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Fourteenth Amendment

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Full-Text Articles in Law

Title Seven Ate Nine? Extending Bostock's Meaning Of "Sex" From Title Vii To Title Ix, Julia L. Shea Sep 2023

Title Seven Ate Nine? Extending Bostock's Meaning Of "Sex" From Title Vii To Title Ix, Julia L. Shea

St. John's Law Review

(Excerpt)

When JayCee Cooper walked out onto the platform at a women’s powerlifting competition for the first time, “everything else fell away: her years-long internal struggle over her gender identity, her decision to leave men’s sports when she began transitioning, her doubts that she would ever feel safe if she returned to competitions.” Powerlifting was JayCee’s way of feeling empowered in her own life, but after signing up for more competitions, she was told she could no longer compete because of a discriminatory policy that barred transgender women. Transgender athletes play sports for the same reasons as anyone else, including …


Opening Remarks, Shoba Sivaprasad Wadhia Sep 2023

Opening Remarks, Shoba Sivaprasad Wadhia

St. John's Law Review

(Excerpt)

Thank you. I am honored to be here. And there is no more fitting way to honor Michael than around the 40th anniversary of Plyler v. Doe.

This case centered on Texas statute § 21.031, which on its face, permitted the local school districts to exclude noncitizen children who entered the United States without immigration status or to charge admission for the same. The questions before the Court were: (1) whether a noncitizen under the statute who is present in the state without legal status is a “person” and therefore in the jurisdiction of the state within the meaning …


Book Review: Rearranging The Apple Cart: Good-Faith Originalism And The Fourteenth Amendment, Daniel Coble Jun 2023

Book Review: Rearranging The Apple Cart: Good-Faith Originalism And The Fourteenth Amendment, Daniel Coble

ConLawNOW

This essay reviews the book by Randy Barnett and Evan Bernick, The Original Meaning of the Fourteenth Amendment: Its Letter and Spirit (2021). Ask any constitutional law professor about how judges should or do interpret the Constitution, and you will likely hear an answer that ends in “ism.” In their latest book, Professors Randy Barnett and Evan Bernick discuss an “ism” that is found in our nation’s highest court, state courts, and academia: originalism. No matter which constitutional interpretation “ism” that one follows, this book provides an intimate and historical view of what two leading originalist scholars believe is the …


Expiration Of The Sunset Clause: Is The Clock Ticking For The Grutter Standard And Affirmative Action In Higher Education?, Simona Stodulkova Apr 2023

Expiration Of The Sunset Clause: Is The Clock Ticking For The Grutter Standard And Affirmative Action In Higher Education?, Simona Stodulkova

GGU Law Review Blog

Affirmative action, an active effort to provide access to educational and employment opportunities to historically underrepresented groups, is now in danger of being eradicated by the Supreme Court. While the Court upheld affirmative action in Grutter v. Bollinger in 2003, it suggested in its “sunset clause” of the opinion that the issue should be revisited in twenty-five years. Two cases concerning affirmative action in higher education are now before the current conservative-led Court, which has already indicated that it is prepared to overrule its precedent.

Affirmative action in higher education has been advanced as a solution to past discriminatory …


Privacy And Property: Constitutional Concerns Of Dna Dragnet Testing, E. Wyatt Jones Apr 2023

Privacy And Property: Constitutional Concerns Of Dna Dragnet Testing, E. Wyatt Jones

Honors Projects

DNA dragnets have attracted both public and scholarly criticisms that have yet to be resolved by the Courts. This review will introduce a modern understanding of DNA analysis, a complete introduction to past and present Fourth and Fourteenth Amendment jurisprudence, and existing suggestions concerning similar issues in legal scholarship. Considering these contexts, this review concludes that a focus on privacy and property at once, with a particular sensitivity to the inseverable relationship between the two interests, is Constitutionally consistent with precedent and the most workable means of answering the question at hand.


Book Review, Cindy Tian Jan 2023

Book Review, Cindy Tian

Journal Articles

Reviewing:

Strum, Philippa. On Account of Sex: Ruth Bader Ginsburg and the Making of Gender Equality Law. Lawrence, Kansas: University Press of Kansas, 2022. 206p. $21.95.


Implications Within Interpretations And Legal Implementations Of The Fourteenth Amendment, Jillian Bartley Jan 2023

Implications Within Interpretations And Legal Implementations Of The Fourteenth Amendment, Jillian Bartley

Regis University Student Publications (comprehensive collection)

The Fourteenth Amendment is not often thought about as one of the pillars of American freedom and citizenship, but it is indeed. The Fourteenth Amdendment establishes equal protections under the law, due process, and citizenship. This thesis seeks to look at how the Fourteenth Amendment and gender intersect in a way that establishes who gets what rights, and how those rights are able to be interpreted. The way in which the Fourteenth Amendement is interpreted establishes who gets protections and what equality under the law means within the context of American society. In using legal history, and the breifing of …


Evaluating The Pro Se Plight: A Comprehensive Review Of Access To Justice Initiatives In Ohio Landlord-Tenant Law, Caleigh M. Harris Dec 2022

Evaluating The Pro Se Plight: A Comprehensive Review Of Access To Justice Initiatives In Ohio Landlord-Tenant Law, Caleigh M. Harris

University of Cincinnati Law Review

No abstract provided.


Respeaking The Bill Of Rights: A New Doctrine Of Incorporation, Kurt Lash Oct 2022

Respeaking The Bill Of Rights: A New Doctrine Of Incorporation, Kurt Lash

Indiana Law Journal

The incorporation of the Bill of Rights against the states by way of the Fourteenth Amendment raises a host of textual, historical, and doctrinal difficulties. This is true even if (especially if) we accept the Fourteenth Amendment as having made the original Bill of Rights binding against the states. Does this mean we have two Bills of Rights, one applicable against the federal government with a “1791” meaning and a second applicable against the state governments with an “1868” meaning? Do 1791 understandings carry forward into the 1868 amendment? Or do 1868 understandings of the Bill of Rights carry backward …


Murdering Crows: Pauli Murray, Intersectionality, And Black Freedom, Lisa A. Crooms-Robinson Jul 2022

Murdering Crows: Pauli Murray, Intersectionality, And Black Freedom, Lisa A. Crooms-Robinson

Washington and Lee Law Review

What is intersectionality’s origin story and how did it make its way into human rights? Beginning in the 1940s, Pauli Murray (1910–1985) used Jane Crow to capture two distinct relationships between race and sex discrimination. One Jane used the race-sex analogy to show that race and sex were both unconstitutionally arbitrary. The other Jane captured Black women’s experiences and rights deprivations at the intersection of race and sex. Both Janes were based on Murray’s fundamental belief that the struggles against race and sex discrimination were different phases of the fight for human rights.

In 1966, Murray was part of the …


Reclaiming The Right To Consent: Judicial Bypass Mechanism As A Way For Persons With Disabilities To Lawfully Consent To Sexual Activity In Ohio, Melissa S. Obodzinski Jun 2022

Reclaiming The Right To Consent: Judicial Bypass Mechanism As A Way For Persons With Disabilities To Lawfully Consent To Sexual Activity In Ohio, Melissa S. Obodzinski

Cleveland State Law Review

In Ohio, it is a criminal offense to engage in sexual conduct with another when his or her ability to consent is “substantially impaired” because of a mental or physical condition. There is no mechanism for persons with intellectual and/or developmental disabilities to receive judicial notice of whether their ability to consent is “substantially impaired” prior to criminal adjudication, nor is there a way for them to affirmatively prove that they have the capacity to consent to sexual activity. Thus, under Ohio law, intellectually and/or developmentally disabled individuals may be functionally and irrevocably barred from engaging in sexual intimacy for …


Done The Time, Still Being Punished For The Crime: The Irrationality Of Collateral Consequences In Occupational Licensing And Fourteenth Amendment Challenges, Mccarley Maddock May 2022

Done The Time, Still Being Punished For The Crime: The Irrationality Of Collateral Consequences In Occupational Licensing And Fourteenth Amendment Challenges, Mccarley Maddock

Duke Journal of Constitutional Law & Public Policy Sidebar

Traditionally, retributive models of criminal justice rely on incarceration as punishment for a crime. Under this theory, punishment should end when the offender is released from prison. Yet, a decentralized web of statutes across the United States undermines this commonsense notion and continues to punish formerly incarcerated persons by denying them access to basic services for re-entry into society such as housing, government benefits, and employment. Specifically, thousands of the formerly incarcerated individuals are barred from working in or pursuing a career of their choice based on state statutes that prohibit entry into a given profession based on criminal history. …


And A Public Defender For All, Sara Mayeux May 2022

And A Public Defender For All, Sara Mayeux

Vanderbilt Law School Faculty Publications

The Senate confirmation of Ketanji Brown Jackson to the Supreme Court last week means that she is soon to be the first Supreme Court justice with prior experience as a federal public defender. This is historic in its own right, though it is not quite as surprising on closer inspection, since the institution of the federal public defender — in its currently prevailing organizational particulars, anyway — dates back only to the 1970s. Still, given that several of the justices previously worked as federal prosecutors, Jackson’s confirmation injects a welcome measure of professional balance to the lineup. Moreover, Jackson can …


Under What Circumstances Is The Shield Against Self-Incrimination Lowered In A Civil Action?, Andrew Hemming May 2022

Under What Circumstances Is The Shield Against Self-Incrimination Lowered In A Civil Action?, Andrew Hemming

Lincoln Memorial University Law Review Archive

The case of Pennsylvania v Cosby has brought into sharp relief the question of what criteria apply in determining whether a defendant in a civil action can definitively rely on a District Attorney’s purported statement that no further criminal action will be taken regarding the complaint in question. It is settled law that a defendant in a civil action faces the possibility of perjury charges for not telling the truth once the shield of the constitutionally enshrined Fifth Amendment right against self-incrimination is lowered by virtue of termination of criminal prosecution on the same facts. This article considers how best …


"The Special Favorite Of The Laws"? Black Lives Matter Moments In American Constitutional And Legal History, Dr. Yohuru Williams May 2022

"The Special Favorite Of The Laws"? Black Lives Matter Moments In American Constitutional And Legal History, Dr. Yohuru Williams

University of St. Thomas Law Journal

No abstract provided.


The Incorporation Of The Republican Guarantee Clause, Jason Mazzone May 2022

The Incorporation Of The Republican Guarantee Clause, Jason Mazzone

Notre Dame Law Review

This Article makes the case for understanding the Fourteenth Amendment to incorporate the Republican Guarantee Clause of Article IV. Incorporation shifts the focus of the Guarantee Clause from the interests of states to the interests of citizens; from protecting popular sovereignty as a political ideal to safeguarding more specifically rights that citizens hold and exercise in a republican system. Once incorporated, the Guarantee Clause should be understood to require states themselves to maintain a republican form of government and to act to correct departures from republicanism within their own governing arrangements. In addition, an incorporated Guarantee Clause informs the meaning …


Brown, History, And The Fourteenth Amendment, Christopher W. Schmidt May 2022

Brown, History, And The Fourteenth Amendment, Christopher W. Schmidt

Notre Dame Law Review

Legal scholars and historians in recent years have sought to elevate Reconstruction to the stature of a “second Founding,” according it the same careful inquiry and legitimating function as the first. Their work marks the latest iteration of a decades-long campaign to displace the far more dismissive attitude toward Reconstruction that permeated historical scholarship and legal opinions in the first half of the twentieth century. In this Article, I present the flurry of engagement with the history of the Fourteenth Amendment during the litigation of Brown v. Board of Education (1954) as a key transition point in how historians and …


Equal Protection And Scarce Therapies: The Role Of Race, Sex, And Other Protected Classifications, Govind Persad May 2022

Equal Protection And Scarce Therapies: The Role Of Race, Sex, And Other Protected Classifications, Govind Persad

SMU Law Review Forum

The allocation of scarce medical treatments, such as antivirals and antibody therapies for COVID-19 patients, has important legal dimensions. This Essay examines a currently debated issue: how will courts view the consideration of characteristics shielded by equal protection law, such as race, sex, age, health, and even vaccination status, in allocation? Part II explains the application of strict scrutiny to allocation criteria that consider individual race, which have been recently debated, and concludes that such criteria are unlikely to succeed under present Supreme Court precedent. Part III analyzes the use of sex-based therapy allocation criteria, which are also in current …


The Intent Of The Framer: John Bingham’S Fourteenth Amendment, Michael Zuckert May 2022

The Intent Of The Framer: John Bingham’S Fourteenth Amendment, Michael Zuckert

Notre Dame Law Review

It is not often that a single individual is responsible for constitutional provisions as important as Sections 1 and 5 of the Fourteenth Amendment. My project in this Essay is not to engage in a study of original intent, or original public meaning, or however we wish now to characterize the originalist project, but to engage in a quest for John Bingham’s Amendment, for understanding the Amendment as he understood it. Whether this gives us an authoritative reading of the Amendment for the purposes of constitutional interpretation and adjudication is a separate issue. I treat Bingham as an author and …


Crime And Unequal Punishment: Proving Discriminatory Intent In Felony Disenfranchisement, Abel Huskinson, Kaitlyn Long Apr 2022

Crime And Unequal Punishment: Proving Discriminatory Intent In Felony Disenfranchisement, Abel Huskinson, Kaitlyn Long

Brigham Young University Prelaw Review

Felony disenfranchisement, or barring convicted felons from voting, is a punishment used in almost every state. Although states differ in their severity of felony disenfranchisement, these laws resulted in 5.1 million Americans being unable to participate in the 2020 national election. The Supreme Court found in Hunter v. Underwood that felony disenfranchisement laws would violate the Equal Protection Clause of the Fourteenth Amendment if they contained “both [an] impermissible racial motivation and racially discriminatory impact.” Recent scholarship has found felony disenfranchisement to disproportionately affect marginalized racial groups. As such, it becomes the burden of felony disenfranchisement constitutional challenges to prove …


The Constitutionality Of The Title Ix Religious Exemption, Madelyn Jacobsen, Rebecca Batty, Editor Apr 2022

The Constitutionality Of The Title Ix Religious Exemption, Madelyn Jacobsen, Rebecca Batty, Editor

Brigham Young University Prelaw Review

Petitioners in Hunter v. Department of Education questioned the constitutionality of the Title IX religious exemption as the basis of their 2021 class-action lawsuit. They claimed that more than 30 religious schools maintained discriminatory policies against LGBTQ students under the exemption. The religious exemption, often painted as unconstitutional discrimination, permits religious schools' adherence to sincerely held religious beliefs—and promotes a distinctive religious education that secular schools lack. This paper examines legal precedents relevant to religious freedom, higher education, and discrimination that demand the Title IX religious exemption remains in effect.


The Problem Of Qualified Immunity In K-12 Schools, Sarah Smith Feb 2022

The Problem Of Qualified Immunity In K-12 Schools, Sarah Smith

Arkansas Law Review

When thirteen-year-old Savana Redding arrived at school one autumn day in 2003, she was not expecting to be pulled out of her math class and strip searched. But, that is exactly what happened after the assistant principal suspected her of possessing and distributing “prescription-strength ibuprofen” and “over-the-counter. . .naproxen” after receiving information from another student. After Savana consented to a search of her backpack and other belongings—a search which turned up no evidence of drug possession—the assistant principal asked the school nurse and administrative assistant to search Savana’s clothes. To do this, the school officials asked Savana “to remove her …


Democracy At Risk: Domestic Terrorism And Attack On The U.S. Capitol, Lawrence J. Trautman Jan 2022

Democracy At Risk: Domestic Terrorism And Attack On The U.S. Capitol, Lawrence J. Trautman

Seattle University Law Review

The year 2022 begins with democracy hanging in the balance. On February 13, 2021, Donald John Trump becomes the only American president to be impeached and acquitted twice. His acquittal for the second time follows a violent mob, having been incited by the lame-duck president, into marching down Pennsylvania Avenue to break into and vandalize the Capitol Building. It is now known that at least 138 law enforcement officers suffered from or received burns, concussions, rib fractures, heart attack—and at least five deaths are attributed to this insurrection. More than 725 individuals are subsequently charged for their role in this …


The Racist Roots Of The War On Drugs & The Myth Of Equal Protection For People Of Color, Steven A. Ramirez, Andre Douglas Pond Cummings Jan 2022

The Racist Roots Of The War On Drugs & The Myth Of Equal Protection For People Of Color, Steven A. Ramirez, Andre Douglas Pond Cummings

Faculty Publications & Other Works

By 2021, the costs and pain arising from the propagation of the American racial hierarchy reached such heights that calls for anti-racism and criminal justice reform dramatically expanded. The brutal murder of George Floyd by the Minneapolis police vividly proved that the social construction of race in America directly conflicted with supposed American values of equal protection under law and notions of basic justice. The racially-driven War on Drugs (WOD) fuels much of the dissonance between American legal mythology—such as the non-discrimination principle and the impartial administration of the rule of law—and the reality of race in the United States. …


Identifying The Plessy Remainder: State Exploitation Of Private Discriminatory-Impact Actions, Matthew P. Shaw Jan 2022

Identifying The Plessy Remainder: State Exploitation Of Private Discriminatory-Impact Actions, Matthew P. Shaw

Vanderbilt Law School Faculty Publications

Public education in the U.S. is arguably more racially segregated now than it was in 1954, when the U.S. Supreme Court declared in Brown v. Board of Education "that in the field of public education the doctrine of separate but equal' has no place." Although scholars may differ in the extent they believe that racial integration might be necessary for educational equality, most agree that educational segregation, whether imposed by law, socioeconomics, or happenstance, is not likely to reverse in any meaningful way in the near future.

In the absence of a recognized federal right to education, federal-court- supervised school …


Yes, Alito, There Is A Right To Privacy: Why The Leaked Dobbs Opinion Is Doctrinally Unsound, Nancy C. Marcus Jan 2022

Yes, Alito, There Is A Right To Privacy: Why The Leaked Dobbs Opinion Is Doctrinally Unsound, Nancy C. Marcus

Faculty Scholarship

On June 24, 2022, the Supreme Court released the final Dobbs majority opinion, which is substantially identical to the draft opinion. Consequently, the critique contained in this essay applies equally to the final Dobbs opinion.

On May 2, 2022, a draft majority opinion dated February 2022 and authored by Justice Alito in Dobbs v. Jackson Women’s Health Organization was leaked to the public. This Essay addresses the doctrinal infirmities of the underlying analysis of the draft Dobbs opinion, as well as the resulting dangers posed for the protection of fundamental privacy rights and liberties in contexts even beyond abortion.

The …


Federalism And Equal Citizenship: The Constitutional Case For D.C. Statehood, Jessica Bulman-Pozen, Olatunde C.A. Johnson Jan 2022

Federalism And Equal Citizenship: The Constitutional Case For D.C. Statehood, Jessica Bulman-Pozen, Olatunde C.A. Johnson

Faculty Scholarship

As the question of D.C. statehood commands national attention, the legal discourse remains stilted. The constitutional question we should be debating is not whether statehood is permitted but whether it is required.

Commentators have been focusing on the wrong constitutional provisions. The Founding document and the Twenty-Third Amendment do not resolve D.C.’s status. The Reconstruction Amendments — and the principle of federated, equal citizenship they articulate — do. The Fourteenth Amendment’s Citizenship Clause, as glossed by subsequent amendments, not only establishes birthright national citizenship and decouples it from race and caste but also makes state citizenship a constitutive component of …


Deregulated Redistricting, Travis Crum Jan 2022

Deregulated Redistricting, Travis Crum

Scholarship@WashULaw

From the civil rights movement through the Obama administration, each successive redistricting cycle involved ever-greater regulation of the mapmaking process. But in the past decade, the Supreme Court has re-written the ground rules for redistricting. For the first time in fifty years, Southern States will redistrict free of the preclearance process that long protected minorities from having their political power diminished. Political parties can now openly engage in egregious partisan gerrymandering.

The Court has withdrawn from the political thicket on every front except race. In so doing, the Court has engaged in decision-making that is both activist and restrained, but …


Due Process, Delegation, And Private Veto Power, B. Jessie Hill Jan 2022

Due Process, Delegation, And Private Veto Power, B. Jessie Hill

Faculty Publications

Nondelegation doctrine is enjoying a scholarly revival. Some commentators have read the U.S. Supreme Court’s 2019 decision in Gundy v. United States to portend new limitations on Congress’s ability to give away its authority to the executive branch. A recent decision involving Amtrak’s entitlement to exercise regulatory authority raised similar questions about delegation to private entities. Together, these cases may suggest imminent new constraints on the administrative state, generating urgent reconsideration of the purpose and application of the nondelegation doctrine.

This Article is focused on one particular line of nondelegation cases that has received less attention in the nondelegation debate: …


Big Bad Roe, B. Jessie Hill Jan 2022

Big Bad Roe, B. Jessie Hill

Faculty Publications

Now that Roe v. Wade is gone, what should replace it? This moment presents a rare opportunity to re-imagine the right to reproductive autonomy, given that the longstanding constitutional framework governing that right has been tossed out the window. For the most part, constitutional litigation over the right to abortion has shifted to state courts and is brought under state constitutions. Thus, as state courts begin to recognize the existence of a constitutional right to reproductive autonomy under state constitutions, they must decide what the right looks like. In several cases currently being litigated in state courts, advocates have argued …