Fourteenth Amendment Commons^™

The Separation Of Migrant Families At The Border Under The Trump Administration’S Zero-Tolerance Policy: A Critical Analysis Of The Mistreatment Of Immigrant Children Held In U.S. Custody, Dhillon Ramkhelawan

Child and Family Law Journal

This article provides a critical analysis of the Trump Administration’s zero-tolerance policy that separated migrant families at the Southwest United States border from April to June 2018. It will provide a statistical analysis regarding the number of migrant children that were separated from their parents during this time period, and it will describe the poor living conditions that many of these children were subjected to as they waited for their parent’s immigration cases to be decided. Additionally, this article will also critically analyze the United States’ history of mistreating migrant children who started to flee their war-torn countries in Central …

Let Locked-Up People Vote: Prisoners Are Still Citizens And Should Be Able To Exert Their Civic Rights, Rachel Landy

Online Publications

The Constitution does not guarantee all citizens the right to vote. Rather, the right to vote is implied through a patchwork of amendments that restrict how voting rights may be limited. For example, the 15th Amendment reads “[t]he right of citizens of the United States to vote shall not be denied or abridged...on account of race, color, or previous condition of servitude.” Subsequent amendments added gender, failure to pay poll taxes, literacy, and age over 18 to the list of characteristics for which denying the right to vote may not be based.

The Difference Narrows: A Reply To Kurt Lash, Randy E. Barnett, Evan D. Bernick

Notre Dame Law Review

We thank the Notre Dame Law Review for allowing us to respond to Kurt Lash’s reply to our critique of his interpretation of the Privileges or Immunities Clause. We could forgive readers for having difficulty adjudicating this dispute. When Lash argues, evidence always comes pouring forth, and the sheer volume can overwhelm the senses. We sometimes have a hard time following his arguments, and we are experts in the field. We can only imagine how it seems to those who are otherwise unfamiliar with this terrain.

So, in this reply—with a few exceptions—we will avoid piling up any new evidence …

The Privileges Or Immunities Clause, Abridged: A Critique Of Kurt Lash On The Fourteenth Amendment, Randy E. Barnett, Evan D. Bernick

Notre Dame Law Review

In earlier writings, both of us have expressed sympathy for the view that the Privileges or Immunities Clause affords absolute protection to unenumerated rights, such as those contained in the Civil Rights Act of 1866, and authorizes Congress to enact protective legislation. Neither of us, however, has engaged with Kurt Lash’s most recent and unique two-class interpretation of the original meaning of the Privileges or Immunities Clause in the depth that it deserves. Nor have we evaluated his recent efforts to demonstrate that the Fourteenth Amendment’s Due Process of Law Clause empowers the federal courts and Congress to protect unenumerated …

The Enumerated-Rights Reading Of The Privileges Or Immunities Clause: A Response To Barnett And Bernick, Kurt T. Lash

Notre Dame Law Review

In their new article, The Privileges or Immunities Clause, Abridged: A Critique of Kurt Lash on the Fourteenth Amendment, Randy Barnett and Evan Bernick insist that this historical evidence does not support the enumerated-rights reading. Instead, Barnett and Bernick embrace what I call the “fundamental-rights” reading of the Privileges or Immunities Clause. This view maintains that the Clause should be understood as protecting a set of absolute rights nowhere expressly enumerated in the text of the Constitution, for example the unenumerated economic right to contract or to pursue a trade.

Rather than agreeing with John Bingham, Barnett and Bernick …

Rediscovering Corfield V. Coryell, Gerard N. Magliocca

Notre Dame Law Review

This Article reveals new details about Corfield v. Coryell based on archival research. In 2017, the author found Justice Washington’s original notes on Corfield in the Chicago History Museum. The most important revelation about Corfield is that the Justice was initially inclined to hold that the state law his decision upheld was, in fact, unconstitutional under the Privileges and Immunities Clause. The notes also say that he saw Livingston v. Van Ingen as the leading precedent on the Privileges and Immunities Clause and backed Chancellor Kent’s view in that case that the Clause articulated a nondiscrimination rule for out-of-state citizens …

Wealth, Equal Protection, And Due Process, Brandon L. Garrett

William & Mary Law Review

Increasingly, constitutional litigation challenging wealth inequality focuses on the intersection of the Equal Protection and Due Process Clauses. That intersection—between equality and due process—deserves far more careful exploration. What I call “equal process” claims arise from a line of Supreme Court and lower court cases in which wealth inequality is the central concern. For example, the Supreme Court in Bearden v. Georgia conducted analysis of a claim that criminal defendants were treated differently based on wealth in which due process and equal protection principles converged. That equal process connection is at the forefront of a wave of national litigation concerning …

American Legion V. American Humanist Association, Seth T. Bonilla

Public Land & Resources Law Review

The separation of church and state is a key element of American democracy, but its interpretation has been challenged as the country grows more diverse. In American Legion v. American Humanist Association, the Supreme Court adopted a new standard to analyze whether a religious symbol on public land maintained by public funding violated the Constitution’s Establishment Clause.

Out Of The Quandary: Personal Jurisdiction Over Absent Class Member Claims Explained, A. Benjamin Spencer

Faculty Publications

Since the Supreme Court's decision in Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County, litigants and lower courts have wrestled with the issue of whether a federal court must be able to exercise personal jurisdiction with respect to each of the claims asserted by absent class members in a class action and, if so, what standard governs that jurisdictional determination. This issue is rapidly coming to a head and is poised for inevitable resolution by the Supreme Court in the near future; multiple circuit courts have heard appeals from district courts that have reached varying conclusions on …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.

Q: Will The Supreme Court Intervention In Florida Fail The Test Of Time?, Ira Glasser, Alan J. Meese

Alan J. Meese

No abstract provided.

The Inverse Relationship Between The Constitutionality And Effectiveness Of New York City "Stop And Frisk", Jeffrey Bellin

Jeffrey Bellin

New York City sits at the epicenter of an extraordinary criminal justice phenomenon. While employing aggressive policing tactics, such as “stop and frisk,” on an unprecedented scale, the City dramatically reduced both violent crime and incarceration – with the connections between these developments (if any) hotly disputed. Further clouding the picture, in August 2013, a federal district court ruled the City’s heavy reliance on “stop and frisk” unconstitutional. Popular and academic commentary generally highlights isolated pieces of this complex story, constructing an incomplete vision of the lessons to be drawn from the New York experience. This Article brings together all …

Are Residential Quotas Constitutional?, Neal Devins

Neal E. Devins

No abstract provided.

E-Notice And Comment On Due Process, Sergio J. Campos

Articles

No abstract provided.

The Shaw Claim: The Rise And Fall Of Colorblind Jurisprudence, Molly P. Matter

Seattle Journal for Social Justice

No abstract provided.

Due Process Supreme Court Rockland County

Touro Law Review

No abstract provided.

Due Process Supreme Court Appellate Division Third Department

Touro Law Review

No abstract provided.

Due Process Supreme Court Appellate Division

Touro Law Review

No abstract provided.

Due Process Pringle V. Wolfe (Decided 28, 1996)

Touro Law Review

No abstract provided.

The Confusing Language Of Mcculloch V. Maryland: Did Marshall Really Know What He Was Doing (Or Meant)?, Sanford Levinson

Arkansas Law Review

All legal “interpretation” involves confrontation with inherently indeterminate language. I have distinguished in my own work between what I call the Constitution of Settlement and the Constitution of Conversation. The former includes those aspects of the Constitution that do indeed seem devoid of interpretive challenge, such as the unfortunate assignment of two senators to each state or the specification of the terms of office of representatives, senators, and presidents. I am quite happy to concede that “two,” “four,” and “six” have determinate meaning, though my concession is not based on a fancy theory of linguistics. It is, rather, a recognition …

Embracing Race-Conscious College Admissions Programs: How Fisher V. University Of Texas At Austin Redefines "Affirmative Action" As A Holistic Approach To Admissions That Ensures Equal, Not Preferential, Treatment, Nancy L. Zisk

Nancy L. Zisk

In Fisher v. University of Texas at Austin, the United States Supreme Court affirmed well-established Supreme Court doctrine that race may be considered when a college or university decides whom to admit and whom to reject, as long as the consideration of race is part of a narrowly tailored holistic consideration of an applicant's many distinguishing features. The Court's latest decision heralds a new way of thinking about holistic race-conscious admissions programs. Rather than considering them as "affirmative action" plans that prefer any one applicant to the disadvantage of another, they should be viewed as the Court has described …

Texas Indian Holocaust And Survival: Mcallen Grace Brethren Church V. Salazar, Milo Colton

The Scholar: St. Mary's Law Review on Race and Social Justice

When the first Europeans entered the land that would one day be called Texas, they found a place that contained more Indian tribes than any other would-be American state at the time. At the turn of the twentieth century, the federal government documented that American Indians in Texas were nearly extinct, decreasing in number from 708 people in 1890 to 470 in 1900. A century later, the U.S. census recorded an explosion in the American Indian population living in Texas at 215,599 people. By 2010, that population jumped to 315,264 people.

Part One of this Article chronicles the forces contributing …

Clear As Mud: Constitutional Concerns With Clear Affirmative Consent, C. Ashley Saferight

Cleveland State Law Review

Rape and sexual assault laws and policies have shifted significantly in recent years, including the introduction of affirmative consent. Unfortunately, both proponents and critics tend to confuse the issues and falsely equate affirmative consent as a substantive social standard versus a procedural standard for adjudication and punishment. Although affirmative consent generally does not represent a significant change in consent law in the United States, statutes and policies requiring a further requirement that affirmative consent be clear and unambiguous (“clear affirmative consent”) are problematic and raise constitutional concerns. When clear affirmative consent policies are used as an adjudicative standard, they increase …

Racial Indirection, Yuvraj Joshi

Yuvraj Joshi

No Arbitrary Power: An Originalist Theory Of The Due Process Of Law, Randy E. Barnett, Evan D. Bernick

William & Mary Law Review

“Due process of law” is arguably the most controversial and frequently litigated phrase in the Constitution of the United States. Although the dominant originalist view has long been that the Fifth and Fourteenth Amendment’s Due Process of Law Clauses are solely “process” guarantees that do not constrain the content or “substance” of legislation at all, originalist scholars have in recent years made fresh inquiries into the historical evidence and concluded that there is a weighty case for some form of substantive due process. In this Article, we review and critique those findings, employing our theory of good-faith originalist interpretation and …

There's Nothing Rational About It: Heightened Scrutiny For Sexual Orientation Is Long Overdue, Daniel J. Galvin Jr.

William & Mary Journal of Race, Gender, and Social Justice

In this Article, I argue that sexual orientation meets the burden established by Supreme Court jurisprudence for suspect classification and, therefore, should receive heightened scrutiny under Fourteenth Amendment equal protection analysis. After decades of using the fundamental rights analysis to aid lesbian, gay, and bisexual individuals in their pursuit of equality, addressing the fundamental right to marry and the fundamental right to privacy, the Supreme Court must address the elephant in the courtroom: that sexual orientation meets all of the factors set by the Court in equal protection cases for suspect classification.

Gays, lesbians, and bisexual individuals (LGBs) meet the …

Between Brady Discretion And Brady Misconduct, Bennett L. Gershman

Dickinson Law Review (2017-Present)

The Supreme Court’s decision in Brady v. Maryland presented prosecutors with new professional challenges. In Brady, the Supreme Court held that the prosecution must provide the defense with any evidence in its possession that could be exculpatory. If the prosecution fails to timely turn over evidence that materially undermines the defendant’s guilt, a reviewing court must grant the defendant a new trial. While determining whether evidence materially undermines a defendant’s guilt may seem like a simple assessment, the real-life application of such a determination can be complicated. The prosecution’s disclosure determination can be complicated under the Brady paradigm because …

The Faces Of The Second Amendment Outside The Home, Take Three: Critiquing The Circuit Courts Use Of History-In-Law, Patrick J. Charles

Cleveland State Law Review

This article seeks to critique the circuit courts’ varying history-in-law approaches, as well as to provide advice on the proper role that history-in-law plays when examining the scope of the Second Amendment outside the home. This article sets forth to accomplish this task in three parts. Part I argues why history-in-law is appropriate when adjudicating Second Amendment decisions outside the home. Part II examines the benefits and burdens of utilizing history-in-law as a method of constitutional interpretation, while breaking down the alternative approaches employed by circuit courts when adjudicating Second Amendment decisions outside the home. Lastly, Part III offers practical …

The (Limited) Constitutional Right To Compete In An Occupation, Rebecca Haw Allensworth

William & Mary Law Review

Is there a constitutional right to compete in an occupation? The “right to earn a living” movement, gaining steam in policy circles and winning some battles in the lower courts, says so. Advocates for this right say that the right to compete in an occupation stands on equal footing with our most sacred constitutional rights such as the right to be free from racial discrimination. This Article takes a different view, arguing that while there is a limited constitutional right to compete in an occupation, it is—and should be—weaker than these advocates claim. Some state licensing laws run afoul of …

At The Intersection Of Due Process And Equal Protection: Expanding The Range Of Protected Interests, Vincent J. Samar

Catholic University Law Review

Are the Due Process and Equal Protection clauses interconnected? Justice Kennedy in Obergefell v. Hodges, the Supreme Court case holding the fundamental right to marry includes the right to a same-sex marriage, stated that they are profoundly connected in that each clause “may be instructive as to the meaning and reach of the other.” But exactly what instruction each doctrine might afford the other, Justice Kennedy did not say. An earlier Supreme Court decision, Plyler v. Doe, also suggested a connection, when the Court held unconstitutional a Texas statute baring funding for the education of undocumented children. But …