Fourteenth Amendment Commons^™

Mired In Meyer'S Mischief A Century After Fabrication Of Constitutional Parents' Rights, James G. Dwyer

Faculty Publications

The seminal Supreme Court decisions Meyer v. Nebraska and Pierce v. Society of Sisters, now commemorated on their centenary anniversary, are odd doctrinal ducks. They are both still routinely cited as the foundation for ascribing to persons on whom the state has conferred legal parent status a right under the Fourteenth Amendment Due Process Clause of the United States Constitution. (According to Westlaw, judicial citation count for Meyer now nears 3000, and secondary-source citations have surpassed 7000.) It is a constitutional right to force states to confer on them greater legal power than the state is otherwise inclined to …

Freedom And Families: Reconstruction Republicans And The Question Of Women's Reproductive Autonomy, Kate Masur

William & Mary Bill of Rights Journal

This Essay proceeds in three Parts. In the first, I illuminate how congressional Republicans discussed women, gender, and families in the context of policymaking associated with abolishing slavery. Many Republicans worried that enslaved people’s family relationships had been damaged by the imposition of slavery and sought to impose on freedpeople what they saw as normative family values, including by encouraging heterosexual marriage and by insisting on patriarchal gender roles within families. Second, I show that Republicans were at pains to demonstrate that when they talked about equality, they meant race but not gender. Finally, I reflect on the limits of …

The Consequences And Constitutionality Of Training Police To Blame Victims, Margareth Etienne, Richard H. Mcadams

William & Mary Law Review

A common technique in American interrogations is “moral minimization,” in which investigators excuse or justify the suspect’s criminal behavior on moral grounds. A surprising type of moral minimization is explicit victim-blaming, which includes blaming the victim by endorsing negative stereotypes on the basis of gender, race, religion, or sexual orientation, what we call victim-blaming-bystereotype. No one has previously considered the policy wisdom or constitutionality of this technique. We explore the unintended consequences. One cost is the secondary victimization of those who suffer from crime, especially when they discover how detectives have disparaged them. The second is the effect on the …

Section Three Of The Fourteenth Amendment: Insurrection, Mark A. Graber

William & Mary Bill of Rights Journal

The public, scholarly, and legal debate over whether former president Donald Trump is eligible to hold office under Section Three of the Fourteenth Amendment has focused far more on technical legal questions than on whether Trump engaged in an insurrection. Scholarly and public commentary rarely examines the constitutional/ common law of insurrection, preferring instead to examine whether Trump is exempt from Section Three because Section Three either exempts presidents or the presidency from disqualification or because Section Three is not self-executing. Trump v. Anderson (2024) focused on state incapacity to disqualify “oathbreaking insurrectionists” rather than on whether Trump was an …

Life, Liberty, And Freedom From Non-Consensual Pelvic Exams?, Michaela Cotton

William & Mary Bill of Rights Journal

[T]here is a need for the federal government to intervene and finally ban the practice of performing non-consensual pelvic exams, and it can do so under the Due Process Clause of the Fourteenth Amendment, which guarantees the right to refuse involuntary medical treatment. Part I will provide a brief overview of pelvic exams and informed consent; Part II draws on policy considerations for banning this practice and tackles counter-arguments; Part III will discuss the relevant federal law and case precedent; Part IV demonstrates how federal law applies to non-consensual pelvic exams; and, finally, Part V will further explain the need …

The Fourteenth Amendment And The Vénus Noire, Farah Peterson

William & Mary Law Review

This Essay makes two points. The first is that originalism is not a promising path for progressive causes. The second is that as the Constitution is amended, the meaning of the entire document is altered, and earlier text should be interpreted in light of what has changed. But instead of making these observations in the usual law review style, I’m calling on a figure out of nineteenth-century art, the Vénus Noire, to serve as our companion and guide.

This abstract has been taken from the author's introductory paragraphs.

Three's A Crowd: Addressing Discrimination Faced By Queer De Facto Parents In Child Custody Standing Proceedings, Shannon E. Callaghan

William & Mary Journal of Race, Gender, and Social Justice

In the United States, between five percent and eight percent of adults identify as queer, and as of 2020, fifteen percent of queer couples have children in their households. While recent legal victories have expanded queer rights, family law continues to lag in affording legal recognition to “nontraditional” families. This is particularly problematic for unmarried, queer co-parents who have virtually no legal claims to the children they have raised with their partners. Current standing requirements for custody proceedings treat these de facto parents as legal strangers to their children due to the absence of biological, marital, or adoptive ties. As …

Law Office History And The Unrelenting Attack On Public Accommodations Law, James M. Oleske Jr.

William & Mary Bill of Rights Journal

In recent years, the cause of commercial liberty has found new life in litigation challenging public accommodations laws that prohibit discrimination by businesses on the basis of sexual orientation. Considerable scholarly attention has been paid to the use of the First Amendment as a liability shield in these cases, which have primarily been litigated on the terrain of free speech and religious liberty. But in amicus briefs filed in both cases that have reached the Supreme Court—303 Creative LLC v. Elenis and Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission—scholars who are skeptical of commercial regulation have also …

No Need To Wait: Congress Has The Power Under Section Five Of The Fourteenth Amendment To Abolish The Death Penalty In The States, Eric M. Freedman

William & Mary Bill of Rights Journal

Reformers currently proposing the abolition of capital punishment by federal legislation have only targeted the federal death penalty. They are aiming too low. Concerns about the roughly 50 prisoners facing execution by the federal government should not cause advocates to ignore the approximately 2,400 on the combined Death Rows of the states. Congress has the authority to abolish the death penalty in the states, and good reason to exercise it.

This Article takes as a given the Supreme Court’s view that the death penalty is not itself unconstitutional.

But under existing law Congress would have no difficulty in compiling a …

Cherry-Picking History: Witchcraft, The Common Law, And The Weaponization Of Substantive Due Process, Sarah E. Bradley

William & Mary Journal of Race, Gender, and Social Justice

In 2021, the Supreme Court sharply altered its substantive due process analysis in Dobbs v. Jackson Women’s Health Organization, reversing the 49-year-old decision in Roe v. Wade to establish abortion access as a constitutional right. The Court reframed its substantive due process analysis as a two-step test, requiring a right to be narrowly framed and “deeply rooted in history and tradition” before it could be analyzed as “implicit in the concept of liberty,” instead of its previous balancing test that involved a broad description of the right. In the Dobbs majority opinion, the Court cherry-picked elements of common law …

Accessing The Arts: The Use Of Reproductive Justice In The Fight For Lgbt+ Rights, Leila Y. Vicinelli

William & Mary Journal of Race, Gender, and Social Justice

Procreation has long been an integral component within the family structure. While the ability to produce offspring was once a privilege reserved for fertile, heterosexual pairings, modern advancements in Assisted Reproduction Technology (ART) have made same-sex procreation possible. Although ART makes it possible for same-sex couples to biologically produce offspring , accessibility to treatment is often hindered by financial, legal, and social impediments. This Note will explore the current limitations on LGBT+ accessibility to ART treatments and provide much needed solutions for these challenges. In a post-Obergefell world, the prominence of and rights owed to same-sex households can no …

Paradoxical Citizenship, Amanda Frost

William & Mary Law Review

In their article, The “Free White Person” Clause of the Naturalization Act of 1790 as Super-Statute, Gabriel J. Chin and Paul Finkelman make a powerful case that the Naturalization Act of 1790 is a “super-statute” that has shaped not only U.S. immigration law and policy, but also America’s conception of itself as a “White nation.”

[...]

This Comment explores the conflict between the Naturalization Act’s racial restrictions on citizenship (and its proponents’ vision of the United States as a White nation) and the Fourteenth Amendment’s Citizenship Clause (and its proponents’ vision of the United States as a multiracial …

Fourteen Going On Forty: Challenging Sex Offender Registration For Juveniles Under The Fourteenth Amendment Equal Protection Clause, Emily Baker

William & Mary Bill of Rights Journal

Part I of this Note reviews the historical background leading to the development of sex offender registration laws and examines relevant Supreme Court precedent. Part II analyzes the principles of juvenile justice, the application of juvenile sex offender registration policies, and the collateral consequences of youth sex offender registration. Part III argues that registered juvenile offenders should be considered a quasi-suspect class and thus receive intermediate scrutiny in equal protection analysis, and challenges the constitutionality of juvenile sex offender registries, particularly the South Carolina statutory scheme. Part IV examines the turning legal tide against juvenile registration through the recent Model …

Dobbs' Sex Equality Troubles, Marc Spindelman

William & Mary Bill of Rights Journal

This article takes up what Dobbs v. Jackson Women's Health Org. may mean for sex equality rights beyond the abortion setting. It details how Dobbs lays the foundation for rolling back and even eliminating Fourteenth Amendment sex equality protections. The work scales these possibilities against a different dimension of the ruling that’s yet to receive the attention that it merits. An important footnote in Dobbs, Footnote 22, sketches a new history-and-tradition-based approach to unenumerated rights under the Fourteenth Amendment’s Privileges or Immunities Clause. The jurisprudence that this Footnote capacitates could transform the constitutional landscape via new economic and social …

The Dobbs Effect: Abortion Rights In The Rear-View Mirror And The Civil Rights Crisis That Lies Ahead, Terri Day, Danielle Weatherby

William & Mary Law Review Online

On June 24, 2022, seven weeks after the first-ever leak of a draft opinion, the United States Supreme Court circulated its decision in Dobbs v. Jackson Women’s Health Organization, defying stare decisis, overruling fifty years of precedent, and shattering the hopes of millions of Americans, who wished the leaked opinion was a fiction that would never come to be.

As the leaked draft forewarned, Roe v. Wadeis no longer the law of the land. No longer is a woman’s right to terminate a pregnancy—to exercise bodily autonomy and be free to control the trajectory of her life—protected as a fundamental …

Goss V. Lopez As A Vehicle To Examine Due Process Protection Issues With Alternative Schools, Ashton Tuck Scott

William & Mary Law Review

Circuits are split on whether students are entitled to procedural protections before school officials may force them into alternative schools. This Note argues that students facing an involuntary transfer to a disciplinary alternative school are entitled to procedural protections under the Due Process Clause of the Fourteenth Amendment. Part I explains the trend toward the use of disciplinary alternative schools and the social and educational harms that these schools exacerbate. Part II explores the current circuit split around the procedural due process rights of students facing involuntary transfer to an alternative school. Part III argues that courts should expand the …

Trust Issues: Using States' Public Trust Doctrines To Advance Environmental Justice Claims, Alicia Muir

William & Mary Environmental Law and Policy Review

The primary purpose of this Note is to evaluate a new method one could use to bring an environmental justice claim. This Note suggests that the solution can be found within the reinvigorated public trust doctrine. Instead of pursuing environmental justice claims on the federal level, plaintiffs could utilize the sleeping giant that is states’ public trust doctrines. Pennsylvania courts, the pioneers of this new path, held that its public trust should be evaluated using private trust law principles. By interpreting state-created public trusts through the lens of private trust concepts, citizens in a number of states are capable of …

No Child Left Behind Bars: Applying The Principles Of Strict Scrutiny When Sentencing Juveniles Tried As Adults, Max Chu

William & Mary Law Review

The Commonwealth of Virginia was the first in the nation to pass legislation that provides judges with the discretion to veer away from the mandatory minimum sentence and to impose trauma-informed and age-appropriate sentences for juvenile offenders convicted of felonies and tried as adults. Although Virginia’s new law, House Bill 744 (HB 744), is a pioneering step in the right direction, this Note argues that the law may now provide judges with too much discretion. In other words, HB 744 alone, without more guidance, does not go far enough to protect the rights of juvenile offenders.

Therefore, this Note proposes …

Ballots In An Unfamiliar Language And Other Things That Make No Sense: Interpreting How The Voting Rights Act Undermines Constitutional Rights For Voters With Limited English Proficiency, Abigail Hylton

William & Mary Bill of Rights Journal

This Note will argue that the current federal scheme for determining the baseline resources that a state must provide to voters with limited English proficiency is unconstitutional. Specifically, the Voting Rights Act neglects to require adequate translation and interpretation services for many voters with limited English proficiency. Such failure to adequately support this group of citizens throughout the election process effectively excludes them from the democratic process and deprives them of their constitutional right to vote. Whether this group of voters has access to translated materials currently hinges on the language they speak, their nationality, and their geographic location; the …

Disloyalty & Disqualification: Reconstructing Section 3 Of The Fourteenth Amendment, Myles S. Lynch

William & Mary Bill of Rights Journal

To become President of the United States, you must be constitutionally qualified. You must be thirty-five years old, a natural born citizen, and fourteen years a resident within the United States. Neither Congress nor any state can set this threshold higher; the same is true for congresspeople. But since it was last successfully invoked in 1917, most have forgotten the other qualifier—for officers at both the state and federal levels—from Section 3 of the Fourteenth Amendment. Those who have violated their oath to uphold our Constitution can be disqualified from holding any public office under the United States or any …

Shelter From The Storm: Human Rights Protections For Single-Mother Families In The Time Of Covid-19, Theresa Glennon, Alexis Fennell, Kaylin Hawkins, Madison Mcnulty

William & Mary Journal of Race, Gender, and Social Justice

COVID-19’s arrival, and the changes it has unleashed, reveal how longstanding legal and policy decisions produced structural inequalities that have left so many families, and especially single-parent families with children, all too insecure. The fragility of single-mother families is amplified by the multifaceted discrimination they face. While all single parents, including single fathers and other single relatives who are raising children, share many of these burdens, this Article focuses on the challenges confronting single mothers.

Federal policy choices stand in sharp contrast to the political rhetoric of government support for families. Social and economic policy in the twentieth century developed …

Marriage Mandates: Compelled Disclosures Of Race, Sex, And Gender Data In Marriage Licensing Schemes, Mikaela A. Phillips

William & Mary Journal of Race, Gender, and Social Justice

This Note argues that mandatory disclosures of personal information—specifically race, sex, and gender—on a marriage license application constitute compelled speech under the First Amendment and should be subject to heightened scrutiny. Disclosing one’s race, sex, or gender on a marriage license application is an affirmative act, and individuals may wish to have their identity remain anonymous. These mandatory disclosures send a message that this information is still relevant to marriage regulation. Neither race nor gender is based in science; rather they are historical and social constructs created to uphold a system of white supremacy and heteronormativity. Thus, such statements are …

The Thirteenth Amendment And Equal Protection: A Structural Interpretation To "Free" The Amendment, Larry J. Pittman

William & Mary Journal of Race, Gender, and Social Justice

The hope is that the Court will one day hold that the Thirteenth Amendment has its own equal protection clause or component and that strict scrutiny will not be used for benign racial classifications designed to eradicate current badges and incidents of slavery. This Article critiques the Court’s decision in the Civil Rights Cases regarding the scope of section 1 of the Amendment and it offers a holistic or structural interpretation of the Amendment to include an equal protection component and a lesser standard of review than strict scrutiny. Essentially, the Thirteenth Amendment, if properly used, could become a public …

Jury Bias Resulting In Indefinite Commitment: Expanding Procedural Protections In Svp Civil Commitment Proceedings Under The Mathews Test, Alli M. Mentch

William & Mary Law Review

Twenty states, the District of Columbia, and the federal government have enacted Sexually Violent Predator (SVP) laws that permit the civil commitment of sex offenders. Under these laws, imprisoned sex offenders serving criminal sentences are transferred to treatment facilities and held indefinitely. As one individual describes civil commitment, “It’s worse than prison. In prison I wasn’t happy, but I was content because I knew I had a release date.” An estimated 5,400 individuals are currently civilly committed under these laws.

This Note argues that such laws do not adequately protect respondents’ due process rights. To that end, this Note proposes …

Unequal Protection: Rethinking The Standards And Safeguards For Absentee Ballot Schemes, Kira M. Simon

William & Mary Bill of Rights Journal

No abstract provided.

Force-Feeding Pretrial Detainees: A Constitutional Violation, Bryn L. Clegg

William & Mary Law Review

No abstract provided.

You Must Present A Valid Form Of (Gender) Identification: The Due Process And First Amendment Implications Of Tennessee's Birth Certificate Law, Brooke Lowell

William & Mary Bill of Rights Journal

This Note analyzes Tennessee’s prohibition against transgender people changing their gender markers on their birth certificates under both Fourteenth Amendment Substantive Due Process and the First Amendment. Part I discusses the relevant terms related to transgender rights, the importance of birth certificates, and the relevant laws at play. Part II focuses on the Substantive Due Process argument. It lays out the foundational cases and then applies them to analyze whether gender identity is a fundamental right. Part III explores the First Amendment analysis, focusing on gender as speech. It also discusses how government speech affects the analysis. The Note concludes …

Not Gill-Ty: Challenging And Providing A Workable Alternative To The Supreme Court's Gerrymandering Standing Analysis In Gill V. Whitford, Colin Neal

William & Mary Bill of Rights Journal

No abstract provided.

Political And Non-Political Speech And Guns, Gregory P. Magarian

William & Mary Bill of Rights Journal

No abstract provided.

The Epistemic Function Of Fusing Equal Protection And Due Process, Deborah Hellman

William & Mary Bill of Rights Journal

The fusion of equal protection and due process has attracted significant attention with scholars offering varied accounts of its purpose and function. Some see the combination as productive, creating a constitutional violation that neither clause would generate alone. Others see the combination as merely strategic, offered to make a claim acceptable at a particular historical moment but not genuinely necessary. This Article offers a third alternative. Judges have and should bring both equal protection and due process together to learn what each clause independently requires. On this Epistemic vision of constitutional fusion, a focus on equality helps judges learn what …