Mexico ex rel. White v. Griffin, a court used Section Three for the first time in over a century to remove an elected official for participating in the Capitol attack. The Griffin court held that January 6th was an insurrection using a definition based on how “knowledgeable nineteenth-century Americans and Section Three’s framers” would have understood the term.

Using history is “implicit in the study of constitutional law,” especially when “there is nowhere else to turn with respect to interpretation of the constitutional text, in the sense that other legally relevant materials are absent.” Neither the Fourteenth Amendment nor federal statutes define “insurrection,” and there is “a lack of case law exploring disqualification under Section [Three].”

This Commentary analyzes whether the Griffin court’s definition of insurrection is truly consistent with how Section Three’s drafters would have understood the term. Part I examines Section Three of the Fourteenth Amendment. Part II discusses Griffin. Part III analyzes how the Fourteenth Amendment’s drafters would have understood insurrection. Part IV compares the Griffin court’s test to alternative definitions to determine which is the most faithful to the original meaning of the term “insurrection.”

Other scholars have examined the meaning of insurrection during the nineteenth century. Professors William Baude and Michael Stokes Paulsen did so in their forthcoming article, The Sweep and Force of Section Three. This Commentary will address Baude and Paulsen’s approach to defining insurrection as compared to the Griffin court’s approach.

Mark Graber, who served as the plaintiff’s historical expert in Griffin, also conducted an historical analysis of insurrection.  His argument primarily focuses on the connection between insurrection and “levying war,” while this Commentary looks at contemporaneous accounts of a wide array of insurrections during the nineteenth century and weighs alternative definitions.

WHAT THE GLUCK IS GOING ON? A CONSTITUTIONAL ANALYSIS OF THE HISTORY-AND-TRADITION TEST
Max Hermann

In Dobbs v. Jackson Women’s Health Organization, the United States Supreme Court overturned Roe v. Wade and returned the issue of abortion to the states. Within seven months of the ruling, more than twenty-four states had passed or introduced legislation to outlaw abortions, and many of those states do not include exceptions for rape or the mother’s health. This will return the United States to the days of “back-alley” abortions which compromise the health and safety of mothers, and puts doctors in a precarious position where they risk losing their medical licenses, or even going to jail, in order to uphold their oath of applying all measures required for the benefit of the sick.

Many scholars have criticized the use of the “history-and-tradition” test, which determines whether an unenumerated fundamental right is deeply rooted in the United States’ history and tradition. Up until the decision in Dobbs, the Supreme Court had never explicitly adopted any specific test in deciding unenumerated rights, citing the immense complications and difficulty in assigning one standard of review to all cases in which unenumerated rights were at issue. A number of different tests have been suggested by the courts and legal scholars over the years, each of which creates its own subset of issues and does not tackle the crux of the issue. In order to properly guard the rights that the Framers did not explicitly include in the Constitution and Bill of Rights, more radical changes must be employed. The proposed solutions found in this Commentary include strictly adhering to the concept of originalism or using originalism as a guidepost to adapt the Constitution to contemporary America. More drastic proposed solutions include restructuring the Court, which would protect certain fundamental unenumerated rights from interference by the Court. This Commentary further addresses the impact of Dobbs on the landscape of unenumerated rights, discusses the deficiencies and bias apparent in the many tests that have been argued for, and provides a solution to ensure that certain rights that the American people have secured over decades of struggle do not fall at the hands of a supermajority on the United States Supreme Court.