Fourteenth Amendment Commons^™

Race, Class, Caste…? Rethinking Affirmative Action, Clark D. Cunningham, N.R. Madhava Menon

Michigan Law Review

Many who oppose affirmative action programs in the United States because they use "racial" categories such as black, African American, or Latino, claim that equally effective and more equitable programs can be developed using only class categories, such as "low income." A key test case for the "race v. class" debate is admission to law schools, made urgent by recent legal prohibitions on the use of "race" in the admission procedures to state universities in California, Washington, and Texas. An empirical study by Linda Wightman, the former director of research for the Law School Admissions Council (LSAC), has shown that …

Affirmative Action, Caste, And Cultural Comparisons, Cass R. Sunstein

Michigan Law Review

What is permitted, and what is prohibited, by the equality principle of a liberal democracy? Does affirmative action run afoul of that principle? And where should we look to answer these questions? Many critics of affirmative action take it as axiomatic that affirmative action violates the equality principle. But this is far from clear. Every law classifies. The current law of equality itself classifies by, for example, treating discrimination on the basis of race differently from discrimination on the basis of age. No one thinks that the law of equality is, for this reason, inconsistent with the Equal Protection Clause. …

Drum Majors For Justice, F. Michael Higginbotham, José F. Anderson

All Faculty Scholarship

Many lawyers worked with the legendary Thurgood Marshall to overturn the Supreme Court's infamous separate but equal doctrine, which had permitted racial segregation in schools and public accommodations. But while most Marylanders are aware of Marshall's contribution, few recognize the name of his colleague, William I. Gosnell.

At that time, Gosnell was one of only 32 black lawyers in the state of Maryland. In fact, due to the state's racial segregation policy, both he and Marshall had received scholarships to attend out- of-state law schools. They were denied entry to the University of Maryland because of their skin color. While …

Access Denied: Incarcerated Juveniles And Their Right Of Access To Courts, Amy E. Webbink

William & Mary Bill of Rights Journal

In the current flux of an increasingly punitive juvenile justice system, one of the system's great injustices receives little attention. Unconstitutional conditions of confinement for juveniles do not receive appropriate legal exposure. Challenges to these conditions are more difficult in light of the Supreme Court's recent restriction of a prisoner's right of access to the courts. This Note will analyze why a different standard of "meaningful access" is necessary to protect juveniles.

No-Drop Prosecution Of Domestic Violence: Just Good Policy, Or Equal Protection Mandate?, Kalyani Robbins

Faculty Publications

Domestic violence is a problem that must be dealt with for what it is: a criminal act. The only way to effectively diminish it is through the full force of the criminal justice system, which must treat domestic violence the same as it treats crime by strangers. The purpose of this note is to argue that aggressive prosecution of domestic violence-at least to the same extent that other violent crimes are prosecuted-is mandated by the Equal Protection Clause of the Fourteenth Amendment. Part I will examine the extent of the problems that pervade the criminal justice system, both historically and …

From Enemies Of The Crown To Regional Telephone Companies: Bills Of Attainder Reappraised, Michael L. Landsman

Touro Law Review

No abstract provided.

Practicing Medicine Without A License: Legislative Attempts To Mandate Chemical Castration For Repeat Sex Offenders, 32 J. Marshall L. Rev. 381 (1999), Lisa Keesling

UIC Law Review

No abstract provided.

What Spending Clause? - (Or The President's Paramour): An Examination Of The Views Of Hamilton, Madison, And Story On Article I, Section 8, Clause 1 Of The United States Constitution, 33 J. Marshall L. Rev. 81 (1999), Jeffrey T. Renz

UIC Law Review

No abstract provided.

Federal Bribery Statute And The Ethics Of Purchasing Testimony, 33 J. Marshall L. Rev. 209 (1999), Camille Knight

UIC Law Review

No abstract provided.

The New Federalism And The Ada: State Sovereign Immunity From Private Damage Suits After Boerne, Roger C. Hartley

Scholarly Articles

State sanctioned disability-based discrimination comes in two basic flavors: prejudice and thoughtlessness. The former takes disability into consideration, while the latter ignores it. The Fourteenth Amendment's Equal Protection Clause prohibits the prejudice but not the thoughtlessness, at least when the latter is unassociated with irrational assumptions based on myths, fears and stereotypes. Unlike most other civil rights statutes, the Americans With Disabilities Act (hereinafter "ADA" or "Act") prohibits both prejudice and thoughtlessness and aptly has been characterized as a "second-generation civil rights statute."

Unfortunately, the ADA's claim to innovation might yet prove to be its constitutional Achilles heel. Across the …

The Abortion Right, Originalism, And The Fourteenth Amendment, Steven Graines, Justin Wyatt

Cleveland State Law Review

In this article, the Privileges or Immunities Clause will be re-conceived in its original context, at the center of the Fourteenth Amendment. This re-conception includes the assumption that The Slaughter-House Cases" were decided incorrectly.'" The contention of the article is that abortion restrictions, as a specific originalist matter, can be considered economic legislation and that they also economically burden women, such that they unconstitutionally abridge two privileges or immunities, the Lochnerian liberties to contract and the engagement in any of the common occupations. Specifically, abortion restrictions violate "the prohibition on redistributive 'class' legislation ... that was deeply rooted in the …

Minority Preferences Reconsidered, Terrance Sandalow

Reviews

During the academic year 1965-66, at the height of the civil rights movement, the University of Michigan Law School faculty looked around and saw not a single African-American student. The absence of any black students was not, it should hardly need saying, attributable to a policy of purposeful exclusion. A black student graduated from the Law School as early as 1870, and in the intervening years a continuous flow of African-American students, though not a large number, had been admitted and graduated. Some went on to distinguished careers in the law.

The Bill Of Rights As An Exclamation Point, Gary S. Lawson

Faculty Scholarship

Akhil Amar's The Bill of Rights: Creation and Reconstruction ("The Bill of Rights")' is one of the best law books of the twentieth century. That is not surprising, as it grows out of two of the best law review articles of the twentieth century' and was written by one of the century's premier legal scholars. I have been an unabashed Akhil Amar fan ever since our overlapping law school days more than fifteen years ago, and I am thrilled to have my perspicacity and good judgment vindicated by the publication of this remarkable work.

State Laws Criminalizing Female Circumcision: A Violation Of The Equal Protection Clause Of The Fourteenth Amendment, 32 J. Marshall L. Rev. 353 (1999), Shea Lita Bond

UIC Law Review

No abstract provided.

Agency, Equality, And Antidiscrimination Law , Tracy E. Higgins, Laura A. Rosenbury

Faculty Scholarship

The Supreme Court increasingly has interpreted the Equal Protection Clause as a mandate for the state to treat citizens as if they were equal-as a limitation on the state's ability to draw distinctions on the basis of characteristics such as race and, to a lesser extent, gender. In the context of race, the Court has struck down not only race-specific policies designed to harm the historically oppressed, but race conscious policies designed to foster racial equality. Although in theory the Court has left open the possibility that benign uses of race may be constitutional under some set of facts, in …

Delegation As A Danger To Liberty, Nadine Strossen

Cardozo Law Review

No abstract provided.

The Politics Of Race On The Electronic Highway: An Analysis Of The Video Dialtone Redlining Cases, And The Nynex Consent Decree In Roxbury, Madeleine Mercedes Plasencia

Touro Law Review

No abstract provided.

53 Years In The Struggle For Equal Rights: An African-American Jurist's Life In The Law (Equal Justice Under The Law: An Autobiography By Constance Baker Motley), Lancelot B. Hewitt

Touro Law Review

No abstract provided.

The Ties That Bind, Melissa F. Savage

Cardozo Journal of Equal Rights & Social Justice

The note examines the evolving legal recognition of foster parents' rights, particularly focusing on the constitutional protections afforded to long-term foster parents under the Due Process Clause of the Fourteenth Amendment. It highlights the significance of the Rodriguez v. McLoughlin case, which established that foster parents who have formed strong emotional bonds with a child and are in the process of adoption may have a constitutionally protected liberty interest in their relationship. The analysis emphasizes the tension between the contractual nature of foster care and the emotional ties that develop, advocating for due process protections for long-term foster parents while …

The Indentured Servants Of Academia: The Adjunct Faculty Dilemma And Their Limited Legal Remedies, John C. Duncan, Jr.

Journal Publications

In this half of the twentieth century, the academic equivalent of the indentured servant is the adjunct faculty member in higher education. Adjuncts cannot say or do much about their plight. The dilemma of adjunct faculty leads to what should be considered a violation of due process rights. This Article first examines who are the adjunct faculty, what are their dilemmas, and how are they viewed in the academic world. The heart of the paper then explores the limited legal remedies available. The essential problems of lack of due process and minimal protection through collective bargaining and contractual agreements are …

Refined Incorporation And The Fourteenth Amendment, Richard L. Aynes

University of Richmond Law Review

In Professor Akhil Reed Amar's The Bill of Rights: Creation and Reconstruction, the voices of Founders, Federalists, Anti-Federalists, promoters of the Bill of Rights, contrarians of Barron v. Mayor of Baltimore, abolitionists, antislavery advocates, Fourteenth Amendment Republican Framers, ratifiers, and twentieth-century U.S. Supreme Court justices, all have their role. If they do not sing the same tune, at least their voices, under Amar's skillful direction, whether melody or harmony, alto or soprano, all harmonize to produce a clear song.

Race As Resistance: Racial Identity As More Than Ancestral Heritage, Chris K. Iijima

Touro Law Review

No abstract provided.

In God's Image: The Religious Imperative Of Equality Under Law, George P. Fletcher

Faculty Scholarship

This Essay argues that the principle of equality under law is best grounded in a holistic view of human dignity. Rejecting modem attempts to justify equality by reducing humanity to a particular actual characteristic, it articulates a religious imperative to treat people equally by drawing on biblical as well as modern philosophical sources. The principle "all men are created equal," as celebrated in the Declaration of Independence and Gettysburg Address, draws on this holistic understanding of humanity. This admittedly romantic approach to equality generates a critique of contemporary Supreme Court doctrine, including the prevailing approaches to strict scrutiny, affirmative action, …

The Supreme Court, Sexual Citizenship And The Idea Of Progress, Kendall Thomas

Faculty Scholarship

Is American Progressive Constitutionalism dead ... yet? I propose to seek the beginnings of an answer to this question in the pages of a recent decision by the United States Supreme Court. I do feel obliged to say this, not because I am committed to a court-centered adjudicative conception of American constitutionalism; to the contrary. But rather, because the decision on which I want to focus seems to me to offer a rich resource for critical reflection on the idea of self-government whose connections to Progressive Constitutionalism give us our topic this afternoon.

City Of Boerne V. Flores Wrecks Rfra: Searching For Nuggets Among The Rubble, John Gatliff

American Indian Law Review

No abstract provided.

Caste, Class, And Equal Citizenship, William E. Forbath

Michigan Law Review

There is a familiar egalitarian constitutional tradition and another we have largely forgotten. The familiar one springs from Brown v. Board of Education; its roots lie in the Reconstruction era. Court-centered and countermajoritarian, it takes aim at caste and racial subordination. The forgotten one also originated with Reconstruction, but it was a majoritarian tradition, addressing its arguments to lawmakers and citizens, not to courts. Aimed against harsh class inequalities, it centered on decent work and livelihoods, social provision, and a measure of economic independence and democracy. Borrowing a phrase from its Progressive Era proponents, I will call it the social …