Constitutional Law Commons^™

Constitutional Concern, Membership, And Race, Sarah Krakoff

Publications

American Indian Tribes in the United States have a unique legal and political status shaped by fluctuating federal policies and the over-arching history of this country’s brand of settler-colonialism. One of the several legacies of this history is that federally recognized tribes have membership rules that diverge significantly from typical state or national citizenship criteria. These rules and their history are poorly understood by judges and members of the public, leading to misunderstandings about the “racial” status of tribes and Indian people, and on occasion to incoherent and damaging decisions on a range of Indian law issues. This article, which …

Was The First Justice Harlan Anti-Chinese?, James W. Gordon

Faculty Scholarship

The first Justice John Marshall Harlan has long been recognized as a defender of Black civil rights. Yet some scholars challenge Harlan’s egalitarian reputation by arguing that he was anti-Chinese. In this Article, the Author discusses the evidence which has been offered to support the claim that Harlan was anti-Chinese and offers additional evidence never before presented to argue against this hypothesis. Harlan’s critics have assembled some evidence in a way that suggests Harlan had an anti-Chinese bias. The Author suggests that the evidence is ambiguous and that it can be assembled to produce a different picture from the one …

The Fiduciary Foundations Of Federal Equal Protection, Gary S. Lawson, Guy Seidman, Robert G. Natelson

Faculty Scholarship

In Bolling v. Sharpe, the Supreme Court invalidated school segregation in the District of Columbia by inferring a broad “federal equal protection” principle from the Due Process Clause of the Fifth Amendment. It is often assumed that this principle is inconsistent with the Constitution’s original meaning and with “originalist” interpretation.

This Article demonstrates, however, that a federal equal protection principle is not only consistent with the Constitution’s original meaning, but inherent in it. The Constitution was crafted as a fiduciary document of the kind that, under contemporaneous law, imposed on agents acting for more than one beneficiary – and on …

Government Nonendorsement, Nelson Tebbe

Cornell Law Faculty Publications

What are the constitutional limits on government endorsement? Judges and scholars typically assume that when the government speaks on its own account, it faces few restrictions. In fact, they often say that the only real restriction on government speech is the Establishment Clause. On this view, officials cannot endorse, say, Christianity, but otherwise they enjoy wide latitude to promote democracy or denigrate smoking. Two doctrines and their accompanying literatures have fed this impression. First, the Court’s recent free speech cases have suggested that government speech is virtually unfettered. Second, experts on religious freedom have long assumed that there is no …

Bilingual Welfare Notice Not Required - Guerrero V. Carleson, 9 Cal. 3d 808, 512 P.2d 833, 109 Cal. Rptr. 201 (1973), Mary Beth Diez

Pepperdine Law Review

No abstract provided.

Equal Protection For Illegitimate Children In State Welfare Programs, Phillip North

Pepperdine Law Review

No abstract provided.

Illegitimate Children And Constitutional Review, Clayton W. Plotkin, John Vodonick

Pepperdine Law Review

No abstract provided.

Beyond Weighing And Sifting: Narrowing Judicial Focus As An Alternative To Burton V. Wilmington Parking Authority, William W. Wynder

Pepperdine Law Review

No abstract provided.

This Alj Said Too Much: Prison Hearing Officer Charges Michigan Department Of Corrections With First Amendment Violations And Race Discrimination, Carolyn Amadon

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Gideon Meets Goldberg: The Case For A Qualified Right To Counsel In Welfare Hearings, Stephen Loffredo, Don Friedman

Touro Law Review

In Goldberg v. Kelly, the Supreme Court held that welfare recipients have a right under the Due Process Clause to notice and a meaningful opportunity to be heard before the state may terminate assistance. However, the Court stopped short of holding due process requires states to appoint counsel to represent claimants at these constitutionally mandated hearings. As a result, in the vast majority of administrative hearings involving welfare benefits, claimants- desperately poor, and often with little formal education- must appear pro se while trained advocates represent the government. Drawing on the theory of underenforced constitutional norms, first articulated by Dean …

Wengler V. Druggists' Mutual Insurance Company: No More Skirting The Issue Of Sex Discrimination In Workers' Compensation Dependency Statutes, Teresa A. Saggese, Lawson A. Cox Ii

Pepperdine Law Review

No abstract provided.

Rostker V. Goldberg: A Step Backward In Equal Protection, Or A Justifiable Affirmation Of Congressional Power?, Gilbert L. Purcell, Janet Rappaport

Pepperdine Law Review

The Supreme Court in Rostker v. Goldberg upheld a Congressional decision which excluded women from registration for service in the Armed Forces of the United States. Although the case was brought based upon equal protection grounds, the majority took a separation of powers stance and based its decision upon the fact that the Court has traditionally granted deference to the decisions of Congress in the area of military affairs. The minority opinions disagreed with the majority's analysis and claimed that the central issue in Rostker was not military in nature, but was that Congress' plan to register males only, promoted …

Justice Stevens And The Emerging Law Of Sex Discrimination , John P. Wagner

Pepperdine Law Review

No abstract provided.

Mistreating A Symptom: The Legitimizing Of Mandatory, Indefinite Commitment Of Insanity Acquittees - Jones V. United States, Paul S. Avilla

Pepperdine Law Review

At the end of the 1982 term, in Jones v. United States, the United States Supreme Court upheld a District of Columbia statute requiring the automatic and indefinite commitment of persons acquitted by reason of insanity. While under the D.C. statute the acquittee is periodically given the opportunity to gain release, the practice of involuntarily confining someone who has been acquitted raises serious due process and equal protection issues. This note examines the Court's analysis of these issues, focusing on a comparison of the elements necessary for an insanity defense with the showing required by the due process clause for …

Reinforcement Of Middle Level Review Regarding Gender Classifications: Mississippi University For Women V. Hogan , Mary Ellen Shull

Pepperdine Law Review

In Mississippi University for Women v. Hogan, the United States Supreme Court was presented with an equal protection challenge initiated by a male who was denied admission to a state-supported all-female school of nursing. After a review of relevant decisions in this area, the author examines the Supreme Court's intermediate level of scrutiny analysis and argues that application of a higher level of scrutiny to gender-based classifications is a prerequisite to true equality between the sexes.

An Analysis Of Selective Service System V. Minnesota Public Interest Research Group, Teresa L. Howell

Pepperdine Law Review

Section 1113 of the Department of Defense Authorization Act passed in 1982 prohibits the receipt of Title IV educational funds by students who do not comply with draft registration requirements. In Selective Service System v. Minnesota Public Interest Research Group, the United States Supreme Court upheld section 1113 in the face of a multi-tiered constitutional challenge. After exploring the history of section 1113, the author examines the Supreme Court's analysis of each of the constitutional challenges: bill of attainder, privilege against self-incrimination, and equal protection. Finally, the author investigates the probable impact of the Court's decision.

Aids: Do Children With Aids Have A Right To Attend School?, Gilbert A. Partida

Pepperdine Law Review

No abstract provided.

Equal Protection And The New Rational Basis Test: The Mentally Retarded Are Not Second Class Citizens In Cleburne, Gordon W. Johnson

Pepperdine Law Review

Recently, the Fifth Circuit held that classifications involving the mentally retarded were quasi-suspect and should be reviewed under a heightened scrutiny analysis. The Supreme Court reversed that holding but granted the retarded a remedy by applying a more genuine scrutiny under the rational basis test. The Court's decision in City of Cleburne, Texas v. Cleburne Living Center, Inc. raises the question whether the Court intends to apply an increased level of scrutiny under the rational basis test or whether this case merely represents another ad hoc decision made on the horns of a dilemma. This Note discusses the uncertain impact …

The Unwed Father's Custody Claim In California: When Does The Parental Preference Doctrine Apply?, Jeffrey S. Boyd

Pepperdine Law Review

No abstract provided.

Persons Who Are Not The People: The Changing Rights Of Immigrants In The United States, Geoffrey Heeren

Law Faculty Publications

Non-citizens have fared best in recent Supreme Court cases by piggybacking on federal rights when the actions of states are at issue, or by criticizing agency rationality when federal action is at issue. These two themes-federalism and agency skepticism-have proven in recent years to be more effective litigation frameworks than some individual rights-based theories like equal protection. This marks a substantial shift from the Burger Court era, when similar cases were more likely to be litigated and won on equal protection than on preemption or Administrative Procedure Act theories. This Article describes this shift, considers the reasons for it, and …

The Virtue Of Obscurity, Colin Starger

All Faculty Scholarship

The critics have panned Justice Kennedy’s majority opinion in United States v. Windsor. Supporters and opponents of same-sex marriage have together bemoaned what may be called Kennedy’s “doctrinal obscurity” in Windsor. Doctrinal obscurity describes the opinion’s failure to justify striking down Section 3 of the Defense of Marriage Act (DOMA) using any discernable accepted test for substantive due process or equal protection. Specifically, Kennedy does not ask whether DOMA burdens a right “deeply rooted in this Nation’s history and tradition,” nor does he identify sexual orientation as a suspect or semi-suspect classification, nor does he subject DOMA to explicit rational …

Windsor Products: Equal Protection From Animus, Dale Carpenter

Faculty Journal Articles and Book Chapters

The Supreme Court's opinion in United States v. Windsor has puzzled commentators, who have tended to overlook or dismiss its ultimate conclusion that the Defense of Marriage Act was unconstitutional because it arose from animus. What we have in Justice Kennedy’s opinion is Windsor Products — an outpouring of decades of constitutional development whose fountainhead is Carolene Products and whose tributaries are the gay-rights and federalism streams. This paper presents the constitutional anti-animus principle, including what constitutes animus, why it offends the Constitution, and how the Supreme Court determines it is present. The paper also discusses why the Court was …

The Regulation Of Race In Science, Kimani Paul-Emile

Faculty Scholarship

The overwhelming majority of biological scientists agree that there is no such thing as race among modern humans. Yet, scientists regularly deploy race in their studies, and federal laws and regulations currently mandate the use of racial categories in biomedical research. Legal commentators have tried to make sense of this paradox primarily by looking to equal protection strict scrutiny analysis. However, the colorblind approach that attends this doctrine — which many regard as synonymous with invalidation — does not offer a particularly useful way to think about the use of race in research. It offers no way to address how …

Supreme Court Update: 2012-2013 Term (Civil Cases In Constitutional Law), Wilson Huhn

Akron Law Faculty Publications

During 2012-2013 the Supreme Court handed down several significant constitutional law, including United States v. Windsor (striking down Section 3 of the federal Defense of Marriage Act) and Shelby County v. Holder (striking down Section 4 of the Voting Rights Act). These and other decisions are summarized in this presentation.

A Visual Guide To United States V. Windsor: Doctrinal Origins Of Justice Kennedy’S Majority Opinion, Colin Starger

All Faculty Scholarship

After finding the Court had jurisdiction, Justice Kennedy’s majority opinion in United States v. Windsor reached the merits and concluded that the Defense of Marriage Act (DOMA) was in violation of the Fifth Amendment. In his dissent, Justice Scalia attacked the majority’s doctrinal reasoning on the merits as “nonspecific handwaving” that invalidated DOMA “maybe on equal-protection grounds, maybe on substantive due process grounds, and perhaps with some amorphous federalism component playing a role.”

This Visual Guide is a “doctrinal map” that responds to Scalia’s accusation by charting the doctrinal origins of Justice Kennedy’s majority opinion. Specifically, the map shows how …

Homosexuals, Equal Protection, And The Guarantee Of Fundamental Rights In The New Decade: An Optimist’S Quasi-Suspect View Of Recent Events And Their Impact On Heightened Scrutiny For Sexual Orientation-Based Discrimination, John Nicodemo

Touro Law Review

No abstract provided.

Brief Of Committee Of Law Professors And Historians As Amici Curaie, In Support Of Plaintiffs-Appellant, Coalition To Defend Affirmative Action V. Brown, 674 F.3d 1128 (2012) (No. 11-15100, 11-15241), Wilson Huhn

Con Law Center Amicus Briefs

The purpose of this brief is to place the dispute over affirmative action in California’s public universities within a broader historical context.  State constitutional amendments such as Proposition 209 are not uncommon in American history.  In reaction to calls for reform from a minority group – whether it be the end of slavery, the enactment of non-discrimination laws, or the adoption of voluntary programs of racial integration – the majority has often responded by attempting to prevent the debate from occurring, by denying members of the minority group the opportunity to participate in the political process, or by making it …

Under The Lens Of The Constitution: The Ndaa's Detainee Provisions And The Fifth Amendment's Guarantee Of Equal Protection, Stephen Consuegra

St. Thomas Law Review

The crux of this article discusses Congress's passage of the unequal detainee provisions under the NDAA and its equal protection issues under the Fifth Amendment to the Constitution. Part II begins with a discussion on the impetus for congressional passage of the Authorization for Use of Military Force ("AUMF") and its development under the laws of war. Next, Part III analyzes United States Supreme Court precedent that previously interpreted the scope of presidential power under the AUMF and explores its implications for purposes of understanding the NDAA's detainee provisions. Part IV follows with a discussion on the NDAA's detainee provisions, …

The Politicization Of Judicial Elections And Its Effect On Judicial Independence, Matthew W. Green Jr., Susan J. Becker

Law Faculty Articles and Essays

This article presents the proceedings of the Cleveland-Marshall College of Law Symposium, The Politicization of Judicial Elections and Its Effect on Judicial Independence and LGBT Rights, held October 21, 2011. The idea for the conference stemmed from the November 2010 Iowa judicial election, in which three justices were voted out of office as a result of joining a unanimous ruling, Varnum v. Brien, that struck down, on equal protection grounds, a state statute limiting marriage rights to heterosexual couples. The conference addresses whether the backlash that occurred in Iowa after the Varnum decision might undermine judicial independence in jurisdictions where …

Inextricably Political: Race, Membership, And Tribal Sovereignty, Sarah Krakoff

Publications

Courts address equal protection questions about the distinct legal treatment of American Indian tribes in the following dichotomous way: are classifications concerning American Indians "racial or political?" If the classification is political (i.e., based on federally recognized tribal status or membership in a federally recognized tribe) then courts will not subject it to heightened scrutiny. If the classification is racial rather than political, then courts may apply heightened scrutiny. This Article challenges the dichotomy itself. The legal categories "tribe" and "tribal member" are themselves political, and reflect the ways in which tribes and tribal members have been racialized by U.S. …