Digital Commons Network^™

Constitutional Rights And Retrenchment: The Elusive Promise Of Equal Citizenship, Deborah L. Brake

University of Cincinnati Law Review

No abstract provided.

Decoding Dobbs: A Typology To Better Understand The Roberts Court's Jurisprudence, Katie Yoder

Honors Projects

The U.S. Supreme Court first recognized Substantive Due Process (“SDP”) in the early twentieth century. In Lochner v. New York, the Court established that there are certain unenumerated rights that are implied by the Fourteenth Amendment.Though SDP originated in a case about worker’s rights and liberties, it quickly became relevant to many cases surrounding personal intimate decisions involving health, safety, marriage, sexual activity, and reproduction.Over the past 60 years, the Court relied upon SDP to justify expanding a fundamental right to privacy, liberty, and the right to medical decision making. Specifically, the court applied these concepts to allow for freedoms …

The Red Pill: Critical Race Theory, Ostrich Law, And The 14th Amendment Right To Free And Equal Thought And Dignity, Kindaka J. Sanders

St. Mary's Law Journal

No abstract provided.

Mental Health In Prison: The Unintended But Catastrophic Effects Of Deinstitutionalization, Felicia Mulholland

Touro Law Review

Prisons and jails are not adequately equipped to manage the ever-growing population of mentally ill inmates. Despite deinstitutionalization efforts, prisons have steadily become the new psychiatric hospitals and unfortunately, because of the lack of treatment and the ability to properly supervise this population of inmates, these individuals are dying by their own hands at an alarming rate. This Note argues that the lack of proper care for mentally ill inmates is a violation of their constitutional right, despite their incarcerated status. The Department of Corrections and Community Supervision (DOCCS) should incorporate more concrete and universal rules and regulations for the …

Same Crime, Different Time: Sentencing Disparities In The Deep South & A Path Forward Under The Fourteenth Amendment, Hailey M. Donovan

Seattle University Law Review

The United States has the highest incarceration rate of any country in the world. The American obsession with crime and punishment can be tracked over the last half-century, as the nation’s incarceration rate has risen astronomically. Since 1970, the number of incarcerated people in the United States has increased more than sevenfold to over 2.3 million, outpacing both crime and population growth considerably. While the rise itself is undoubtedly bleak, a more troubling truth lies just below the surface. Not all states contribute equally to American mass incarceration. Rather, states have vastly different incarceration rates. Unlike at the federal level, …

Students For Fair Admissions Sends Us Bakke To The Drawing Board For Race- Conscious Affirmative Action In Higher Education, Monica Teixeira De Sousa

Roger Williams University Law Review

No abstract provided.

Institutional Antiracism And Critical Pedagogy: A Quantum Leap Forward For Legal Education And The Legal Academy, Danielle M. Conway

Faculty Scholarly Works

A fundamental launchpad for redeeming American society is to look to the historical and contextual goals of the Second Founding—the Reconstruction Amendments—and grasp the lessons about justice and equality for all by focusing on the principles of institutional antiracism. While our nation should deploy teaching and learning strategies at all levels of the American system of education, legal education must be out front leading the way to incorporate institutional antiracism through critical pedagogy.

This article provides the historical context in which legal education developed in the antebellum and postbellum periods and up to what might be deemed the “Third Founding” …

Implications Within Interpretations And Legal Implementations Of The Fourteenth Amendment, Jillian Bartley

Regis University Student Publications (comprehensive collection)

The Fourteenth Amendment is not often thought about as one of the pillars of American freedom and citizenship, but it is indeed. The Fourteenth Amdendment establishes equal protections under the law, due process, and citizenship. This thesis seeks to look at how the Fourteenth Amendment and gender intersect in a way that establishes who gets what rights, and how those rights are able to be interpreted. The way in which the Fourteenth Amendement is interpreted establishes who gets protections and what equality under the law means within the context of American society. In using legal history, and the breifing of …

“The Cruelty Is The Point”: Using Buck V. Bell As A Tool For Diversifying Instruction In The Law School Classroom, Tiffany C. Graham

Scholarly Works

Instructors who are looking for opportunities to expose their students to the ways in which intersectional forms of bias impact policy and legal rules can use Buck v. Bell to explore, for instance, the impact of disability and class on the formation of doctrine. A different intersectional approach might use the discussion of the case as a gateway to a broader conversation about the ways in which race and gender bias structured the implementation of sterilization policies around the nation. Finally, those who wish to examine the global impact of American forms of bias can use this case and the …

Evaluating The Pro Se Plight: A Comprehensive Review Of Access To Justice Initiatives In Ohio Landlord-Tenant Law, Caleigh M. Harris

University of Cincinnati Law Review

No abstract provided.

Done The Time, Still Being Punished For The Crime: The Irrationality Of Collateral Consequences In Occupational Licensing And Fourteenth Amendment Challenges, Mccarley Maddock

Duke Journal of Constitutional Law & Public Policy Sidebar

Traditionally, retributive models of criminal justice rely on incarceration as punishment for a crime. Under this theory, punishment should end when the offender is released from prison. Yet, a decentralized web of statutes across the United States undermines this commonsense notion and continues to punish formerly incarcerated persons by denying them access to basic services for re-entry into society such as housing, government benefits, and employment. Specifically, thousands of the formerly incarcerated individuals are barred from working in or pursuing a career of their choice based on state statutes that prohibit entry into a given profession based on criminal history. …

The Constitutionality Of The Title Ix Religious Exemption, Madelyn Jacobsen, Rebecca Batty, Editor

Brigham Young University Prelaw Review

Petitioners in Hunter v. Department of Education questioned the constitutionality of the Title IX religious exemption as the basis of their 2021 class-action lawsuit. They claimed that more than 30 religious schools maintained discriminatory policies against LGBTQ students under the exemption. The religious exemption, often painted as unconstitutional discrimination, permits religious schools' adherence to sincerely held religious beliefs—and promotes a distinctive religious education that secular schools lack. This paper examines legal precedents relevant to religious freedom, higher education, and discrimination that demand the Title IX religious exemption remains in effect.

Banning Abortions Based On A Prenatal Diagnosis Of Down Syndrome: The Future Of Abortion Regulation, Alexandra Russo

Touro Law Review

Since the infamous Supreme Court decision, Roe v. Wade, the United States has remained divided, each side unyielding to the other regarding the legal and moral issues surrounding abortion. The issues surrounding abortion have become progressively more politicized, thus threatening a woman’s right to a safe and healthy termination of her pregnancy. Restrictions on a woman’s ability to terminate a child with a genetic disorder, such as Down syndrome, highlight this concern. State restrictions on abortion that prohibit abortions based on a diagnosis of Down syndrome seek to prevent the stigmatization of the Down syndrome community. Regulations, such as …

Reflections On Nomos: Paideic Communities And Same Sex Weddings, Marie A. Failinger

Touro Law Review

Robert Cover’s Nomos and Narrative is an instructive tale for the constitutional battle over whether religious wedding vendors must be required to serve same-sex couples. He helps us see how contending communities’ deep narratives of martyrdom and obedience to the values of their paideic communities can be silenced by the imperial community’s insistence on choosing one community’s story over another community’s in adjudication. The wedding vendor cases call for an alternative to jurispathic violence, for a constitutionally redemptive response that prizes a nomos of inclusion and respect for difference.

Yes, Alito, There Is A Right To Privacy: Why The Leaked Dobbs Opinion Is Doctrinally Unsound, Nancy C. Marcus

Faculty Scholarship

On June 24, 2022, the Supreme Court released the final Dobbs majority opinion, which is substantially identical to the draft opinion. Consequently, the critique contained in this essay applies equally to the final Dobbs opinion.

On May 2, 2022, a draft majority opinion dated February 2022 and authored by Justice Alito in Dobbs v. Jackson Women’s Health Organization was leaked to the public. This Essay addresses the doctrinal infirmities of the underlying analysis of the draft Dobbs opinion, as well as the resulting dangers posed for the protection of fundamental privacy rights and liberties in contexts even beyond abortion.

The …

Korematsu’S Ancestors, Mark A. Graber

Arkansas Law Review

Mark Killenbeck’s Korematsu v. United States has important affinities with Dred Scott v. Sandford. Both decisions by promoting and justifying white supremacy far beyond what was absolutely mandated by the constitutional text merit their uncontroversial inclusion in the anticanon of American constitutional law.3 Dred Scott held that former slaves and their descendants could not be citizens of the United States and that Congress could not ban slavery in American territories acquired after the Constitution was ratified.5 Korematsu held that the military could exclude all Japanese Americans from portions of the West Coast during World War II.6 Both decisions nevertheless provided …

Strengthening Section 14141: Using Pattern Or Practice Investigations To End Violence Between Police And Communities, Sigourney Norman

Journal of Civil Rights and Economic Development

(Excerpt)

Imagine you are on your way home from work and driving your usual route. You hear police sirens getting louder and louder. You realize you are the subject of their chase, but you cannot imagine why. You slow down and pull over, not wanting to cause confrontation. The officer beats on your car door. You roll down your window and ask why you have been pulled over. The officer informs you that your tail light is broken. Next, the officer orders you out of the car. Your heart races as the officer pats you down. You wonder if the …

Campus Sexual Assault And Due Process, Ilana Frier

Duke Journal of Constitutional Law & Public Policy Sidebar

College women experience rape and sexual assault at alarmingly high rates. One highly publicized statistic, famously asserted by President Obama, states that one in five women experience sexual assault while attending college. In 2011, the U.S. Department of Education radically expanded its involvement in campus sexual misconduct adjudications, encouraging vigorous enforcement. Sustained regulatory and public pressure effectuated some positive change for victims. However, a proliferation of litigation also followed. Students found responsible of campus sexual assault, most of whom were males, increasingly began suing their schools alleging due process violations in their adjudications. In 2018, the Trump administration's Department of …

As Pertains To The Criminal Justice System, Is Hindsight 20/20?, Syndie G. E. Molina, Cristina Negrillo

Journal of Race, Gender, and Ethnicity

No abstract provided.

Reconceptualizing Hybrid Rights, Dan T. Coenen

Scholarly Works

In landmark decisions on religious liberty and same-sex marriage, and many other cases as well, the Supreme Court has placed its imprimatur on so called “hybrid rights.” These rights spring from the interaction of two or more constitutional clauses, none of which alone suffices to give rise to the operative protection. Controversy surrounds hybrid rights in part because there exists no judicial account of their justifiability. To be sure, some scholarly treatments suggest that these rights emanate from the “structures” or “penumbras” of the Constitution. But critics respond that hybrid rights lack legitimacy for that very reason because structural and …

The Superfluous Fifteenth Amendment?, Travis Crum

Scholarship@WashULaw

This Article starts a conversation about reorienting voting rights doctrine toward the Fifteenth Amendment. In advancing this claim, I explore an unappreciated debate—the “Article V debate”—in the Fortieth Congress about whether nationwide black suffrage could and should be achieved through a statute, a constitutional amendment, or both. As the first significant post-ratification discussion of the Fourteenth Amendment, the Article V debate provides valuable insights about the original public understandings of the Fourteenth and Fifteenth Amendments and the distinction between civil and political rights.

The Article V debate reveals that the Radical Republicans’ initial proposal for nationwide black suffrage included both …

The Legal And Medical Necessity Of Abortion Care Amid The Covid-19 Pandemic, Greer Donley, Beatrice Chen, Sonya Borrero

Articles

In response to the COVID-19 pandemic, states have ordered the cessation of non-essential healthcare. Unfortunately, many conservative states have sought to capitalize on those orders to halt abortion care. In this short paper, we argue that abortion should not fall under any state’s non-essential healthcare order. Major medical organizations recognize that abortion is essential healthcare that must be provided even in a pandemic, and the law recognizes abortion as a time-sensitive constitutional right. Finally, we examine the constitutional arguments as to why enforcing these orders against abortion providers should not stand constitutional scrutiny. We conclude that no public health purpose …

Reconstructing Racially Polarized Voting, Travis Crum

Scholarship@WashULaw

Racially polarized voting makes minorities more vulnerable to discriminatory changes in election laws and therefore implicates nearly every voting rights doctrine. In Thornburg v. Gingles, the Supreme Court held that racially polarized voting is a necessary—but not a sufficient—condition for a vote dilution claim under Section 2 of the Voting Rights Act. The Court, however, has recently questioned the propriety of recognizing the existence of racially polarized voting. This colorblind approach threatens not only the Gingles factors but also Section 2’s constitutionality.

The Court treats racially polarized voting as a modern phenomenon. But the relevant starting point is the 1860s, …

A Life Sentence: An Evaluation Of Voter Disenfranchisement Through A Constitutional Lens, Miranda Noel Janssen

Departmental Honors Projects

As the number of incarcerated pupils has increased in the United States, so has the number of pupils who cannot vote, due to a felony conviction. This paper is organized, (i) the history of felon voter disenfranchisement, (ii) statistics on state and federal levels, (iii) the collateral consequences of felon voter disenfranchisement, (iv) different perspectives about felon voter disenfranchisement, (v) understanding suspect classification and voting as a fundamental right, (vi) understanding strict scrutiny, (vii) examining past court rulings, (viii) identifying why the United States needs to change its current laws on felon voter disenfranchisement, an (ix) the proposal of a …

A New Voting Rights Act For A New Century: How Liberalizing The Voting Rights Act’S Bailout Provisions Can Help Pass The Voting Rights Advancement Act Of 2017, Mario Q. Fitzgerald

Brooklyn Law Review

The U.S. Supreme Court struck down the coverage formula of the Voting Rights Act (VRA) in Shelby County. v. Holder in 2013. Members of Congress have attempted to renew the VRA with an updated coverage formula through the Voting Rights Advancement Acts of 2015 and of 2017. Unfortunately, Congressional Republicans have not supported either bill. Even if passed in its current form, the Supreme Court is likely to strike down the Voting Rights Advancement Act of 2017 (VRAA) for violating the principle of “equal sovereignty between the States” as set forth by the Court in Shelby County. Therefore, this note …

Section 5'S Forgotten Years: Congressional Power To Enforce The Fourteenth Amendment Before Katzenbach V. Morgan, Christopher W. Schmidt

Northwestern University Law Review

Few decisions in American constitutional law have frustrated, inspired, and puzzled more than Katzenbach v. Morgan. Justice Brennan’s 1966 opinion put forth the seemingly radical claim that Congress—through its power, based in Section 5 of the Fourteenth Amendment, to “enforce, by appropriate legislation,” the rights enumerated in that Amendment—shared responsibility with the Court to define the meaning of Fourteenth Amendment rights. Although it spawned a cottage industry of scholarship, this claim has never been fully embraced by a subsequent Supreme Court majority, and in City of Boerne v. Flores, the Supreme Court rejected the heart of the Morgan …

The Global Person: Pig-Human Embryos, Personhood, And Precision Medicine, Yvonne Cripps

Indiana Journal of Global Legal Studies

Chimeras, in the form of pig-human embryos engineered by CRISPR-Cas9 and other biotechnologies, have been created as potential sources of organs for transplantation. Against that background, and in an era of "precision medicine," this Article examines the concept of the global genetically modified person and asks whether humanness and personhood are being eroded, or finding new boundaries in intellectual property and constitutional law.

Sex, Lies, And Ultrasound, B. Jessie Hill

Faculty Publications

State-mandated falsehoods are rampant in the context of abortion regulation. State legislatures have required doctors, before performing abortions, to provide scientifically unsupported information to women, such as that having an abortion increases the risk of breast cancer, or that it has negative mental health effects. Given the lack of evidence to sustain these sorts of claims, it seems reasonable to refer to such statements as government-mandated lies. However, this article argues that government mandated lies in the abortion context are unique in several ways that make them unlikely to be found unconstitutional, despite the fact that they obviously hinder patients’ …

Enforcing The Rights Of Due Process: The Original Relationship Between The Fourteenth Amendment And The 1866 Civil Rights Act, Kurt T. Lash

Law Faculty Publications

For more than a century, legal scholars have looked to the 1866 Civil Rights Act for clues regarding the original meaning of the Fourteenth Amendment. Because the 1866 version of the Act protected only citizens of the United States, most scholars believe that the Act should be used as a guide to understanding the Fourteenth Amendment’s citizenship-based Privileges or Immunities Clause. A close look at the original sources, however, reveals that the 1866 Civil Rights Act protected rights then associated with the requirements of due process. The man who drafted Section One of the Fourteenth Amendment, John Bingham, expressly described …

Personhood Under The Fourteenth Amendment, Vincent J. Samar

Marquette Law Review

This Article examines recent claims that the fetus be afforded the status of a person under the Fourteenth Amendment. It shows that such claims do not carry the necessary objectivity to operate reasonably in a pluralistic society. It then goes on to afford what a better view of personhood that could so operate might actually look like. Along the way, this Article takes seriously the real deep concerns many have for the sanctity of human life. By the end, it attempts to find a balance for those concerns with the view of personhood offered that should engage current debates about …