Fourteenth Amendment Commons^™

An Originalist Defense Of Plyler V. Doe, Steven G. Calabresi, Lena M. Barsky

BYU Law Review

This Article offers a defense of the Supreme Court’s opinion in Plyler v. Doe based on the original public meaning of the Fourteenth Amendment when it was enacted in 1868. We argue that at that time, the Fourteenth Amendment granted certain rights, such as life, liberty, and possession of personal property, to immigrants under the Equal Protection and Due Process Clauses, but did not grant them the privileges and immunities of citizenship (e.g. all civil rights and the political right to vote). We also argue that public education is a right of all persons protected by the Due Process and …

Motion For Leave To File Amicus Curiae Brief And Brief For The National Association For Public Defense And Kentucky Association Of Criminal Defense Lawyers As Amici Curiae In Support Of Petitioner, Sneed V. Burress (U.S. March 24, 2017) (No. 16-8047)., Janet Moore

Faculty Articles and Other Publications

No abstract provided.

Wade & Bolton: Fundamental Legal Errors And Dangerous Implications, Robert M. Byrn

The Catholic Lawyer

No abstract provided.

Justice For Noncitizens: A Case For Reforming The Immigration Legal System, Anna Paden Carson

VA Engage Journal

The immigration legal system exists as a function of the executive branch rather than the judicial branch, and many of the constitutional rights guaranteed in a judicial court do not continue into the immigration legal sphere. Noncitizen defendants in the immigration court system are not guaranteed the same due process rights or right to appointed counsel as United States citizens, which severely limits their chance of a successful outcome. Moreover, while many noncitizens await their trials in these courts, they are often placed in one of the 234 immigration detention facilities across the nation, which further exacerbates the direness of …

The Right To Abortion: Expansion Of The Right To Privacy Through The Fourteenth Amendment, David Goldenberg

The Catholic Lawyer

No abstract provided.

Constitutional Incorporation: A Consideration Of The Judicial Function In State And Federal Constitutional Interpretation, Richard Boldt, Dan Friedman

Maryland Law Review

No abstract provided.

Concealed Motives: Rethinking Fourteenth Amendment And Voting Rights Challenges To Felon Disenfranchisement, Lauren Latterell Powell

Michigan Journal of Race and Law

Felon disenfranchisement provisions are justified by many Americans under the principle that voting is a privilege to be enjoyed only by upstanding citizens. The provisions are intimately tied, however, to the country’s legacy of racism and systemic disenfranchisement and are at odds with the values of American democracy. In virtually every state, felon disenfranchisement provisions affect the poor and communities of color on a grossly disproportionate scale. Yet to date, most challenges to the provisions under the Equal Protection Clause and Voting Rights Act have been unsuccessful, frustrating proponents of re-enfranchisement and the disenfranchised alike.

In light of those failures, …

Compliance Requires Inspection: The Failure Of Gender Equal Pay Efforts In The United States, Renalia Dubose

Mercer Law Review

On Friday, January 29, 2016, President Barack Obama expanded a previous executive order by requiring the Department of Labor to collect wage data based on gender, race, and ethnicity from contractors with at least 100 employees doing business with the federal government. That previous executive order was the April 8, 2014 Executive Order 13665 entitled Non-Retaliation for Disclosure of Compensation Information and was designed to amend the September 24, 1965 Executive Order 11246 entitled Equal Employment Opportunity by President Lyndon Johnson. Executive Order 13665 was issued to require transparency concerning compensation among private entities doing business with the federal government …

American Nationals And Interstitial Citizenship, Rose Cuison Villazor

Fordham Law Review

Citizenship scholarship is pervasively organized around a binary concept: there is citizenship (which is acquired at birth or through naturalization) and there is noncitizenship (which accounts for everyone else). This Article argues that this understanding is woefully incomplete. In making this argument, I tell the story of noncitizen nationals, a group referred to by this Article as American nationals. Judicially constructed in the 1900s, and codified by Congress in 1940, American nationals possess some of the rights inherent to citizenship, such as the right to enter and reside in the United States without a visa. Yet, they do not have …

Undressing Naked Economic Protectionism, Rational Basis Review, And Fourteenth Amendment Equal Protection, Robert M. Ahlander

BYU Law Review

No abstract provided.

Reason And Reasonableness: The Necessary Diversity Of The Common Law, Frederic G. Sourgens

Maine Law Review

This Article addresses the central concept of “reasonableness” in the common law and constitutional jurisprudence. On the basis of three examples, the common law of torts, the common law of contracts, and Fourth Amendment jurisprudence, the Article notes that different areas of the law follow fundamentally inconsistent utilitarian, pragmatic, and formalist reasonableness paradigms. The significance of this diversity of reasonableness paradigms remains largely under-theorized. This Article submits that the diversity of reasonableness paradigms is a necessary feature of the common law. It theorizes that the utilitarian, pragmatic and formalistic paradigms are structural elements driving the common law norm-generation process. This …

Obscenity Law: Après Stanley, Le Deluge?, Michael J. Gaynor

The Catholic Lawyer

No abstract provided.

Recent Abortion Litigation, Martin F. Mckernan, Jr.

The Catholic Lawyer

No abstract provided.

Raped Abroad: Extraterritorial Application Of Title Ix For American University Students Sexually Assaulted While Studying Abroad, Brittany K. Bull

Northwestern University Law Review

Female college students who study abroad are five times more likely to be raped than their counterparts who remain on their domestic campuses. Students raped or sexually assaulted on or around campuses in the United States can seek a remedy under Title IX, which provides administrative and judicial remedies. Very few federal cases have ever addressed whether Title IX applies extraterritorially to allegations of sex discrimination occurring abroad, and courts have reached different results in these cases. Moreover, no federal circuit has ever addressed the issue. This Note explores whether Title IX applies extraterritorially to students raped while studying abroad. …

Discrimination In Employment, Housing, And Education: Constitutional Concepts And Social Theories, Frederick D. Braid

The Catholic Lawyer

No abstract provided.

The Inequality Of America‘S Death Penalty: A Crossroads For Capital Punishment At The Intersection Of The Eighth And Fourteenth Amendments, John D. Bessler

Washington and Lee Law Review Online

No abstract provided.

Changing The System Without Changing The System: How The National Popular Vote Interstate Compact ​Would Leave Non-Compacting States Without A Leg To Stand On, Jillian Robbins

Cardozo Law Review de•novo

This Note will discuss the constitutional and legal implications of the NPVIC, and will explore the strengths and weaknesses of the arguments both for and against its implementation. It will argue that the NPVIC is constitutional, despite many opponents’ views that it is not, because it does not encroach on federal supremacy or threaten the political relevance or rights of non-compacting states. This Note proposes that if a lawsuit between the states resulted from the enactment of the NPVIC, even if the merits of the claim are constitutional, the United States Supreme Court should dismiss these cases because the states …

Embracing Race-Conscious College Admissions Programs: How Fisher V. University Of Texas At Austin Redefines "Affirmative Action" As A Holistic Approach To Admissions That Ensures Equal, Not Preferential, Treatment, Nancy L. Zisk

Marquette Law Review

In Fisher v. University of Texas at Austin, the United States Supreme Court affirmed well-established Supreme Court doctrine that race may be considered when a college or university decides whom to admit and whom to reject, as long as the consideration of race is part of a narrowly tailored holistic consideration of an applicant's many distinguishing features. The Court's latest decision heralds a new way of thinking about holistic race-conscious admissions programs. Rather than considering them as "affirmative action" plans that prefer any one applicant to the disadvantage of another, they should be viewed as the Court has described …

The Due Process Bona Fides Of Executive Self-Pardons And Blanket Pardons, Peter Brandon Bayer

Scholarly Works

Contrary to much commentary and possibly some seemingly settled law, this essay argues that an American President (or a similarly situated state officer or office) may issue individual and "blanket"-or mass-clemency benefiting classes of named or unnamed individuals, and in addition may pardon himself, but only if doing so comports with the principles of fundamental fairness that define due process of law under the Constitution's Fifth and Fourteenth Amendments. Accordingly, the Constitution permits acts of clemency to foster mercy, compassion, and forgiveness, or to promote the purported best interests of the nation, or even to further an executive's political advantages, …

Returning To Roe: The Renewed Promise Of Whole Woman's Health, Cristina Salcedo

Loyola of Los Angeles Law Review

No abstract provided.

What Impact Is Felony Disenfranchisement Having On Hispanics In Florida?, Angel E. Sanchez

Honors Undergraduate Theses

This research produces original empirical estimates of Hispanics in Florida’s Dept. of Corrections (FDOC) and uses those estimates to measure the impact felony disenfranchisement is having on Hispanics in Florida. Research institutions find that data on Hispanics in the criminal justice system, particularly in Florida, is either lacking or inaccurate. This research addresses this problem by applying an optimal surname list method using Census Bureau data and Bayes Theorem to produce an empirical estimate of Hispanics in FDOC’s data. Using the Hispanic rate derived from the empirical FDOC analysis, the rate of Hispanics in the disenfranchised population is estimated. The …

Contemplating Masterpiece Cakeshop, Terri R. Day

Faculty Scholarship

No abstract provided.

Same-Sex Sex And Immutable Traits: Why Obergefell V. Hodges Clears A Path To Protecting Gay And Lesbian Employees From Workplace Discrimination Under Title Vii, Matthew W. Green Jr.

Law Faculty Articles and Essays

This article is set forth in five parts. Part II is largely descriptive and focuses on two aspects of Obergefell: (1) the Court's clarification that adult, private, consensual, same-sex sexual intimacy is a fundamental right, protected by the U.S. Constitution's Fourteenth Amendment Due Process Clause and (2) the Court's recognition that leading mental health and medical groups consider sexual orientation to be immutable. Part III examines how courts and the EEOC have treated sexual orientation discrimination under Title VII and contains a normative discussion which argues—consistent with the position of other commentators, some courts, and the EEOC—that sexual orientation …

Undignified: The Supreme Court, Racial Justice, And Dignity Claims, Darren Lenard Hutchinson

UF Law Faculty Publications

The Supreme Court has interpreted the Equal Protection Clause as a formal equality mandate. In response, legal scholars have advocated alternative conceptions of equality, such as antisubordination theory, that interpret equal protection in more substantive terms. Antisubordination theory would consider the social context in which race-based policies emerge and recognize material distinctions between policies intended to oppress racial minorities and those designed to ameliorate past and current racism. Antisubordination theory would also closely scrutinize facially neutral state action that systemically disadvantages vulnerable social groups. The Court has largely ignored these reform proposals. Modern Supreme Court rulings, however, have invoked the …

Take The Fifth... Please!: The Original Insignificance Of The Fifth Amendment's Due Process Of Law Clause, Gary S. Lawson

Faculty Scholarship

The Fifth Amendment’s Due Process of Law Clause adds nothing to the Constitution’s original meaning. Every principle for limiting federal executive, judicial, and even legislative powers that can plausibly be attributed to the idea of “due process of law” – from the principle of legality forbidding executive or judicial action in the absence of law to the requirement of notice before valid judicial judgments to a limitation on arbitrary governmental action that today goes under the heading of “substantive due process” – is already contained in the text and structure of the Constitution of 1788. The Fifth Amendment Due Process …

Render Unto Caesar: How Misunderstanding A Century Of Free Exercise Jurisprudence Forged And Then Fractured The Rfra Coalition, John S. Blattner

CMC Senior Theses

This thesis provides a comprehensive history of Supreme Court Free Exercise Clause jurisprudence from 1879 until the present day. It describes how a jurisdictional approach to free exercise dominated the Court’s rulings from its first Free Exercise Clause case in 1879 until Sherbert v. Verner in 1963, and how Sherbert introduced an accommodationist precedent which was ineffectively, incompletely, and inconsistently defined by the Court. This thesis shows how proponents of accommodationism furthered a false narrative overstating the scope and consistency of Sherbert’s precedent following the Court’s repudiation of accommodationism and return to full jurisdictionalism with Employment Division v. Smith …

Undignified: The Supreme Court, Racial Justice, And Dignity Claims, Darren L. Hutchinson

Faculty Articles

The Supreme Court has interpreted the Equal Protection Clause as a formal equality mandate. In response, legal scholars have advocated alternative conceptions of equality, such as antisubordination theory, that interpret equal protection in more substantive terms. Antisubordination theory would consider the social context in which race-based policies emerge and recognize material distinctions between policies intended to oppress racial minorities and those designed to ameliorate past and current racism. Antisubordination theory would also closely scrutinize facially neutral state action that systemically disadvantages vulnerable social groups. The Court has largely ignored these reform proposals. Modern Supreme Court rulings, however, have invoked the …

Congress Blewett By Not Explicitly Making The Fair Sentencing Act Of 2010 Retroactive, Andrew Cockroft

Journal of Criminal Law and Criminology

In 2013, the Sixth Circuit Court of Appeals was the first Circuit Court to retroactively apply the Fair Sentencing Act of 2010. The Fair Sentencing Act sought to end the discriminatory effects of the Anti-Drug Abuse Act of 1986 and its treatment of one gram of crack cocaine as the equivalent to one hundred grams of powder cocaine. The Fair Sentencing Act was meant to remedy the injustices brought about by the infamous 100:1 ratio in crack-cocaine and powder cocaine minimum sentencing. Despite this purpose, the Fair Sentencing Act does not contain language that explicitly and unequivocally requires that the …

Ensuring The Constitution Remains Color Blind Vs. Turning A Blind Eye To Justice: Equal Protection And Affirmative Action In University Admissions, Attashin Safari

Loyola of Los Angeles Law Review

No abstract provided.

Affirmatively Furthering Equal Protection: Constitutional Meaning In The Administration Of Fair Housing, Blake Emerson

Buffalo Law Review

No abstract provided.