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Book Review: Rearranging The Apple Cart: Good-Faith Originalism And The Fourteenth Amendment, Daniel Coble
Book Review: Rearranging The Apple Cart: Good-Faith Originalism And The Fourteenth Amendment, Daniel Coble
ConLawNOW
This essay reviews the book by Randy Barnett and Evan Bernick, The Original Meaning of the Fourteenth Amendment: Its Letter and Spirit (2021). Ask any constitutional law professor about how judges should or do interpret the Constitution, and you will likely hear an answer that ends in “ism.” In their latest book, Professors Randy Barnett and Evan Bernick discuss an “ism” that is found in our nation’s highest court, state courts, and academia: originalism. No matter which constitutional interpretation “ism” that one follows, this book provides an intimate and historical view of what two leading originalist scholars believe is the …
The New Intersectional And Anti-Racist Lgbtqia + Politics: Some Thoughts On The Path Ahead, Marc Spindelman
The New Intersectional And Anti-Racist Lgbtqia + Politics: Some Thoughts On The Path Ahead, Marc Spindelman
ConLawNOW
This article examines the changes to LGBTQIA+ consciousness and the politics they are producing. One result of these consciousness shifts is the increasing number of LGBTQIA+-identified people and organizations reconstituting themselves, their identities, and their politics around pro-Black, anti-racist positions, and doing so as foundational elements of their LGBTQIA+ liberation work. At the same time as these developments are unfolding, however, they are on a collision course with emergent social conservative positions and obstacles. These obstacles include developments at a Supreme Court that is increasingly deciding based on constitutional originalism. This article begins to show how the Court’s conservative originalism …
Note: Conflicting Common Law: Application Of The Self-Incrimination Clause As Applied To Smartphone Technology, Andrew Meena
Note: Conflicting Common Law: Application Of The Self-Incrimination Clause As Applied To Smartphone Technology, Andrew Meena
ConLawNOW
This essay discusses the murkiness in the law regarding the application of the Self-Incrimination Clause as it relates to modern technology of smartphones. It evaluates the pros and cons of a judicial solution to the existing conflict against a legislative solution. Rather than through regulation or statutory reform, the focus will be on the need for a contemporary judicial interpretation of the Self-Incrimination Clause in furtherance of the common law tradition that spawned the first understandings of the Fifth Amendment. Ultimately, this examination will call upon the Supreme Court to craft a modern application of the Self-Incrimination Clause by holding …
Abortion Rights And Federalism: Some Lessons From The Nineteenth Century United States, Kate Masur
Abortion Rights And Federalism: Some Lessons From The Nineteenth Century United States, Kate Masur
ConLawNOW
The Dobbs decision, which gives states complete control over abortion laws, has unleashed conflicts that resemble the battles that arose when enslaved people fled slave states for free states, and enslavers, in turn, mobilized state and federal power to get them back. The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization has prompted frequent allusions to slavery and the antebellum United States. The history of those struggles reminds us of the corrosive impact of interstate conflict and of the importance of federal protections for freedom and individual rights. The history of the United States in the nineteenth century …
Symposium: The Future Of Reproductive Rights: Dobbs And Unenumerated Parental Custody Rights And Interests, Jeffrey A. Parness
Symposium: The Future Of Reproductive Rights: Dobbs And Unenumerated Parental Custody Rights And Interests, Jeffrey A. Parness
ConLawNOW
This article addresses issues involving custodial parents after Dobbs. It first briefly describes the federal constitutional right to an interest in custodial parentage under pre-Dobbs U.S. Supreme Court precedents. It finds few precedents on defining parents at birth and no precedents on defining parentage arising from post-birth acts. The paper then reviews Dobbs, particularly its varying takes on unenumerated constitutional rights. Finally, it explores how Dobbs should influence future precedents on federal constitutional custodial parentage that arises either at birth or after birth. It urges federal courts to expand custodial parentage in light of societal changes in …
Symposium: The Future Of Reproductive Rights: An Embryo Is Not A Person: Rejecting Prenatal Personhood For A More Complex View Of Prenatal Life, Cynthia Soohoo
Symposium: The Future Of Reproductive Rights: An Embryo Is Not A Person: Rejecting Prenatal Personhood For A More Complex View Of Prenatal Life, Cynthia Soohoo
ConLawNOW
This essay considers current claims for prenatal personhood after the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization. It first explains how the Dobbs decision unnecessarily adopts a binary view of prenatal life, suggesting that the only option for courts and legislatures is to recognize prenatal personhood or deny protection for prenatal life. This ignores popular understandings that certain laws can and should protect prenatal life, especially where criminal or tortious actions are concerned, but not grant full legal personhood. The Dobbs decision also refused to draw meaningful lines about the value of prenatal life in …
Symposium: The Future Of Reproductive Rights: Big, Bad Roe, B. Jessie Hill
Symposium: The Future Of Reproductive Rights: Big, Bad Roe, B. Jessie Hill
ConLawNOW
After the Supreme Court’s reversal of Roe v. Wade, the question of a constitutional right to abortion goes to state courts where there is a potential for resurgence of a Roe-like standard. This Essay thus evaluates whether Roe’s doctrinal framework is worth resurrecting, and concludes that it is good law to retain. It criticizes the work of liberal legal scholar John Hart Ely, who famously attacked Roe’s reasoning in a much-cited essay entitled The Wages of Crying Wolf: A Comment on Roe v. Wade. Justice Alito’s majority opinion in Dobbs v. Jackson Women’s Health Organization cited …
Symposium: The Future Of Reproductive Rights: Situating Dobbs, Paula Monopoli
Symposium: The Future Of Reproductive Rights: Situating Dobbs, Paula Monopoli
ConLawNOW
This Article applies the concept of constitutional memory to the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization to dispute the dominant view that the case was unique in erasing a constitutional right. It offers three examples—voting, Prohibition, and protective labor legislation—to illustrate how situating Dobbs within an expansive view of feminist legal history teaches us that it is not the only—just the most recent—example of the Court’s eroding or erasing previously recognized legal protections or rights that had a positive impact on women’s lives. It concludes that Congress, the Supreme Court, and the People themselves have been …
Symposium: The Future Of Reproductive Rights: Foreign Law In Dobbs: The Need For A Principled Framework, Sital Kalantry
Symposium: The Future Of Reproductive Rights: Foreign Law In Dobbs: The Need For A Principled Framework, Sital Kalantry
ConLawNOW
This article critiques the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization for its unprincipled and superficial use of foreign law sources to overturn Roe v. Wade. It explains the surprising use of foreign law by conservative justices who had previously opposed all use of non-US law in decision-making. And it shows how international and foreign law can be used on by either side to both expand and retrench rights. The article thus argues for a more principled framework for when and how to use international law sources including a more contextual analysis of that law.