Legal History Commons^™

The Dark Side Of Due Process: Part I, A Hard Look At Penumbral Rights And Cost/Benefit Balancing Tests, Joshua J. Schroeder

St. Mary's Law Journal

Due process is the fountainhead of legitimate government coercion. When an individual’s rights of life, liberty, or property are at stake, the government is meant to apply due process of the law or suffer reversal of its intrusions as a plain trespass. However, such reversals are merely theoretical, premised upon the willingness of federal judges to interpose their power for the protection of ordinary individuals.

The willingness of federal jurists to check the other branches of government for individual rights is transient at best. They do not usually check the global, dragnet United States surveillance programs that clearly violate the …

Gender, Voting Rights, And The Nineteenth Amendment, Paula A. Monopoli

Faculty Scholarship

One hundred years after the woman suffrage amendment became part of the United States Constitution, a federal court has held—for the first time—that a plaintiff must establish intentional discrimination to prevail on a direct constitutional claim under the Nineteenth Amendment. In adopting that threshold standard, the court simply reasoned by strict textual analogy to the Fifteenth Amendment and asserted that “there is no reason to read the Nineteenth Amendment differently from the Fifteenth Amendment.” This paper’s thesis is that, to the contrary, the Nineteenth Amendment is deserving of judicial analysis independent of the Fifteenth Amendment because it has a distinct …

Eminent Domain And Unfettered Discretion: Lessons From A History Of U.S. Territorial Takings, Jill M. Fraley

Scholarly Articles

Eminent domain is a minimal constitutional protection for private property and one that is subject to far more discretion than previously recognized by scholars. This Article traces a novel legal history of land takings within the U.S. Territories, focusing on some of the most egregious and controversial incidents and problematic patterns originating within eminent domain law. Comparing this history to recent research that demonstrates how takings in the States have disproportionately impacted Black communities, this Article articulates three patterns of injustices in takings echoing between Black mainland communities and indigenous communities in the Territories: large-scale federally funded actions, local government …

Confessions, Convictions And Controversy: An Examination Of False Confessions Leading To Wrongful Convictions In The United States Throughout History, Kirandeep Kaur

Journal of Race, Gender, and Ethnicity

No abstract provided.

Due Process Supreme Court Rockland County

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.

Democratic Policing Before The Due Process Revolution, Sarah Seo

Faculty Scholarship

According to prevailing interpretations of the Warren Court’s Due Process Revolution, the Supreme Court constitutionalized criminal procedure to constrain the discretion of individual officers. These narratives, however, fail to account for the Court’s decisions during that revolutionary period that enabled discretionary policing. Instead of beginning with the Warren Court, this Essay looks to the legal culture before the Due Process Revolution to provide a more coherent synthesis of the Court’s criminal procedure decisions. It reconstructs that culture by analyzing the prominent criminal law scholar Jerome Hall’s public lectures, Police and Law in a Democratic Society, which he delivered in 1952 …

Constructing The Original Scope Of Constitutional Rights, Nathan Chapman

Scholarly Works

In this solicited response to Ingrid Wuerth's "The Due Process and Other Constitutional Rights of Foreign Nations," I explain and justify Wuerth's methodology for constructing the original scope of constitutional rights. The original understanding of the Constitution, based on text and historical context, is a universally acknowledged part of constitutional law today. The original scope of constitutional rights — who was entitled to them, where they extended, and so on — is a particularly difficult question that requires a measure of construction based on the entire historical context. Wuerth rightly proceeds one right at a time with a careful consideration …

Apple Of Gold And Picture Of Silver: How Abraham Lincoln Would Analyze The Fourteenth Amendment's Equal Protection Clause, Frank J. Williams, William D. Bader, Andrew Blais

Roger Williams University Law Review

No abstract provided.

What Gideon Did, Sara Mayeux

All Faculty Scholarship

Many accounts of Gideon v. Wainwright’s legacy focus on what Gideon did not do—its doctrinal and practical limits. For constitutional theorists, Gideon imposed a preexisting national consensus upon a few “outlier” states, and therefore did not represent a dramatic doctrinal shift. For criminal procedure scholars, advocates, and journalists, Gideon has failed, in practice, to guarantee meaningful legal help for poor people charged with crimes.

Drawing on original historical research, this Article instead chronicles what Gideon did—the doctrinal and institutional changes it inspired between 1963 and the early 1970s. Gideon shifted the legal profession’s policy consensus on indigent defense away from …

From Reynolds To Lawrence To Brown V. Buhman: Antipolygamy Statutes Sliding On The Slippery Slope Of Same-Sex Marriage, Stephen L. Baskind

Stephen L Baskind

In 2003 in Lawrence v. Texas (striking Texas’ sodomy law), Justice Scalia predicted in his dissent the end of all morals legislation. If Justice Scalia is correct most, if not all, morals-based legislation may fall. For example, in recent years state laws prohibiting same-sex marriage have fallen to constitutional challenges. Ten years after Lawrence in 2013, a Utah Federal District Court in Brown v. Buhman, though feeling constrained by the 1878 Reynolds case (which rejected a First Amendment challenge to an antipolygamy law), nevertheless at the request of a polygamous family concluded that the cohabitation prong of Utah’s anti-bigamy …

Justice-As-Fairness As Judicial Guiding Principle: Remembering John Rawls And The Warren Court, Michael Anthony Lawrence

Michael Anthony Lawrence

This Article looks back to the United States Supreme Court’s jurisprudence during the years 1953-1969 when Earl Warren served as Chief Justice, a period marked by numerous landmark rulings in the areas of racial justice, criminal procedure, reproductive autonomy, First Amendment freedom of speech, association and religion, voting rights, and more. The Article further discusses the constitutional bases for the Warren Court’s decisions, principally the Fourteenth Amendment equal protection and due process clauses.

The Article explains that the Warren Court’s equity-based jurisprudence closely resembles, at its root, the “justice-as-fairness” approach promoted in John Rawls’s monumental 1971 work, A Theory of …

Gideon V. Wainwright--From A 1963 Perspective, Jerold H. Israel

Articles

Gideon v. Wainwright is more than a “landmark” Supreme Court ruling in the field of constitutional criminal procedure. As evidenced by the range of celebrators of Gideon’s Fiftieth Anniversary (extending far beyond the legal academy) and Gideon’s inclusion in the basic coverage of high school government courses, Gideon today is an icon of the American justice system. I have no quarrel with that iconic status, but I certainly did not see any such potential in Gideon when I analyzed the Court’s ruling shortly after it was announced in March of 1963. I had previously agreed to write an article for …

Homeschooling As A Constitutional Right: A Claim Under A Close Look At Meyer And Pierce And The Lochner-Based Assumptions They Made About State Regulatory Power, David M. Wagner

David N. Wagner

In 2012, a German family of would-be homeschoolers, the Romeikes, fled to the U.S. to escape fines and child removal for this practice, which has been illegal in Germany since 1938. The Sixth Circuit, in denying their asylum request, conspicuously did not slam the door on the possibility that if the Romeikes were U.S. citizens, they might have a right to homeschool. This article takes up that question, and argues that Meyer and Pierce, the classic cases constitutionalizing the right to use private schools, point beyond those holdings towards a right to homeschool; and that the permissible state regulations on …

Adoption Law In The United States: A Pathfinder, Glen-Peter Ahlers Sr.

Faculty Scholarship

No abstract provided.

Due Process And Social Legislation In The Supreme Court--A Post Mortem, Robert Rodes

Robert Rodes

No abstract provided.

Practicalities And Peculiarities: The Heightened Due Process Standard For Notice Under Jones V. Flower, Emily Riley

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

The Risky Interplay Of Tort And Criminal Law: Punitive Damages, Daniel M. Braun

Daniel M Braun

The rise of modern mass tort litigation in the U.S. has transformed punitive damages into something of a “hot button” issue. Since the size of punitive damage awards grew so dramatically in the past half century, this private law remedy has begun to involve issues of constitutional rights that traditionally pertained to criminal proceedings. This has created a risky interplay between tort and criminal law, and courts have thus been trying to find ways to properly manage punitive damage awards. The once rapidly expanding universe of punitive damages is therefore beginning to contract. There remain, however, very serious difficulties. Despite …

Due Process As Separation Of Powers, Nathan S. Chapman, Michael W. Mcconnell

Scholarly Works

From its conceptual origin in Magna Charta, due process of law has required that government can deprive persons of rights only pursuant to a coordinated effort of separate institutions that make, execute, and adjudicate claims under the law. Originalist debates about whether the Fifth or Fourteenth Amendments were understood to entail modern “substantive due process” have obscured the way that many American lawyers and courts understood due process to limit the legislature from the Revolutionary era through the Civil War. They understood due process to prohibit legislatures from directly depriving persons of rights, especially vested property rights, because it was …

What If Slaughter-House Had Been Decided Differently?, Kermit Roosevelt Iii

All Faculty Scholarship

In The Slaugherhouse Cases, the Supreme Court gutted the Privileges or Immunities Clause of the Fourteenth Amendment. Though academics continue to argue that Slaughterhouse was wrongly decided and should be overruled, the practical consequences of doing so might not be enormous. The constitutional rights the dissenters found in the Privileges or Immunities Clause are part of our current law anyway, through the Due Process and Equal Protection Clauses. But this does not mean that Slaughterhouse cost us nothing. This article explores how our law might be different had Slaughterhouse been decided differently. Rather than taking up the role that Privileges …

The Little Word "Due", Andrew T. Hyman

Andrew T. Hyman

The meaning of the Due Process Clause is investigated, with special emphasis on the little word "due." The author concludes that the text and structure of the Constitution --- as well as the intentions of the framers --- strongly support the view of the late Justice Hugo Black regarding the meaning of this Clause in the Fifth and Fourteenth Amendments. In the Constitution, due process means process due according to the law of the land, and a statute is part of the law of the land if it does not violate or undermine any other provision of the Constitution. Thus, …

Due Process And Social Legislation In The Supreme Court--A Post Mortem, Robert E. Rodes

Journal Articles

Nowadays, there is no more discredited era in our judicial history than that represented by such cases as Lochner v. New York.' During this era, we are told, our ancestors were so benighted economically as to embrace economic principles incapable of producing the good life, and so benighted judicially as to read their economics into the Constitution. We have barely left behind us the bulk of the advocates and judges whose role in history it was to slay the giant laissez-faire, so it is not surprising that we should have no picture of their adversary but the dne that was …

The Fourteenth Amendment Reconsidered, The Segregation Question, Alfred H. Kelly

Michigan Law Review

Some sixty years ago in Plessy v. Ferguson the Supreme Court of the United States adopted the now celebrated "separate but equal" doctrine as a constitutional guidepost for state segregation statutes. Justice Brown's opinion declared that state statutes imposing racial segregation did not violate the Fourteenth Amendment, provided only that the statute in question guaranteed equal facilities for the two races. Brown's argument rested on a historical theory of the intent, although he offered no evidence to support it. "The object of the amendment," he said, "was undoubtedly to enforce the absolute equality of the two races before the law, …

Natural Law In American Constitutional Theory, Fowler Vincent Harper

Michigan Law Review

Natural law has had many meanings and diversified interpretations. Whether in the form of jus naturale, the law of nature, the law of reason, lex naturalis, lex aeterna, natural justice, or due process of law; natural law, in the broadest sense, has evolved as the needs of a particular civilization and the endeavors of its legal scholars have directed. It is significant, however, that as a philosophy of law, natural law continues to thrive, although the particular system which one community constructs may be abandoned by succeeding generations. Periods of growth in the law have been frequently accompanied …