Fourteenth Amendment Commons^™

Fourteen Going On Forty: Challenging Sex Offender Registration For Juveniles Under The Fourteenth Amendment Equal Protection Clause, Emily Baker

William & Mary Bill of Rights Journal

Part I of this Note reviews the historical background leading to the development of sex offender registration laws and examines relevant Supreme Court precedent. Part II analyzes the principles of juvenile justice, the application of juvenile sex offender registration policies, and the collateral consequences of youth sex offender registration. Part III argues that registered juvenile offenders should be considered a quasi-suspect class and thus receive intermediate scrutiny in equal protection analysis, and challenges the constitutionality of juvenile sex offender registries, particularly the South Carolina statutory scheme. Part IV examines the turning legal tide against juvenile registration through the recent Model …

Dobbs' Sex Equality Troubles, Marc Spindelman

William & Mary Bill of Rights Journal

This article takes up what Dobbs v. Jackson Women's Health Org. may mean for sex equality rights beyond the abortion setting. It details how Dobbs lays the foundation for rolling back and even eliminating Fourteenth Amendment sex equality protections. The work scales these possibilities against a different dimension of the ruling that’s yet to receive the attention that it merits. An important footnote in Dobbs, Footnote 22, sketches a new history-and-tradition-based approach to unenumerated rights under the Fourteenth Amendment’s Privileges or Immunities Clause. The jurisprudence that this Footnote capacitates could transform the constitutional landscape via new economic and social …

Not Gill-Ty: Challenging And Providing A Workable Alternative To The Supreme Court's Gerrymandering Standing Analysis In Gill V. Whitford, Colin Neal

William & Mary Bill of Rights Journal

No abstract provided.

The Epistemic Function Of Fusing Equal Protection And Due Process, Deborah Hellman

William & Mary Bill of Rights Journal

The fusion of equal protection and due process has attracted significant attention with scholars offering varied accounts of its purpose and function. Some see the combination as productive, creating a constitutional violation that neither clause would generate alone. Others see the combination as merely strategic, offered to make a claim acceptable at a particular historical moment but not genuinely necessary. This Article offers a third alternative. Judges have and should bring both equal protection and due process together to learn what each clause independently requires. On this Epistemic vision of constitutional fusion, a focus on equality helps judges learn what …

Other Lands And Other Skies: Birthright Citizenship And Self-Government In Unincorporated Territories, John Vlahoplus

William & Mary Bill of Rights Journal

No abstract provided.

Highway Robbery: Due Process, Equal Protection, And Punishing Poverty With Driver’S License Suspensions, Thomas Capretta

William & Mary Bill of Rights Journal

No abstract provided.

Fifty Shades And Fifty States: Is Bdsm A Fundamental Right? A Test For Sexual Privacy, Elizabeth Mincer

William & Mary Bill of Rights Journal

No abstract provided.

Hiding In Plain View: A Path Around Sovereign Immunity For State Government Employees, William J. Rich

William & Mary Bill of Rights Journal

No abstract provided.

Real Bite: Legal Realism And Meaningful Rational Basis In Dog Law And Beyond, Ann L. Schiavone

William & Mary Bill of Rights Journal

No abstract provided.

The Lawfulness Of The Same-Sex Marriage Decisions: Charles Black On Obergefell, Toni M. Massaro

William & Mary Bill of Rights Journal

No abstract provided.

Incorporation, Total Incorporation, And Nothing But Incorporation?, Christopher R. Green

William & Mary Bill of Rights Journal

Kurt T. Lash’s The Fourteenth Amendment and the Privileges and Immunities of American Citizenship (2014) defends the view that the Fourteenth Amendment’s “privileges or immunities of citizens of the United States” cover only rights enumerated elsewhere in the Constitution. My own book, however, Equal Citizenship, Civil Rights, and the Constitution: The Original Sense of the Privileges or Immunities Clause (2015), reads the Clause to guarantee equality broadly among similarly situated citizens of the United States. Incorporation of an enumerated right into the Fourteenth Amendment requires, I say, national consensus such that an outlier state’s invasion of the right would produce …

Historically Unappealing: Boumediene V. Bush, Appellate Avoidance Mechanisms, And Black Holes Extending Beyond Guantanamo Bay, Dennis Schmelzer

William & Mary Bill of Rights Journal

No abstract provided.

Parental Exclusion From The Education Governance Kaleidoscope: Providing A Political Voice For Marginalized Students In Our Time Of Disruption, Tiffani N. Darden

William & Mary Bill of Rights Journal

This Article develops how the judiciary should play an instrumental part in amplifying the parent’s voice as a citizenship broker for their child. The Supreme Court scrutinizes school-board actions with little consideration of parents’ substantive due process right to control their child’s education through the political process. Through representative school boards, effective participation models, and an enforcement framework, parents could hold the power to affect education policies. Parents deserve full citizenship recognition in the tiered processes controlling public education policy. In addition to recognizing “quality” education as a government interest, the Supreme Court should also take into account the political …

Teens, Sexts, & Cyberspace: The Constitutional Implications Of Current Sexting & Cyberbullying Laws, Jamie L. Williams

William & Mary Bill of Rights Journal

No abstract provided.

Dodging A Bullet: Mcdonald V. City Of Chicago And The Limits Of Progessive Originalism, Dale E. Ho

William & Mary Bill of Rights Journal

The Supreme Court’s decision in last term’s gun rights case, McDonald v. City of Chicago, punctured the conventional wisdom after District of Columbia v. Heller that “we are all originalists now.” Surprisingly, many progressive academics were disappointed. For “progressive originalists,” McDonald was a missed opportunity to overrule the Slaughter-House Cases and to revitalize the Privileges or Immunities Clause of the Fourteenth Amendment. In their view, such a ruling could have realigned progressive constitutional achievements with originalism and relieved progressives of the albatross of substantive due process, while also unlocking long-dormant constitutional text to serve as the source of new unenumerated …

Challenges To State Anti-Preference Laws And The Role Of Federal Courts, Michael E. Rosman

William & Mary Bill of Rights Journal

No abstract provided.

The Sit-Ins And The State Action Doctrine, Christopher W. Schmidt

William & Mary Bill of Rights Journal

By taking their seats at “whites only” lunch counters across the South in the spring of 1960, African American students not only launched a dramatic new stage in the civil rights movement, they also sparked a national reconsideration of the scope of the constitutional equal protection requirement. The critical constitutional question raised by the sit-in movement was whether the Fourteenth Amendment, which after Brown v. Board of Education1 prohibited racial segregation in schools and other stateoperated facilities, applied to privately owned accommodations open to the general public. From the perspective of the student protesters, the lunch counter operators, and most …

Of Fat People And Fundamental Rights: The Constitutionality Of The New York City Trans-Fat Ban, Katharine Kruk

William & Mary Bill of Rights Journal

No abstract provided.

Rescuing The Fourteenth Amendment Privileges Or Immunities Clause: How "Attrition Or Parliamentary Processes" Begat Accidental Ambiguity; How Ambiguity Begat Slaughter-House, Michael Anthony Lawrence

William & Mary Bill of Rights Journal

No abstract provided.

Freedom To Err: The Idea Of Natural Selection In Politics, Schools, And Courts, Paul D. Carrington

William & Mary Bill of Rights Journal

No abstract provided.

Interpreting The Fourteenth Amendment: Two Don'ts And Three Dos, Garrett Epps

William & Mary Bill of Rights Journal

A sophisticated reading of the legislative record of the framing of the Fourteenth Amendment can provide courts and scholars with some general interpretive principles to guide their application of the Amendment to current legal problems. The author argues that two common legal conceptions about the Amendment are, in fact, misconceptions. The first is that the Amendment was chiefly concerned with the immediate situation of freed slaves in the former slave states. Instead, he argues, the legislative record suggests that the framers were broadly concerned with the rights not only of freed slaves but also of foreign-born immigrants in the North …

Is Economic Exclusion A Legitimate State Interest? Four Recent Cases Test The Boundaries, Timothy Sandefur

William & Mary Bill of Rights Journal

No abstract provided.

Righteous Shooting, Unreasonable Seizure? The Relevance Of An Officer's Pre-Seizure Conduct In An Excessive Force Claim, Aaron Kimber

William & Mary Bill of Rights Journal

No abstract provided.

Not So Landmark After All? Lawrence V. Texas: Classical Liberalism And Due Process Jurisprudence, Davin J. Hall

William & Mary Bill of Rights Journal

No abstract provided.

Romer V. Evans And Invidious Intent, Andrew Koppelman

William & Mary Bill of Rights Journal

In this Essay, Professor Koppelman argues that, notwithstanding numerous scholarly claims to the contrary, the Supreme Court's decision in Romer v. Evans was based on the invalidated law's impermissible purpose. Professor Koppelman examines the Court's understanding of the Fourteenth Amendment, and concludes that its current doctrine is designed to ferret out unconstitutional intent. Such impermissible intent, Koppelman argues, was evident in the law challenged in Romer. Nonetheless, Koppelman acknowledges, Romer is a hard case, and its precedential significance is unclear, particularly in light of Bowers v. Hardwick, which upheld the constitutionality of laws against homosexual sodomy. Laws that facially disadvantage …

The Narrow And Shallow Bite Of Romer And The Eminent Rationality Of Dual-Gender Marriage: A (Partial) Response To Professor Koppelman, Richard F. Duncan

William & Mary Bill of Rights Journal

In this response to Professor Koppelman, Professor Duncan takes issue with the assertions Koppelman makes in Romer v. Evans and Invidious Intent. Though Duncan agrees with Koppelman's summary of the rule of Romer and the ongoing effects of Bowers v. Hardwick, he rejects Koppelman's claims that laws that discriminate against gays will always be constitutionally doubtful because they disadvantage an unpopular class.

Duncan claims that Koppelman has tried, without success or authority, to fill in the "missing pages" left in Romer by the Supreme Court. Finally, he argues that traditional marriage laws are valid and will survive under Romer and …

The Equal Protection Clause: A Note On The (Non)Relationship Between Romer V. Evans And Hunter V. Erickson, Jay S. Bybee

William & Mary Bill of Rights Journal

In this Article, Professor Bybee uses the debate surrounding Romer v. Evans to reexamine the Supreme Court's decision in Hunter v. Erickson and the principle that a political majority may not restructure the political process to make it more difficult for a political minority to obtain favorable government action. Professor Bybee explains the questionable bases of Hunter and succeeding cases, and then turns to the Romer decision and discusses its incongruity with Hunter. After analyzing the meaning of Romer in light of Hunter and other "equal process" cases, Professor Bybee concludes that although the Court's analysis of Colorado's Amendment 2 …

"Buying Up Speech": Active Government And The Terms Of The First Amendment And Fourteenth Amendments, William T. Mayton

William & Mary Bill of Rights Journal

No abstract provided.