Fourteenth Amendment Commons^™

The 2000 Presidential Election: Archetype Or Exception?, Michael C. Dorf

Michigan Law Review

The day after the Supreme Court's decision in Bush v. Gore, a colleague who specializes in tax law approached me with mock sympathy. "It must be very discouraging trying to teach constitutional law," he said, "when it's so obviously made up." This view of the Court's decision remains widely held, at least within the academy and among those who did not vote for President Bush. Unlike many of my fellow Democrats and academic colleagues, however, I see no reason to question the motives of the majority (or dissenting) Justices in Bush v. Gore. I certainly do not think that the …

Trying To Make Peace With Bush V. Gore (Symposium: Bush V. Gore Issue 2001), Richard D. Friedman

Articles

The Supreme Court's decision in Bush v. Gore, shutting down the recounts of Florida's vote in the 2000 presidential election and effectively awarding the election to George W. Bush, has struck many observers, including myself, as outrageous.' Decisions of the Supreme Court should be more than mere reflections of ideological or partisan preference thinly camouflaged behind legalistic language. It would therefore be pleasant to be able to believe that they are more than that. Accordingly, Judge Richard Posner's analysis,2 in which he defends the result reached by the Court-though not the path by which it got there-is particularly welcome. Though …

Petition For Writ Of Certiorari, Richard W. Garnett, Michael Stokes Paulsen, David C. Gibbs Jr., David C. Gibbs Iii, Charlotte A. Cover, Barbara J. Weller

Court Briefs

No. 00-131
K.D.M. v. Reedsport School District

On Petition for Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit

From the Reasons for Granting the Writ

The Ninth Circuit conceded that the regulation at issue below " 'discriminates' against students in religious schools, i.e., treats them differently by denying them state services on the school grounds." KDM, 196 F.2d 1046, 1051 (9th Cir. 1999) (App. B at 11 a). This, then, is a case about admitted discrimination - discrimination against "religious ideas, religious people, [and] religious schools." Board of Educ. of Kiryas Joel v. …

Healing The Blind Goddess: Race And Criminal Justice, Mark D. Rosenbaum, Daniel P. Tokaji

Michigan Law Review

Once again, issues of race, ethnicity, and class within our criminal justice system have been thrust into the public spotlight. On both sides of the country, in our nation's two largest cities, police are being called to account for acts of violence directed toward poor people of color. In New York City, a West African immigrant named Amadou Diallo was killed by four white police officers, who fired forty-one bullets at the unarmed man as he stood in the vestibule of his apartment building in a poor section of the Bronx. Did race influence the officers' decisions to fire the …

Paths To Protection: A Comparison Of Federal Protection Based On Disability And Sexual Orientation, Kyle C. Velte

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

No abstract provided.

An Essay On Texas V. Lesage, Christina B. Whitman

Articles

When I was invited to participate in this symposium, I was asked to discuss whether the causation defense developed in Mt. Healthy City School District Board of Education v. Doyle applied to cases challenging state action under the Equal Protection Clause of the Fourteenth Amendment. As I argue below, it seems clear that Mt. Healthy does apply to equal protection cases. The Supreme Court explicitly so held last November in Texas v. Lesage. But the implications of Lesage go beyond questions of causation. The opinion suggests that the Court may be rethinking (or ignoring) its promise in Carey v. Piphus …

Multivocal Prejudices And Homo Equality, William N. Eskridge

Indiana Law Journal

Addison C. Harris Lecture, October 27, 1998, Indiana University Law School.

"Distinctions Without A Difference"; How The Sixth Circuit Misread Romer V. Evans, Jason D. Kimpel

Indiana Law Journal

No abstract provided.

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. …

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 …

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.

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 …

Equal Rights, Special Rights, And The Nature Of Antidiscrimination Law, Peter J. Rubin

Michigan Law Review

Despite the continued belief held by most Americans that certain characteristics should not form the basis for adverse decisions about individuals in employment, housing, public accommodations, and the provision of a wide range of governmental and private services and opportunities, antidiscrimination laws have increasingly come under attack on the ground that they provide members of the group against whom discrimination is forbidden with "special rights." The "special rights" objection has been voiced most strongly, but not exclusively, against laws that seek to prohibit discrimination on the basis of sexual orientation. This line of attack has not always been effective, but …

Race, Rights, And Remedies In Criminal Adjudication, Pamela S. Karlan

Michigan Law Review

Once upon a time, back before the Warren Court, criminal procedure and racial justice were adjacent hinterlands in constitutional law's empire. In 1954, the fifth edition of Dowling's constitutional law casebook contained one chapter on "procedural due process" in which six of the eight cases were about criminal justice, and three of those - Powell v. Alabama, Moore v. Dempsey, and Bailey v. Alabama - were as much about race as they were about crime. A few pages later, two slender chapters on the "national protection of civil rights" and "equal protection of the laws" contained seven and nine decisions, …

Constitutional Law: Racial And Political Gerrymandering--Different Problems Require Different Solutions, Robert Redwine

Oklahoma Law Review

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

Publications

No abstract provided.

Equal Protection, Class Legislation, And Colorblindness, Melissa L. Saunders

Michigan Law Review

Scholars and judges have long assumed that the Equal Protection Clause is concerned only with state action that has the effect of singling out certain persons or groups of persons for special benefits or burdens. Under the traditional doctrinal framework, state action that has this purpose and effect bears a certain burden of justification under the clause, a burden whose stringency varies, depending on the criteria used to define the class being singled out for special treatment and the importance of the interest affected. But state action that lacks such a "discriminatory effect" is not, on the traditional understanding, subject …

Attainder And Amendment 2: Romer's Rightness, Akhil Reed Amar

Michigan Law Review

Call me silly. In fact, call me terminally silly. For despite Justice Scalia's remarkably confident claim, I believe, and shall try to prove below, that the Romer Court majority opinion invalidating Colorado's Amendment 2 was right both in form and in substance, both logically and sociologically. I stress "form" and "logic" at the outset because I share Justice Scalia's belief in the importance of these things in constitutional adjudication. I also share his commitment to constitutional text, history, and structure, and his suspicion of "free-form" constitutionalism. And so I shall highlight the text, history, and spirit of a constitutional clause …

Is Amendment 2 Really A Bill Of Attainder? Some Questions About Professor Amar's Analysis Of Romer, Roderick M. Hills Jr.

Michigan Law Review

As I first discovered as a law student in Professor Amar's classes on legal history and federal courts, it is generally an intellectual treat to listen to Professor Amar's legal analysis, even when he is attacking one's own arguments. So my pleasure at reading Professor Amar's analysis of the Court's decision in Romer v. Evans was only partly dampened by his disapproval of the respondents' brief that I and other plaintiffs' counsel filed with the Court. According to Amar, this respondents' brief provided the Court with "so little help" that it had to rely on an entirely different and much …

Personal Reflections On Adarand Construction Co. V. Pena, Steven H. Hobbs

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

"What's So Magic[Al] About Black Women?" Peremptory Challenges At The Intersection Of Race And Gender, Jean Montoya

Michigan Journal of Gender & Law

This Article addresses the evolving constitutional restraints on the exercise of peremptory challenges in jury selection. Approximately ten years ago, in the landmark case of Batson v. Kentucky, the United States Supreme Court held that the Equal Protection Clause forbids prosecutors to exercise race-based peremptory challenges, at least when the excluded jurors and the defendant share the same race. Over the next ten years, the Court extended Batson's reach.

Can Minority Voting Rights Survive Miller V. Johnson, Laughlin Mcdonald

Michigan Journal of Race and Law

Part I of this Article reviews the congressional redistricting process in Georgia, particularly the State's efforts to comply with the Voting Rights Act and avoid the dilution of minority voting strength. Part II describes the plaintiffs' constitutional challenge and the State's asserted defenses, or more accurately its lack of asserted defenses. Part III argues that the decision of the majority rests upon wholly false assumptions about the colorblindness of the political process and the harm caused by remedial redistricting. Part IV notes the expansion in Miller of the cause of action first recognized in Shaw v. Reno. Part V …

The 'Right To Die': On Drawing (And Erasing) Lines, Yale Kamisar

Articles

Until this year, no state or federal appellate court had ever held that there was a right to assisted suicide no matter how narrow the circumstances or stringent the conditions. In 1996, however, within the span of a single month, two federal courts of appeals so held; in an 8-3 majority of the Ninth Circuit (sitting en banc) in Compassion in Dying v. Washington and a three-judge panel of the Second Circuit in Quill v. Vacco. What heartened proponents of a right to physician-assisted suicide even more, and pleased those resistant to the idea even less, was that the two …

Physician Assisted Suicide: A Bad Idea, Yale Kamisar

Articles

It would be hard to deny that there is a great deal of support in this country - and ever-growing support - for legalizing physician-assisted suicide (PAS). Why is this so? I believe there are a considerable number of reasons. I shall discuss five common reasons - and explain why I do not find any of them convincing.

Progress And Constitutionalism, Robert F. Nagel

Publications

No abstract provided.

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.

Considerations Of Legislative Fit Under Equal Protection, Substantive Due Process, And Free Speech Doctrine: Separating Questions Of Advancement, Relationship And Burden, R. Randall Kelso

University of Richmond Law Review

Whenever a court reviews legislation under an equal protection, substantive due process, or free speech analysis, the court considers whether the fit between the legislature's chosen means and intended ends is sufficient to pass constitutional muster. The Supreme Court analyzes these "fit" questions by considering the manner in which the statute achieves its benefits and burdens in terms of whom the statute regulates and whom the statute fails to regulate. Of course, these "fit" questions are different depending upon whether the Court uses minimum rationality review, "heightened" rational review, intermediate review, or strict scrutiny. But in all cases, the question …

Classifications That Disadvantage Newcomers And The Problem Of Equality, Robert C. Farrell

University of Richmond Law Review

For those concerned with the substantial fiscal problems of government, we have a solution. The solution is - Newcomers. Newcomers are those who will become part of our community in the future but who are not here yet. Like unidentified holders of a contingent remainder, newcomers are not yet around to vote, to peddle influence, or to protect their turf. Since newcomers are not here to complain, now is the time to shift burdens onto their shoulders. Make them pay a larger share of taxes. Assign to them a smaller share of government largesse. Thanks to disarray in American policy …

Rights Held Hostage: Race, Ideology And The Peremptory Challenge, Kenneth B. Nunn

UF Law Faculty Publications

This Article addresses the Supreme Court's application of the Equal Protection Clause to the selection of juries in criminal trials. Focusing on Black-white relations, it takes the position that efforts to eliminate racial discrimination in jury selection are successful only to the extent that they also eliminate the result of the discrimination- racial subjugation of Blacks through the criminal justice process. By this measure, the Supreme Court's recent jury selection cases are an abject failure.

Shaw V. Reno: On The Borderline, Emily Calhoun

Publications

No abstract provided.