Law Commons^™

Thinking About The Constitution At The Cusp, Mark Tushnet

Akron Law Review

Marshall’s understanding that schools have an implicit curriculum might be a better guide to thinking about what we should teach about the Constitution in this century than any substantive points I might make. One controversial example may illustrate Marshall’s understanding: just as he asked what lesson would be taught by delaying desegregation, so we might ask, “What lesson will be taught about the nature of our constitutional community if we adopt a large-scale system of vouchers that parents can use to assist them in sending their children to non-public schools?” Such a system would demonstrate B and would teach our …

Teaching Slavery In American Constitutional Law, Paul Finkelman

Akron Law Review

From 1787 until the Civil War, slavery was probably the single most important economic institution in the United States. On the eve of the Civil War, slave property was worth at least two billion dollars. In the aggregate, the value of all the slaves in the United States exceeded the total value of all the nations railroads or all its factories. Slavery led to two major political compromises of the antebellum period, as well as to the most politically divisive Supreme Court decision in our history. Vast amounts of political and legal energy went into dealing with the institution. It …

Teaching Free Speech From An Incomplete Fossil Record, Michael Kent Curtis

Akron Law Review

The second part of this symposium has been devoted to how we teach the Constitution. It has emphasized what gets left out. The reader will see a pattern. Paul Finkelman is a leading scholar on the law of slavery and the Constitution. Paul thinks – and I believe he is correct – that the immense influence of slavery on American constitutional law is too often neglected in our constitutional law courses. James Wilson has studied how political philosophers – Aristotle, Rousseau, James Harrington, and others – have understood the distribution of wealth as a central factor affecting how the constitution …

Education And The Constitution: Shaping Each Other & The Next Century, Elizabeth Reilly

Akron Law Review

In evaluating patients’ potential legal remedies, this Comment explores 1) the emergence of managed care organizations in the United States; 2) the creation of the Employee Retirement Income Security Act of 1974 (“ERISA”) and how it impacts patients’ claims against their MCOs; 3) the question of “quantity” versus “quality” in evaluating whether ERISA preemption exists; 4) three theories (direct liability, breach of fiduciary duty, and vicarious liability) used to hold MCOs liable for injuries resulting from malpractice or the wrongful denial of benefits; 5) state legislative attempts to circumvent ERISA’s inequitable preemption of claims; and 6) why, given ERISA’s failure …

John A. Bingham And The Story Of American Liberty: The Lost Cause Meets The "Lost Clause", Michael Kent Curtis

Akron Law Review

Nations have stories too. Ours is a story about the American Revolution against monarchy and aristocracy, a revolution based on the faith that all people are created equal and endowed by their Creator with certain unalienable rights. The revolution espoused the ideal that legitimate governmental power comes only from the consent of the governed.

In the old world, kings were sovereign. In America, the sovereign was “the people.” That ideal appeared in the preamble of the Constitution—a preamble that declared (somewhat inaccurately) that the Constitution came from “we the people” and was designed to assure liberty and justice. Though we …

Unintended Consequences Of The Fourteenth Amendment And What They Tell Us About Its Interpretation, Richard L. Aynes

Akron Law Review

Much of the literature, understandably, seeks to find out what the framers of the amendment or the ratifiers of the amendment “intended.”...This article treats that issue as well, but begins with a different question: Does the amendment have consequences which were unintended by the framers? Over one and a quarter centuries ago, Justice Joseph Bradley answered that question in the affirmative: “It is possible that those who framed the article were not themselves aware of the far ranging character of its terms.” I suggest those unintended consequences include the effect of the Citizenship Clause on the force of the Fourteenth …

An Analysis Of The Legality Of Television Cameras Broadcasting Juror Deliberations In A Criminal Case, Daniel H. Erskine Esq.

Akron Law Review

This work sets out the constitutional, statutory, and common law applicable to television’s intrusion into the jury room. The first section addresses federal constitutional considerations focusing on Article III Section 2, the Sixth Amendment, and the First Amendment. The second section analyzes certain federal rules and particular statutes applicable to televising federal judicial proceedings, as well as the rationale behind their enactment. Finally, the third section discusses comparative approaches addressing television’s intrusion into the courtroom, particularly focusing on recent jurisprudence from the European Court of Human Rights and the Scottish Court of Session.

The Constitutional Jurisprudence Of Sandra Day O'Conor: A Refusal To "Foreclose The Unanticipated", Wilson Ray Huhn

Akron Law Review

Part I of this essay covers an early period on the Court when Justice O’Connor seemed principally concerned with questions of jurisdiction and appellate process, during which she was frequently inclined to dispose of cases on technical or procedural grounds. Part II discusses Justice O’Connor’s attention to detail and consideration of factual context and her tendency to adjust the traditional standards of review in light of the circumstances of the case. Part III outlines Justice O’Connor’s respect for precedent and commitment to the principle of stare decisis particularly as it relates to her refusal to overrule Roe v. Wade. Part …

Obama, The Fourteenth Amendment, And The Drug War, Martin D. Carcieri

Akron Law Review

This article is written to help clarify the full range of understanding Obama would bring to a second term.

Specifically, I defend two related, contested theses. My core thesis, to which this article is primarily devoted, is a jurisprudential claim: contrary to state and lower federal court rulings, marijuana prohibition is subject to strict judicial scrutiny under leading relevant U.S. Supreme Court jurisprudence. I support this thesis primarily by showing that under the Fourteenth Amendment, bodily autonomy—i.e., the control over the borders and contents of one’s body burdened by laws like marijuana prohibition—is a fundamental right, and that the Court …

Thomas Jefferson And The Establishment Clause, Mark J. Chadsey

Akron Law Review

The purpose of this paper is to ask whether the historical record actually supports either of these assumptions. A note about my mode of analysis is necessary at this juncture. When inquiring about Jefferson’s influence on the Establishment Clause, it is important to focus on the entire process by which it was adopted rather than its mere introduction by Madison in the House of Representatives. Its adoption, after all, required the assent of two-thirds of both chambers of Congress, three-fourths of the state legislatures, and the support of a majority of the American public. Without the requisite support of all …

Fourteenth Amendment Citizenship And The Reconstruction-Era Black Public Sphere, James Fox

Akron Law Review

Sections two and three of the Fourteenth Amendment, being more political than legal enactments, have had essentially no judicial or legal development. Yet even the first sentence of section one and the ensuing Privileges or Immunities Clause have had relatively little play in the courts. With the single exception of the 1999 case of Saenz v. Roe, 6 the citizenship language of the Fourteenth Amendment has practically no legal significance.

Still, these approaches to equal or constitutional citizenship represent a starting point, not a conclusion. Taking up the invitations of these scholars, my project is to delve more deeply into …

Why "Privileges Or Immunities"? An Explanation Of The Framers' Intent, William J. Rich

Akron Law Review

In the Slaughter-House Cases, Justice Field accused the majority of turning the Fourteenth Amendment’s Privileges or Immunities Clause into a “vain and idle enactment which accomplished nothing,” and Justice Swayne argued that the majority “turn[ed] . . . what was meant for bread into a stone.” Most contemporary commentators appear to agree... Did the framers of the Fourteenth Amendment make a colossal mistake? Or were Justices Field and Swayne correct when they blamed Justice Miller’s majority opinion in Slaughter-House for leading the nation astray? Answers to these questions, in the pages that follow, are “no” to the first, and a …

The Union As It Wasn't And The Constitution As It Isn't: Section Five And Altering The Balance Of Powers, Elizabeth Reilly

Akron Law Review

This article argues that in reconstituting that Union, the 39th Congress and the Fourteenth Amendment not only altered the fundamental structural principles of the relationship between the states and the national government and the responsibility of government to protect individual liberties. It argues that the original structural alignment of national powers and the boundaries of their respective spheres were also, of necessity and by understanding, recast as well.

The Legacy Of Slaughterhouse, Bradwell, And Cruikshank In Constitutional Interpretation, Wilson R. Huhn

Akron Law Review

The conclusions that the Court drew about the meaning of the 14th Amendment shortly after its adoption were contrary to the intent of the framers of that Amendment and a betrayal of the sacrifices which had been made by the people of that period. In each case, the Court perverted the meaning of the Constitution in ways that reverberate down to the present day...In these cases the Court ruled upon several critical aspects of 14th Amendment jurisprudence, including (1) Whether the 14th Amendment prohibits the States from interfering with our fundamental rights; (2) How the equality of different groups should …

The 39th Congress (1865-1867) And The 14th Amendment: Some Preliminary Perspectives, Richard L. Aynes

Akron Law Review

This article is a preliminary effort to tell the story of the people who brought the nation the 14th Amendment, the 39th Congress...I want to suggest that when someone creates the Hall of Fame of the Congresses we need to include the 39th Congress.

Infinite Hope - Introduction To The Symposium: The 140th Anniversary Of The Fourteenth Amendment, Elizabeth Reilly

Akron Law Review

This symposium celebrates the 140th anniversary of ratification. The anniversary provides us with a fruitful occasion to reflect upon the meaning of the Amendment to its Framers in Congress and as it was initially interpreted by the United States Supreme Court and the public, and to examine the lasting impacts of both conceptions...Therefore, our participants explicitly discuss applying their understanding of history to the modern implications of the Fourteenth Amendment and current law. Understanding the Amendment, especially because of its early reception by the Court, requires looking at law, history, political science, and sociology, among other disciplines, to try to …

Realsim Over Formalism And The Presumption Of Constitutionality: Chief Justice Roberts' Opinion Upholding The Individual Mandate, Wilson Huhn

Akron Law Review

In National Federation of Independent Business v. Sebelius, Chief Justice John Roberts cast the deciding vote to uphold the individual mandate of the Affordable Care Act. Speaking for the Court in Part IIIC of his opinion, Roberts found that the individual mandate was properly enacted pursuant to the General Welfare Clause. Two aspects of his opinion in particular drove this result. In deciding whether the individual mandate constitutes a “tax” within the meaning of the Constitution, the Chief Justice engaged in realistic analysis rather than legal formalism. In addition, Roberts reasoned that, if fairly possible, the statute had to be …

Still Too Close To Call? Rethinking Stampp's "The Concept Of A Perpetual Union", Daniel W. Hamilton

Akron Law Review

In a classic article in the Journal of American History, which was based on his presidential address to the Organization of American Historians in 1978, the great Civil War historian Kenneth Stampp made the claim that the arguments in favor of the constitutionality of secession made by the Southern states were as strong, if not stronger than the constitutional arguments made, then and now, in opposition to secession. Stampp is to my mind the greatest Civil War historian of the 20th century and his views on secession remain required reading and are cited routinely today. This is not to say …

Scotus Summary: Separation Of Powers In Zivotofsky V. Kerry, Wilson Huhn

Con Law Center Articles and Publications

Welcome to Supreme Podcast, and the summary of the decision of the Supreme Court in Zivotofsky v. Kerry.

This is a Separation of Powers case involving a dispute between the President and Congress over the recognition of a foreign country, in this case the power of the President to determine which foreign government, if any, has territorial sovereignty over the City of Jerusalem. By a vote of 6-3 the Supreme Court upheld the President’s exclusive and conclusive authority to make that determination.

The Future Interpretation Of The Constitution As A Result Of The Reelection Of President Barack Obama, Wilson Huhn

Akron Law Faculty Publications

On November 6, 2012, Barack Obama was reelected President of the United States. What effect will this have on the future interpretation of the Constitution? This article identifies 19 areas of constitutional law that would likely change if one more liberal justice is appointed to the Supreme Court.

The Civil Rights Movement And The Constitution, Wilson Huhn

Akron Law Faculty Publications

This presentation of March 3, 2012, describes the influence that the Civil Rights Movement has had on the interpretation of the Constitution. The Civil Rights Movement not only broadened our understanding of the principle of equality under Equal Protection, it also expanded opportunities for Freedom of Expression and the Right to Privacy. In addition, the Civil Rights Movement stimulated the courts to recognize the power of Congress to enact legislation under the Commerce Clause and Section 5 of the 14th Amendment. Finally, as a result of the Civil Rights Movement, the Supreme Court has moved to a more realistic, consequentialist …

Law, History, And Feminism, Tracy A. Thomas

Akron Law Faculty Publications

This is the introduction to the book, Feminist Legal History. This edited collection offers new visions of American legal history that reveal women’s engagement with the law over the past two centuries. It integrates the stories of women into the dominant history of the law in what has been called “engendering legal history,” (Batlan 2005) and then seeks to reconstruct the assumed contours of history. The introduction provides the context necessary to appreciate the diverse essays in the book. It starts with an overview of the existing state of women’s legal history, tracing the core events over the past two …

Law, History, And Feminism, Tracy A. Thomas

Tracy A. Thomas

This is the introduction to the book, Feminist Legal History. This edited collection offers new visions of American legal history that reveal women’s engagement with the law over the past two centuries. It integrates the stories of women into the dominant history of the law in what has been called “engendering legal history,” (Batlan 2005) and then seeks to reconstruct the assumed contours of history. The introduction provides the context necessary to appreciate the diverse essays in the book. It starts with an overview of the existing state of women’s legal history, tracing the core events over the past two …

A Higher Law: Abraham Lincoln's Use Of Biblical Imagery, Wilson Huhn

Akron Law Faculty Publications

Lincoln’s use of biblical imagery in seven of his works: the Peoria Address, the House Divided Speech, his Address at Chicago, his Speech at Lewistown, the Word Fitly Spoken fragment, the Gettysburg Address, and the Second Inaugural. Lincoln uses biblical imagery to express the depth of his own conviction, the stature of the founders of this country, the timeless and universal nature of the principles of the Declaration, and the magnitude of our moral obligation to defend those principles. Lincoln persuaded the American people to embrace the standard “all men are created equal” and to make it part of our …

Constitutionality Of The Patient Protection And Affordable Care Act Under The Commerce Clause And The Necessary And Proper Clause, Wilson Huhn

Akron Law Faculty Publications

The Patient Protection and Affordable Care Act is a comprehensive federal statute that attempts to extend health insurance coverage to tens of millions of Americans and to expand health insurance coverage by eliminating exclusions for preexisting conditions, increase medical loss ratios, abolish annual and lifetime limits, and other reforms. A necessary provision of this law (the individual mandate) requires most individuals to maintain health insurance coverage. The individual mandate has been challenged in a number of lawsuits on the ground that Congress lacks the power under the Constitution to require individuals to purchase health insurance. The power of Congress to …

Biological Metaphors For Whiteness: Beyond Merit And Malice, Brant T. Lee

Akron Law Faculty Publications

The problem of persistent racial inequality is grounded in a failure of imagination. The general mainstream conception is that unfair racial inequality occurs only when there is intentional racism. Absent conscious racial malice, no racism is seen to exist. The only generally available alternative explanation for racial inequality is the meritocratic system. Viewing the distribution of resources as a product of a generally fair meritocratic system provides a defense against any charge of racism, and justifies the status quo.

But in economics, business, computer science, and even biology, observers of complexity are coming to understand how dominant systems can prevail …

Biological Metaphors For Whiteness: Beyond Merit And Malice, Brant T. Lee

Brant T. Lee

The problem of persistent racial inequality is grounded in a failure of imagination. The general mainstream conception is that unfair racial inequality occurs only when there is intentional racism. Absent conscious racial malice, no racism is seen to exist. The only generally available alternative explanation for racial inequality is the meritocratic system. Viewing the distribution of resources as a product of a generally fair meritocratic system provides a defense against any charge of racism, and justifies the status quo.

But in economics, business, computer science, and even biology, observers of complexity are coming to understand how dominant systems can prevail …

Ink Blot Or Not: The Meaning Of Privileges And/Or Immunities, Richard Aynes

Akron Law Faculty Publications

This article examines the meaning of the terms privileges and immunities as used in Article IV of the U.S. Constitution and the Fourteenth Amendment. It begins by tracing the American use of the terms to April 10, 1606 in the first Charter of Virginia. Building upon the work of other scholars and citing original documents, it concludes that these words has a well-established meaning as “rights” well before the Fourteenth Amendment was adopted. The article notes that in Justice Miller’s decision in the Slaughter-House Cases he refers to the privileges and immunities of Corfield v. Coryell as “those rights which …

Ink Blot Or Not: The Meaning Of Privileges And/Or Immunities, Richard Aynes

Richard L. Aynes

This article examines the meaning of the terms privileges and immunities as used in Article IV of the U.S. Constitution and the Fourteenth Amendment. It begins by tracing the American use of the terms to April 10, 1606 in the first Charter of Virginia. Building upon the work of other scholars and citing original documents, it concludes that these words has a well-established meaning as “rights” well before the Fourteenth Amendment was adopted. The article notes that in Justice Miller’s decision in the Slaughter-House Cases he refers to the privileges and immunities of Corfield v. Coryell as “those rights which …

39th Congress (1865-1867) And The 14th Amendment: Some Preliminary Perspectives, Richard Aynes

Akron Law Faculty Publications

The 39th Congress (1865-1867) was one of the important Congresses in our history. It passed more legislation than any other Congress up to that time.

This preliminary examination of the 39th Congress begins with a look it composition. One of the critical factors was that while the 38th Congress contained a majority of unionists, the 39th Congress contained a super-majority which meant not only that they could override a Presidential veto, but also that they did not need to take the Democratic opposition seriously. This article also identifies the leadership of the 39th Congress. The 38th Congress was composed of …