Law Commons^™

The Second Founding And The First Amendment, William M. Carter Jr.

Articles

Constitutional doctrine generally proceeds from the premise that the original intent and public understanding of pre-Civil War constitutional provisions carries forward unchanged from the colonial Founding era. This premise is flawed because it ignores the Nation’s Second Founding: i.e., the constitutional moment culminating in the Thirteenth, Fourteenth, and Fifteenth Amendments and the civil rights statutes enacted pursuant thereto. The Second Founding, in addition to providing specific new individual rights and federal powers, also represented a fundamental shift in our constitutional order. The Second Founding’s constitutional regime provided that the underlying systemic rules and norms of the First Founding’s Constitution …

The Thirteenth Amendment And Interest Convergence, William M. Carter Jr.

Articles

The Thirteenth Amendment was intended to eliminate the institution of slavery and to eliminate the legacy of slavery. Having accomplished the former, the Amendment has only rarely been extended to the latter. The Thirteenth Amendment’s great promise therefore remains unrealized.

This Article explores the gap between the Thirteenth Amendment’s promise and its implementation. Drawing on Critical Race Theory, this Article argues that the relative underdevelopment of Thirteenth Amendment doctrine is due in part to a lack of perceived interest convergence in eliminating what the Amendment’s Framers called the “badges and incidents of slavery.” The theory of interest convergence, in its …

What Counts As 'Discrimination' In Ledbetter And The Implications For Sex Equality Law, Deborah L. Brake

Articles

This article, presented at a Symposium, The Roberts Court and Equal Protection: Gender, Race and Class held at the University of South Carolina School of Law in the Spring of 2008, explores the implications of the Supreme Court's decision in Ledbetter v. Goodyear Tire & Rubber Co. for sex equality law more broadly, including equal protection. There is more interrelation between statutory and constitutional equality law as a source of discrimination protections than is generally acknowledged. Although the Ledbetter decision purports to be a narrow procedural ruling regarding the statute of limitations for Title VII pay discrimination claims, at its …

Judicial Review Of Thirteenth Amendment Legislation: 'Congruence And Proportionality' Or 'Necessary And Proper'?, William M. Carter Jr.

Articles

The Thirteenth Amendment has relatively recently been rediscovered by scholars and litigants as a source of civil rights protections. Most of the scholarship focuses on judicial enforcement of the Amendment in lawsuits brought by individuals. However, scholars have paid relatively little attention as of late to the proper scope of congressional action enforcing the Amendment. The reason, presumably, is that it is fairly well settled that Congress enjoys very broad authority to determine what constitutes either literal slavery or, to use the language of Jones v. Alfred H. Mayer Co., a "badge or incident of slavery" falling within the Amendment's …

A Thirteenth Amendment Framework For Combating Racial Profiling, William M. Carter Jr.

Articles

Law enforcement officers’ use of race to single persons out for criminal suspicion (“racial profiling”) is the subject of much scrutiny and debate. This Article provides a new understanding of racial profiling. While scholars have correctly concluded that racial profiling should be considered a violation of the Fourth Amendment, the Fourteenth Amendment’s Equal Protection Clause, and existing federal statutes, this Article contends that the use of race as a proxy for criminality is also a badge and incident of slavery in violation of the Thirteenth Amendment.

Racial profiling is not only a denial of the right to equal treatment, but …

Due Process, Jurisdiction And A Hague Judgments Convention, Ronald A. Brand

Articles

Due process is perhaps one of the most misunderstood concepts in the U.S. legal system, especially as it appears to those outside the United States. For lawyers trained in the United States, 'due process' becomes a phrase with special meaning resulting from the study of a number of judicial decisions, especially those of the U.S. Supreme Court. For lay persons, and for lawyers from other countries, discussions of 'due process' may not always provide a clear understanding of what that phrase means in the U.S. legal system. This paper discusses the historical development of the concept of due process in …