Digital Commons Network^™

Symposium: Sexual Orientation, Gender Identity & The Constitution: Love Is Love: The Fundamental Right To Love, Marriage, And Obergefell V. Hodges, Reginald Oh

ConLawNOW

Why is same-sex marriage a constitutional right of individual autonomy and dignity? Because of love. Based on a close reading of Justice Anthony Kennedy’s majority opinion in Obergefell v. Hodges, this essay will argue that Obergefell is best understood as an opinion about the centrality of love, not just marriage, for individual self-realization. It is love that helps make sense of Kennedy’s opinion. If love is not understood to be an essential aspect of Kennedy’s reasoning, then the opinion is rendered less coherent, emptied of much of its substance, and made vulnerable to critiques from both the right and …

Aals Constitutional Law Panel On Brown, Another Council Of Nicaea?, Kelly A. Macgrady, John W. Van Doren

Akron Law Review

When considering the product of the AALS Constitutional Law Panel, entitled "What Brown Should Have Said," held in January 2000, in Washington, D.C., we have experienced considerable disorientation. We therefore ask the question asked by Lucretia in Machievelli's play, The Mandragola, "Do you mean it or are you laughing at me?" We fear that the Panelists may be laughing at us. Because, in short, their writings criticize the formalism that they use in the panel court opinions. In this article, we pick four of the Panelists, more or less at random, and confront the question of whether their writings before …

Symposium: Examining Black Citizenship From Reconstruction To Black Lives Matter: Black Citizenship, Dehumanization, And The Fourteenth Amendment, Reginald Oh

ConLawNOW

The fight for full Black citizenship has been in large measure a fight against the systematic dehumanization of African Americans. Dehumanization is the process of treating people as less than human, as subhuman. Denying Blacks full and equal citizenship has gone hand in hand with denying their full humanity. To effectively promote equal citizenship for African Americans, therefore, requires an explicit commitment to ending their dehumanization. This essay examines the concept of dehumanization and its connection to formal, political, civil, and social citizenship. It elaborates on the less familiar idea of social citizenship, entailing the right to have personal relationships …

When Constitutional Rights Clash: Masterpiece Cakeshop's Potential Legacy, Ken Hyle

ConLawNOW

The narrow question presented to the U.S. Supreme Court in Masterpiece Cakeshop is undoubtedly one of great national importance. The decision will likely yield a framework for courts to resolve conflicts that specifically involve religious freedom, artistic expression, and anti-discrimination laws in the context of public accommodations. However, my essay suggests that Masterpiece Cakeshop is an appropriate vehicle for the Court to expound upon a broader, more fundamental constitutional issue: what is the optimal framework for resolving direct conflicts between constitutional rights? The essay begins by exploring the inherent flaw in a framework grounded in the traditional levels of judicial …

Finding Justice, Laurie L. Levenson

ConLawNOW

In this essay memoralizing remarks presented on Constitution Day, Professor Laurie Levenson reflects on her transition from federal prosecutor to defense attorney as founder of Loyola Law School’s Project for the Innocent. She recounts the stories of two clients freed by the work of the Project. She then discusses how this work revealed blind faith in the Constitution is not enough to ensure that only the guilty are convicted. We need to do better. Levenson argues that we need to realize that constitutional rights only protect individuals if both prosecutors and defense lawyers want those rights to work. A prosecutor …

The Unconstitutionality Of Ohio's House Bill 125: The Heartbeat Bill As Analyzed Under The First Amendment Of The United States Constitution, Jessica L. Knopp

ConLawNOW

This article examines the constitutionality of Ohio’s controversial House Bill 125 (“H.B. 125”), which includes new restrictions and requirements for abortion procedures performed in Ohio. The author argues that, while the new abortion measures conflict with the Supreme Court’s Fourteenth Amendment jurisprudence established in Roe v. Wade and in Planned Parenthood v. Casey, H.B. 125 also violates the Establishment Clause of the First Amendment by imputing religious beliefs about conception and the value of life onto all Ohioans.

The article first outlines the current legal framework for constitutionally acceptable and unacceptable abortion restrictions, including a discussion of informed consent …

Not In My Hospital: The Future Of State Statutes Requiring Abortion Providers To Maintain Admitting Privileges At Local Hospitals, Daniel J. Glass

Akron Law Review

In recent years, state legislatures have enacted a variety of restrictive statutes making it more difficult for abortion providers to serve their patients, typically in the name of health and safety. Those opposing these restrictive statutes commonly refer to them as Targeted Regulation of Abortion Providers (TRAP) laws. This Note discusses admitting privileges statutes, which require that abortion providers maintain permissions with a local hospital to admit and treat their patients. Admitting privileges statutes have been challenged in federal courts, but the resulting decisions have been inconsistent. This Note compares the analysis used by federal circuits and district courts in …

Book Review: Psychiatric Justice, Alice M. Batchelder

Akron Law Review

In an era in which extensive judicial emphasis has been placed on "due process of law" in criminal proceedings, both in the federal courts and in the state courts, Dr. Szasz's book serves as a jarring reminder that in at least one vital area of the concept of due process, much remains to be done. The emerging definition of due process has enunciated the rights guaranteed the individual by the Fourth, Fifth, Sixth, and Fourteenth Amendments; and viewed within that framework, this book, although published in 1965, remains particularly timely, for Szasz, speaking as a psychiatrist, endeavors to demonstrate how …

Constitutional Rights Of Youthful Offenders; In The Matter Of Gault, Robert M. Kunczt

Akron Law Review

After the decisions in Gideon v. Wainwright, 372 U. S. 335 (1963), Miranda v. Arizona, 384 U. S. 436 (1966), and Escobedo v. Illinois, 378 U. S. 478 (1964), which revealed the Supreme Court's solicitude of the constitutional rights of adults, it seemed improbable that the lower courts would long be permitted to continue ignoring the constitutional rights of juveniles. Thus the decision in the principal case, which represents a breakthrough in the assurance of a fair hearing to minors, comes as no surprise. The case holds that under the Fourteenth Amendment a juvenile has a right to notice of …

The Reed Case: The Seed For Equal Protection From Sex-Based Discrimination, Or Polite Judicial Hedging?, John P. Murphy Jr.

Akron Law Review

Reed is yet another example of how the Equal Protection Clause may be used to strike down state statutes which embody arbitrary classifications that are neither fairly nor substantially related to the object of the statute, and which bring about the invidious discrimination that is repugnant to the Fourteenth Amendment. It must stressed that the outcome of Reed is clearly commendable in terms of justice. What is troublesome is the fact that one may contend that the Supreme Court hedged, perhaps avoided, an excellent opportunity in which to expand the constitutional scope of the Equal Protection Clause. Reed afforded the …

The Uneasy Partnership: The Balance Of Power Between Congress And The Supreme Court In Interpretation Of The Civil War Amendments, Emil Lippe Jr.

Akron Law Review

The basic thesis of this article is that the enforcement clauses of the thirteenth,' fourteenth, 2 and fifteenth 3 amendments have imposed strong affirmative duties upon the United States Congress and the Supreme Court. These duties, due to their very nature, must be exercised in tandem with each other toward the overall goal of the Civil War Amendments: the guarantee that the civil rights of no American be denied him on the basis of race, color, or previous condition of servitude. In addition, a special type of constitutional stare decisis operates to prevent both branches from contracting the rights guaranteed …

The "Compulsory School Attendance" Case: Wisconsin V. Yoder, Michael Buchicchio

Akron Law Review

It is an important constitutional doctrine that a law generally constitutional "on its face," may be unconstitutional "as applied" in specific instances. The Amish case marks the first occasion that the Court has clearly articulated that exception in favor of a minority religious group. It would appear that compulsory education laws are-"on their face"--within a state's constitutional powers, but under the facts of this case, the First Amendment requires that the Amish be exempt.

Student Rights Under The Due Process Clause . . . Suspensions From Public Schools; Goss V. Lopez, Glenn W. Soden

Akron Law Review

IN ADDRESSING ITSELF to the constitutionality of Section 3316.66 of the Ohio Revised Code,' the United States Supreme Court in Goss v. Lopez has ruled for the first time upon the extent to which the rights of students are to be protected under the due process clause of the fourteenth amendment in conjunction with any disciplinary removal from a public school. By its action the Court has tacitly undertaken to lift the cloud on student rights which has existed under the common law doctrine of in loco parentis, and interpose procedural safeguards upon any decision of school officials to deprive …

A Jurisprudence Of Equality: The Fourteenth Amendment And School Desegregation, Stewart Graham

Akron Law Review

This paper will deal with the meaning of equality in legal discourse and the social context which underlies that meaning.

Affirmative Action, Reverse Discrimination Bratton V. City Of Detroit, John T. Dellick

Akron Law Review

In Bratton v. City of Detroit, the United States Sixth Circuit Court of Appeals examined charges of reverse discrimination' arising from a voluntary affirmative action plan adopted by the City of Detroit. These reverse discrimination claims were presented as alleged violations of Title VIP and the fourteenth amendment. The Bratton court reviewed the leading Title VII reverse discrimination case, United Steelworkers of America v. Weber, and the leading fourteenth amendment reverse discrimination case, Regents of University of California v. Bakke. From these cases, the court in Bratton extracted the major guidelines of each, comingled them, and developed …

Denial Of Tax Exempt Status For Racially Discriminatory Schools, Bob Jones University V. U.S., Margaret K. Cassidy

Akron Law Review

The extent to which the government may deny tax-exempt status in order to further its goal of eliminating racial discrimination is a question of paramount importance. The United States Supreme Court recently addressed this question in the case of Bob Jones University v. U.S., a consolidated action which involved a conflict between two established public policies: racial equality and religious freedom. The Court held that this nation's policy of racial equality overrides any interest that an educational and religious institution may have in promoting racial discrimination.

Expanding The Quasi Suspect Class To Include Mentally Retarded Persons: Cleburne Living Center, Inc. V. City Of Cleburne, Annette E. Skinner

Akron Law Review

The Cleburne Living Center, Inc. v. City of Cleburne court faced the issue with a well-reasoned and carefully structured opinion. The court explored the indicia of suspectness promulgated by the Supreme Court in various opinions, and held that the mentally retarded share sufficient indicia of a suspect class to be accorded quasi-suspect status; therefore, intermediate scrutiny is the proper level of scrutiny to employ when examining the constitutionality of a statute. The largest part of the court's opinion dealt with the analysis of whether the discriminatory classification bore a substantial relationship to an important governmental objective - the required test …

Escobedo And Miranda Revisited, Arthur J. Goldberg

Akron Law Review

Shortly before the close of the 1983 term, the Supreme Court of the United States decided two cases, U.S. v. Gouveia and New York v. Quarles, which in effect overruled Escobedo v. Illinois and undermined Miranda v. Arizona.

Batson V. Kentucky: Can The 'New' Peremptory Challenge Survive The Resurrection Of Strauder V. West Virginia?, Brian Wilson

Akron Law Review

It cannot be denied that our jury selection process has lent itself to invidious racial discrimination in the selection of jurors who ultimately decide the black defendant's guilt or innocence. This practice manifested itself in a line of decisions, beginning with Strauder v. West Virginia. The Strauder Court held that excluding qualified venirepersons on the basis of race violated the fourteenth amendment. However, the Supreme Court's refusal in Swain v. Alabama to subject petit jury peremptory challenges to constitutional scrutiny spawned much criticism from courts and commentators. As a result, the Court in Batson v. Kentucky decided to re-examine …

Riggins V. Nevada Fails To Resolve The Conflict Over Forcibly Medicating The Incompetent Criminal Defendant, Richard L. Ferrell Iii

Akron Law Review

The purpose of this casenote is to assess the propriety of the Riggins Court's decision and highlight some problems with the Court's reasoning. This note begins by discussing antipsychotic drugs and their side effects. Next, this note explores the ways in which courts have responded to the state's power to compel such medication, followed by an explanation of the types of objections raised to prevent this intrusion. Then, this casenote analyzes the Court's discussion of Riggins' eighth amendment claim, his liberty interest in avoiding forced medication, and the trial prejudice which anti-psychotic drugs can cause. Finally, this note analyzes the …

Rich Kids, Poor Kids, And The Single-Sex Education Debate, Rosemary Salomone

Akron Law Review

Over the past decade, the subject of publicly supported, single-sex education has generated considerable debate in legal and policy circles. Since 1996, much of that debate has centered around the Supreme Court’s decision in the Virginia Military Institute case and how that case intersects with Title IX of the Education Amendments of 1972. In VMI, Justice Ginsburg, speaking for the Court, stated that gender classifications must have “an exceedingly persuasive justification” in order to pass muster under the Fourteenth Amendment equal protection clause.1 That decision has become a key factor in recent efforts by school districts to establish single-sex schools …

Unintended Consequences Of The Fourteenth Amendment And What They Tell Us About Its Interpretation, Richard L. Aynes

Akron Law Review

Much of the literature, understandably, seeks to find out what the framers of the amendment or the ratifiers of the amendment “intended.”...This article treats that issue as well, but begins with a different question: Does the amendment have consequences which were unintended by the framers? Over one and a quarter centuries ago, Justice Joseph Bradley answered that question in the affirmative: “It is possible that those who framed the article were not themselves aware of the far ranging character of its terms.” I suggest those unintended consequences include the effect of the Citizenship Clause on the force of the Fourteenth …

Fourteenth Amendment Citizenship And The Reconstruction-Era Black Public Sphere, James Fox

Akron Law Review

Sections two and three of the Fourteenth Amendment, being more political than legal enactments, have had essentially no judicial or legal development. Yet even the first sentence of section one and the ensuing Privileges or Immunities Clause have had relatively little play in the courts. With the single exception of the 1999 case of Saenz v. Roe, 6 the citizenship language of the Fourteenth Amendment has practically no legal significance.

Still, these approaches to equal or constitutional citizenship represent a starting point, not a conclusion. Taking up the invitations of these scholars, my project is to delve more deeply into …

The Use Of The Fourteenth Amendment By Salmon P. Chase In The Trial Of Jefferson Davis, C. Ellen Connally

Akron Law Review

The resulting decision in The Slaughterhouse Cases is one that is still debated and stands as a primary example of an unintended consequence of a constitutional amendment. Although historians and legal scholars have considered a number of the unintended consequences of the Fourteenth Amendment, one result, unforeseen by its proponents, has been totally overlooked... In the legal proceedings that came to be known as United States v. Jefferson Davis, a legal determination was required to determine whether or not Section 3 imposed a simple disqualification or an actual punishment...Could those who pushed for the adoption of the Fourteenth Amendment, those …

Why "Privileges Or Immunities"? An Explanation Of The Framers' Intent, William J. Rich

Akron Law Review

In the Slaughter-House Cases, Justice Field accused the majority of turning the Fourteenth Amendment’s Privileges or Immunities Clause into a “vain and idle enactment which accomplished nothing,” and Justice Swayne argued that the majority “turn[ed] . . . what was meant for bread into a stone.” Most contemporary commentators appear to agree... Did the framers of the Fourteenth Amendment make a colossal mistake? Or were Justices Field and Swayne correct when they blamed Justice Miller’s majority opinion in Slaughter-House for leading the nation astray? Answers to these questions, in the pages that follow, are “no” to the first, and a …

The Union As It Wasn't And The Constitution As It Isn't: Section Five And Altering The Balance Of Powers, Elizabeth Reilly

Akron Law Review

This article argues that in reconstituting that Union, the 39th Congress and the Fourteenth Amendment not only altered the fundamental structural principles of the relationship between the states and the national government and the responsibility of government to protect individual liberties. It argues that the original structural alignment of national powers and the boundaries of their respective spheres were also, of necessity and by understanding, recast as well.

The Legacy Of Slaughterhouse, Bradwell, And Cruikshank In Constitutional Interpretation, Wilson R. Huhn

Akron Law Review

The conclusions that the Court drew about the meaning of the 14th Amendment shortly after its adoption were contrary to the intent of the framers of that Amendment and a betrayal of the sacrifices which had been made by the people of that period. In each case, the Court perverted the meaning of the Constitution in ways that reverberate down to the present day...In these cases the Court ruled upon several critical aspects of 14th Amendment jurisprudence, including (1) Whether the 14th Amendment prohibits the States from interfering with our fundamental rights; (2) How the equality of different groups should …

The 39th Congress (1865-1867) And The 14th Amendment: Some Preliminary Perspectives, Richard L. Aynes

Akron Law Review

This article is a preliminary effort to tell the story of the people who brought the nation the 14th Amendment, the 39th Congress...I want to suggest that when someone creates the Hall of Fame of the Congresses we need to include the 39th Congress.

Infinite Hope - Introduction To The Symposium: The 140th Anniversary Of The Fourteenth Amendment, Elizabeth Reilly

Akron Law Review

This symposium celebrates the 140th anniversary of ratification. The anniversary provides us with a fruitful occasion to reflect upon the meaning of the Amendment to its Framers in Congress and as it was initially interpreted by the United States Supreme Court and the public, and to examine the lasting impacts of both conceptions...Therefore, our participants explicitly discuss applying their understanding of history to the modern implications of the Fourteenth Amendment and current law. Understanding the Amendment, especially because of its early reception by the Court, requires looking at law, history, political science, and sociology, among other disciplines, to try to …

Martin Welker: Ohio's Unsung Hero, Aaron Boothby

The 39th Congress Project

No abstract provided.