Fourteenth Amendment Commons^™

Liberty Is Not Loco-Motion: Obergefell And The Originalists' Due Process Fallacy, Andrew T. Bodoh

Campbell Law Review

In an effort to discredit substantive due process, originalists often misinterpret the federal Due Process Clauses. Justice Clarence Thomas's Obergefell v. Hodges dissent illustrates this. In this dissent, Justice Thomas cites Blackstone's Commentaries to argue that Due Process "liberty" is merely freedom from physical restraint, what Blackstone describes as the power of "loco-motion."

This Article challenges Justice Thomas's narrow view of Due Process liberty from Obergefell v. Hodges on its own terms. It distills from the dissent and its sources five assumptions or premises supporting Justice Thomas's view, and it confronts each of these with contrary evidence from the historical …

Due Process Of War, Nathan Chapman

Scholarly Works

The application of the Due Process Clause of the Fifth Amendment to the government’s deprivation of rights during war is one of the most challenging and contested questions of constitutional law. The Supreme Court has not provided a consistent or historically informed framework for analyzing due process during war. Based on the English background, the text and history of the U.S. Constitution, and early American practice, this Article argues that due process was originally understood to apply to many but not to all deprivations of rights during war. It proposes a framework for analyzing due process during war that accords …

Non-Alj Adjudicators In Federal Agencies: Status, Selection, Oversight, And Removal, Kent H. Barnett, Russell Wheeler

Scholarly Works

This article republishes—in substantively similar form—our 2018 report to the Administrative Conference of the United States (ACUS) concerning federal agencies’ adjudicators who are not administrative law judges (ALJs). (We refer to these adjudicators as “non-ALJ Adjudicators” or “non-ALJs.”) As our data indicate, non-ALJs significantly outnumber ALJs. Yet non-ALJs are often overlooked and difficult to discuss as a class because of their disparate titles and characteristics. To obtain more information on non-ALJs, we surveyed agencies on non-ALJs’ hearings and, among other things, the characteristics concerning non-ALJs’ salaries, selection, oversight, and removal. We first present our reported data on these matters, which …

Eyes Wide Open: What Social Science Can Tell Us About The Supreme Court's Use Of Social Science, Jonathan Feingold, Evelyn Carter

Faculty Scholarship

In McCleskey v. Kemp, the Supreme Court rendered statistical evidence of racial disparities doctrinally irrelevant to a criminal defendant’s equal protection claim. Fifteen years later in Grutter v. Bollinger, Chief Justice Rehnquist—part of the McCleskey majority—invoked admissions data to support his conclusion that the University of Michigan Law School had unconstitutionally discriminated against White applicants. This facially inconsistent treatment of statistical data invites the following inquiry: Why do judges (including Supreme Court Justices) rely on social science in some cases, yet reject it in others? We suggest that one answer lies at the intersection of Critical Race Theory and empirical …

From The Dark Tower: Unbridled Civil Asset Forfeiture, Saleema Saleema Snow

Journal Articles

The Black Lives Matter movement reinforces that race dominates all aspects of the judicial system. Police officers are significantly more likely to stop African Americans than Whites. Even when a stop or arrest is unwarranted, law enforcement agencies can still profit from the property seized under the guise of forfeiture statutes. Various state and federal civil asset forfeiture statutes legitimize law enforcement seizing cash, homes, cars, and office equipment—all with nominal due process protections. Despite evidence of discriminatory police practices, the U.S. Supreme Court deems these forfeiture practices constitutional.

This article seeks to reignite the conversation about discriminatory policing and …

Bailing On Bail: The Unconstitutionality Of Fixed, Monetary Bail Systems And Their Continued Use Throughout The United States, Margaret E. Margaret

Georgia Law Review

Incarceratingdefendants prior to trial was designed to be
the exception, not the norm. Many state and local
jurisdictionsthroughout the United States, however, employ
fixed, monetary bail systems that result in the systematic pre-
trial incarceration of indigent defendants solely because of
their inability to pay for their release. Not only do such bail
systems violate indigent defendants' constitutional rights,
they also contribute to the billions spent by local governments
each year on maintainingovercrowded jails and have lasting
effects on those indigent defendants wrongfully detained.
This Note explores the constitutionalityof fixed, monetary
bail systems through the lens of a recent Georgiacase, …

The Next Reapportionment Revolution, Ashira Ostrow

Indiana Law Journal

In the 1960s, the Supreme Court famously imposed the one-person, one-vote requirement on federal, state, and local legislatures. The doctrine rapidly resolved the problem of malapportioned districts. Within just a few years, legislatures across the nation were reapportioned to equalize the population between districts. Sadly, however, the national commitment to equal-population districts has led directly to the current crisis of political gerrymandering. The boundaries of equal-population districts must be redrawn every ten years to maintain population equality. Even with rigid adherence to population requirements, district boundaries are easily manipulated to secure incumbent seats and advance partisan interests. Redistricting is rightly …

Reciprocal Immunity, Colin Miller

Indiana Law Journal

This essay advances a reciprocal rights theory. It argues that the Constitution precludes statutes and rules from providing nonreciprocal benefits to the State when the lack of reciprocity interferes with the defendant’s ability to secure a fair trial, unless reciprocity would implicate a significant state interest. Therefore, unless a significant State interest is involved, a grant of immunity to a prosecution witness should trigger reciprocal immunity to a directly contradictory defense witness.

Unequal Protection: Examining The Judiciary’S Treatment Of Unwed Fathers, Brett Potash

Touro Law Review

No abstract provided.

Judge Murphy's Indian Law Legacy, Kirsten Matoy Carlson

Law Faculty Research Publications

No abstract provided.

A "Chinese Wall" At The Nation's Borders: Justice Stephen Field And The Chinese Exclusion Case, Polly J. Price

Faculty Articles

First, the sweeping implications of The Chinese Exclusion Case had as much to do with the Supreme Court's concerns about its relationship with both Congress and the President as it did with the Chinese as a disparaged racial group. There are other dimensions beyond race, and one of these was the Supreme Court's view of its role with respect to the other branches of government. Importantly, the Court did not decide the balance of authority between the President and Congress on matters of immigration, an omission that surely lessens its precedential value today.

Second, the Court's pronouncement in the Chinese …

Buck V. Davis: Anti-Discriminatory Principles In Habeas Corpus Cases, Daniella Rubin

Loyola of Los Angeles Law Review

No abstract provided.

The First Congressional Debate On Public Carry And What It Tells Us About Firearm Regionalism, Mark Anthony Frassetto

Campbell Law Review

In the aftermath of District of Columbia v. Heller, a prominent issue remains unresolved: whether, or to what extent, the Second Amendment protects an individual right to keep and bear arms outside of the home. This Article explores this unresolved issue through a newly uncovered source, the congressional debates surrounding the District of Columbia's public carry law in the 1890s.

These debates provide new insights into the understanding of the right to keep and bear arms in the years following the drafting and ratification of the Fourteenth Amendment. Two conclusions can be drawn from the debate. First, there was no …

Judicial Review Of Disproportionate (Or Retaliatory) Deportation, Jason A. Cade

Scholarly Works

This Article focuses attention on two recent and notable federal court opinions considering challenges to Trump administration deportation decisions. While finding no statutory bar to the noncitizens’ detention and deportation in these cases, the court in each instance paused to highlight the injustice of the removal decisions. This Article places the opinions in the context of emerging immigration enforcement trends, which reflect a growing indifference to disproportionate treatment as well as enforcement actions founded on retaliation for the exercise of constitutional rights. Judicial decisions like the ones considered here serve vital functions in the cause of immigration law reform even …

Finality Of A Conviction: A Noncitizen's Right To Procedural Due Process, Daniela Mondragon

St. Mary's Law Journal

Abstract forthcoming

Is It Bad Law To Believe A Politician? Campaign Speech And Discriminatory Intent, Shawn E. Fields

University of Richmond Law Review

No abstract provided.

The Minor Donor-Sibling Dilemma: Are Bone Marrow Donation Decisions Up To The Parent Or The Child?, Christina Carone

Touro Law Review

No abstract provided.

Undocumented Citizens Of The United States: The Repercussions Of Denying Birth Certificates, Anna L. Lichtenberger

St. Mary's Law Journal

Abstract forthcoming

Teaching The Transformative Fourteenth Amendment, Joel K. Goldstein

All Faculty Scholarship

If the constitutional law casebooks are a reliable guide, most teach the Fourteenth Amendment, like other parts of the Constitution, by presenting separately the various doctrinal topics it has raised.[1] The principal clauses of the Amendment, or really those in the second sentence of Section 1[2]—the Equal Protection, Due Process, and Privileges or Immunities Clauses—are generally extracted from its text and classes are structured around the leading cases decided under each and the resulting doctrine. Cases under the Equal Protection or Due Process Clause may be further separated. Based on the class of claimants, for instance, the cases involving racial …

Trump Anti-Trans Regs Vulnerable To Challenge, Arthur S. Leonard

Other Publications

No abstract provided.

Citizens Of The State, Maeve Glass

Faculty Scholarship

According to conventional wisdom, state citizenship emerged out of the localism of early America and gave way to national citizenship with the ratification of the Fourteenth Amendment. This Article offers a different account of state citizenship and, with it, new resources for analyzing the Constitution. It argues that far from a primordial category that receded into irrelevance, state citizenship provided a crucial strategic tool in America’s antislavery movement, as abolitionist lawyers used the label of state citizenship to build a coalition with white elites by reframing the issue of slavery from the rights of a black person to the sovereignty …

Enforcing The Rights Of Due Process: The Original Relationship Between The Fourteenth Amendment And The 1866 Civil Rights Act, Kurt T. Lash

Law Faculty Publications

For more than a century, legal scholars have looked to the 1866 Civil Rights Act for clues regarding the original meaning of the Fourteenth Amendment. Because the 1866 version of the Act protected only citizens of the United States, most scholars believe that the Act should be used as a guide to understanding the Fourteenth Amendment’s citizenship-based Privileges or Immunities Clause. A close look at the original sources, however, reveals that the 1866 Civil Rights Act protected rights then associated with the requirements of due process. The man who drafted Section One of the Fourteenth Amendment, John Bingham, expressly described …

Remedies And The Government's Constitutionally Harmful Speech, Helen Norton

Publications

Although governments have engaged in expression from their inception, only recently have we begun to consider the ways in which the government’s speech sometimes threatens our constitutional rights. In my contribution to this symposium, I seek to show that although the search for constitutional remedies for the government’s harmful expression is challenging, it is far from futile. This search is also increasingly important at a time when the government’s expressive powers continue to grow—along with its willingness to use these powers for disturbing purposes and with troubling consequences.

More specifically, in certain circumstances, injunctive relief, declaratory relief, or damages can …

Privacy's Double Standards, Scott Skinner-Thompson

Publications

Where the right to privacy exists, it should be available to all people. If not universally available, then privacy rights should be particularly accessible to marginalized individuals who are subject to greater surveillance and are less able to absorb the social costs of privacy violations. But in practice, there is evidence that people of privilege tend to fare better when they bring privacy tort claims than do non-privileged individuals. This disparity occurs despite doctrine suggesting that those who occupy prominent and public social positions are entitled to diminished privacy tort protections.

This Article unearths disparate outcomes in public disclosure tort …

The “New” District Court Activism In Criminal Justice Reform, Jessica A. Roth

Articles

Historically, the debate over the judicial role has centered on the constitutional and administrative law decisions of the United States Supreme Court, with an occasional glance at the Federal Courts of Appeals. It has, moreover, been concerned solely with the “in-court” behavior of Article III appellate judges as they carry out their power and duty “to say what the law is” in the context of resolving “cases and controversies.” This Article seeks to deepen the discussion of the appropriate role of Article III judges by broadening it to trial, as well as appellate, judges; and by distinguishing between an Article …

Socioeconomic Status Discrimination, Danieli Evans

Articles

This Article makes the case for protecting socioeconomic status (SES) under discrimination statutes that govern employment, housing, education, voting, public accommodations, and credit/lending. While others have argued that poverty should be a protected class under the Fourteenth Amendment, the courts have rejected this idea. The possibility of protecting SES under discrimination statutes has received little consideration. I argue that this idea deserves more serious attention. I advance four arguments in favor of adding SES to the list of protected traits. Two moral, one political, and one legal.

First and most straightforward, the values animating discrimination law apply to poverty: Existing …

Non-Alj Adjudicators In Federal Agencies: Status, Selection, Oversight, And Removal, Kent H. Barnett, Russell Wheeler

Georgia Law Review

This article republishes—in substantively similar form—our 2018 report to the Administrative Conference of the United States (ACUS) concerning federal agencies’ adjudicators who are not administrative law judges (ALJs). (We refer to these adjudicators as “non-ALJ Adjudicators” or “non-ALJs.”) As our data indicate, non-ALJs significantly outnumber ALJs. Yet non-ALJs are often overlooked and difficult to discuss as a class because of their disparate titles and characteristics. To obtain more information on non-ALJs, we surveyed agencies on non-ALJs’ hearings and, among other things, the characteristics concerning non-ALJs’ salaries, selection, oversight, and removal. We first present our reported data on these matters, which …

Stuck In Ohio's Legal Limbo, How Many Mistrials Are Too Many Mistrials?: Exploring New Factors That Help A Trial Judge In Ohio Know Whether To Exercise Her Authority To Dismiss An Indictment With Prejudice, Especially Following Repeated Hung Juries, Samantha M. Cira

Cleveland State Law Review

Multiple mistrials following validly-prosecuted trials are becoming an increasingly harsh reality in today’s criminal justice system. Currently, the Ohio Supreme Court has not provided any guidelines to help its trial judges know when to make the crucial decision to dismiss an indictment with prejudice following a string of properly-declared mistrials, especially due to repeated hung juries. Despite multiple mistrials that continue to result in no conviction, criminal defendants often languish behind bars, suffering detrimental psychological harm and a loss of personal freedom as they remain in “legal limbo” waiting to retry their case. Furthermore, continuously retrying defendants cuts against fundamental …

The “Right” Right To Environmental Protection: What We Can Discern From The American And Indian Constitutional Experience, Deepa Badrinarayana

Brooklyn Journal of International Law

Should there be a constitutional right to environmental protection? Arguments for and against are aplenty, but there is no consensus on this issue. Drawing on the experience within the U.S. and Indian Constitutions, this article posits that the right to environmental protection has normative and practical significance, because a constitutional right attaches to an individual and, hence, can protect an individual from environmental harms, whereas environmental laws, that focus primarily on reducing adverse environmental impact on a general population, may not. It further argues that, to be effective, three constitutionally-embedded rights that are central to preserving the right to environmental …

Rideout V. Riendeau: Grandparent Visitation In Maine After Troxel, Theodore A. Small

Maine Law Review

Rideout v. Riendeau presented a case in which two grandparents, Rose and Chesley Rideout, sought visitation of their three grandchildren. Though the Rideouts had served as the childrens' “primary caregivers and custodians” for significant periods of time, the childrens' parents, Heaven-Marie Riendeau, who was the Rideouts' daughter, and Jeffrey Riendeau, ended all contact between the children and the Rideouts due to a strained relationship between the Rideouts and the Riendeaus. The Rideouts filed a complaint pursuant to Maine's Grandparents Visitation Act (the Act), which allows grandparents to bring a petition for visitation when there is a “sufficient existing relationship between …