Fourteenth Amendment Commons^™

Nine Justices In Search Of A Doctrine, Thomas I. Emerson

Michigan Law Review

To the ordinary layman, Griswold v. Connecticut seemed easy. But to the lawyer it was somewhat more difficult. The lawyer's problem with the case was that the issues did not readily fit into any existing legal pigeonhole. Actually, there were five possibilities. The case could have been dealt with under the equal protection clause, the first amendment, substantive due process, the right of privacy, or, in extremis, the ninth amendment. In order to strike down the statute under any of these doctrines, however, the Court would be forced to enter uncharted waters. Whatever course the Court took, its action …

Penumbras, Peripheries, Emanations, Things Fundamental And Things Forgotten: The Griswold Case, Paul G. Kauper

Michigan Law Review

The varying theories followed in the several opinions in the Griswold case can be fully understood and appreciated only in the context of the tortuous but fascinating history of the judicial interpretation of the fourteenth amendment.

The Right Of Privacy: Emanations And Intimations, Robert B. Mckay

Michigan Law Review

When Louis Brandeis and Samuel Warren wrote in 1890 of "The Right to Privacy," they sought a means of protecting against unwelcome newspaper attention to social activities in the Warren household. Addressing their argument to the private law of torts, they presumably did not anticipate constitutional protection for other rights under the claim of privacy. Nevertheless, seventy· five years later that concept, now called the "right of privacy," was used by the Supreme Court of the United States in Griswold v. Connecticut to describe a constitutional right. Some members of the Court said the new right was within the "penumbra" …

Privacy In Connecticut, Arthur E. Sutherland

Michigan Law Review

Occasionally a judgment of our Supreme Court, delivered in a superficially petty case, suddenly before our startled eyes displays fundamentals of our constitutional theory. Thus, in Griswold v. Connecticut, holding unconstitutional an 1879 Connecticut statute forbidding all persons to use contraceptive devices, the Court found it necessary to discover a "right of privacy" latent in the Bill of Rights and incorporated into the due process clause of the fourteenth amendment. The outcome of the case is satisfying; all nine Justices joined in saying, in one way or another, that Connecticut's statute was nonsense. I am happy to see this …

Constitutional And Statutory Bases Of Governors' Emergency Powers, F. David Trickey

Michigan Law Review

The primary source of executive emergency power is the state constitution, although statutes often codify the constitutional executive emergency authority and occasionally delegate additional legislative police powers to the governor. Most governors are authorized to respond to public emergencies with a variety of extraordinary emergency measures. This study of state constitutional and statutory emergency power provisions has been undertaken in an attempt to evaluate the sources and scope of governors' emergency powers, as well as the limitations upon those powers. Its primary focus will be upon the extreme breadth of executive emergency authority and, in particular, upon the power to …

Boles: The Bible, Religion And The Public Schools, Arthur E. Sutherland

Michigan Law Review

A Review of The Bible, Religion and the Public Schools (3d ed) by Donald E. Boles

Zoning Law In Michigan And New Jersey: A Comparative Study, Roger A. Cunningham

Michigan Law Review

It is one thesis of this article that the "lawyer's view" has generally prevailed in Michigan and that the "planner's view" has generally prevailed in New Jersey. Since the zoning law of these two states is thus fairly representative of the opposing judicial attitudes set forth in the preceding paragraph, they are especially suitable for comparative study. This study begins with a look at the constitutional bases and statutory provisions for zoning. It then proceeds to examine judicial attitudes toward zoning determinations in general and continues by focusing on specific current zoning problems. The conclusions to be drawn from these …

The Line Between Federal And State Court Jurisdiction, Leslie A. Anderson

Michigan Law Review

From the beginning of this nation, there have been controversies involving the division of jurisdiction between federal and state courts. Often, these controversies have centered on the diversity of citizenship provision of the federal constitution. Today, however, the more poignant question is whether any division of jurisdiction between the federal and state systems retains logical bases.

Although myriad developments have relevancy with respect to this question, I have here focused upon two of the more important ones: the increasing overlap of subject matter being litigated in federal and state courts and the growing uniformity of standards to be applied in …

Mr. Justice Black, Constitutional Review, And The Talisman Of State Action, William W. Van Alstyne

Faculty Publications

In an endorsement of Justice Black’s dissent in Bell v. Maryland, this work argues in favors of Black’s interpretation of the state action requirement and attempts to make sense of Black’s understanding in other cases where he found state action in similar private circumstances.

Unconstitutional Racial Classification And De Facto Segregation, Joseph A. Milchen

Michigan Law Review

Classification along racial lines, when involving state action, is unconstitutional. Such classification may violate the due process or equal protection clause of the fourteenth amendment or the fifteenth amendment, and it has been held invalid in the fields of education, transportation, voting, recreational facilities, ownership and use of real property, and jury selection.

Freezing Voter Qualifications To Aid Negro Registration, Michigan Law Review

Michigan Law Review

The literacy test, used by many states in determining the qualifications of voters, has proved to be a major obstacle to the elimination of voter discrimination based on racial characteristics. Under recently enacted statutory provisions, citizens who attempt to register to vote in certain states are faced with test questions of such difficulty that it is virtually impossible to answer them satisfactorily. Where there is permanent voter registration, the effect is to secure a position of political dominance for those registered prior to the institution of the tests. In those states in which individuals had been denied registration by prior …

Legislation Requiring Child To Support Mother In State Asylum Is A Denial Of Equal Protection-Department Of Mental Hygiene V. Kirchner, Michigan Law Review

Michigan Law Review

The California Department of Mental Hygiene brought suit under section 6650 of the state's Welfare and Institutions Code, a provision commonly known as a relative support statute, against the administratrix to recover 7,500 dollars from the intestate's estate. This amount represented the cost of food, housing, and treatment received by intestate's mother in a state mental hospital during the four years she had been confined there following a civil sanity hearing. Plaintiff was granted judgment on the pleadings. On appeal to the California Supreme Court, held, reversed. Since mental hospitals serve a proper public function, it is a denial …

The Fourteenth Amendment, The “Right” To Vote, And The Understanding Of The Thirty-Ninth Congress, William W. Van Alstyne

Faculty Publications

An examination of the Fourteenth Amendment’s legislative history is juxtaposed with Justice Harlan’s steadfast conclusion that such history reveals states’ right to set voting requirements.

Some Comments On The Reapportionment Cases, Paul G. Kauper

Michigan Law Review

Any appraisal of the Supreme Court's decisions in the legislative reapportionment cases must necessarily distinguish between the basic policy ingredients and social consequences of the decisions on the one hand, and the question whether the results were reached by a proper exercise of judicial power on the other. Respecting the first of these considerations, I have no difficulty identifying the social advantages accruing from these decisions. Because of the stress on the population principle, the decisions will afford a greater voice to urban interests, will make the legislative process more responsive to current needs of particular concern to urban dwellers, …

Court, Congress, And Reapportionment, Robert B. Mckay

Michigan Law Review

In the United States, governmental power is divided vertically between nation and states and horizontally, at the national level, among the executive, legislative, and judicial branches. The Constitution leaves the lines of demarcation deliberately imprecise. Thus, from the beginning it was easy to predict that among those holders of power there would be tension (at least), conflict (probably), or total collapse (a possibility). The miracle of the American governmental system, with just this complexity and lack of definition, is the fact of its survival. It is not at all surprising that there have been a number of crises, some of …

The Role Of A Trial Jury In Determining The Voluntariness Of A Confession, Michigan Law Review

Michigan Law Review

The Supreme Court of the United States has vigorously implemented the principle that criminal prosecution is an investigative, not an inquisitorial, process. Evidence of guilt must be obtained by methods free from physical or psychological coercion. Protections in the Bill of Rights against illegal search and seizure, self-incrimination, and trial without counsel have been extended to the states through the due process clause of the fourteenth amendment. Safeguards against the admissibility of coerced confessions into evidence have also been instituted. Because a confession practically determines the ultimate question of guilt, the critical standards for· admissibility are frequently challenged on appeal. …

Congressional Apportionment: The Unproductive Search For Standards And Remedies, Michigan Law Review

Michigan Law Review

The increasingly complex problems of elucidating congressional apportionment standards and granting appropriate relief when voting rights have been materially diluted were again brought to the fore in the recent districting decision of Calkins v. Hare. This federal district court decision is illustrative of the uncertainty caused by the Supreme Court's opinion in the landmark case of Wesberry v. Sanders. Although Wesberry resolved two previously contested issues by ruling that congressional apportionment disputes are susceptible of judicial determination and by setting a standard of population equality in delimiting districts, two associated questions were left unanswered. First, even though Wesberry …

Reapportionment In The Supreme Court And Congress: Constitutional Struggle For Fair Representation, Robert G. Dixon Jr.

Michigan Law Review

Fair representation is the ultimate goal. At the time of the Reapportionment Decisions, much change was overdue in some states, and at least some change was overdue in most states. We are a democratic people and our institutions presuppose according population a dominant role in formulas of representation. However, by its exclusive focus on bare numbers, the Court may have transformed one of the most intricate, fascinating, and elusive problems of democracy into a simple exercise of applying elementary arithmetic to census data. In so doing, the Court may have disabled itself from effectively considering the more subtle issues …

The Powers Of The Michigan Civil Rights Commission, Roger C. Cramton

Michigan Law Review

The thesis of this article is that the Attorney General has misread the language and actions of the constitution-makers. The Michigan Civil Rights Commission is an important and powerful agency of government which has substantial tasks to perform. But it does not possess the exclusive powers envisioned by the Attorney General. Other governmental units-the legislature, the executive, the courts, and the local governments-may continue to play a creative and positive role in fashioning a legal order that accords to every human being in society a reasonable opportunity to realize his potentialities.

Public Control Of Private Sectarian Institutions Receiving Public Funds, Richard B. Rogers

Michigan Law Review

This comment will examine the recent judicial and legislative developments which could result in federal controls limiting religious practices in private sectarian educational and welfare institutions.

State Action, State Law, And The Private Hospital, Mary Mandana Long

Michigan Law Review

On March 2, 1964, the United States Supreme Court denied a petition to review by certiorari the decision in Simkins v. Moses H. Cone Memorial Hosp. By declining to review the case the Supreme Court left unaffected the holding of the Court of Appeals for the Fourth Circuit that two private hospitals which had participated in the Hill-Burton program of federal hospital assistance were sufficiently involved with governmental action, both state and federal, to bring their conduct within the fifth and fourteenth amendment prohibitions against racial discrimination. This decision will probably affect all of the 3,346 private, non-profit hospitals in …

Constitutional Law-Search And Seizure-Retrospective Application Of Mapp V. Ohio, Timothy D. Wittlinger

Michigan Law Review

On February 15, 1960, the Louisiana Supreme Court affirmed petitioner's conviction for simple burglary. The conviction was obtained through the use of evidence unlawfully seized from petitioner in violation of the fourth amendment of the United States Constitution. In December 1961 the District Court for the Parish of West Feliciana denied petitioner's writ of habeas corpus filed after the Supreme Court decision of Mapp v. Ohio, which forbade introduction at state trials of evidence seized by state officers in violation of the fourth amendment. The denial of the writ was affirmed by the Louisiana Supreme Court, and certiorari was …

Abstracts Of Recent Cases, Ward Day Stone Jr.

West Virginia Law Review

No abstract provided.

Convict's Right To Speedy Trial On A Pending Indictment

Washington and Lee Law Review

No abstract provided.

Constitutional Law--Due Process Of The Fourteenth Amendment--Right To Counsel In Non-Capital State Felony Prosecutions, Marvin Lee Henderson

Kentucky Law Journal

No abstract provided.

The Constitution And Preclusion/Res Judicata, Allan D. Vestal

Michigan Law Review

The interrelation of lawsuits is one of the most troublesome, yet least commented upon, areas of the law. The ramifications are great; related lawsuits may be pending concurrently, either brought by the same individual-repetitive litigation--or brought by different parties-reactive litigation. Such lawsuits may occur serially over a period of time. The courts are then faced with problems which have traditionally been discussed in terms of res judicata, bar, merger, or estoppel. It is impossible to cover the whole area or even a sizable part of it in a single article, but it is feasible to examine one facet which certainly …

Prayer, Public Schools And The Supreme Court, Paul G. Kauper

Michigan Law Review

A more complete understanding of the case, while doing much to temper the initial outburst of disapproval, did not by any means dispel all criticism of the decision or allay all the apprehensions aroused by it. Believing that the Supreme Court's opinion was premised on a fundamentally erroneous interpretation of the establishment clause of the first amendment, Bishop James A. Pike headed a movement to amend the Constitution so as to restore what he regarded as the true and intended meaning of its pertinent language. In the meantime, the Supreme Court has agreed to review and has heard argument on …

The EngelCase From A Swiss Perspective, F. William O'Brien

Michigan Law Review

On June 25, 1962, the Supreme Court of the United States held that the State of New York, by using its public school system to encourage recitation of a prayer during classroom hours, had adopted a practice wholly inconsistent with that clause of the first amendment, applicable to the states by virtue of the fourteenth amendment, which prohibits laws respecting an establishment of religion. The opinion of the Court, written by Mr. Justice Black for himself and four other Justices, is interesting in that he rests the Court's decision exclusively upon the establishment clause. In previous decisions, the Court had …

Political Thickets And Crazy Quilts: Reapportionment And Equal Protection, Robert B. Mckay

Michigan Law Review

If asked to identify the two most important cases decided by the Supreme Court of the United States in the twentieth century, informed observers would be likely to name, in whichever order, Brown v. Board of Education and Baker v. Carr.

Legislative Apportionment And Representative Government: The Meaning Of Baker V. Carr, Jo Desha Lucas

Michigan Law Review

In three recent cases the Supreme Court has reopened the question of the extent to which federal courts will review the general fairness of state schemes of legislative apportionment. It is a question on which the Court has had nothing to say for over a decade, leaving the bar to patch together the current state of the law from the outcome of cases disposed of without opinion considered against a backdrop of language used in earlier decisions.