Fourteenth Amendment Commons^™

Preclusive Jurisdictional Dismissals, Kevin Song

Northwestern University Law Review

Every litigant deserves their day in court. At the same time, litigants cannot endlessly go to court on the same matter. A complex body of preclusion law balances these fundamental tenets by examining when adjudication of a matter precludes subsequent relitigation. This body of law has evolved over time to preserve the day-in-court ideal in a way that is sensitive to the threats that relitigation present to judicial efficiency, fair adjudication, and repose. Modern preclusion law has settled on a pragmatic approach: where a court has issued a final judgment on the merits but erroneously assumed jurisdiction, relitigation may still …

Citizenship, Federalism, And Delayed Birth Registration In The United States, Betsy L. Fisher

Akron Law Review

Some births in the United States—though it is unknown how many—go unregistered. Without documentation proving the facts of their births, people with unregistered births are often unable to prove their identity or entitlement to citizenship later in life. Although birth registration is not a condition of citizenship in the Fourteenth Amendment, unregistered individuals are excluded from access to other forms of documentation, employment, and government benefits. State laws allow adults to register their births through delayed birth registration processes in some circumstances and vary significantly across jurisdictions. As a result, birth registration processes present a novel model of federalism: state …

A History Of Corporate Law Federalism In The Twentieth Century, William W. Bratton

Seattle University Law Review

This Article describes the emergence of corporate law federalism across a long twentieth century. The period begins with New Jersey’s successful initiation of charter competition in 1888 and ends with the enactment of the Sarbanes-Oxley Act in 2002. The federalism in question describes the interrelation of state and federal regulation of corporate internal affairs. This Article takes a positive approach, pursuing no normative bottom line. It makes six observations: (1) the federalism describes a division of subject matter, with internal affairs regulated by the states and securities issuance and trading regulated by the federal government; (2) the federalism is an …

The Marijuana Insurgency: Federalism And Social Reframing In Policy Reform, Matthew P. Cavedon

Seattle University Law Review

After fifty years of federal prohibition, marijuana reform efforts have won political and legal success. These victories hold lessons for anyone seeking to resist federal law without being able to directly affect it.

Victory can come from reframing an issue. For marijuana reform, social reframing—not formal legal analysis or material factors—provides the best explanation for how advocates achieved change. Their unconventional political tactics, akin to those used by insurgents in wartime, undercut federal prohibition by winning hearts and minds.

This is an analysis of the sociology of legal change. It is also the story of how ordinary Americans retook personal …

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

Journal of Race, Gender, and Ethnicity

This article examines the evolution of efforts to secure a federal right to education, highlighting the unsuccessful attempts at the federal level and the shift to state constitutional litigation, which has yielded mixed and limited outcomes. Part I outlines these failed efforts and their consequences. Part II introduces Professor Black’s proposal for a federal right to education, anchored in the State Citizenship Clause. Part III presents a new federalism model that suggests federal constitutional commitments should guide the interpretation of state constitutional provisions, particularly regarding education. The article concludes by advocating for state courts to adopt a more robust interpretation …

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 …

Narrow But Deep: The Mcculloch Principle, Collective-Action Theory, And Section Three Enforcement, Neil S. Siegel

Faculty Scholarship

In Trump v. Anderson, 144 S. Ct. 662 (2024), the Supreme Court of the United States held that the Colorado Supreme Court erred in excluding President Donald J. Trump from the Republican Party's primary ballot in the state.  The Court reasoned that the Constitution makes Congress, not the states, solely responsible for enforcing Section 3 of the Fourteenth Amendment.  Scholars of Section 3 have demonstrated that Section 3 is self-executing, so the Court's rationale lacks a sound basis in the original or contemporary meaning of the text of the Civil War Amendments, the original intent of their drafters, or …

Against A Uniform Law On The Income Taxation Of Trusts, Michelle S. Simon

Elisabeth Haub School of Law Faculty Publications

In many areas, uniformity of state law is both practical and desirable. The Uniform Commercial Code, for example, brought harmony to conflicting state laws regarding the sale of goods and secured transactions, smoothing the way for interstate commerce. The law of trusts and estates is another area to which the Uniform Law Commissioners have recently turned their attention. Given the multitude of conflicts in state law regarding intestacy, fiduciary powers, and remote notarization, greater consistency between the states would be welcome. One area that should be off-limits to uniform lawmaking is the state income taxation of trusts. Despite complex and …

A Tipping Point In Ohio: The Primacy Model As A Path To A Consistent Application Of Judicial Federalism, The Honorable Pierre Bergeron

University of Cincinnati Law Review

No abstract provided.

Bringing History Home: Strategies For The International Repatriation Of Native American Cultural Property, Alec Johnson

Dickinson Law Review (2017-Present)

The theft of Native American cultural items has been ongoing since Europeans began to colonize the Americas. As a result, millions of Native American artifacts are now located outside the borders of the United States. Native American tribes have long sought international repatriation—the return of these cultural objects to their tribal owners. Unfortunately, many countries have been unsupportive of repatriation attempts and Native Americans seeking the return of their cultural items face nearly insurmountable barriers in foreign courts. The U.S. government has a moral imperative to assist Native American tribes in these repatriation efforts. The debate over repatriation is defined …

Reflections On The Effects Of Federalism On Opioid Policy, Matthew B. Lawrence

Dickinson Law Review (2017-Present)

No abstract provided.

State Regulatory Responses To The Prescription Opioid Crisis: Too Much To Bear?, Lars Noah

Dickinson Law Review (2017-Present)

In order to prevent further overuse of prescription opioids, states have adopted a variety of strategies. This article summarizes the growing use of prescription drug monitoring programs, crackdowns on “pill mills,” prohibitions on the use of particularly hazardous opioids, limitations on the duration and dosage of prescribed opioids, excise taxes, physician education and patient disclosure requirements, public awareness campaigns, and drug take-back programs. Although occasionally challenged on constitutional grounds, including claims of federal preemption under the Supremacy Clause, discrimination against out-of-state businesses under the dormant Commerce Clause doctrine, and interference with rights of commercial free speech, this article evaluates the …

The Lesser Of Two Evils: Lowering The Constitutional Amendment Bar To Avoid An Unadaptable Constitution, Encouraged Judicial Activism, And Disrupted Federalism, Hayley Stillwell

Faculty Articles

The Constitution has not been amended for nearly three decades. During this time, the line in the sand between political parties has morphed into an impenetrable wall that neither side can or is willing to breach. This begs the question whether the constitutional amendment process in Article V is presently functional. If Article V is no longer functional, then the constitutional amendment process itself needs to be amended. Drastic as this sounds, it is the lesser of two evils. The alternative—accepting that Article V is dead and the Constitution cannot be amended—will lead to a distorted world in which the …

Dual Allegiance: Federal And State Treason Prosecutions, The Treason Clause, And The Fourteenth Amendment, Alexander Gouzoules

Faculty Publications

The Treason Clause creates an individual right at a criminal trial that could have logically been placed within the Fifth Amendment rather than Article III: “No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.” It has effectively prevented expansive uses of the charge at the federal level. But states may also charge citizens with treason against state governments, and many such prosecutions have played important roles in American history.

This article reviews the parallel histories of state and federal treason prosecutions. It then analyzes …

Oh, What A Truism The Tenth Amendment Is: State Sovereignty, Sovereign Immunity, And Individual Liberties, Sharon E. Rush

UF Law Faculty Publications

The Supreme Court under the late Chief Justice Rehnquist and now Chief Justice Roberts takes the Tenth Amendment and state sovereignty seriously. It also takes the Eleventh Amendment and state sovereign immunity seriously. Moreover, the contemporary Court’s interpretations of Congress’s Article I powers are based on its concomitant interpretations of the Tenth and Eleventh Amendments, which the Court has infused with the idea that an inherent part of a state’s sovereignty is not just its prerogative not to have its treasuries invaded, but also includes its right not to have its dignity assaulted. Protecting the dignity of states and other …

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 …

Of Swords, Shields, And A Gun To The Head: Coercing Individuals, But Not States, Aviam Soifer

Seattle University Law Review

This Article begins with a brief reprise of what should be a textual “gotcha” about the Enforcement Clauses of the post-Civil War Amendments—if our current Supreme Court Justices actually cared about original texts, originalism, or a combination of the two. Next, the Article focuses on the gnarled issue of “coercion.” It argues that, contrary to a great deal of Anglo-American legal doctrine, coercion is best understood along a spectrum rather than as a binary phenomenon. Coercion is actually much contested and highly contextual across many legal categories. Federal coercion—also described as commandeering or dragooning— has become a particular constitutional focus …

The Use Of The Fourteenth Amendment By Salmon P. Chase In The Trial Of Jefferson Davis, C. Ellen Connally

Akron Law Review

The resulting decision in The Slaughterhouse Cases is one that is still debated and stands as a primary example of an unintended consequence of a constitutional amendment. Although historians and legal scholars have considered a number of the unintended consequences of the Fourteenth Amendment, one result, unforeseen by its proponents, has been totally overlooked... In the legal proceedings that came to be known as United States v. Jefferson Davis, a legal determination was required to determine whether or not Section 3 imposed a simple disqualification or an actual punishment...Could those who pushed for the adoption of the Fourteenth Amendment, those …

Why "Privileges Or Immunities"? An Explanation Of The Framers' Intent, William J. Rich

Akron Law Review

In the Slaughter-House Cases, Justice Field accused the majority of turning the Fourteenth Amendment’s Privileges or Immunities Clause into a “vain and idle enactment which accomplished nothing,” and Justice Swayne argued that the majority “turn[ed] . . . what was meant for bread into a stone.” Most contemporary commentators appear to agree... Did the framers of the Fourteenth Amendment make a colossal mistake? Or were Justices Field and Swayne correct when they blamed Justice Miller’s majority opinion in Slaughter-House for leading the nation astray? Answers to these questions, in the pages that follow, are “no” to the first, and a …

The Fourteenth Amendment And The Unconstitutionality Of Secession, Daniel A. Farber

Akron Law Review

To understand fully the relevance of the first two clauses of the Fourteenth Amendment to secession, we need to examine the antebellum disputes about citizenship and sovereignty, the subject of Part II below. Issues about citizenship arose in the context of specific disputes about naturalization, expatriation, and the rights of freedmen, but they implicated conflicts over the seat of allegiance and the nature of the Union. Part III turns to the Reconstruction debates and shows how they reflect a fundamentally nationalistic view of citizenship. The Reconstruction Amendments to the Constitution were connected with a powerful vision of national citizenship and …

California's Foreign Relations, Christopher Gaarder

CMC Senior Theses

Globalization has significantly increased the number of stakeholders in transnational issues in recent decades. The typical list of the new players in global affairs often includes non-state actors like non-governmental organizations, multinational corporations, and international organizations. Sub-national governments, however, have been given relatively little attention even though they, too, have a significant interest and ability to shape the increasing flow of capital, goods, services, people, and ideas that has so profoundly influenced the global political economy in recent decades. California, arguably the most significant among sub-national governments – its economy would be seventh or eighth in the world at $2.2 …

Parental Exclusion From The Education Governance Kaleidoscope: Providing A Political Voice For Marginalized Students In Our Time Of Disruption, Tiffani N. Darden

William & Mary Bill of Rights Journal

This Article develops how the judiciary should play an instrumental part in amplifying the parent’s voice as a citizenship broker for their child. The Supreme Court scrutinizes school-board actions with little consideration of parents’ substantive due process right to control their child’s education through the political process. Through representative school boards, effective participation models, and an enforcement framework, parents could hold the power to affect education policies. Parents deserve full citizenship recognition in the tiered processes controlling public education policy. In addition to recognizing “quality” education as a government interest, the Supreme Court should also take into account the political …

A General Theory Of Governance: Due Process And Lawmaking Power, Louise Weinberg

William & Mary Law Review

This Article proposes a general theory describing the nature and sources of law in American courts. Erie Railroad Co. v. Tompkins is rejected for this purpose. Better, more general theory is available, flowing from the Due Process Clauses. At its narrowest, the proposed theory is consonant with Erie but generalizes it, embracing federal as well as state law and statutory as well as decisional law in both state and federal courts. More broadly, beyond this unification of systemic thinking, the interest-analytic methodology characteristic of due process extends to a range of substantive constitutional problems. These include problems concerning both the …

Valid Rule Due Process Challenges: Bond V. United States And Erie's Constitutional Source, Kermit Roosevelt Iii

William & Mary Law Review

No abstract provided.

Disentangling Symmetries: Speech, Association, Parenthood, Laurence H. Tribe

Pepperdine Law Review

No abstract provided.

Substance And Method In The Year 2000, Akhil Reed Amar

Pepperdine Law Review

No abstract provided.

Marriage In California: Is The Federal Lawsuit Against Proposition 8 About Applying The Fourteenth Amendment Or Preserving Federalism? , Charles M. Cannizzaro

Pepperdine Law Review

No abstract provided.

Federalism, Individual Rights And Judicial Engagement, Kurt T. Lash

Law Faculty Publications

Contemporary “rights talk” under the American Constitution tends to focus on individual rights or those rights that can be perfected in the case of a single individual. This would include, for example, the rights to free expression, free exercise of religion, sexual autonomy, or the right to equal treatment. Under the broad umbrella of individual-rights talk, theoretical discussions generally involve whether courts ought to recognize a particular individual right or what level of scrutiny (or engagement) ought to apply to judicially identified individual rights.

From the beginning of our history as a nation, however, the concept of legally cognizable rights …

Some Reflections On Fundamental Questions About The Original Understanding Of The Establishment Clause, Kent Greenawalt

Faculty Scholarship

This chapter begins with an analysis of Everson v. Board of Education, where it argues that the although the original intent of the Establishment Clause and the Fourteenth Amendment should be given some weight, the original intent should not be determinative. The chapter rejects the argument that the Establishment Clause was exclusively designed to prevent the federal government from interfering with state establishments. While federalism concerns may have been one such purpose, the Establishment Clause also necessarily prevented the federal government from establishing religion in the District of Columbia, on federal territories, and on federal property — including embassies …

Time Out Of Mind: Our Collective Amnesia About The History Of The Privileges Or Immunities Clause, Michael P. O'Connor

Kentucky Law Journal

No abstract provided.