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Popular Originalism? The Tea Party And Constitutional Theory, Rebecca Zietlow

Rebecca E Zietlow

The United States Constitution is currently the subject of a heated political debate. Tea Party activists have invoked the constitution as the foundation of their conservative political philosophy. These activists are engaged in “popular originalism,” using popular constitutionalism, constitutional interpretation outside of the courts, to invoke originalism as constitutional method. The Tea Party movement thus provides an excellent heuristic to explore the relationship between originalism and popular constitutionalism, two prominent trends in constitutional theory. Both originalists and popular constitutionalists study legal history to illuminate constitutional meaning, but the two schools of thought draw diverging lessons from that history. Originalists look …

Popular Originalism? The Tea Party And Constitutional Theory, Rebecca Zietlow

Rebecca E Zietlow

The United States Constitution is currently the subject of a heated political debate. Tea Party activists have invoked the constitution as the foundation of their conservative political philosophy. These activists are engaged in “popular originalism,” using popular constitutionalism, constitutional interpretation outside of the courts, to invoke originalism as constitutional method. The Tea Party movement thus provides an excellent heuristic to explore the relationship between originalism and popular constitutionalism, two prominent trends in constitutional theory. Both originalists and popular constitutionalists study legal history to illuminate constitutional meaning, but the two schools of thought draw diverging lessons from that history. Originalists look …

Exploring A New Paradigm For Women's Rights, Rebecca Zietlow

Rebecca E Zietlow

Nearly forty years after the Supreme Court recognized gender as a suspect class under the Equal Protection Clause of the Fourteenth Amendment, and almost half a century after the 1964 Civil Rights Act guaranteed women the right to work free of sex discrimination, women still find found gender equality to be an elusive goal. The persistent gender gap in wages and the continued prevalence of domestic violence are two indications that the predominant model of equality law, based in the Equal Protection Clause, is simply not adequate to address women’s inequality in our society.

The book GENDER EQUALITY: DIMENSIONS OF …

Free At Last! Anti-Subordination And The Thirteenth Amendment, Rebecca Zietlow

Rebecca E Zietlow

Notwithstanding the powerful symbolism that liberty has in the American psyche, liberty is largely absent from our late Twentieth Century understanding of civil rights, which instead is based in the Equal Protection Clause and its promise of formal equality. People of color and women of every race have made significant advances under the Equal Protection model of equality, but they continue to lag behind whites and men under virtually every economic index. This paper argues for an alternative model of equality, an anti-subordination model, which allows decision-makers to focus on the material conditions that contribute to inequality in our society, …

Belonging And Empowerment: A New "Civil Rights" Paradigm Based On Lessons Of The Past, Rebecca E. Zietlow

Rebecca E Zietlow

ABSTRACT: Despite the advances that African Americans have made in our country as a result of the Civil Rights movement of the 1960s, poverty stubbornly persists in communities of color throughout our country. Our current civil rights paradigm, which is rooted in the Equal Protection Clause, and prohibits intentional state discrimination on the basis of immutable characteristics, simply is not working. This article suggests an alternative approach, one based not solely in equality norms but in facilitating the belonging of outsiders in our society. The subordination of people of color in our society has never been just about race. Rather, …

Belonging And Empowerment: A New "Civil Rights" Paradigm Based On Lessons From The Past, Rebecca Zietlow

Rebecca E Zietlow

Despite the advances that African Americans have made in our country as a result of the Civil Rights movement of the 1960s, poverty stubbornly persists in communities of color throughout our country. Our current civil rights paradigm, which is rooted in the Equal Protection Clause, and prohibits intentional state discrimination on the basis of immutable characteristics, simply is not working. This article suggests an alternative approach, one based not solely in equality norms but in facilitating the belonging of outsiders in our society. The subordination of people of color in our society has never been just about race. Rather, racism …

The Disaggregation Of Race And Class In United States Civil Rights Law, Rebecca Zietlow

Rebecca E Zietlow

Despite the advances that African Americans have made in our country as a result of the Civil Rights movement of the 1960s, poverty stubbornly persists in communities of color throughout our country. Our current civil rights paradigm, which is rooted in the Equal Protection Clause, and prohibits intentional state discrimination on the basis of immutable characteristics, simply is not working. This article suggests an alternative approach, one based not solely in equality norms but in facilitating the belonging of outsiders in our society. The subordination of people of color in our society has never been just about race. Rather, racism …

The Judicial Restraint Of The Warren Court (And Why It Matters), Rebecca E. Zietlow

Rebecca E Zietlow

Abstract: The Judicial Restraint of the Warren Court (and Why it Matters)

This article argues that the strongest contribution that the Warren Court made to expanding equality rights was not its judicial activism in protecting those rights, but its restraint in allowing Congress to protect those rights. This argument may seem counter-intuitive given that the Warren Court is practically synonymous with judicial activism. Indeed, the Warren Court’s activism in protecting individual rights provides the paradigm for those constitutional scholars who argue that an active judiciary is necessary for the adequate protection of those rights. However, this paradigm is relatively new. …