Law Commons^™

The Second Founding And The First Amendment, William M. Carter Jr.

Articles

Constitutional doctrine generally proceeds from the premise that the original intent and public understanding of pre-Civil War constitutional provisions carries forward unchanged from the colonial Founding era. This premise is flawed because it ignores the Nation’s Second Founding: i.e., the constitutional moment culminating in the Thirteenth, Fourteenth, and Fifteenth Amendments and the civil rights statutes enacted pursuant thereto. The Second Founding, in addition to providing specific new individual rights and federal powers, also represented a fundamental shift in our constitutional order. The Second Founding’s constitutional regime provided that the underlying systemic rules and norms of the First Founding’s Constitution …

Government Employee Religion, Caroline Mala Corbin

Articles

Picture a county clerk who refuses to issue a marriage license to an LGBT couple or a city bus driver who insists on wearing a hijab. The clerk is fired for failing to fulfill job responsibilities and the bus driver for violating official dress codes. Both claim that their termination violates the First Amendment speech and religion clauses.

There is a well-developed First Amendment government employee speech jurisprudence. Less developed is the doctrine and literature for First Amendment government employee religion. The existing Free Exercise Clause jurisprudence usually does not specifically account for the government employee context. This Article attempts …

A Free Speech Tale Of Two County Clerk Refusals, Caroline Mala Corbin

Articles

The ever-expanding Free Speech Clause has made possible claims that would have been unthinkable until recently. This symposium Essay examines the compelled speech claims of two hypothetical county clerks who believe that marriage should be limited to unions between one man and one woman, and who argue that forcing them to issue marriage licenses to gay and lesbian couples compels them to speak in favor of same-sex marriage in violation of the Free Speech Clause.

When a government employee such as a county clerk speaks, she may not be speaking as just a private individual. She may also be speaking …

Three Puzzling Things About New York Times V. Sullivan: Beginning The Anniversary Conversation, Leonard M. Niehoff

Articles

This is the 50th anniversary of a watershed year in the history of the civil rights movement. During that year, the Southern Christian Leadership Conference mounted its anti-segregation campaign in Alabama; Commissioner "Bull" Connor turned dogs and fire hoses on demonstrators; activists were attacked; riots flared; George Wallace blocked the doors of a public university to keep black students out; President Kennedy dispatched troops to Alabama and called for the passage of a civil rights bill; Medgar Evers was murdered; the then-largest human rights demonstration in U.S. history converged on Washington; Martin Luther King Jr. gave his historic speech at …

The Thirteenth Amendment And Pro-Equality Speech, William M. Carter Jr.

Articles

The Thirteenth Amendment’s Framers envisioned the Amendment as providing federal authority to eliminate the “badges and incidents of slavery.” The freemen and their descendants are the most likely to be burdened with the effects of stigma, stereotypes, and structural discrimination arising from the slave system. Because African Americans are therefore the most obvious beneficiaries of the Amendment’s promise to eliminate the legacy of slavery, it is often mistakenly assumed that federal power to eradicate the badges and incidents of slavery only permits remedies aimed at redressing the subordination of African Americans. While African Americans were the primary victims of slavery …

Elfbrandt V. Russell: The Demise Of The Loyalty Oath, Jerold H. Israel

Articles

In Elfbrandt v. Russell, the Supreme Court, in a 5-to-4 decision, declared unconstitutional Arizona's requirement of a loyalty oath from state employees. At first glance, Elfbrandt appears to be just another decision voiding a state loyalty oath on limited grounds relating to the specific language of the particular oath. Yet, several aspects of Mr. Justice Douglas' opinion for the majority suggest that Elfbrandt is really of far greater significance: it may sharply limit the scope and coverage of loyalty oaths generally and, indeed, may presage a ruling invalidating all such oaths. Of course, only the Supreme Court can determine this. …