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Articles 1 - 9 of 9
Full-Text Articles in Law
Same-Sex Marriage, Second-Class Citizenship, And Law's Social Meanings, Michael C. Dorf
Same-Sex Marriage, Second-Class Citizenship, And Law's Social Meanings, Michael C. Dorf
Michael C. Dorf
Government acts, statements, and symbols that carry the social meaning of second-class citizenship may, as a consequence of that fact, violate the Establishment Clause or the constitutional requirement of equal protection. Yet social meaning is often contested. Do laws permitting same-sex couples to form civil unions but not to enter into marriage convey the social meaning that gays and lesbians are second-class citizens? Do official displays of the Confederate battle flag unconstitutionally convey support for slavery and white supremacy? When public schools teach evolution but not creationism, do they show disrespect for creationists? Different audiences reach different conclusions about the …
The Heterogeneity Of Rights, Michael C. Dorf
The Heterogeneity Of Rights, Michael C. Dorf
Michael C. Dorf
What is the implication for the validity of governmental rules of the conclusion that the rule interferes with a constitutional right? This question has implications for two important doctrinal puzzles. The first is the question when, if ever, a litigant has a constitutional right to an exemption from a generally valid rule of law. Many constitutional rights are rule-dependent in the sense that they protect actors against certain kinds of governmental rules rather than shielding acts against governmental interference. This Article denies the claim by scholars and judges that this rule-dependence reflects a deep truth about the nature of constitutional …
Federal Governmental Power: The Voting Rights Act, Michael C. Dorf
Federal Governmental Power: The Voting Rights Act, Michael C. Dorf
Michael C. Dorf
No abstract provided.
Levels Of Generality In The Definition Of Rights, Laurence Tribe, Michael Dorf
Levels Of Generality In The Definition Of Rights, Laurence Tribe, Michael Dorf
Michael C. Dorf
This article focuses on one important aspect of the quest for constitutional meaning: how to determine whether a particular liberty-whether or not expressly enumerated in the Bill of Rights-is a "fundamental" right. Whether under the somewhat tarnished banner of substantive due process or under a different rubric, the designation of a right as fundamental requires that the state offer a compelling justification for limitations of that right. In addition, under the Equal Protection Clause of the Fourteenth Amendment, state-sanctioned inequalities that bear upon the exercise of a fundamental right will be upheld only if they serve a compelling governmental interest. …
A Partial Defense Of An Anti-Discrimination Principle, Michael C. Dorf
A Partial Defense Of An Anti-Discrimination Principle, Michael C. Dorf
Michael C. Dorf
Over a quarter century ago, Professor Fiss proposed that the constitutional principle of equal protection should be interpreted to prohibit laws or official practices that aggravate or perpetuate the subordination of specially disadvantaged groups. Fiss thought that the anti-subordination principle could more readily justify results he believed normatively attractive than could the rival, anti-discrimination principle. In particular, anti-subordination would enable the courts to invalidate facially neutral laws that have the effect of disadvantaging a subordinate group and also enable them to uphold facially race-based laws aimed at ameliorating the condition of a subordinate group. Since Fiss’s landmark article appeared, Supreme …
Does Heller Protect A Right To Carry Guns Outside The Home?, Michael C. Dorf
Does Heller Protect A Right To Carry Guns Outside The Home?, Michael C. Dorf
Michael C. Dorf
No abstract provided.
Rights And Rules: An Overview, Matthew Adler, Michael Dorf
Rights And Rules: An Overview, Matthew Adler, Michael Dorf
Michael C. Dorf
Prior to recent decades, the United States Supreme Court often invoked the political question doctrine to avoid deciding controversial questions of individual rights. By the 1970s and 1980s, standing limits traced to Article III’s case-or-controversy language had replaced the political question doctrine as the favored justiciability device. Although both political question and standing doctrines remain tools in the Court’s arsenal of threshold decision making,3 in the last decade the Court has turned with increasing frequency to the distinction between facial and as-applied challenges to perform the gatekeeping function. However, although there is a considerable body of scholarship concerning the conventional …
Abortion Rights, Michael C. Dorf
A Constitution Of Democratic Experimentalism, Michael C. Dorf, Charles F. Sabel
A Constitution Of Democratic Experimentalism, Michael C. Dorf, Charles F. Sabel
Michael C. Dorf
In this Article, Professors Dorf and Sabel identif a new form of government, democratic experimentalism, in which power is decentralized to enable citizens and other actors to utilize their local knowledge to fit solutions to their individual circumstances, but in which regional and national coordinating bodies require actors to share their knowledge with others facing similar problems. This information pooling, informed by the example of novel kinds of coordination within and among private firms, both increases the efficiency of public administration by encouraging mutual learning among its parts and heightens its accountability through participation of citizens in the decisions that …