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Full-Text Articles in Fourteenth Amendment
Of Swords, Shields, And A Gun To The Head: Coercing Individuals, But Not States, Aviam Soifer
Of Swords, Shields, And A Gun To The Head: Coercing Individuals, But Not States, Aviam Soifer
Seattle University Law Review
This Article begins with a brief reprise of what should be a textual “gotcha” about the Enforcement Clauses of the post-Civil War Amendments—if our current Supreme Court Justices actually cared about original texts, originalism, or a combination of the two. Next, the Article focuses on the gnarled issue of “coercion.” It argues that, contrary to a great deal of Anglo-American legal doctrine, coercion is best understood along a spectrum rather than as a binary phenomenon. Coercion is actually much contested and highly contextual across many legal categories. Federal coercion—also described as commandeering or dragooning— has become a particular constitutional focus …
The Thirteenth Amendment, Disparate Impact, And Empathy Deficits, Darrell A.H. Miller
The Thirteenth Amendment, Disparate Impact, And Empathy Deficits, Darrell A.H. Miller
Seattle University Law Review
Modern civil rights policy is, as the late Justice Scalia warned, at “war.” On the one hand, some laws, like Title VII of the Civil Rights Act of 1964 (Title VII) and the Fair Housing Act, can impose liability for decisions due to their racial impacts rather than their racial motivation. Defendants in such cases can always respond that the challenged decision (a test, a criterion, an allocation) is necessary in some legally cognizable sense; but the courthouse doors open with the prima facie case of disparate impact. On the other hand, the Fourteenth Amendment’s Equal Protection Clause, ever since …
Whren's Flawed Assumptions Regarding Race, History, And Unconscious Bias, William M. Carter Jr.
Whren's Flawed Assumptions Regarding Race, History, And Unconscious Bias, William M. Carter Jr.
Articles
This article is adapted from remarks presented at CWRU Law School's symposium marking the 20th anniversary of Whren v. United States. The article critiques Whren’s constitutional methodology and evident willful blindness to issues of social psychology, unconscious bias, and the lengthy American history of racialized conceptions of crime and criminalized conceptions of race. The article concludes by suggesting a possible path forward: reconceptualizing racially motivated pretextual police encounters as a badge or incident of slavery under the Thirteenth Amendment issue rather than as abstract Fourth or Fourteenth Amendment issues.