Fourteenth Amendment Commons^™

Litigating Birthright Citizenship In The Shadow Of World War Ii: The Continuing Relevance Of A Forgotten Case, Rachel E. Rosenbloom

Michigan Journal of Race and Law

With the question of birthright citizenship before the Supreme Court this term in Trump v. Barbara, this Article explores the last time that federal courts confronted an attempt to restrict birthright citizenship. It tells the story of two lawsuits, Regan v. King and Fisk v. Wade, filed in 1942 by organizations seeking to overturn United States v. Wong Kim Ark, the 1898 Supreme Court decision that affirmed the broad scope of birthright citizenship under the Fourteenth Amendment. While the cases left little mark doctrinally, their history sheds light on a dimension of birthright citizenship litigation that has …

The Vanishing Voice: Juror Disenfranchisement In Capital Cases And The Erosion Of Constitutional Protections, Yacenda Hudson

Michigan Journal of Race and Law

After years of battling to have an uninfringed right to vote and participate on a jury panel, the removal of the unanimity requirement for a death penalty recommendation threatens to disenfranchise minority jurors, thereby implicating the Sixth and Fourteenth Amendments. The death penalty is one of the most controversial issues in our society, and it has evolved over time. Due to a paradigm shift in beliefs, the death penalty’s constitutionality was challenged under the Eighth and Fourteenth Amendments. Pivotal legal decisions, such as Furman v. Georgia and Hurst v. Florida, required states to institute changes to the death penalty. …

Casa, Inc. V. Trump: Brief Of Amici Curiae Immigration Law Scholars Kristin Collins, Gerald Neuman, And Rachel Rosenbloom In Support Of Appellees, Kristin Collins

Appellate Briefs

USCA4 Appeal: 25-1153

Amici Kristin Collins, Gerald Neuman, and Rachel Rosenbloom are legal scholars with expertise in U.S. citizenship and immigration law. Amici have a professional interest in ensuring that the Court is properly informed with respect to the history and meaning of the birthright citizenship statute, 8 U.S.C. § 1401(a), and its importance to this case.

Trump V. Casa, Inc.: Brief Of Scholars Of Constitutional Law And Immigration As Amici Curiae In Support Of Respondents, Samuel Erman

Appellate Briefs

Amici are law professors whose research focuses on constitutional law and immigration. Amici have an interest in ensuring that the Fourteenth Amendment is interpreted in a manner consistent with its text and history, and accordingly have an interest in this case.

Consensus And Conflict Over Context: Select Criminal Law And Procedure Cases From The Supreme Court's 2024-25 Term, Eve Brensike Primus, Elena Schultz

Articles

In its 2024-2025 Term, the Supreme Court emphasized the utility—and necessity—of context-based, fact-sensitive analyses throughout its criminal law and procedure cases. Though the Justices sparred over how to derive meaning from factual, structural, legal, and historical contexts, they tended to agree that courts should not be artificially restricted from considering the breadth of the record before them.

Abortion Access For Incarcerated People Post-Dobbs, Kate Bock

Michigan Journal of Gender & Law

Dobbs v. Jackson Women’s Health Organization has fundamentally altered the legal landscape regarding abortion access. Though abortion rights for all people across the United States have now been eliminated or are in jeopardy, incarcerated people are a particularly vulnerable group, given the way carceral institutions restrict autonomy and the drastic health implications of an unwanted pregnancy while confined. Before Dobbs, detained people retained the constitutional right to an elective abortion while incarcerated. To remedy violations of this right, women brought claims under the Fourteenth Amendment and the Eighth Amendment. In a post-Roe world, however, incarcerated folks denied abortion …

Original Public Meaning And Pregnancy’S Ambiguities, Evan D. Bernick, Jill Wieber Lens

Michigan Law Review

Relying on 1868 abortion statutes, the 2022 Supreme Court held in Dobbs v. Jackson Women’s Health Organization that no federal constitutional right to abortion exists. Mere months later, a petition for certiorari asked the Court to determine that “person” in the Fourteenth Amendment includes prenatal existence, which would require criminalization of abortion in all states. The petitioners cited Dobbs and claimed the authority of legal history in 1868 and before. These arguments will be heard again, and they are increasingly framed in terms of the “original public meaning” of the Fourteenth Amendment.

This Article refutes these arguments on their own …

In Pursuit Of Collective Liberation In Feminist Constitutionalism, Yvette Butler

Michigan Law Review

A review of After Misogyny: How The Law Fails Women and What to Do About It. By Julie C. Suk.

Channeling A Federal Right To Education Through State Constitutions And Courts, Nicole Sunderlin, Evan Caminker

Articles

Professor Black attributes the ubiquitous adoption of education clauses in state constitutions in the immediate pre- and especially post-Reconstruction era to a “constitutional compromise” struck by Congress and the states. The State Citizenship commitment was designed to enhance the republican nature of both levels of governance by ensuring broader access to political participation through voting and broader access to public education to inform and support democratic deliberation. The education component of this commitment was uniquely secured, argues Black, through a state-federal compromise using two complementary mechanisms: first, by mandating states to embrace a state constitutional obligation to provide basic educational …

The Supreme Court Is Poised To Reverse Affirmative Action: Here’S What You Need To Know., Richard O. Lempert

Other Publications

Sometime in the next six weeks the Supreme Court will likely reveal its decisions in Students for Fair Admissions, Inc. (SFAI) v. President and Fellows of Harvard and SFAI v. University of North Carolina. Court watchers are almost unanimous that the Supreme Court majority will:

• read the 14 amendment as barring the use of racial preferences by public colleges and universities and
• interpret Section VI of the 1964 Civil Rights Act as similarly restricting race conscious admissions at any school receiving federal funds.

To achieve these outcomes a conservative majority will have to reject 40 years of a twice reaffirmed …

Fitisemanu V. United States: Brief Of Citizenship Scholars As Amici Curiae In Support Of Petitioners, Sam Erman

Appellate Briefs

Amici are scholars of law, history, and political science who have written on the history of American citizenship. Amici’s names, titles, and institutional affiliations (for identification purposes only) are listed in Appendix A. Amici have a professional interest in the doctrinal, historical, and policy issues involved in this Court’s interpretation of the meaning of citizenship in the United States. Moreover, amici have a professional interest in historical conceptions of citizenship before and after the ratification of the Fourteenth Amendment’s Citizenship Clause, modern notions of citizenship and non-citizen national status, and their impact on policy today.<\p>

Amici submit this brief to …

Municipal Reparations: Considerations And Constitutionality, Brooke Simone

Michigan Law Review

Demands for racial justice are resounding, and in turn, various localities have considered issuing reparations to Black residents. Municipalities may be effective venues in the struggle for reparations, but they face a variety of questions when crafting legislation. This Note walks through key considerations using proposed and enacted reparations plans as examples. It then presents a hypothetical city resolution addressing Philadelphia’s discriminatory police practices. Next, it turns to a constitutional analysis of reparations policies under current Fourteenth Amendment jurisprudence, discussing both race-neutral and race-conscious plans. This Note argues that an antisubordination understanding of the Equal Protection Clause would better allow …

Strain V. Regalado: Motion For Leave To File Amicus Curiae Brief And Brief Of 21 Law Professors As Amici Curiae In Support Of Petitioner, Leah Litman

Appellate Briefs

Pursuant to Supreme Court Rule 37.2(b), amici curiae respectfully request leave to file the following brief in support of petitioner. Counsel of record for all parties received notice at least ten days prior to the due date of the amicus curiae brief. Respondents Vic Regalado and Armor Correctional Health Services, Inc. withheld consent. Petitioner consented to the filing of this brief.

Amici are legal scholars who teach and write on incarceration, criminal justice, civil rights, and constitutional law. Their interest in submitting this brief is to call attention to how the courts of appeals aligned with the court below are …

Prohibiting The Punishment Of Poverty: The Abolition Of Wealth-Based Criminal Disenfranchisement, Amy Ciardiello

University of Michigan Journal of Law Reform

The majority of U.S. states disenfranchise formerly incarcerated individuals because of their poverty by conditioning re-enfranchisement on the full payment of legal financial obligations. This Note discusses the practice of wealth-based criminal disenfranchisement where the inability to pay legal financial obligations, including fines, fees, restitution, interest payments, court debts, and other economic penalties, prohibits low-income, formerly incarcerated individuals from voting. This Note argues this issue has not been adequately addressed due to unsuccessful legislative reforms and failed legal challenges. An examination of state policies, federal and state legislative reforms, and litigation shows that a more drastic state legislative solution is …

Equal Protection Under Algorithms: A New Statistical And Legal Framework, Crystal S. Yang, Will Dobbie

Michigan Law Review

In this Article, we provide a new statistical and legal framework to understand the legality and fairness of predictive algorithms under the Equal Protection Clause. We begin by reviewing the main legal concerns regarding the use of protected characteristics such as race and the correlates of protected characteristics such as criminal history. The use of race and nonrace correlates in predictive algorithms generates direct and proxy effects of race, respectively, that can lead to racial disparities that many view as unwarranted and discriminatory. These effects have led to the mainstream legal consensus that the use of race and nonrace correlates …

A Small But Mighty Docket: Select Criminal Law And Procedure Cases From The Supreme Court's 2019-20 Term, Eve Brensike Primus, Jeremy Shur

Articles

With its 2019-20 Term disrupted by the COVID-19 pandemic, the Supreme Court released just 53 signed decisions, the fewest decisions in a Term since the Civil War. But the Court's lighter docket still featured important criminal law and procedure cases touching on what constitutes reasonable individualized suspicion, the necessity of jury unanimity, and the proper form of the insanity defense.

Segregation In The Galleries: A Reconsideration, Richard Primus

Michigan Law Review Online

When constitutional lawyers talk about the original meaning of the Fourteenth Amendment as applied to questions of race, they often men-tion that the spectators’ galleries in Congress were racially segregated when Congress debated the Amendment.1 If the Thirty-Ninth Congress practiced racial segregation, the thinking goes, then it probably did not mean to prohibit racial segregation.2 As an argument about constitutional interpretation, this line of thinking has both strengths and weaknesses. But this brief Essay is not about the interpretive consequences, if any, of segregation in the congressional galleries during the 1860s. It is about the factual claim that the galleries …

Tax Policy And Our Democracy, Clinton G. Wallace

Michigan Law Review

Review of Anthony C. Infanti's Our Selfish Tax Laws: Toward Tax Reform That Mirrors Our Better Selves.

The New Impartial Jury Mandate, Richard Lorren Jolly

Michigan Law Review

Impartiality is the cornerstone of the Constitution’s jury trial protections. Courts have historically treated impartiality as procedural in nature, meaning that the Constitution requires certain prophylactic procedures that secure a jury that is more likely to reach verdicts impartially. But in Peña- Rodriguez v. Colorado, 137 S. Ct. 855 (2017), the Supreme Court recognized for the first time an enforceable, substantive component to the mandate. There, the Court held that criminal litigants have a Sixth Amendment right to jury decisions made without reliance on extreme bias, specifically on the basis of race or national origin. The Court did not …

What Corporate Veil?, Joshua C. Macey

Michigan Law Review

Review of Adam Winkler's We the Corporations: How American Business Won Their Civil Rights.

Solving The Nonresident Alien Due Process Paradox In Personal Jurisdiction, Robin J. Effron

Michigan Law Review Online

Personal jurisdiction has a nonresident alien problem. Or, more accurately, personal jurisdiction has two nonresident alien problems. The first is the extent to which the specter of the nonresident alien defendant has overshadowed-if not unfairly driven-the discourse and doctrine over constitutional personal jurisdiction. The second is that the constitutional right to resist personal jurisdiction enjoyed by the nonresident alien defendant in a civil lawsuit is remarkably out of alignment with that same nonresident alien's ability to assert nearly every other constitutional right. Neither of these observations is new, although the first problem has drawn far more scholarly attention than the …

Running From The Gender Police: Reconceptualizing Gender To Ensure Protection For Non-Binary People, Katie Reineck

Michigan Journal of Gender & Law

Non-binary people who are discriminated against at work or school are in a unique and demoralizing position. Not only have some courts expressed reluctance to use existing antidiscrimination law to protect plaintiffs who are discriminated against based on their gender identity and not simply because they are men or women, in most states non-binary genders are not legally recognized. I argue that a fundamental right to self-identification grounded in the Due Process Clause of the Fourteenth Amendment would provide non-binary plaintiffs with the ability to assert their gender in court and have that assertion carry legal weight, regardless of how …

The Failure Of Education Federalism, Kristi L. Bowman

University of Michigan Journal of Law Reform

Since the Great Recession of 2007–09, states have devoted even less money to public education and state courts have become even more hostile to structural reform litigation that has sought to challenge education funding and quality. Yet the current model of education federalism (dual federalism) leaves these matters largely to the states. As a result, state-level legislative inaction, executive acquiescence, and judicial abdication can combine to create a situation in which the quality of traditional public schools declines sharply. This is the case in Michigan, which is an unusually important state not only because the dynamics that are emerging in …

Concealed Motives: Rethinking Fourteenth Amendment And Voting Rights Challenges To Felon Disenfranchisement, Lauren Latterell Powell

Michigan Journal of Race and Law

Felon disenfranchisement provisions are justified by many Americans under the principle that voting is a privilege to be enjoyed only by upstanding citizens. The provisions are intimately tied, however, to the country’s legacy of racism and systemic disenfranchisement and are at odds with the values of American democracy. In virtually every state, felon disenfranchisement provisions affect the poor and communities of color on a grossly disproportionate scale. Yet to date, most challenges to the provisions under the Equal Protection Clause and Voting Rights Act have been unsuccessful, frustrating proponents of re-enfranchisement and the disenfranchised alike.

In light of those failures, …

Postracial Remedies, Derrick Darby, Richard E. Levy

University of Michigan Journal of Law Reform

The Supreme Court’s equal protection jurisprudence is decidedly postracial. The Court has restricted the Equal Protection Clause to intentional discrimination by the government, concluding that the Constitution does not prohibit private acts of discrimination and rejecting challenges based on disparate impact, even when rigorous statistical analysis indicates that race is likely a factor. It has held that remedying the effects of past societal discrimination is an insufficient basis for race-specific remedies such as affirmative action. It has also ended remedies of this sort designed to combat previous state-sponsored racial discrimination, such as court-ordered desegregation measures in the schools and the …

From Integrationism To Equal Protection: Tenbroek And The Next 25 Years Of Disability Rights, Samuel R. Bagenstos

Articles

If there is one person who we can say is most responsible for the legal theory of the disability rights movement, that person is Jacobus tenBroek. Professor tenBroek was an influential scholar of disability law, whose writings in the 1960s laid the groundwork for the disability rights laws we have today. He was also an influential disability rights activist. He was one of the founders and the president for more than two decades of the National Federation of the Blind, one of the first-and for many years undisputedly the most effective-of the organizations made up of people with disabilities that …

Missed Opportunities: The Unrealized Equal Protection Framework In Maher V. Roe And Harris V. Mcrae, Amelia Bailey

Michigan Journal of Gender & Law

This Note focuses on two cases, Maher v. Roe and Harris v. McRae, and argues that they represent watershed moments in the reproductive rights movement because they positioned abortion as a fundamental right in name only. In both cases, the Supreme Court sanctioned severe funding restrictions and refused to grant poor women the right to state and federal assistance for elective and “nontherapeutic” abortions. “Non-therapeutic abortion” refers to those abortions performed or induced when the life of the mother is not endangered if the fetus is carried to term or when the pregnancy of the mother is not the …

Disparate Impact And The Role Of Classification And Motivation In Equal Protection Law After Inclusive Communities, Samuel Bagenstos

Articles

At least since the Supreme Court’s 2009 decision in Ricci v. DeStefano, disparate-impact liability has faced a direct constitutional threat. This Article argues that the Court’s decision last Term in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., which held that disparate-impact liability is available under the Fair Housing Act, has resolved that threat, at least for the time being. In particular, this Article argues, Inclusive Communities is best read to adopt the understanding of equal protection that Justice Kennedy previously articulated in his pivotal concurrence in the 2007 Parents Involved case—which argued that …

Roe As We Know It, Cary Franklin

Michigan Law Review

The petitioners in last year’s historic same-sex marriage case cited most of the Supreme Court’s canonical substantive due process precedents. They argued that the right of same-sex couples to marry, like the right to use birth control and the right to guide the upbringing of one’s children, was among the liberties protected by the Fourteenth Amendment. The Court in Obergefell v. Hodges agreed, citing many of the same cases. Not once, however, did the petitioners or the majority in Obergefell cite the Court’s most famous substantive due process decision. It was the dissenters in Obergefell who invoked Roe v. Wade.

The Future Of Confession Law: Toward Rules For The Voluntariness Test, Eve Brensike Primus

Michigan Law Review

Confession law is in a state of collapse. Fifty years ago, three different doctrines imposed constitutional limits on the admissibility of confessions in criminal cases: Miranda doctrine under the Fifth Amendment, Massiah doctrine under the Sixth Amendment, and voluntariness doctrine under the Due Process Clauses of the Fifth and Fourteenth Amendments. But in recent years, the Supreme Court has gutted Miranda and Massiah, effectively leaving suspects with only voluntariness doctrine to protect them during police interrogations. The voluntariness test is a notoriously vague case-by-case standard. In this Article, I argue that if voluntariness is going to be the framework for …