Law Commons^™

Rescuing The Fourteenth Amendment Privileges Or Immunities Clause: How “Attrition Of Parliamentary Processes” Begat Accidental Ambiguity; How Ambiguity Begat Slaughterhouse, Michael Anthony Lawrence

Michael Anthony Lawrence

This essay addresses a topic of great academic and practical interest currently facing the Supreme Court: whether the Privileges or Immunities Clause, which has lain dormant since the Court’s erroneous 1873 SlaughterHouse Cases decision, should be resurrected in order to apply the Second Amendment to the States.

The essay makes the unique argument that the textual basis for the SlaughterHouse Court’s holding regarding the clause - i.e., the lack of parallel textual construction in the Fourteenth Amendment Section One’s first two sentences regarding citizenship - was in fact the wholly unintentional product of what we might call “attrition of parliamentary …

Government As Liberty's Servant: The "Reasonable Time, Place And Manner" Standard Of Review For All Government Restrictions On Liberty Interests, Michael Anthony Lawrence

Michael Anthony Lawrence

This essay suggests that the American legal system fails to do proper justice to the robust conception of Liberty under which the nation was founded, and locates a major source of the problem in the Supreme Court’s current presumption-of-constitutionality approach to judicial review, prompted by post-New Deal backlash to Lochner v. New York. This essay offers a new due process clause-based presumption-of-liberty standard of judicial review, modeled on the Court’s existing First Amendment “reasonable time, place and manner” doctrine. This approach, already utilized narrowly by the Third Circuit Federal Court of Appeals in Lutz v. York in 1990, more accurately …

Second Amendment Incorporation Through The Fourteenth Amendment Privileges Or Immunities And Due Process Clauses, Michael Anthony Lawrence

Michael Anthony Lawrence

The second amendment, alternately maligned over the years as the black sheep of the constitutional family and worse, and praised as a palladium of the liberties of a republic, since it offers a strong moral check against the usurpation and arbitrary power of rulers, should be recognized by the United States Supreme Court to apply to the several States through the Fourteenth Amendment privileges or immunities clause or, alternatively, through the due process clause.

This article suggests that the issue of Second Amendment incorporation presents a useful contemporary mechanism for the Court to revive the long-dormant Fourteenth Amendment privileges or …

Reviving A Natural Right: The Freedom Of Autonomy, Michael Anthony Lawrence

Michael Anthony Lawrence

This article explores the historical foundations of the individual rights of equality and free choice on matters of natural private concern (collectively, “freedom of autonomy”) in America, looks at several present-day applications, and concludes that meaningful steps must be taken – by encouraging greater awareness among lawmakers and courts of original meanings of the constitutional terms “liberty,” “property,” “privileges,” and “immunities,” and perhaps even through constitutional amendment – to revive this most basic right from an overbearing government.

Do “Creatures Of The State” Have Constitutional Rights?: Standing For Municipalities To Assert Procedural Due Process Claims Against The State, Michael Anthony Lawrence

Michael Anthony Lawrence

Conventional wisdom holds that a municipal corporation receives no protection from the equal protection and due process clauses as against its creating state. The reasoning is that municipal corporations, as mere subunits or instrumentalities of the state, are simply ineligible for such constitutional protections.

This article argues that municipal corporations, as "persons" under the Constitution, do in fact have standing to assert procedural due process claims against their creating states in cases not involving substantive matters of the state’s internal political organization. Judicial recognition of this principle would advance important values of fairness and doctrinal consistency in state-local relations, and …

A New Case For Direct Congressional Regulation Of Guns In School Zones, Michael Anthony Lawrence

Michael Anthony Lawrence

This article suggests that in the wake of last year’s school shootings at Columbine High School in Littleton, Colorado, Congress may justifiably exercise its commerce power to regulate arms in schools, notwithstanding its contrary holding in Lopez v. U.S in 1995. Sadly, with Columbine, the scope of violence in schools has assumed vastly more serious dimensions – to the point where such acts may accurately be labeled as premeditated acts of domestic terrorism.

Under such circumstances, Congress may reasonably enact laws designed to curb the interstate market for weapons used in these attacks. If Congress concludes, for example, that imposing …

Toward A More Coherent Dormant Commerce Clause: A Proposed Unitary Framework, Michael Anthony Lawrence

Michael Anthony Lawrence

The Dormant Commerce Clause (DCC), bane of generations of law students, lawyers, judges and state & local legislators, does not lend itself to easy analysis. Indeed, the U.S. Supreme Court itself at various times has described its own DCC doctrine as “hopelessly confused,” “a quagmire,” and “not predictable.” This article attempts to aid in simplifying the analytical task by providing a new Unitary Framework taxonomy designed to bring order and improved predictability to the Court’s DCC doctrine.