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Full-Text Articles in Law
Federalism As A Way Station: Windsor As Exemplar Of Doctrine In Motion, Neil S. Siegel
Federalism As A Way Station: Windsor As Exemplar Of Doctrine In Motion, Neil S. Siegel
Faculty Scholarship
This Article asks what the Supreme Court’s opinion in United States v. Windsor stands for. It first shows that the opinion leans in the direction of marriage equality but ultimately resists any dispositive “equality” or “federalism” interpretation. The Article next examines why the opinion seems intended to preserve for itself a Delphic obscurity. The Article reads Windsor as an exemplar of what judicial opinions may look like in transition periods, when a Bickelian Court seeks to invite, not end, a national conversation, and to nudge it in a certain direction. In such times, federalism rhetoric—like manipulating the tiers of scrutiny …
Equality Arguments For Abortion Rights, Neil S. Siegel, Reva B. Siegel
Equality Arguments For Abortion Rights, Neil S. Siegel, Reva B. Siegel
Faculty Scholarship
Roe v. Wade grounds constitutional protections for women’s decision whether to end a pregnancy in the Due Process Clauses. But in the four decades since Roe, the U.S. Supreme Court has come to recognize the abortion right as an equality right as well as a liberty right. In this Essay, we describe some distinctive features of equality arguments for abortion rights. We then show how, over time, the Court and individual Justices have begun to employ equality arguments in analyzing the constitutionality of abortion restrictions. These arguments first appear inside of substantive due process case law, and then as claims …
Federalism, Liberty, And Equality In United States V. Windsor, Ernest A. Young, Erin C. Blondel
Federalism, Liberty, And Equality In United States V. Windsor, Ernest A. Young, Erin C. Blondel
Faculty Scholarship
This essay argues that federalism played a profoundly important role in the Supreme Court's decision in United States v. Windsor, which struck down the federal Defense of Marriage Act. Arguments to the contrary have failed to appreciate how Justice Kennedy's opinion employed federalism not as a freestanding argument but as an essential component of his rights analysis. Far from being a "muddle," as many have claimed, Justice Kennedy's analysis offered one of the most sophisticated examples to date of the interconnections between federalism, liberty, and equality.
The New Textualism, Progressive Constitutionalism, And Abortion Rights: A Reply To Jeffrey Rosen, Neil S. Siegel
The New Textualism, Progressive Constitutionalism, And Abortion Rights: A Reply To Jeffrey Rosen, Neil S. Siegel
Faculty Scholarship
No abstract provided.
Reasoning About The Irrational: The Roberts Court And The Future Of Constitutional Law, H. Jefferson Powell
Reasoning About The Irrational: The Roberts Court And The Future Of Constitutional Law, H. Jefferson Powell
Faculty Scholarship
Commentary on the future direction of the Roberts Court generally falls along lines that correlate with the commentators' political views on the desirability of the Court's recent decisions. A more informative approach is to look for opinions suggesting changes in the presuppositions with which the Justices approach constitutional decision making. In footnote 27 in his opinion for the Court in the District of Columbia v. Heller Second Amendment decision, Justice Scalia suggested a fundamental revision of the Court's assumptions about the role of judicial doctrine, and the concept of rationality, in constitutional law. Justice Scalia would eliminate the normative aspects …
The Section 5 Mystique, Morrison, And The Future Of Federal Antidiscrimination Law, Margaret H. Lemos, Samuel Estreicher
The Section 5 Mystique, Morrison, And The Future Of Federal Antidiscrimination Law, Margaret H. Lemos, Samuel Estreicher
Faculty Scholarship
No abstract provided.