Open Access. Powered by Scholars. Published by Universities.®
Articles 1 - 20 of 20
Full-Text Articles in Fourteenth Amendment
The Federalist And The Fourteenth Amendment — Publius In Antebellum Public Debate 1788–1860, Kurt T. Lash
The Federalist And The Fourteenth Amendment — Publius In Antebellum Public Debate 1788–1860, Kurt T. Lash
BYU Law Review
No abstract provided.
The Congruent Constitution (Part Two): Reverse Incorporation, Jay S. Bybee
The Congruent Constitution (Part Two): Reverse Incorporation, Jay S. Bybee
BYU Law Review
In Bolling v. Sharpe (1954), a companion case to Brown v. Board of Education, the Supreme Court thought it “unthinkable” that the Equal Protection Clause would not apply to the federal government as well as the states and declared it “reverse incorporated” through the Due Process Clause of the Fifth Amendment. The Equal Protection Clause is the most familiar example of reverse incorporation, but it is neither the first nor the only provision of the Constitution that, by its terms, applies to the states alone, but which the Supreme Court has made applicable to the federal government through the Due …
The Congruent Constitution (Part One): Incorporation, Jay S. Bybee
The Congruent Constitution (Part One): Incorporation, Jay S. Bybee
BYU Law Review
In Barron v. Mayor of Baltimore (1833), the Supreme Court held that the Bill of Rights applied to the federal government alone. Following the adoption of the Fourteenth Amendment in 1868, the Supreme Court reconsidered the rule of Barron. The Court first reaffirmed the rule of Barron and held that neither the Privileges or Immunities Clause nor the Due Process Clause made the Bill of Rights applicable to the states. It then entered a period of “absorption,” where the Court held that the Due Process Clause guaranteed some minimal rights found in the Bill of Rights, but not necessarily the …
Praying For America: The Anti-Theocracy And Equal Status Principles Of The Free Exercise, Equal Protection And Establishment Clauses, Corey Brettschneider
Praying For America: The Anti-Theocracy And Equal Status Principles Of The Free Exercise, Equal Protection And Establishment Clauses, Corey Brettschneider
BYU Law Review
In this essay I argue that the Constitution’s Equal Protection, Establishment, and Free Exercise Clauses share common principled limits on the role that religion can play in public life. Specifically, drawing on the free-exercise case of Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, the equal protection case of Romer v. Evans, and the establishment clause case of Town of Greece v. Galloway, I propose two principles to describe the proper place of religious justification as a basis for law. The first requirement is that in addition to any religious reasons for laws, the state must have …
Redefining The Boundary Between Appropriation And Regulation, Jessica L. Asbridge
Redefining The Boundary Between Appropriation And Regulation, Jessica L. Asbridge
BYU Law Review
The U.S. Supreme Court distinguishes between appropriations and regulations of property rights when interpreting the Fifth Amendment’s Takings Clause. While appropriations of any kind require just compensation to survive constitutional scrutiny, whether non-appropriative laws regulating property rights require compensation is determined on an ad hoc basis, guided by concerns of fairness and justness. In Cedar Point Nursery v. Hassid, the Court reaffirmed its prior precedent establishing the physical takings doctrine, providing that an appropriation is any government action that results in a physical invasion of an owner’s real property and a taking of the owner’s right to exclude. The Court …
Disparate Impact Claims And Punitive Damages: Justified Abrogation Of State Sovereign Immunity, Brad Stewart
Disparate Impact Claims And Punitive Damages: Justified Abrogation Of State Sovereign Immunity, Brad Stewart
BYU Law Review
No abstract provided.
In Defense Of Immutability, Nicholas Serafin
In Defense Of Immutability, Nicholas Serafin
BYU Law Review
Over the last forty years, the concept of immutability has been central to Equal Protection doctrine. According to current doctrine, a trait is immutable if it is beyond the power of an individual to change or if it is fundamental to personal identity. A trait that meets either of these criteria receives heightened legal protection under constitutional antidiscrimination law. Yet most legal scholars who have addressed the topic have called for the abandonment of the immutability criterion on the grounds that the immutability criterion is conceptually confused, morally indefensible, and bound to stigmatize subordinate groups.
A rejection of the immutability …
An Originalist Defense Of Plyler V. Doe, Steven G. Calabresi, Lena M. Barsky
An Originalist Defense Of Plyler V. Doe, Steven G. Calabresi, Lena M. Barsky
BYU Law Review
This Article offers a defense of the Supreme Court’s opinion in Plyler v. Doe based on the original public meaning of the Fourteenth Amendment when it was enacted in 1868. We argue that at that time, the Fourteenth Amendment granted certain rights, such as life, liberty, and possession of personal property, to immigrants under the Equal Protection and Due Process Clauses, but did not grant them the privileges and immunities of citizenship (e.g. all civil rights and the political right to vote). We also argue that public education is a right of all persons protected by the Due Process and …
Undressing Naked Economic Protectionism, Rational Basis Review, And Fourteenth Amendment Equal Protection, Robert M. Ahlander
Undressing Naked Economic Protectionism, Rational Basis Review, And Fourteenth Amendment Equal Protection, Robert M. Ahlander
BYU Law Review
No abstract provided.
The Original Public Understanding Of Privileges Or Immunities, James J. Ward
The Original Public Understanding Of Privileges Or Immunities, James J. Ward
BYU Law Review
No abstract provided.
Nonimmigrants, Equal Protection, And The Supremacy Clause, Justin Hess
Nonimmigrants, Equal Protection, And The Supremacy Clause, Justin Hess
BYU Law Review
No abstract provided.
Reflections On Constitutional Interpretation, Raoul Berger
Reflections On Constitutional Interpretation, Raoul Berger
BYU Law Review
No abstract provided.
Adarand Constructors V. Pena: Madisonian Theory As A Justification For Lesser Constitutional Scrutiny Of Federal Race-Conscious Legislation, Russell N. Watterson Jr.
Adarand Constructors V. Pena: Madisonian Theory As A Justification For Lesser Constitutional Scrutiny Of Federal Race-Conscious Legislation, Russell N. Watterson Jr.
BYU Law Review
No abstract provided.
A Critical Analysis Of Constitutional Claims For Same-Sex Marriage, Lynn D. Wardle
A Critical Analysis Of Constitutional Claims For Same-Sex Marriage, Lynn D. Wardle
BYU Law Review
No abstract provided.
Deshaney's Effect On Future "Poor Joshuas" -Whether A State Should Be Liable Under The Fourteenth Amendment For Harm Inflicted By A Private Individual, Lori Demond
BYU Law Review
No abstract provided.
The Fourteenth Amendment And The Bill Of Rights, Raoul Berger
The Fourteenth Amendment And The Bill Of Rights, Raoul Berger
BYU Law Review
No abstract provided.
Circumventing Racism: Confronting The Problem Of The Affirmative Action Ideology, Christopher T. Wonnell
Circumventing Racism: Confronting The Problem Of The Affirmative Action Ideology, Christopher T. Wonnell
BYU Law Review
No abstract provided.
The Fourteenth Amendment And The Protection Of Minority Rights, Edward J. Erler
The Fourteenth Amendment And The Protection Of Minority Rights, Edward J. Erler
BYU Law Review
No abstract provided.
Constitutional Law-Equal Protection-Due Process - The Irrebuttable Presumption Doctrine - Weinberger V. Salfi, Arlen D. Woffinden
Constitutional Law-Equal Protection-Due Process - The Irrebuttable Presumption Doctrine - Weinberger V. Salfi, Arlen D. Woffinden
BYU Law Review
No abstract provided.
Judicial Supervision Of Legislative Classifications - A More Modest Role For Equal Protection, Edward L. Barrett Jr.
Judicial Supervision Of Legislative Classifications - A More Modest Role For Equal Protection, Edward L. Barrett Jr.
BYU Law Review
No abstract provided.