Fourteenth Amendment Commons^™

Killing Precedent: The Slaughter-House Constitution, Maeve Glass

Faculty Scholarship

This Essay offers a revisionist account of the Slaughter-House Cases. It argues that the opinion’s primary significance lies not in its gutting of the Privileges or Immunities Clause but in its omission of a people’s archive of slavery.

Decades before the decision, Black abolitionists began compiling the testimonies of refugees who had fled slavery. By 1872, this archival practice had produced a published record of Black struggle and become a platform for the celebration of Black resistance and a new era of Black leadership. Although the lead compiler of this record sent a copy to the Chief Justice, the …

The Unbearable Emptiness Of Formalism: Autonomy, Equality, And The Future Of Affirmative Action, Rachel F. Moran

Faculty Scholarship

Debates over affirmative action in higher education generally focus on equality interests under the Fourteenth Amendment but ignore liberty interests under the First Amendment. That tendency persists, even though the academic freedom to enroll a diverse student body has allowed colleges and universities to defend race-conscious admissions programs against legal challenges for decades. Today, the rise of formalism in judicial interpretation poses new perils for these programs. Justice Powell’s seminal decision in Regents of the University of California v. Bakke was a pragmatic compromise that used diversity to temper the polarized debate over equality that sharply divided the Court. In …

Tinhatting The Constitution: Originalism As A Fandom, Stacey M. Lantagne

Faculty Scholarship

Several recent Supreme Court cases, most notably Bruen and Dobbs, have employed originalist methods to interpreting the Constitution, seeking to give the Second and Fourteenth Amendments, respectively, the meaning that was understood by the public in 1791 and 1868. In this imaginative exercise compiling massive amounts of textual evidence to arrive at conclusions regarding what unknown people were thinking, originalism resembles a type of fandom practice called RPF, or Real Person Fiction. This type of fan activity likewise compiles massive amounts of textual evidence to arrive at conclusions regarding what unknown people were thinking. It’s just that RPF revolves …

Gender, Voting Rights, And The Nineteenth Amendment, Paula A. Monopoli

Faculty Scholarship

One hundred years after the woman suffrage amendment became part of the United States Constitution, a federal court has held—for the first time—that a plaintiff must establish intentional discrimination to prevail on a direct constitutional claim under the Nineteenth Amendment. In adopting that threshold standard, the court simply reasoned by strict textual analogy to the Fifteenth Amendment and asserted that “there is no reason to read the Nineteenth Amendment differently from the Fifteenth Amendment.” This paper’s thesis is that, to the contrary, the Nineteenth Amendment is deserving of judicial analysis independent of the Fifteenth Amendment because it has a distinct …

The Constitutional Costs Of School Policing, Maryam Ahranjani, Natalie Saing

Faculty Scholarship

Abstract

Responding to fears of violence and liability on K-12 campuses, local school boards and superintendents have made on-site or embedded school police omnipresent in American public schools. Yet, very little attention is paid to the many costs associated with their presence. When situating law enforcement’s presence squarely in the racist history of policing and school policing, the juxtaposition with the civic purpose of public education reveals significant constitutional costs. This Article builds on existing scholarship by bringing attention to the conflict between the First, Fourth, Fifth, Eighth, and Fourteenth Amendments and the dimensions of embedded school police. Ultimately, schools …

The Insular Cases Run Amok: Against Constitutional Exceptionalism In The Territories, Christina D. Ponsa-Kraus

Faculty Scholarship

The Insular Cases have been enjoying an improbable — and unfortunate — renaissance. Decided at the height of what has been called the “imperialist” period in U.S. history, this series of Supreme Court decisions handed down in the early twentieth century infamously held that the former Spanish colonies annexed by the United States in 1898 — Puerto Rico, the Philippines, and Guam — “belong[ed] to, but [were] not a part of, the United States.” What exactly this meant has been the subject of considerable debate even as those decisions have received unanimous condemnation. According to the standard account, the …

Immigration Detention: Eroding Or Reinforcing A Theory Of Immigration Exceptionalism?, Kate Aschenbrenner

Faculty Scholarship

No abstract provided.

Democratic Policing Before The Due Process Revolution, Sarah Seo

Faculty Scholarship

According to prevailing interpretations of the Warren Court’s Due Process Revolution, the Supreme Court constitutionalized criminal procedure to constrain the discretion of individual officers. These narratives, however, fail to account for the Court’s decisions during that revolutionary period that enabled discretionary policing. Instead of beginning with the Warren Court, this Essay looks to the legal culture before the Due Process Revolution to provide a more coherent synthesis of the Court’s criminal procedure decisions. It reconstructs that culture by analyzing the prominent criminal law scholar Jerome Hall’s public lectures, Police and Law in a Democratic Society, which he delivered in 1952 …

An Intersectional Critique Of Tiers Of Scrutiny: Beyond “Either/Or” Approaches To Equal Protection, Devon W. Carbado, Kimberlé W. Crenshaw

Faculty Scholarship

For the past forty years, Justice Powell’s concurring opinion in University of California v. Bakke has been at the center of scholarly debates about affirmative action. Notwithstanding the enormous attention Justice Powell’s concurrence has received, scholars have paid little attention to a passage in that opinion that expressly takes up the issue of gender. Drawing on the theory of intersectionality, this Essay explains several ways in which its reasoning is flawed. The Essay also shows how interrogating Justice Powell’s “single axis” race and gender analysis raises broader questions about tiers of scrutiny for Black women. Through a hypothetical of a …

Dying Constitutionalism And The Fourteenth Amendment, Ernest A. Young

Faculty Scholarship

The notion of a “living Constitution” often rests on an implicit assumption that important constitutional values will “grow” in such a way as to make the Constitution more attractive over time. But there are no guarantees: What can grow can also wither and die. This essay, presented as the 2018 Robert F. Boden Lecture at Marquette University Law School, marks the sesquicentennial of the Fourteenth Amendment’s ratification as a powerful charter of liberty and equality for black Americans. But for much of its early history, the Fourteenth Amendment’s meaning moved in reverse, overwhelmed by the end of Reconstruction, the gradual …

New Look Constitutionalism: The Cold War Critique Of Military Manpower Administration, Jeremy K. Kessler

Faculty Scholarship

By reconstructing the anxious, constitutional dialogue that shaped the administration of military manpower under President Eisenhower’s New Look, this Article explores the role that administrative constitutionalism played in the development of the American national-security state, a state that became both more powerful and more legalistic during the pivotal years of the Cold War. The Article also questions the frequent identification of administrative constitutionalism with the relative autonomy and opacity of the federal bureaucracy. The back-and-forth of administrative constitutionalism continually recalibrated the degree of autonomy and opacity that characterized the draft apparatus. This evidence suggests that bureaucratic autonomy and opacity may …

Multiracial Malaise: Multiracial As A Legal Racial Category, Taunya L. Banks

Faculty Scholarship

One byproduct of increased interracial marriages post Loving is a growing number of multiracial children. This cohort of multiracials tends to overshadow older and larger generations of multiracial people whose genealogical mixture is more distant. Some interracial couples, their multiracial children and others support a multiracial category on the U.S. Census. Proponents argued that multiracial individuals experience a unique type of discrimination that warrants treating them as a separate racial category. This article concedes that multiracial individuals should enjoy the freedom to self-identify as they wish, and like others, be protected by anti-discrimination law. It concludes, however, that current arguments …

Citizens Of The State, Maeve Glass

Faculty Scholarship

According to conventional wisdom, state citizenship emerged out of the localism of early America and gave way to national citizenship with the ratification of the Fourteenth Amendment. This Article offers a different account of state citizenship and, with it, new resources for analyzing the Constitution. It argues that far from a primordial category that receded into irrelevance, state citizenship provided a crucial strategic tool in America’s antislavery movement, as abolitionist lawyers used the label of state citizenship to build a coalition with white elites by reframing the issue of slavery from the rights of a black person to the sovereignty …

Take The Fifth... Please!: The Original Insignificance Of The Fifth Amendment's Due Process Of Law Clause, Gary S. Lawson

Faculty Scholarship

The Fifth Amendment’s Due Process of Law Clause adds nothing to the Constitution’s original meaning. Every principle for limiting federal executive, judicial, and even legislative powers that can plausibly be attributed to the idea of “due process of law” – from the principle of legality forbidding executive or judicial action in the absence of law to the requirement of notice before valid judicial judgments to a limitation on arbitrary governmental action that today goes under the heading of “substantive due process” – is already contained in the text and structure of the Constitution of 1788. The Fifth Amendment Due Process …

Contemplating Masterpiece Cakeshop, Terri R. Day

Faculty Scholarship

No abstract provided.

The Thirteenth Amendment, Disparate Impact, And Empathy Deficits, Darrell A. H. Miller

Faculty Scholarship

No abstract provided.

Remedial Equilibration And The Right To Vote Under Section 2 Of The Fourteenth Amendment, Michael T. Morley

Faculty Scholarship

No abstract provided.

An Eighth Amendment Analysis Of Statutes Allowing Or Mandating Transfer Of Juvenile Offenders To Adult Criminal Court In Light Of The Supreme Court's Recent Jurisprudence Recognizing Developmental Neuroscience, Katherine I. Puzone

Faculty Scholarship

No abstract provided.

Brief For Foreign And Comparative Law Experts Harold Hongju Koh Et Al. As Amici Curiae In Support Of Petitioners, Harold Hongju Koh, Thomas Buergenthal, Sarah H. Cleveland, Laurence R. Helfer, Ryan Goodman, Sujit Choudhry

Faculty Scholarship

No abstract provided.

Reynolds Reconsidered, Guy-Uriel E. Charles, Luis Fuentes-Rohwer

Faculty Scholarship

No abstract provided.

Associations And The Constitution: Four Questions About Four Freedoms, Nelson Tebbe

Faculty Scholarship

No abstract provided.

Prisoners And Habeas Privileges Under The Fourteenth Amendment, Lee B. Kovarsky

Faculty Scholarship

The U.S. Reports contain no answer to a million-dollar question: are state prisoners constitutionally entitled to a federal habeas forum? The Supreme Court has consistently ducked the basic constitutional issue, and academic work on the question idles on familiar themes.

The strongest existing argument that state prisoners are constitutionally entitled to a federal habeas forum involves a theory of incorporation under the Fourteenth Amendment’s Due Process Clause. I provide a new and different account: specifically, that the Fourteenth Amendment’s Privileges and Immunities Clause (“PI Clause”) guarantees a habeas privilege as a feature of national citizenship, and that the corresponding habeas …

Adoption Law In The United States: A Pathfinder, Glen-Peter Ahlers Sr.

Faculty Scholarship

No abstract provided.

Government Endorsement: A Reply To Nelson Tebbe's Government Nonendorsement, Abner S. Greene

Faculty Scholarship

In this response to Nelson Tebbe’s Government Nonendorsement, Abner Greene continues to develop his “thick perfectionist” view of government speech, arguing that the state may use its speech powers to advance various views of the good, from left, center,

The Regulation Of Race In Science, Kimani Paul-Emile

Faculty Scholarship

The overwhelming majority of biological scientists agree that there is no such thing as race among modern humans. Yet, scientists regularly deploy race in their studies, and federal laws and regulations currently mandate the use of racial categories in biomedical research. Legal commentators have tried to make sense of this paradox primarily by looking to equal protection strict scrutiny analysis. However, the colorblind approach that attends this doctrine — which many regard as synonymous with invalidation — does not offer a particularly useful way to think about the use of race in research. It offers no way to address how …

Modern Odysseus Or Classic Fraud - Fourteen Years In Prison For Civil Contempt Without A Jury Trial, Judicial Power Without Limitation, And An Examination Of The Failure Of Due Process, Mitchell J. Frank

Faculty Scholarship

No abstract provided.

Subtraction By Addition?: The Thirteenth And Fourteenth Amendments, Mark A. Graber

Faculty Scholarship

The celebration of the Thirteenth Amendment in many Essays prepared for this Symposium may be premature. That the Thirteenth Amendment arguably protects a different and, perhaps, wider array of rights than the Fourteenth Amendment may be less important than the less controversial claim that the Fourteenth Amendment was ratified after the Thirteenth Amendment. If the Fourteenth Amendment covers similar ground as the Thirteenth Amendment, but protects a narrower set of rights than the Thirteenth Amendment, then the proper inference may be that the Fourteenth Amendment repealed or modified crucial rights originally protected by the Thirteenth Amendment. The broad interpretation of …

Slavery In The United States: Persons Or Property?, Paul Finkelman

Faculty Scholarship

No abstract provided.

Fourteenth Amendment Originalism, Jamal Greene

Faculty Scholarship

In Baze v. Rees, the Supreme Court rejected a death-row inmate's claim that a state's use of a lethal injection protocol that carried risks of severe pain from improper administration violated the Constitution. Justice Thomas wrote a remarkable concurring opinion, joined by Justice Scalia, in which he argued that the plurality opinion announcing the governing standard for claims of this sort was wrong, and should have hewed more closely to the original understanding of the Eighth Amendment. Justice Thomas wrote that "the Framers intended to prohibit torturous modes of punishment akin to those that formed the historical backdrop of …

A Post-Race Equal Protection?, Trina Jones, Mario L. Barnes, Erwin Chemerinsky

Faculty Scholarship

Most vividly demonstrated in the 2008 election of the first African-American President of the United States, post-race is a term that has been widely used to characterize a belief in the declining significance of race in the United States. Post-racialists, then, believe that racial discrimination is rare and aberrant behavior as evidenced by America’s pronounced racial progress. One practical consequence of a commitment to post-racialism is the belief that governments - both state and federal - should not consider race in their decision making. One might imagine that the recent explosion in post-racial discourse also portends a revised understanding of …