Fourteenth Amendment Commons^™

Choosing Liberty Over Equality And Sacrificing Both: Equal Protection And Due Process In Lawrence V. Texas, Andrew J. Seligsohn

Cardozo Journal of Equal Rights & Social Justice

The article critiques the Supreme Court's decision in Lawrence v. Texas, arguing that the Court's reliance on substantive due process under the Due Process Clause, rather than the Equal Protection Clause, undermines the broader equality concerns faced by the LGBTQ+ community. By prioritizing liberty over equality, the Court missed an opportunity to establish a more robust legal foundation for future LGBTQ+ rights, leaving the decision vulnerable to challenge and failing to address the systemic discrimination against gays and lesbians.

A Prisoner's Right To Transsexual Therapies: A Look At Brooks V. Berg, Linda D. Chin

Cardozo Journal of Equal Rights & Social Justice

The note examines the legal and ethical implications of providing medical treatment, particularly gender reassignment surgery (GRS), to transgender prisoners under the Eighth Amendment, which prohibits cruel and unusual punishment. It argues that while courts have recognized the necessity of addressing gender dysphoria, the financial and logistical challenges of providing such treatments raise concerns about equity and resource allocation. The ruling in Brooks v. Berg highlights the tension between constitutional rights and the practical limitations of prison systems in meeting these needs.

Federalism Re-Constructed: The Eleventh Amendment's Illogical Impact On Congress' Power, Marcia L. Mccormick

All Faculty Scholarship

The Constitution is designed to protect individual liberty and equality by diffusing power among the three branches of the federal government and between the federal and state governments, and by providing a minimum level of protection for individual rights. Yet, the Supreme Court seems to think that federalism is about protecting states as states rather than balancing governmental power to protect individuals. In the name of federalism, the Supreme Court has been paring away at Congress' power to enact civil rights legislation. In doing so, it has transformed the Fourteenth Amendment into a vehicle for protecting states rights rather than …

Experimentalist Equal Protection, Brandon L. Garrett, James S. Liebman

Faculty Scholarship

Elsewhere Garrett and Liebman have recounted that though James Madison is considered "the Father of the Constitution," his progeny disappointed him because it was defenseless against self-government's "mortal disease " – the oppression of minorities by local majorities – because the Framers rejected the radical structural approach to equal protection that Madison proposed. Nor did the framers of the Fourteenth Amendment's Equal Protection Clause and federal courts enforcing it adopt a solution Madison would have considered "effectual." This Article explores recent subconstitutional innovations in governance and public administration that may finally bring the nation within reach of the constitutional polity …

The Journey From Brown V. Board Of Education To Grutter V. Bollinger: From Racial Assimilation To Diversity, Harry T. Edwards

Michigan Law Review

Fifty years ago, in Brown v. Board of Education, the Supreme Court confronted a precise and straightforward question: "Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other 'tangible' factors may be equal, deprive the children of the minority group of equal educational opportunities?" The Court's answer was precise and straightforward: "We conclude that in the field of public education the doctrine of "separate but equal" has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs ... are, by reason of the segregation complained of, …

Grutter V. Bollinger: This Generation's Brown V. Board Of Education, Michelle Adams

Articles

At first blush, Grutter appears to be a deviation from the body of the Court's recent affirmative action jurisprudence: it says "yes" where the other cases said "no." But it is not so clear that Grutter is a deviation from current law. Instead, it might be seen as consistent with it, in that the justification for the racial preference recognized in Grutter transcended the justifications offered in the previous cases, and the method used to achieve that end, "race as a factor," diffused rather than highlighted race. From this perspective, Grutter addressed several concerns that had troubled the Court for …

Lawrence And Garner: The Love (Or At Least Sexual Attraction) That Finally Dared Speak Its Name, Paris R. Baldacci

Cardozo Journal of Equal Rights & Social Justice

The article examines the legal evolution from *Bowers v. Hardwick* to Lawrence v. Texas, highlighting how the latter marked a pivotal shift in recognizing LGBTQ+ rights by emphasizing personal autonomy and dignity. It underscores the significance of narrative strategies in shaping judicial decisions, particularly in *Lawrence*, where the plaintiffs' personal stories influenced the Court's ruling.

Winner, Best Appellate Brief In The 2004 Native American Law Student Association Moot Court Competition, Kevin Mcculloch, April Winecke

American Indian Law Review

No abstract provided.

The Antebellum Political Background Of The Fourteenth Amendment, Garrett Epps

All Faculty Scholarship

Understanding the Fourteenth Amendment is the key question of Constitutional law, both as it pertains to individual rights and, in many areas, as it relates to questions of Congressional power as opposed to the reserved powers of the states. The Amendment is often disaggregated and read clause by clause - but the intellectual and political background of its framers suggests that the Amendment in fact forms a coherent whole and that reading it as a whole might be a fertile source of new meanings. The Amendment was written by politicians who had spent their careers deeply involved in anti-slavery politics. …

Putting "Protection" Back In The Equal Protection Clause: Lessons From Nineteenth Century Women's Rights Activists' Understandings Of Equality, Lucinda M. Finley

Journal Articles

No abstract provided.

Striking A Balance: Finding A Place For Religious Conscience Clauses In Contraceptive Equity Legislation, Staci D. Lowell

Cleveland State Law Review

This note will attempt to address the interrelationship of the Pregnancy Discrimination Act and the First and Fourteenth Amendments in the context of contraceptive equity legislation. To that end, the note will examine states' definitions of a "religious employer" and make recommendations regarding statutory language that is broad enough to cover those organizations with conscientious objections to contraception but narrow enough to allow women to have ready access to contraceptive services. Following this introduction, Part II of the note will provide background information about both contraceptive equity and religious freedom. Part III will discuss current and proposed contraceptive equity legislation …

Student Suspension For Possession Of Contraband In Student Vehicles: Correct Guidance From The Tenth Circuit, Larry Lewis

Oklahoma Law Review

No abstract provided.

Retooling The Intent Requirement Under The Fourteenth Amendment, Henry L. Chambers Jr.

Law Faculty Publications

Racial classifications carry the largest taint and require the most justification. Strict scrutiny-the level of scrutiny with which the remainder of the article will be concerned-requires that race-based differentiation serve a compelling state interest and be narrowly tailored to serve that interest, guaranteeing that the reason for the differentiation is extremely important and that the link between the means chosen to meet the ends is extremely tight. Though strict scrutiny is difficult to survive, it is triggered only when a state actor engages in intentional or purposeful racial discrimination. Controversy surrounds whether such a trigger is necessary. However, rather than …

Brown And Tee-Hit-Ton, Earl M. Maltz

American Indian Law Review

No abstract provided.

Two Wrongs Make A Right: Hybrid Claims Of Discrimination, Ming Hsu Chen

Publications

This Note reinterprets and recontextualizes the pronouncement in Employment Division v. Smith (Smith II) that exemptions from generally applicable laws will not be granted unless claims of free exercise are accompanied by the assertion of another constitutional right. It argues that when Arab American Muslims, and others who are of minority race and religion, bring claims for exemption from generally applicable laws on the basis of free exercise and equal protection principles, they ought to be able to invoke Smith II's hybridity exception, thus meriting heightened judicial scrutiny and increased solicitude from courts.

Five Critical Issues In New York’S Grandparent Visitation Law After Troxel V. Granville, Stephen A. Newman

NYLS Law Review

No abstract provided.

The Prodigal Argument: Mccollum V. Board Of Education, Gerard V. Bradley

Journal Articles

From the Introduction

Judges, lawyers, and scholars all cite the 1947 case, Everson v. Board of Education, as the cornerstone of Establishment Clause doctrine. They are right to do so. The Everson Court took two path-breaking steps: incorporation and strict separation. The justices there held, for the first time, that the Fourteenth Amendment made the Establishment Clause applicable to state action. Then they offered a novel account of what non-establishment meant. In sweeping language (which you can find at 330 U.S. 15 - 16) they held that it meant more than equality among religions. By requiring that all government …

Justice By Any Other Name: The Right To A Jury Trial And The Criminal Nature Of Juvenile Justice In Louisiana, Kerrin C. Wolf

William & Mary Bill of Rights Journal

The juvenile justice system has become increasingly punitive in recent decades. While the juvenile justice system has come to resemble the adult system in this way, juveniles facing adjudication nevertheless are denied the essential Sixth Amendment due process right. This Note will argue that the Louisiana Supreme Court decided State ex rel. D.J. incorrectly and, further, will demonstrate that the nation as a whole should revisit the place of juries in juvenile proceedings.

The "Horizontal Effect" Of Constitutional Rights, Stephen Gardbaum

Michigan Law Review

Among the most fundamental issues in constitutional law is the scope of application of individual rights provisions and, in particular, their reach into the private sphere. This issue is also currently one of the most important and hotly debated in comparative constitutional law, where it is known under the rubric of "vertical" and "horizontal effect." These alternatives refer to whether constitutional rights regulate only the conduct of governmental actors in their dealings with private individuals (vertical) or also relations between private individuals (horizontal). In recent years, the horizontal position has been adopted to varying degrees, and after systematic scholarly and …

Brief Of Ohio School Boards Ass'n Et Al. As Amici Curiae In Support Of Petitioners, Derolph V. State, No. 03-245 (U.S. Filed 2003), Tracy A. Thomas, Stephen W. Funk

Con Law Center Amicus Briefs

This case presents the issue of the Ohio Supreme Court’s violation of the Due Process Clause of the Fourteenth Amendment by denying an adequate remedy to successful plaintiffs in a school funding case. In five decisions in the case of DeRolph v. Ohio from 1997 to the present, the Ohio Supreme Court has declared that Ohio’s school funding system is unconstitutional and ordered the state legislature to fix the funding system pursuant to an affirmative, structural injunction.2 To date, however, the state has continually refused to comply with the Ohio court’s injunction by making the required changes in the school …

Walton V. Angelone 321 F.3d 442 (4th Cir. 2003)

Capital Defense Journal

No abstract provided.

Reinforcing Representation: Congressional Power To Enforce The Fourteenth And Fifteenth Amendments In The Rehnquist And Waite Courts, Ellen D. Katz

Michigan Law Review

A large body of academic scholarship accuses the Rehnquist Court of "undoing the Second Reconstruction," just as the Waite Court has long been blamed for facilitating the end of the First. This critique captures much of what is meant by those generally charging the Rehnquist Court with "conservative judicial activism." It posits that the present Court wants to dismantle decades' worth of federal antidiscrimination measures that are aimed at the "reconstruction" of public and private relationships at the local level. It sees the Waite Court as having similarly nullified the civil-rights initiatives enacted by Congress following the Civil War to …

Lochner'S Feminist Legacy, David E. Bernstein

Michigan Law Review

Professor Julie Novkov's Constituting Workers, Protecting Women examines the so-called Lochner era of American constitutional jurisprudence through the lens of the struggle over the constitutionality of "protective" labor legislation, such as maximum hours and minimum wage laws. Many of these laws applied only to women, and Novkov argues that the debate over the constitutionality of protective laws for women - laws that some women's rights advocates saw as discriminatory legislation against women - ultimately had more important implications for the constitutionality of protective labor legislation more generally. Liberally defined, the Lochner era lasted from the Slaughter-House Cases in 1873 - …

May Congress Grant The States The Power To Violate The Equal Protection Clause? Aliessa V. Novello And Title Iv Of The Personal Responsibility And Work Opportunity Reconciliation Act Of 1996, Karin H. Berg

Brigham Young University Journal of Public Law

No abstract provided.

Section Five Overbreadth: The Facial Approach To Adjudicating Challenges Under Section Five Of The Fourteenth Amendment, Catherine Carroll

Michigan Law Review

In February 1996, the New York State Department of Transportation fired Joseph Kilcullen from his position as a snowplow driver in the Department's Highway Maintenance training program. Alleging that the state discharged him because of his epilepsy and learning disability, Kilcullen sued his former employer under the Americans with Disabilities Act ("ADA"), which abrogated states' sovereign immunity and permitted private suits for damages against states in a federal court. Kilcullen asserted only that he was not treated the same as similarly situated non-disabled employees; his claim did not implicate the ADA's requirement that employers provide "reasonable accommodation" to disabled employees. …

The Master's Tools: Deconstructing The Socratic Method And Its Disparate Impact On Women Through The Prism Of The Equal Protection Doctrine, Tanisha Makeba Bailey

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

Location And Life: How Stenberg V. Carhart Undercut Roe V. Wade, Richard Stith

Law Faculty Publications

No abstract provided.

Freedom Of Discrimination?:The Conflict Between Public Accommodations' Freedom Association And State Anti-Discrimination Laws, 37 J. Marshall L. Rev. 125 (2003), Gregory J. Wartman

UIC Law Review

No abstract provided.

Righting The Canoe: Title Ix And The Decline Of Men's Intercollegiate Athletics, 37 J. Marshall L. Rev. 257 (2003), Andrew J. Boyd

UIC Law Review

No abstract provided.

Kelly V. South Carolina: Extending Due Process Creates An Untenable Standard For Determining When Capital Sentencing Juries Should Be Informed Of Parole Ineligibility, Paul M. Dillbeck

Maryland Law Review

No abstract provided.