Fourteenth Amendment Commons^™

Respeaking The Bill Of Rights: A New Doctrine Of Incorporation, Kurt Lash

Indiana Law Journal

The incorporation of the Bill of Rights against the states by way of the Fourteenth Amendment raises a host of textual, historical, and doctrinal difficulties. This is true even if (especially if) we accept the Fourteenth Amendment as having made the original Bill of Rights binding against the states. Does this mean we have two Bills of Rights, one applicable against the federal government with a “1791” meaning and a second applicable against the state governments with an “1868” meaning? Do 1791 understandings carry forward into the 1868 amendment? Or do 1868 understandings of the Bill of Rights carry backward …

Gerrymandering & Justiciability: The Political Question Doctrine After Rucho V. Common Cause, G. Michael Parsons

Indiana Law Journal

This Article deconstructs Rucho’s articulation and application of the political question doctrine and makes two contributions. First, the Article disentangles the political question doctrine from neighboring justiciability doctrines. The result is a set of substantive principles that should guide federal courts as they exercise a range of routine judicial functions—remedial, adjudicative, and interpretive. Rather than unrealistically attempting to draw crisp jurisdictional boundaries between exercises of “political” and “judicial” power, the political question doctrine should seek to moderate their inevitable (and frequent) clash. Standing doctrine should continue to guide courts in determining whether they have authority over a case involving a …

Reciprocal Immunity, Colin Miller

Indiana Law Journal

This essay advances a reciprocal rights theory. It argues that the Constitution precludes statutes and rules from providing nonreciprocal benefits to the State when the lack of reciprocity interferes with the defendant’s ability to secure a fair trial, unless reciprocity would implicate a significant state interest. Therefore, unless a significant State interest is involved, a grant of immunity to a prosecution witness should trigger reciprocal immunity to a directly contradictory defense witness.

Post-Racialism And The End Of Strict Scrutiny, David Schraub

Indiana Law Journal

In recent years, a growing social consensus has emerged around the aspiration of a “post-racial” America: one where race is no longer a fault line for social strife or, perhaps, a morally significant trait whatsoever. This ambition, however, lies in tension with the most basic constitutional principle governing our treatment of race in the public sphere: that of “strict scrutiny.” Post-racialism seeks to diminish the salience of race to near negligibility. The strict scrutiny of racial classifications, by contrast, significantly enhances the salience of race by treating it differently from virtually every other personal attribute or characteristic—including hair or eye …

Commonality And The Constitution: A Framework For Federal And State Court Class Actions, Joseph A. Seiner

Indiana Law Journal

In Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), the Supreme Court concluded that the allegations of pay discrimination in a case brought by over one million female employees lacked sufficient commonality to warrant class certification under Federal Rule of Civil Procedure 23(a). Though the case was expressly decided under the Federal Rules, some well-known employer groups have begun to advance the argument that Wal-Mart was decided on constitutional grounds. These advocates maintain that the Supreme Court’s decision creates a commonality standard for all class-action plaintiffs—regardless of whether those litigants bring their claims in federal or state court. …

Evolving Values, Animus, And Same-Sex Marriage, Daniel O. Conkle

Indiana Law Journal

In this Essay, I contend that a Fourteenth Amendment right to same-sex marriage will emerge, and properly so, when the Supreme Court determines that justice so requires and when, in the words of Professor Alexander Bickel, the Court’s recognition of this right will “in a rather immediate foreseeable future . . . gain general assent.” I suggest that we are fast approaching that juncture, and I go on to analyze three possible justifications for such a ruling: first, substantive due process; second, heightened scrutiny equal protection; and third, rational basis equal protection coupled with a finding of illicit “animus.” I …

Incorporation Of The Establishment Clause Against The States: A Logical, Textual, And Historical Account, Frederick Mark Gedicks

Indiana Law Journal

Incorporation of the Establishment Clause against the states through the Fourteenth Amendment is logically and textually impossible—so say most academics, a few lower-court judges, and a Supreme Court Justice. They maintain that because the Clause was originally understood as a structural limitation that protected state power against the federal government, it cannot restrain state power or fit within the Fourteenth Amendment texts that protect personal rights— indeed, that attempts to show that it does are laughable.

This purported incoherence and textual inconsistency enable anti-incorporation critics to avoid serious engagement of the anti-establishment dimensions of Reconstruction history. They also undermine the …

Rational Basis With Bite: Intermediate Scrutiny By Any Other Name, Gayle Lynn Pettinga

Indiana Law Journal

No abstract provided.

Federal Habeas Corpus And The Equal Protection Clause

Indiana Law Journal

No abstract provided.