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Articles 61 - 90 of 117
Full-Text Articles in Fourteenth Amendment
The Structural Constitutional Principle Of Republican Legitimacy, Mark D. Rosen
The Structural Constitutional Principle Of Republican Legitimacy, Mark D. Rosen
All Faculty Scholarship
Representative democracy does not spontaneously occur by citizens gathering to choose laws. Instead, republicanism takes place within an extensive legal framework that determines who gets to vote, how campaigns are conducted, what conditions must be met for representatives to make valid law, and many other things. Many of the “rules-of-the-road” that operationalize republicanism have been subject to constitutional challenges in recent decades. For example, lawsuits have been brought against “partisan gerrymandering” (which has led to most congressional districts not being party-competitive, but instead being safely Republican or Democratic) and against onerous voter identification requirements (which reduce the voting rates of …
Which Came First The Parent Or The Child?, Mary P. Byrn, Jenni Vainik Ives
Which Came First The Parent Or The Child?, Mary P. Byrn, Jenni Vainik Ives
Faculty Scholarship
From the moment a child is born, she is a juridical person endowed with constitutional rights. A child’s parents, however, do not become legal parents until a state statute grants them the fundamental right to raise one’s child. The state, therefore, exercises considerable power and discretion when it drafts the parentage statutes that determine who becomes a legal parent. This article asserts that the state, through its parens patriae power, has a duty to act as an agent for children when it drafts its parentage statutes. In particular, the state must adopt parentage statutes that satisfy children’s fundamental right to …
Not Very Collegial: Exploring Bans On Illegal Immigrant Admissions To State Colleges And Universities, Marcia A. Yablon-Zug, Danielle R. Holley-Walker
Not Very Collegial: Exploring Bans On Illegal Immigrant Admissions To State Colleges And Universities, Marcia A. Yablon-Zug, Danielle R. Holley-Walker
Faculty Publications
No abstract provided.
Toward A Limited-Government Theory Of Extraterritorial Detention, Robert Knowles, Marc D. Falkoff
Toward A Limited-Government Theory Of Extraterritorial Detention, Robert Knowles, Marc D. Falkoff
Law Faculty Publications
No abstract provided.
Human Rights And Due Process Of Law, Donald E. Wilkes Jr.
Human Rights And Due Process Of Law, Donald E. Wilkes Jr.
Popular Media
One of our constitutional rights, the right to due process of law, is terra incognita to most Americans, even though it is one of the most important constitutional rights. This article discusses the history of this fundamental right.
Constitutional Law—Fourteenth Amendment—The Path Leads To Nowhere: The Supreme Court Re-Examines The Trek Through The Political Thicket. Vieth V. Jubelirer, 541 U.S. 267 (2004)., Vanessa L. Kinney
University of Arkansas at Little Rock Law Review
No abstract provided.
Race Conscious Affirmative Action By Tax Exempt 501(C)(3) Corporations After Grutter And Gratz, David A. Brennen
Race Conscious Affirmative Action By Tax Exempt 501(C)(3) Corporations After Grutter And Gratz, David A. Brennen
Law Faculty Scholarly Articles
The Equal Protection Clause of the Fourteenth Amendment generally acts as a legal limit on the permissible bounds of government action. Accordingly, public universities and other government entities are constitutionally prohibited from engaging in acts that violate equal protection of the laws. The Supreme Court recently reinforced this point when it ruled, in two related cases, that public universities may consider the race of applicants when making admissions decisions, so long as an applicant's race does not amount to a deciding factor when granting admission. By its very terms, the constitutional limitation imposed by the Equal Protection Clause only directly …
Constitutional Law: Affirmative Action In The Public Sector: The Admissibility Of Post-Enactment Evidence Of Discrimination To Provide A Compelling Governmental Interest, Andrew C. Jayne
Oklahoma Law Review
No abstract provided.
Constitutional Law: Boy Scouts Of America V. Dale: The Scout Oath And Law Survive Government Intrusion, J. Craig Buchan
Constitutional Law: Boy Scouts Of America V. Dale: The Scout Oath And Law Survive Government Intrusion, J. Craig Buchan
Oklahoma Law Review
No abstract provided.
Conceptualizing Constitutional Litigation As Anti-Government Expression: A Speech-Centered Theory Of Court Access, Robert L. Tsai
Conceptualizing Constitutional Litigation As Anti-Government Expression: A Speech-Centered Theory Of Court Access, Robert L. Tsai
Faculty Scholarship
This Article proposes a speech-based right of court access. First, it finds the traditional due process approach to be analytically incoherent and of limited practical value. Second, it contends that history, constitutional structure, and theory all support conceiving of the right of access as the modern analogue to the right to petition government for redress. Third, the Article explores the ways in which the civil rights plaintiff's lawsuit tracks the behavior of the traditional dissident. Fourth, by way of a case study, the essay argues that recent restrictions - notably, a congressional limitation on the amount of fees counsel for …
Constitutional Law: Racial And Political Gerrymandering--Different Problems Require Different Solutions, Robert Redwine
Constitutional Law: Racial And Political Gerrymandering--Different Problems Require Different Solutions, Robert Redwine
Oklahoma Law Review
No abstract provided.
Judicial Supremacy And The Settlement Function, Robert F. Nagel
Judicial Supremacy And The Settlement Function, Robert F. Nagel
Publications
No abstract provided.
Subtracting Sexism From The Classroom: Law And Policy In The Debate Over All-Female Math And Science Classes In Public Schools, Carolyn B. Ramsey
Subtracting Sexism From The Classroom: Law And Policy In The Debate Over All-Female Math And Science Classes In Public Schools, Carolyn B. Ramsey
Publications
No abstract provided.
Diversity: The Red Herring Of Equal Protection, Sharon E. Rush
Diversity: The Red Herring Of Equal Protection, Sharon E. Rush
UF Law Faculty Publications
Couching the constitutional inquiry in cases like Bakke and VMI in the context of integration also puts in perspective the diversity justification. Affirmative action policies are constitutional because they integrate state programs. Integration on the basis of race and sex also diversifies state programs. In contrast, attempts to justify sex-segregation in state programs by arguing the policy promotes diversity is irrelevant to an equal protection analysis. Voluntarily created all-female schools should be constitutional because they promote the equal citizenship of women without damaging the equal citizenship stature of men. This is true for voluntarily race-segregated programs for minorities; as well. …
California’S Proposition 187--Does It Mean What It Says? Does It Say What It Means? A Textual And Constitutional Analysis, Lolita K. Buckner Inniss
California’S Proposition 187--Does It Mean What It Says? Does It Say What It Means? A Textual And Constitutional Analysis, Lolita K. Buckner Inniss
Publications
No abstract provided.
Progress And Constitutionalism, Robert F. Nagel
Forty Years In The Desert, Paul F. Campos
Forty Years In The Desert, Paul F. Campos
Publications
The author uses Brown v. Board of Education and the volumes of commentary it has provoked to illustrate that coherent constitutional interpretation is a useless exercise. He argues that the decision should be accepted as political reality and moral necessity and that we should cease debating its merit as constitutional interpretation.
A Precarious Path: The Bill Of Rights After 200 Years, Tony A. Freyer
A Precarious Path: The Bill Of Rights After 200 Years, Tony A. Freyer
Vanderbilt Law Review
The Bill of Rights occupies an ambiguous place in American society. Americans favor the Bill of Rights in principle, but when asked whether they support particular rights guarantees for real-life practices such as gun ownership, capital punishment, abortion, and flag burning, Americans fervently and profoundly disagree. The essays David J. Bodenhamer and James W. Ely, Jr. have compiled in The Bill of Rights in Modern America After 200 Years, richly suggest why Americans have reconciled principle and practice with such difficulty. Written for a popular audience by specialists who possess a profound knowledge of and differing views concerning the technical …
Federalism, The Commerce Clause, And Equal Protection, Leon Friedman
Federalism, The Commerce Clause, And Equal Protection, Leon Friedman
Touro Law Review
No abstract provided.
Shaw V. Reno: On The Borderline, Emily Calhoun
The Fourteenth Amendment: Original Intent And Modern Possibility, Donald E. Lively
The Fourteenth Amendment: Original Intent And Modern Possibility, Donald E. Lively
St. Thomas Law Review
This essay is derived in part from the author's book THE CONSTITUTION AND RACE (1992). Copyright 1992 by Donald E. Lively.
Back To The Future: Original Intent As A Means For Vitalizing The Fourteenth Amendment In The Context Of Race, Raneta J. Lawson
Back To The Future: Original Intent As A Means For Vitalizing The Fourteenth Amendment In The Context Of Race, Raneta J. Lawson
St. Thomas Law Review
Donald E. Lively's book The Constitution and Race exposes in a methodological way the historical origin of the conflict between symbolism and substance in the context of race. Lively chronicles two centuries of constitutional jurisprudence pertaining to race from the initial deferral of race-based issues at the nation's founding to the modem day catering to majoritarian interests that continues to subordinate racial concerns. Throughout this jurisprudential retrospective, Lively demonstrates how race-based considerations have permeated nearly every aspect of society and yet such considerations remain significantly unattended because of national policies that ultimately indulge competing priorities. Lively argues that a recognition …
Against Constitutional Theory, Paul Campos
Governmental Inaction As A Constitutional Tort: Deshaney And Its Aftermath, Thomas A. Eaton, Michael Wells
Governmental Inaction As A Constitutional Tort: Deshaney And Its Aftermath, Thomas A. Eaton, Michael Wells
Scholarly Works
DeShaney v. Winnebago County Department of Social Services is the Supreme Court's first major effort to define the scope of state and local governments' affirmative obligations under the fourteenth amendment. The Court rejected liability against a county welfare agency and a caseworker for failing to prevent a father from severely beating his four-year-old son. The Court intimated that constitutional affirmative duties exist only where the plaintiff is in the state's custody. Scholarly commentary reads the case as announcing a sweeping prohibition against the imposition of affirmative duties in other contexts. Professors Eaton and Wells demonstrate that the DeShaney opinion is …
Administrative Failure And Local Democracy: The Politics Of Deshaney, Jack M. Beermann
Administrative Failure And Local Democracy: The Politics Of Deshaney, Jack M. Beermann
Faculty Scholarship
This Essay is an effort to construct a normative basis for a constitutional theory to resist the Supreme Court's recent decision in DeShaney v. Winnebago County Department of Social Services.1 In DeShaney, the Court decided that a local social service worker's failure to prevent child abuse did not violate the due process clause of the fourteenth amendment even though the social worker "had reason to believe" the abuse was occurring. 2 Chief Justice Rehnquist's opinion for the Court held that government inaction cannot violate due process unless the state has custody of the victim, 3 thus settling a controversial …
The Ripple Effects Of Slaughter-House: A Critique Of A Negative Rights View Of The Constitution, Michael J. Gerhardt
The Ripple Effects Of Slaughter-House: A Critique Of A Negative Rights View Of The Constitution, Michael J. Gerhardt
Vanderbilt Law Review
Upon seeing Niagara Falls for the first time, Oscar Wilde reportedly remarked that it "would be more impressive if it flowed the other way." I have a similar reaction to a series of narrow Supreme Court interpretations of the fourteenth amendment, beginning with the Slaughter-House Cases, decided in 1872, and extending to the 1989 decisions in Webster v. Reproductive Health Services and DeShaney v. Winnebago County Department of Social Services. In Slaughter-House the Court interpreted the privileges or immunities clause of the fourteenth amendment as merely protecting interests other federal laws already protected, while recently the Court interpreted the due …
Reconstructing Section Five Of The Fourteenth Amendment To Assist Impoverished Children, James G. Wilson
Reconstructing Section Five Of The Fourteenth Amendment To Assist Impoverished Children, James G. Wilson
Law Faculty Articles and Essays
Liberal lawyers encounter grim alternatives caused by the Supreme Court's relentless shift to the right, particularly if they consider stare decisis a major constitutional value. They can attack specific decisions, demonstrating inconsistencies with prior cases, conclusory reasoning and/ or poor policy. They can use history, jurisprudence or even literature to make broad-based critiques of the Court's increasing callousness. They can propose counter-doctrine which is consistent with existing caselaw. The third response may appear quixotic, even naive, given the present Court. Nevertheless, exploration of progressive alternatives illuminates existing doctrine and provides potential openings if the Court ever decides to become more …
Forgetting The Constitution, Robert F. Nagel
Another View: Our Magnificent Constitution, William B. Reynolds
Another View: Our Magnificent Constitution, William B. Reynolds
Vanderbilt Law Review
Let me start with the observation that I regard myself to be most privileged to be a public servant at a time when we celebrate the 200th anniversary of the Constitution a magnificent document that has, in my view, no equal in history and every reason to be feted. It is by now no revelation that the Framers would be aghast at the size and reach of government today; but they would also be enormously proud of how much of their legacy has endured. The vitality of the original Constitution, and its various amendments, is reflected by its ability to …
Procedural Due Process: The Original Understanding, Edward J. Eberle
Procedural Due Process: The Original Understanding, Edward J. Eberle
Law Faculty Scholarship
No abstract provided.