Social and Behavioral Sciences Commons^™

The Unabridged Fifteenth Amendment, Travis Crum

Scholarship@WashULaw

In the legal histories of Reconstruction, the Fifteenth Amendment’s drafting and ratification is an afterthought compared to the Fourteenth Amendment. This oversight is perplexing given that the Fifteenth Amendment ushered in a brief period of multi-racial democracy and laid the constitutional foundation for the Voting Rights Act of 1965. This Article helps to complete the historical record and provides a thorough accounting of the Fifteenth Amendment’s text, history, and purpose.

This Article situates the Fifteenth Amendment within the broad array of constitutional provisions, federal statutes, fundamental conditions, and state laws that enfranchised—and disenfranchised—Black men during Reconstruction. This Article then performs …

Out Of Bounds?: Abortion, Choice Of Law, And A Modest Role For Congress, Susan Frelich Appleton

Scholarship@WashULaw

This invited contribution to a symposium on the multiple intersections of family law and constitutional law grapples with the emerging problems of jurisdictional competition and choice of law in interstate abortion situations in the wake of Dobbs v. Jackson Women’s Health Organization—as abortion-hostile states seek to impose restrictions beyond their borders and welcoming states seek to become havens for abortion patients, regardless of their domicile. Grounded in a conflict-of-laws perspective, the essay lays out the interstate abortion chaos invited by Dobbs and the threat to our federal system that it presents, given Congress’s failure to codify a national right to …

Becoming The Administrator-In-Chief: Myers And The Progressive Presidency, Andrea Scoseria Katz, Noah A. Roseblum

Scholarship@WashULaw

In a series of recent cases, the Supreme Court has mounted an assault on the administrative state, guided by a particular vision of Article II. According to the Court’s scheme, known as the theory of the unitary executive, all of government’s operations must be housed under one of three branches, with the single head of the executive branch shouldering a unique and personal responsibility for the administration of federal law. The Constitution is thus said to require that the President have expansive authority to supervise or control the government’s many agencies.

Guiding each of the Court’s recent decisions is Myers …

First Amendment Scrutiny: Realigning First Amendment Doctrine Around Government Interests, John D. Inazu

Scholarship@WashULaw

This Article proposes a simpler way to frame judicial analysis of First Amendment claims: a government restriction on First Amendment expression or action must advance a compelling interest through narrowly tailored means and must not excessively burden the expression or action relative to the interest advanced. The test thus has three prongs: (1) compelling interest; (2) narrow tailoring; and (3) proportionality.

Part I explores how current First Amendment doctrine too often minimizes or ignores a meaningful assessment of the government’s purported interest in limiting First Amendment liberties. Part II shows how First Amendment inquiry is further confused by threshold inquiries …

The Lawfulness Of The Fifteenth Amendment, Travis Crum

Scholarship@WashULaw

One of the most provocative debates in constitutional theory concerns the lawfulness of the Reconstruction Amendments’ adoptions. Scholars have contested whether Article V permits amendments proposed by Congresses that excluded the Southern States and questioned whether those States’ ratifications were obtained through unlawful coercion. Scholars have also teased out differences in how States were counted for purposes of ratifying the Thirteenth and Fourteenth Amendments. This debate has focused exclusively on the Thirteenth and Fourteenth Amendments, dismissing the Fifteenth Amendment as a mere sequel.

As this Essay demonstrates, the unique issues raised by the Fifteenth Amendment’s ratification adds important nuance to …

Centering Noncitizens’ Free Speech, Gregory P. Magarian

Scholarship@WashULaw

First Amendment law pays little attention to noncitizens’ free speech interests. Perhaps noncitizens simply enjoy the same First Amendment rights as citizens. However, ambivalent and sometimes hostile Supreme Court precedents create serious cause for concern. This Essay advocates moving noncitizens’ free speech from the far periphery to the center of First Amendment law. Professor Magarian posits that noncitizens epitomize a condition of speech inequality, in which social conditions and legal doctrines combine to create distinctive, unwarranted barriers to full participation in public discourse. First Amendment law can ameliorate speech inequality by promoting an ethos of free speech obligation, amplifying the …

Assessing Affirmative Action's Diversity Rationale, Kyle Rozema, Adam Chilton, Justin Driver, Jonathan S. Masur

Scholarship@WashULaw

Ever since Justice Lewis Powell’s opinion in Regents of the University of California v. Bakke made diversity in higher education a constitutionally acceptable rationale for affirmative action programs, the diversity rationale has received vehement criticism from across the ideological spectrum. Critics on the right argue that diversity efforts lead to “less meritorious” applicants being selected. Critics on the left charge that diversity is mere “subterfuge.” On the diversity rationale’s legitimacy, then, there is precious little diversity of thought. In particular, prominent scholars and jurists have cast doubt on the diversity rationale’s empirical foundations, claiming that it rests on an implausible …

Covid-19, Churches, And Culture Wars, John D. Inazu

Scholarship@WashULaw

The First Amendment’s Free Exercise Clause often requires courts to balance competing interests of the highest order. On the one hand, the Constitution recognizes the free exercise of religion as a fundamental right. On the other hand, the government sometimes has compelling reasons for limiting free exercise, especially in situations involving dangers to health and safety. The shutdown and social distancing orders issued during the early phases of the COVID-19 pandemic not only restricted free exercise but also limited what many people consider to be the core of that exercise: religious worship. But the orders did so in order to …

The Informed Jury, Daniel Epps, William Ortman

Scholarship@WashULaw

The right to a criminal jury trial is a constitutional disappointment. Cases almost never make it to a jury because of plea bargaining. In the few cases that do, the jury is relegated to a narrow factfinding role that denies it normative voice or the ability to serve as a meaningful check on excessive punishment.

One simple change could situate the jury where it belongs, at the center of the criminal process. The most important thing juries do in criminal cases is authorize state punishment. But today, when a jury returns a guilty verdict, it authorizes punishment without any idea …

Deregulated Redistricting, Travis Crum

Scholarship@WashULaw

From the civil rights movement through the Obama administration, each successive redistricting cycle involved ever-greater regulation of the mapmaking process. But in the past decade, the Supreme Court has re-written the ground rules for redistricting. For the first time in fifty years, Southern States will redistrict free of the preclearance process that long protected minorities from having their political power diminished. Political parties can now openly engage in egregious partisan gerrymandering.

The Court has withdrawn from the political thicket on every front except race. In so doing, the Court has engaged in decision-making that is both activist and restrained, but …

Checks And Balances In The Criminal Law, Daniel Epps

Scholarship@WashULaw

The separation of powers is considered essential in the criminal law, where liberty and even life are at stake. Yet the reasons for separating criminal powers are surprisingly opaque, and “the separation of powers” is often used to refer to distinct, and sometimes contradictory, concepts.

This Article reexamines the justifications for the separation of powers in criminal law. It asks what is important about separating criminal powers and what values such separation serves. It concludes that in criminal justice, the traditional Madisonian approach of separating powers between functionally differentiated political institutions—legislature, executive, and judiciary—bears no necessary connection to important values …

The Lost Promise Of Progressive Formalism, Andrea Scoseria Katz

Scholarship@WashULaw

Today, any number of troubling government pathologies—a lawless presidency, a bloated and unaccountable administrative state, the growth of an activist bench—are associated with the emergence of a judicial philosophy that disregards the “plain meaning” of the Constitution for a loose, unprincipled “living constitutionalism.” Many trace its origins to the Progressive Era
(1890–1920), a time when Americans turned en masse to government as the solution to emerging problems of economic modernity—financial panics, industrial concentration, worsening workplace conditions, and skyrocketing unemployment and inequality—and, the argument goes, concocted a flexible, new constitutional philosophy to allow the federal government to take on vast, new …

The Right Approach To Harmless Error, Daniel Epps

Scholarship@WashULaw

My article “Harmless Errors and Substantial Rights” challenged conventional wisdom about the harmless constitutional error doctrine in criminal procedure. Specifically, I contended that the traditional way of understanding harmless error as a remedial doctrine rooted in so-called “constitutional common law” created significant anomalies. Instead, harmless constitutional error doctrine can only be understood as part of the definition and judicial enforcement of constitutional rights.

Few legal scholars have thought as deeply about the mysteries of harmless error as Professor John M. Greabe, and he is well equipped to give the remedial perspective the best possible defense. Nonetheless, despite Professor Greabe’s able …

The Superfluous Fifteenth Amendment?, Travis Crum

Scholarship@WashULaw

This Article starts a conversation about reorienting voting rights doctrine toward the Fifteenth Amendment. In advancing this claim, I explore an unappreciated debate—the “Article V debate”—in the Fortieth Congress about whether nationwide black suffrage could and should be achieved through a statute, a constitutional amendment, or both. As the first significant post-ratification discussion of the Fourteenth Amendment, the Article V debate provides valuable insights about the original public understandings of the Fourteenth and Fifteenth Amendments and the distinction between civil and political rights.

The Article V debate reveals that the Radical Republicans’ initial proposal for nationwide black suffrage included both …

Reconstructing Racially Polarized Voting, Travis Crum

Scholarship@WashULaw

Racially polarized voting makes minorities more vulnerable to discriminatory changes in election laws and therefore implicates nearly every voting rights doctrine. In Thornburg v. Gingles, the Supreme Court held that racially polarized voting is a necessary—but not a sufficient—condition for a vote dilution claim under Section 2 of the Voting Rights Act. The Court, however, has recently questioned the propriety of recognizing the existence of racially polarized voting. This colorblind approach threatens not only the Gingles factors but also Section 2’s constitutionality.

The Court treats racially polarized voting as a modern phenomenon. But the relevant starting point is the 1860s, …

Taking Stock Of The Religion Clauses, John D. Inazu

Scholarship@WashULaw

After a few decades of relative quiet, the Supreme Court has in recent years focused once again on the religion clauses and related statutes.

The Voting Rights Act’S Secret Weapon: Pocket Trigger Litigation And Dynamic Preclearance, Travis Crum

Scholarship@WashULaw

Following NAMUDNO, the search is on for a way to save section 5 of the Voting Rights Act (VRA). This Note offers a solution through an examination of the VRA’s most obscure provision: section 3. Commonly called the bail-in mechanism or the pocket trigger, section 3 authorizes federal courts to place states and political subdivisions that have violated the Fourteenth or Fifteenth Amendments under preclearance. This Note makes a two-part argument. First, the pocket trigger should be used to alleviate the NAMUDNO Court’s anxiety over the coverage formula’s differential treatment of the states. The Justice Department and civil rights groups …