Law Commons^™

Disentangling Race And Politics: Racial Gerrymandering In South Carolina's First Congressional District, Matthew Poliakoff

Duke Journal of Constitutional Law & Public Policy Sidebar

After the 2020 Census, South Carolina's Republican-controlled legislature redrew the boundaries for Congressional District 1, historically anchored in Charleston County. After thirty-thousand African American voters were moved out of District 1 and into District 6, the South Carolina State Conference of the NAACP challenged the new map as an unconstitutional racial gerrymander. A three-judge district court panel agreed, finding that race predominated above other factors in the map redraw. On appeal, the question remains not only whether the state legislature used race above other factors in its map design, but also how plaintiffs are expected to prove these claims in …

Freedom, Democracy, And The Right To Education, Derek W. Black

Faculty Publications

While litigation continues in an effort to establish a fundamental right to education under the U.S. Constitution, the full historical justification for this right remains missing—a fatal flaw for many jurists. This Article fills that gap, demonstrating that the central, yet entirely overlooked, justification for a federal right to education resides in America’s education story during the era of slavery and Reconstruction.

At that time, education was first and foremost about freedom. The South had criminalized education to maintain a racialized hierarchy that preserved slavery. Many African Americans, seeing education as the means to both mental and physical freedom, made …

Ruth Bader Ginsburg, Wise Legal Giant, Thomas A. Schweitzer

Scholarly Works

No abstract provided.

Humanity For Asylum Seekers: How Migrant Protection Protocols And The March 20th Cdc Order Violate The Constitutional Rights Of Asylum Seekers During The Covid-19 Pandemic, Madison Beck

Center for Health Law Policy and Bioethics

In late 2018, the Trump Administration introduced Migrant Protection Protocols (MPP), also known as the Remain in Mexico Policy, to curb illegal immigration. The protocols allow the U.S. to remove immigrants, including asylum seekers, to Mexico while their claims are processed. This is problematic on its own, but even more so during the COVID-19 pandemic; makeshift asylum tent-camps are home to thousands of vulnerable individuals where viral spread would be devastating. Additionally, in March 2020, the Centers for Disease Control and Prevention (CDC) issued an “order suspending introduction of certain persons from countries where a communicable disease exists” further worsening …

Political Wine In A Judicial Bottle: Justice Sotomayor's Surprising Concurrence In Aurelius, Christina D. Ponsa-Kraus

Faculty Scholarship

For seventy years, Puerto Ricans have been bitterly divided over how to decolonize the island, a U.S. territory. Many favor Puerto Rico’s admission into statehood. But many others support a different kind of relationship with the United States: they believe that in 1952, Puerto Rico entered into a “compact” with the United States that transformed it from a territory into a “commonwealth,” and they insist that “commonwealth” status made Puerto Rico a separate sovereign in permanent union with the United States. Statehood supporters argue that there is no compact, nor should there be: it is neither constitutionally possible, nor desirable …

Three Keys To The Original Meaning Of The Privileges Or Immunities Clause, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Establishing the original meaning of the Fourteenth Amendment’s Privileges or Immunities Clause requires a wealth of evidence. But three key data points are crucial to identifying the core of its meaning. First, Supreme Court Justice Washington’s explanation of the meaning of “privileges and immunities” in Corfield v. Coryell; second, the rights protected by the Civil Rights Act of 1866; and third, Michigan Senator Jacob Howard’s speech explaining the content of the Privileges or Immunities Clause when introducing the Fourteenth Amendment to the United States Senate in 1866. Any theory of the Privileges or Immunities Clause and its original meaning …

Equal Protection Design Defects, Jonathan Feingold

Faculty Scholarship

One can understand constitutional doctrine as a tool designed to effectuate the Constitution and its various provisions. Equal protection doctrine, in turn, comprises a set of Justice-made rules designed to realize the promise of equal protection under the law. The substance of that promise remains a topic of deep contestation. Nonetheless, more than forty years of constitutional jurisprudence have entrenched a vision of constitutional equality that privileges what I refer to herein as the “right to compete.” Simply put, the Supreme Court has repeatedly embraced the view that the Equal Protection Clause mandates the government to allocate public benefits — …

Fair And Impartial Adjudication, Thomas W. Merrill

Faculty Scholarship

Any legal system that purports to respect the rule of law must ensure the fair and impartial adjudication of disputes under the law. Classic accounts of the rule of law assume that courts should resolve such disputes. However, this is too narrow. All forms of adjudication, not just by courts, need to be fair and impartial. In any event, no one could claim that courts or entities by that name are always fair and impartial. All legal systems need a guarantee of fair and impartial adjudication that applies to all forms of dispute resolution under law.

A dispute arising under …

Eyes Wide Open: What Social Science Can Tell Us About The Supreme Court's Use Of Social Science, Jonathan Feingold, Evelyn Carter

Faculty Scholarship

In McCleskey v. Kemp, the Supreme Court rendered statistical evidence of racial disparities doctrinally irrelevant to a criminal defendant’s equal protection claim. Fifteen years later in Grutter v. Bollinger, Chief Justice Rehnquist—part of the McCleskey majority—invoked admissions data to support his conclusion that the University of Michigan Law School had unconstitutionally discriminated against White applicants. This facially inconsistent treatment of statistical data invites the following inquiry: Why do judges (including Supreme Court Justices) rely on social science in some cases, yet reject it in others? We suggest that one answer lies at the intersection of Critical Race Theory and empirical …

The Loving Story: Using A Documentary To Reconsider The Status Of An Iconic Interracial Married Couple, Regina Austin

All Faculty Scholarship

The Loving Story (Augusta Films 2011), directed by Nancy Buirski, tells the backstory of the groundbreaking U.S. Supreme Court case, Loving v. Virginia, that overturned state laws barring interracial marriage. The article looks to the documentary to explain why the Lovings should be considered icons of racial and ethnic civil rights, however much they might be associated with marriage equality today. The film shows the Lovings to be ordinary people who took their nearly decade long struggle against white supremacy to the nation’s highest court out of a genuine commitment to each other and a determination to live in …

"To Help, Not To Hurt": Justice Thomas's Equality Canon, Nicole Stelle Garnett, William S. Consovoy

Journal Articles

To comprehend Justice Thomas’s views on racial equality requires an understanding of how his life experiences influence his approach to questions of race and the law. Recurring themes in his opinions about racial equality include his belief that racial preferences stigmatize their beneficiaries, his concern that the prevailing notion that racial integration is necessary to black achievement is rooted in a presumption of racial inferiority, his worry that affirmative action efforts provide cover for the failure to address the urgent needs of disadvantaged Americans, and his knowledge that seemingly benign policies can mask illicit motives. Finally, Justice Thomas contends that …

Do Religious Exemptions Save?, Maimon Schwarzschild

Faculty Scholarship

No abstract provided.

The Meming Of Substantive Due Process, Jamal Greene

Faculty Scholarship

Substantive due process is notoriously regarded as a textual contradiction, but it is in fact redundant. The word "due" cannot be honored except by inquiring into the relationship between the nature and scope of the deprived interest and the process-whether judicial, administrative, or legislative-that attended the deprivation. The treatment of substantive due process as an oxymoron is what this Essay calls a constitutional meme, an idea that replicates through imitation within the constitutional culture rather than (necessarily) through logical persuasion. We might even call the idea a "precedent," in the nature of other legal propositions within a common law system. …

Remedial Equilibration And The Right To Vote Under Section 2 Of The Fourteenth Amendment, Michael T. Morley

Scholarly Publications

The modern "voting wars" involve repeated legal challenges alleging that procedures aimed at protecting the electoral process, such as proof-of-citizenship requirements for registration and voter identification laws, violate the fundamental constitutional right to vote. In adjudicating such cases, courts make effectively subjective judgments about whether the challenged statutes or regulations make voting too burdensome.

Section 2 of the Fourteenth Amendment offers critical, and previously overlooked, insight into the scope of the right to vote. It imposes a uniquely severe penalty-reduction in representation in the House of Representatives and Electoral College-when that right is violated or abridged. 'remedial deterrence," a crucial …

Understanding State Constitutions: Locke And Key, Gary S. Lawson

Faculty Scholarship

Steve Calabresi and Sofia Vickery have done a great service by uncovering the pre-Fourteenth Amendment case law in state courts interpreting and applying state constitutional provisions which contain "Lockean" language guaranteeing rights to life, liberty, property, safety, happiness, or some combination of those rights.' These cases are manifestly one of the keys to understanding the legal world in which the Fourteenth Amendment was crafted and ratified. It is instructive and fascinating to see the development and application of these Lockean provisions, whose influence 2 seems to have spread beyond this country. It is a pleasure and honor to be asked …

How Much Autonomy Do You Want?, Maimon Schwarzschild

Faculty Scholarship

No abstract provided.

Abolish Anonymous Reporting To Child Abuse Hotlines, Dale Margolin Cecka

Law Faculty Publications

Part I of this Article traces the history of child abuse reporting hotlines. Part II describes the current law and practice behind child abuse reporting hotlines. Part III examines why anonymous reporting by the public is unnecessary and highly susceptible to abuse. Part IV analyzes the constitutional rights at stake in anonymous reporting, citing federal case law that contradicts current practice. Part V concludes with a proposal to abolish anonymous reporting and require all public reporting hotlines to adhere to published, written policies.

Martin Welker: Ohio's Unsung Hero, Aaron Boothby

The 39th Congress Project

No abstract provided.

Racing Towards Colorblindness: Stereotype Threat And The Myth Of Meritocracy, Jonathan Feingold

Faculty Scholarship

Education law and policy debates often focus on whether college and graduate school admissions offices should take race into account. Those who advocate for a strictly merits-based regime emphasize the importance of colorblindness. The call for colorblind admissions relies on the assumption that our current admissions criteria are fair measures, which accurately capture talent and ability. Recent social science research into standardized testing suggests that this is not the case.

Part I of this Article explores the psychological phenomenon of stereotype threat. Stereotype threat has been shown to detrimentally impact the performance of individuals from negatively stereotyped groups when performing …

Privileges Or Immunities, Philip A. Hamburger

Faculty Scholarship

What was meant by the Fourteenth Amendment's Privileges or Immunities Clause? Did it incorporate the U.S. Bill of Rights against the states or did it do something else? In retrospect, the Clause has seemed to have the poignancy of a path not taken – a trail abandoned in the Slaughter-House Cases and later lamented by academics, litigants, and even some judges. Although wistful thoughts about the Privileges or Immunities Clause may seem to lend legitimacy to incorporation, the Clause actually led in another direction. Long-forgotten evidence clearly shows that the Clause was an attempt to resolve a national dispute about …

William Lawrence: Perspectives Of A Reconstruction Republican On The 14th Amendment, Jeremy D. Burkhart

The 39th Congress Project

No abstract provided.

Mcdonald V. Chicago, The Fourteenth Amendment, The Right To Bear Arms And The Right Of Self-Defense, Richard L. Aynes

Akron Law Faculty Publications

The Supreme Court of the United States has granted certiorari in the case of McDonald v. City of Chicago to consider this question:

"Whether the Second Amendment right to keep and bear arms is incorporated as against the States by the Fourteenth Amendment’s Privileges or Immunities or Due Process Clauses."

This case follows and seeks to build upon District of Columbia v. Heller which held that the Second Amendment protects both the right to self-defense and what has been termed an individual right to bear arms. Of course, Heller’s application is limited to the federal government and has no direct …

Book Review: "The Lost History Of The Ninth Amendment", Thomas B. Mcaffee

Scholarly Works

No abstract provided.

The 39th Congress (1865-1867) And The 14th Amendment: Some Preliminary Perspectives, Richard L. Aynes

The 39th Congress Project

No abstract provided.

140th Anniversary Symposium: Fourteenth Amendment Citizenship And The Reconstruction-Era Black Public Sphere, James Fox

Con Law Center Articles and Publications

This project delves more deeply into the possible meanings of constitutional citizenship.. Somewhat in the tradition of the popular constitutionalism scholars, it proposes that the best source for meanings of constitutional citizenship will come not from traditionally originalist sources but from those who attempted to redefine citizenship in a more egalitarian and democratic manner and who established, both in word and in practice, meanings for citizenship on the ground. This argument borrows a theoretical framework from political and social theory: the theories of civil society and the public sphere. This captures—in ways often missed by both legal scholars and historians—the …

"They Say I Am Not An American…": The Noncitizen National And The Law Of American Empire, Christina Duffy Ponsa-Kraus

Faculty Scholarship

The American papers sometimes contain tales about persons who have forgotten who they are, what are their names, and where they live. The Porto [sic] Ricans find themselves in the same predicament as those absent-minded people. To what nationality do they belong? What is the character of their citizenship? ... [l]f since they ceased to be Spanish citizens they have not been Americans [sic] citizens, what in the name ·of heaven have they been?

Interpreting The Fourteenth Amendment: Two Don'ts And Three Dos, Garrett Epps

All Faculty Scholarship

A sophisticated reading of the legislative record of the framing of the Fourteenth Amendment can provide courts and scholars with some general interpretive principles to guide their application of the Amendment to current legal problems. The author argues that two common legal conceptions about the Amendment are, in fact, misconceptions. The first is that the Amendment was chiefly concerned with the immediate situation of freed slaves in the former slave states. Instead, he argues, the legislative record suggests that the framers were broadly concerned with the rights not only of freed slaves but also of foreign-born immigrants in the North …

Blowing The Lid Off: Expanding The Due Process Clause To Defend The Defenseless Against Hurricane Katrina, Olympia Duhart

Faculty Scholarship

No abstract provided.

Ingenious Arguments Or A Serious Constitutional Problem? A Comment On Professor Epstein's Paper, Philip A. Hamburger

Faculty Scholarship

In his observations about IRBs, Professor Richard Epstein makes persuasive arguments about the dangerous reach of the IRB laws, but he prefaces this policy analysis with a brief excursus into constitutional law that requires some comment. His view is that the constitutional debate over IRBs arises not so much from a substantial constitutional problem as from “ingenious arguments.” Yet this conclusion rests on mistaken assumptions – both about the IRB laws and about the constitutional objections – and because so much is at stake in the constitutional question, it is necessary to point out the inaccuracies.

The first set of …

The Contradiction Between Equal Protection's Meaning And Its Legal Substance: How Deliberate Indifference Can Cure It, Derek W. Black

Faculty Publications

This Article highlights the inherent ambiguities of racial antidiscrimination’s core legal language: “equal protection under the law” and “discrimination based on race.” It then analyzes how and why the Court has never answered fundamental questions regarding the meaning of these terms. Thus, this Article answers these fundamental questions itself by exploring the original intent behind the Equal Protection Clause. Against this backdrop, this Article reveals how the Court’s standard for assessing discrimination claims, the intent doctrine, assumes a meaning for equal protection that is inconsistent with its original meaning. Rather than reflecting equal protection’s meaning, the standard lacks any basis …