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A Deer In Headlights: The Supreme Court, Lgbt Rights, And Equal Protection, Nan D. Hunter

Georgetown Law Faculty Publications and Other Works

In this essay, I argue that the problems with how courts apply Equal Protection principles to classifications not already recognized as suspect reach beyond the most immediate example of sexual orientation. Three structural weaknesses drive the juridical reluctance to bring coherence to this body of law: two doctrinal and one theoretical. The first doctrinal problem is that the socio-political assumptions that the 1938 Supreme Court relied on in United States v. Carolene Products, Inc. to justify strict scrutiny for “discrete and insular minorities” have lost their validity. In part because of Roe v. Wade-induced PTSD, the courts have …

Whence Comes Section One? The Abolitionist Origins Of The Fourteenth Amendment, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

The contribution of abolitionist constitutionalism to the original public meaning of Section One of the Fourteenth Amendment was long obscured by a revisionist history that disparaged abolitionism, the “radical” Republicans, and their effort to establish democracy over Southern terrorism during Reconstruction. As a result, more Americans know about “carpetbaggers” than they do the framers of the Fourteenth Amendment. Despite a brief revival of interest stimulated by the writings of Howard Jay Graham and Jacobus tenBroek, in the 1970s and 1980s abolitionist constitutionalism remains obscure to law professors and even to historians of abolitionism.

This study provides important evidence of the …

Fighting Women: The Military, Sex, And Extrajudicial Constitutional Change, Jill Elaine Hasday

Georgetown Law Faculty Publications and Other Works

The Supreme Court in Rostker v. Goldberg (1981) upheld male-only military registration, and endorsed male-only conscription and combat positions. Few cases have challenged restrictions on women's military service since Rostker, and none have reached the Supreme Court. Federal statutes continue to exclude women from military registration and draft eligibility, and military regulations still ban women from some combat positions. Yet many aspects of women's legal status in the military have changed in striking respects over the past quarter century while academic attention has focused elsewhere. Congress has eliminated statutory combat exclusions, the military has opened many combat positions to women, …

Response To State Action And A New Birth Of Freedom, Robin West

Georgetown Law Faculty Publications and Other Works

I have just a few comments. The first comment is a contribution to the ''analytic" question posed by Professor Black's work and made explicit by Professors Peller and Tushnet's paper. To make the case for the constitutional status of welfare rights, I do not think it is sufficient-although it may well be necessary-to show that the "state action" problem is merely a pseudo-problem, whatever the reason for finding it not to be a problem. I do not agree with one of the claims put forward by Peller and Tushnet,' that Black's perceptive analysis of the state action problem in his …

The Constitution Of Reasons, Robin West

Georgetown Law Faculty Publications and Other Works

Cass Sunstein's book, The Partial Constitution, brings together a number of his constitutional law essays from the last ten years. During that time, Sunstein has argued, powerfully, for the unconstitutionality of regulatory constraints on access to abortion; for the constitutionality of and the need for regulation of violent pornography; for the constitutionality of limits on both campaign spending and congressional control over public broadcasting; for the deep consistency, conventional wisdom to the contrary notwithstanding, of the Court's repudiation of Lochner in 1937 with its 1974 decision in Roe v. Wade; for the view that we should accord far less deference …

The Ideal Of Liberty: A Comment On Michael H. V. Gerald D., Robin West

Georgetown Law Faculty Publications and Other Works

What is the meaning and content of the "liberty" protected by the due process clause of the fourteenth amendment? In Michael H. v. Gerald D. Justices Brennan and Scalia spelled out what at first blush appear to be sharply contrasting understandings of the meaning of liberty and of the substantive limits liberty imposes on state action. Justice Scalia argued that the "liberty" protected by a substantive interpretation of due process is only the liberty to engage in activities historically protected against state intervention by firmly entrenched societal traditions. I will sometimes call this the "traditionalist" interpretation of liberty. Justice Brennan, …

Equality Theory, Marital Rape, And The Promise Of The Fourteenth Amendment, Robin West

Georgetown Law Faculty Publications and Other Works

During the 1980s a handful of state judges either held or opined in dicta what must be incontrovertible to the feminist community, as well as to most progressive legal advocates and academics: the so-called marital rape exemption, whether statutory or common law in origin, constitutes a denial of a married woman's constitutional right to equal protection under the law. Indeed, a more obvious denial of equal protection is difficult to imagine: the marital rape exemption denies married women protection against violent crime solely on the basis of gender and marital status. What possibly could be less rational than a statute …