Fourteenth Amendment Commons^™

Table Of Contents

Seattle University Law Review

Table of Contents

Food Councils And Federal Committees: Community Responses To Inaction On Food Insecurity By Government, Kevin O'Connell, Liam R. Rupprecht

Binghamton University Undergraduate Journal

Food insecurity is a devastating force in the United States, as shown by its destructive impact on vulnerable groups like children, racial minorities, and those in poverty. Non-white urban communities of color especially have significantly higher rates of household food insecurity due to systemic racism in American food systems. Despite the prevalence of these factors, they are consistently overlooked by public and private forces. Federal efforts have failed to resolve the issue, leaving it to local “food council” organizations that attempt to help through advocacy and charity. These groups face a difficult task: how can they work to mitigate food …

Oh Deer: The Elk Court's Misunderstanding Of The Citizenship Clause, Shunhe Wang

University of Richmond Law Review

This Article examines the enduring legacy of Elk v. Wilkins, 112 U.S. 94 (1884), a Supreme Court decision that interpreted the Fourteenth Amendment’s Citizenship Clause to exclude Native Americans from birthright citizenship. By relegating Native citizenship status to a statutory privilege rather than a constitutional right, Elk created a framework that has since been weaponized to challenge birthright citizenship for the children of undocumented immigrants. This Article demonstrates how Elk’s flawed reasoning— particularly its narrow reading of “subject to the jurisdiction thereof”—continues to shape legal and political efforts to erode the Fourteenth Amendment’s guarantees. Drawing on Justice Harlan’s dissent in …

Electoral Due Process, Michael S. Kang

Northwestern University Law Review

Hyperpartisanship has hit century-long highs in American politics and is emboldening state government attempts to undermine election outcomes by using control over state lawmaking structure to strip away authority, and sometimes outright unseat, partisan opponents after they win elected office. Even as traditional norms against such moves have eroded, the Supreme Court has taken a pro-partisanship turn in removing judicial checks against such moves under equal protection and constitutional structure. This Article proposes shifting from challenges under those doctrines to a new approach under electoral due process for confronting this new generation of antidemocracy. Federal due process law restricts the …

The Establishment That Time Forgot: The Historical Understanding Of Religious Offenses And Their Unconstitutionality In Modern Law, Benjamin J. Citow

Northwestern University Law Review

This Note argues that religious offenses, meaning laws which penalize conduct for religious purposes, should be barred by the Establishment Clause of the Constitution, as the Clause was interpreted in Kennedy v. Bremerton School District. This is because Kennedy interpreted the Establishment Clause to prohibit each of the several types of laws which early Americans associated with religious establishment—the historical practice wherein early states would adopt a religion as the state religion and pass various types of laws for its support. And religious offenses, this Note argues, were amongst the types of laws which early Americans so associated with …

Volume 14 Masthead

American Indian Law Journal

No abstract provided.

Table Of Contents

American Indian Law Journal

No abstract provided.

From Dred Scott To Barbara: Birthright Citizenship, Racial Exclusion, And The Enduring Promise Of The Fourteenth Amendment, Jenna A. Milbrodt

CMC Senior Theses

The Fourteenth Amendment’s Citizenship Clause has guaranteed birthright citizenship to all children born in the United States for hundreds of years. Yet, President Trump’s January 20, 2025, executive order threatens to strip that right from children born to parents unlawfully in the country and temporary visitors. This order, if permitted to stand, would change the definition of US citizenship and render countless children stateless persons without citizenship rights. This paper examines whether birthright citizenship in the US, properly understood, extends to children of unlawful immigrants and temporary visitors. To answer this question, three time periods of change in citizenship rights …

Feudal Is Fine Because Property Is Sovereignty: Rational Basis Equal Protection And The New Noncitizen Land Laws, Jill M. Fraley

Scholarly Articles

States are enacting a new wave of land laws restricting noncitizens’ ownership of real property, prompting immediate constitutional challenges grounded in equal protection and federal preemption. Most commentators assume these laws are unlikely to survive modern scrutiny. This Article argues that these land laws rest on a constitutional logic that remains both doctrinally intact and normatively compelling: the treatment of real property as an incident of state sovereignty rather than an ordinary site of economic regulation.

Against prevailing accounts, this Article shows that the Court’s jurisprudence has never subjected all citizenship-based classifications to heightened scrutiny. Instead, the Court has consistently …

In Defense Of Substantive Due Process, Maureen A. Edobor

Scholarly Articles

The Originalism Trap is a book for everyone—and it should be required reading for anyone trying to make sense of the seismic shifts in constitutional law on democracy, guns, and reproductive rights, even as the Constitution’s text has remained unchanged. Dennie’s sweeping and incisive defense of substantive due process raises a fundamental question: what better reflects democratic legitimacy—judicial doctrine shaped through decades of engagement between advocates, communities, judges, and lawmakers, or a narrow search through centuries-old texts for fragmented glimpses of “original public meaning” drawn from eras that excluded most people from citizenship, personhood, and power? Dennie forcefully answers: the …

Adding Family Complications To Birthright Citizenship, Scott Titshaw

Articles

On the first day of his second administration, President Trump issued an executive order purporting to restrict citizenship of U.S.-born children based on their parents’ citizenship or immigration status. In the process, it discriminates between mothers and fathers and adopts genetic definitions of “mother” and “father” to exclude any parent, who is not the child’s “immediate … biological progenitor.”

Courts and scholars have condemned this attempt to restrict birthplace citizenship as a violation of both the Fourteenth Amendment and the Immigration and Nationality Act. Yet there has been little, if any, discussion of the new family-based conditions in the order. …

Public Schools: Immigration & Customs Enforcement’S Unconstitutional And Inhumane Hunting Ground, Ma Camille Briones

Roger Williams University Law Review

No abstract provided.

Imprisoned Without A Verdict: The Constitutional Crisis Of Pre-Trial Solitary Confinement, Symone R. Gibbs

Washington and Lee Journal of Civil Rights and Social Justice

Kalief Browder’s name endures as a chilling reminder of the human cost of pre-trial solitary confinement. His story reveals the constitutional paradox and moral failure at the heart of this practice: Individuals who remain legally innocent are subjected to one of the harshest punishments the state can impose. This practice strips people of their liberty twice over, first through incarceration itself, and again through prolonged isolation that inflicts devastating psychological harm. Despite its severity, the use of solitary confinement against pre-trial detainees remains largely overlooked in legal scholarship and reform, even as it undermines the presumption of innocence, exacerbates systemic …

True Man, Captive Mother: Abortion As A Fundamental Self-Defense Right, Nicholle Vandy

Indiana Journal of Law and Social Equality

Abortion healthcare has faced significant challenges since the Supreme Court held in Dobbs v. Jackson Women’s Health Organization that there exists no constitutional right to abortion. Contrastingly, the right to bear arms, grounded in the right to self-defense, has strong constitutional protections, as highlighted in New York State Rifle & Pistol Association v. Bruen. The extension of the right to self-defense is exemplified by the proliferation of Stand Your Ground laws in numerous states.

This Comment examines the growing tension between self-defense doctrine, particularly through Stand Your Ground laws, and the increasing criminalization of abortion in various states. It …

Founding Mothers: The Nineteenth Amendment’S Place In Originalist Due Process Analysis, Tracy Turner

American University Journal of Gender, Social Policy & the Law

[INTRODUCTION] During a public speech in 1856, Sojourner Truth is described as stating: “I have had two husbands yet I never possessed one of my own. I have had five children and never could take any one of them up and say “my child” or “my children . . .” One of Truth’s two husbands was an older enslaved man, forced upon her for the purpose of providing new victims of slavery. The second husband may have been a man she considered to be her real husband but was never allowed to marry. By law, Truth’s children belonged entirely to …

System Disparities: Racial Criminalization And The Risk Of Coerced And False Confessions In Youth, Cynthia J. Najdowski

Psychology Faculty Scholarship

Black youth may be even more vulnerable than other youth to admitting to crimes they did not commit in the context of police interrogations. In support, analysis of data from the National Registry of Exonerations indicates that 65% of people who were wrongfully convicted on the basis of false confessions they gave when under 18 years old are Black, whereas only 14% of the U.S. population is Black. In this chapter, I seek to understand the overrepresentation of Black youth in samples of juvenile false confessors by examining the cultural stereotype about Black criminality in relation to both investigators and …

The Unmaking Of Section Two, Maureen Edobor

Scholarly Articles

Section 2 of the Voting Rights Act now stands at a paradoxical crossroads. Though it remains the statute’s central protection against racial vote dilution after Shelby County v. Holder, it is increasingly undermined by a constitutional framework that treats race-conscious remedies as suspect rather than necessary under Section 2. This Essay argues that Section 2 is being quietly unmade—not through direct invalidation, but through the convergence of Equal Protection Doctrine, racial-gerrymandering jurisprudence, and an ascendant commitment to colorblind constitutionalism. Tracing the Fifteenth Amendment’s original design and Congress’s expansive enforcement authority, the Essay situates Section 2 within a constitutional tradition …

Balancing The Scales Between The Evolution Of Affirmative Action Policies And The Equal Protection Clause, Jesicca Patel

Journal of Race, Gender, and Ethnicity

This article argues that the Supreme Court’s ruling ending affirmative action was correct. Affirmative action does not solve the underlying issues of racial inequality and systemic oppression. Instead, affirmative action undermines the success of minorities and inflames racial tensions. This article is divided into Five Parts. The first part examines U.S. Supreme Court precedent addressing the Court’s decisions in upholding affirmative action policies in educational settings before Students for Fair Admissions, Inc. v. President and Fellows of Harvard College. The second part discusses Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and why the Supreme Court …

S.F. 2200 (2025) - Permission To Change: Minnesota's Illusory Privilege Reform In A Post-Notorious Rbg Era, A.G. Summers

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

Oregon’S History Of Using The Law To “Stack The Deck” In Favor Of White Males, Janet Steverson

Lewis & Clark Law Review

The United States has a sordid, racist history that permeates society still today. The State of Oregon has its own racist history, systematically excluding persons of Black African ancestry in its early years. This Essay explains this history and how seemingly historical practices continue to provide advantages to some, while detrimentally impacting others. This history is put in context by providing explanations of particular terms and this Essay further explains why examining these historical laws are critical in moving forward.

Procedural Apartheid? How Racial Harassment Cases And Their Proponents Are Subject To Separate And Unequal Due Process, Suzette M. Malveaux

Scholarly Articles

This article makes three unique contributions. First, it introduces the theoretical framework and coins the term “procedural apartheid.” Simply put, when race is invoked as the basis for misconduct, procedural protection is meted out inequitably, often to the detriment of people of color. This phenomenon is situated in the law’s larger project to preference colorblindness over race-conscious ameliorative efforts. The article invites the reader to broadly consider where separate and unequal proceduralism exists because of the centrality of race. This article deploys the term “apartheid”—not literally, but strategically—to highlight the systemic legal and racial nature of this hierarchical divide.

Second, …

Fundamental Rights Betrayed: How Pregnancy Exclusions In Advance Directive Statutes Silence Pregnant People’S Wishes, Molly Hill

American University Journal of Gender, Social Policy & the Law

INTRODUCTION: In 2013, Marlise Muñoz collapsed at her home and was rushed to the hospital, where the doctors informed her family that she had suffered a pulmonary embolism and was now brain-dead. Marlise had previously expressed to her family that she never wished to be kept on life support if she was left brain-dead, so her family wanted to honor her wishes. However, despite her irreversible brain death, because Marlise was fourteen weeks pregnant, Texas law required that her body remain on life-sustaining treatment until her fetus became viable. Her body lay in the hospital hooked up to machines against …

Why Dobbs Is No Roadmap For Deciding State Constitutional Abortion Issues, Daniel A. Small

American University Journal of Gender, Social Policy & the Law

In deciding that Fourteenth Amendment “liberty” does not protect a woman’s decision to end her pregnancy, Dobbs v. Jackson Women’s Health Organization sought to distinguish the precedent that Roe and Casey relied on to recognize an abortion right. The Dobbs majority claimed that this precedent did not support a right to abortion because, in its view, destroying a fetus is more immoral than the conduct at issue in those earlier cases. However, moral concerns about fetal destruction shed no light on the nature or characteristics of a woman’s liberty interest in an abortion decision. These concerns, therefore, cannot show whether …

Let’S Talk About The Biological Reality Of Sex, Baby, John Parsi

FIU Law Review

Sex is at the very core of individual identity. It affects the conception of the self and the way others view the individual. Every day, one’s sex may open and close doors, access to communities, and opportunities. Laws that define sex may affirm scientific knowledge and protect people, or threaten to unravel the facts and the reality of sex. A deep unmooring of sex is underway, and this Article aims to halt it. On day one of the current presidential term, January 20, 2025, President Trump signed an Executive Order on “Defending Women from Gender Ideology Extremism and Restoring Biological …

Cruel And Unusual Punishments And The Constitutional Status Of The Idea Of Progress, R. George Wright

FIU Law Review

To this point, we have developed some idea of what progress might have meant to the constitutional Framers, ratifiers, and later judges. We need not attempt the fruitless task of doing any precise head count of the variations of the concrete meaning, perceived likelihood, or value of progress among those parties. Doubtless some persons were more optimistic than others.178 But we need only assume that enough constitutional Framers, ratifiers, and judicial interpreters sufficiently shared any mainstream understanding of progress. Any such constitutional legitimacy of the idea, or the multiple ideas, of progress licenses the language of progress embraced in Trop.

No Shelter: The Criminalization Of Homelessness And The Gaps In Constitutional Protections If Robinson Is Overruled, Shelby Stansbury

Oklahoma Law Review

No abstract provided.

Preempted Or Permitted? State Immigration Enforcement, Federal Preemption, And The Future Of Immigration Policy, Aryn Kerr

Oklahoma Law Review

No abstract provided.

Abortion And State Taxes: Unexpected Parallelism, Eric Smith

Oklahoma Law Review

No abstract provided.

The Right To Seek Joy, Tyler Rose Clemons

Faculty Publications

Within the past three years, roughly half of American states have restricted access to gender-affirming medical treatment for children. In this article, I argue that these bans violate transgender children’s right to liberty guaranteed by the Fourteenth Amendment’s Due Process Clause. I do so by excavating the Framers’ understanding of liberty as the right to seek joy. Rooted in the philosophies of John Locke and Epicurus, the Framers understood liberty as the right to make important life decisions according to one’s subjective preferences without undue interference from the government. Based on this understanding, I develop a new framework for substantive …

Challenging Batson: Interest Convergence And Permanence Of Racism In Jury Selection, Addrain Conyers, Amanda Bergold, Antoinette Critelli

The Scholar: St. Mary's Law Review on Race and Social Justice

A Batson challenge is an objection to the use of peremptory challenges to dismiss potential jurors based on their race; however, Batson challenges are rarely successful. In this paper, we apply Critical Race Theory (CRT) as a framework to analyze the Batson Challenge. More specifically, we argue that the Batson challenge is a practice grounded in interest convergence that underscores the permanence of racism in the judicial system. We explore three interests of Batson: (1) the protection of the Sixth Amendment right to a fair trial; (2) the protection of the Fourteenth Amendment; and (3) the promotion of public trust …