Fourteenth Amendment Commons^™

Foia Vs. Fair Trial: How The Freedom Of Information Act Limits The Ability To Uncover Brady Material In Federal Post-Conviction Proceedings, Anna Marchiony

University of Cincinnati Law Review

No abstract provided.

The Search For Unenumerated Fundamental Rights, Alina Sluzhyvenkova

Student Theses and Dissertations

There are certain rights that are explicitly enumerated in the Constitution, e.g., right to bear arms, right to free speech, right to a speedy and public trial. There are also rights that aren’t specifically written out but are nevertheless enjoyed by people nationwide. Rights that aren’t explicitly mentioned in the Constitution, but which are fundamental to are called the unenumerated rights. Unenumerated rights are just as important and can be derived from natural law, enumerated rights, the Ninth Amendment, precedents, judicial opinions, and substantive due process.

Substantive due process is a principle guaranteed by the Fifth and Fourteenth Amendments, which …

The Trouble With Classifications, Aziz Z. Huq

Notre Dame Law Review

The Supreme Court relies increasingly on anticlassification rules to implement the Constitution’s various commands of evenhanded state treatment. These rules direct attention to whether an instance of a forbidden classification is present on the face of a challenged law. They contain two necessary steps. First, a court defines a general category of impermissible terms. Second, a court ascertains whether an instance of the category is found in enacted text—so triggering the familiar strict scrutiny analysis. So defined, anticlassification rules now dominate equal protection, free speech, “dormant” Commerce Clause, and even free exercise jurisprudence. The Roberts Court celebrates these doctrinal tests …

Batson Challenges In Federal, Kansas, And Missouri Courts, Matt Champagne

Law Student Works

In Batson v. Kentucky, 474 U.S. 79 (1986), the Supreme Court of the United States (“SCOTUS”) ruled generally that the use of peremptory strikes to disqualify potential jurors based solely on their race violated the Equal Protection Clause of the Fourteenth Amendment. Specifically, the Court held that the use of peremptory strikes by the prosecution to exclude all four Black potential jurors from a jury pool, thus seating an all-white petit jury, on no other grounds besides the perspective jurors’ race violated a Black man’s right to equal protection under the Fourteenth Amendment. The Court reasoned that the exclusion of …

Freedom And Families: Reconstruction Republicans And The Question Of Women's Reproductive Autonomy, Kate Masur

William & Mary Bill of Rights Journal

This Essay proceeds in three Parts. In the first, I illuminate how congressional Republicans discussed women, gender, and families in the context of policymaking associated with abolishing slavery. Many Republicans worried that enslaved people’s family relationships had been damaged by the imposition of slavery and sought to impose on freedpeople what they saw as normative family values, including by encouraging heterosexual marriage and by insisting on patriarchal gender roles within families. Second, I show that Republicans were at pains to demonstrate that when they talked about equality, they meant race but not gender. Finally, I reflect on the limits of …

Liberty And Equality Under The First Amendment: Scrutinizing Book Bans Through An Equal Protection Framework, Sarah Ryan

Brooklyn Law Review

While the constitutional text refers only to liberty, equality has been recognized as an implicit principle of the First Amendment. The guarantee of free speech ensures an equal opportunity for every voice to be heard. As school book bans proliferate, the consistent targeting of titles containing themes of race or LGBTQIA+ identity reveals a discriminatory motivation on the part of state actors. The resultant infringement on students’ right to receive information, as well as the unequal treatment of particularly-themed content would seemingly run afoul of both the First Amendment and the Equal Protection Clause. Given the broad discretion granted to …

Pathways To A Diverse Legal Academy: Pipeline Programs After Sffa, Steven W. Bender

Seattle University Law Review Online

Responding to the Supreme Court’s 2023 Students for Fair Admissions, Inc. v. President & Fellows of Harvard College (SFFA) decision invalidating race-conscious admission policies in a public and private university, I urge an emphasis on pipeline programs to ensure law school admissions pools include racially diverse applicants. I detail my school’s pipeline programs for high school, college students, and recent college graduates—both as these programs were implemented before the Court’s decision and as they changed in its wake—as examples of what law schools generally, and collectively, should be doing. Most importantly, I focus on the lawful recruitment, design, and content …

Egbert V. Boule And The Dwindling Bivens Doctrine, Luke Smith

MC Law Review

No abstract provided.

A Fundamental Failing: The Mississippi Judiciary's Abrogation Of Its Constitutional Duty, Brad Robertson

MC Law Review

No abstract provided.

Abortion Access For Incarcerated People Post-Dobbs, Kate Bock

Michigan Journal of Gender & Law

Dobbs v. Jackson Women’s Health Organization has fundamentally altered the legal landscape regarding abortion access. Though abortion rights for all people across the United States have now been eliminated or are in jeopardy, incarcerated people are a particularly vulnerable group, given the way carceral institutions restrict autonomy and the drastic health implications of an unwanted pregnancy while confined. Before Dobbs, detained people retained the constitutional right to an elective abortion while incarcerated. To remedy violations of this right, women brought claims under the Fourteenth Amendment and the Eighth Amendment. In a post-Roe world, however, incarcerated folks denied abortion …

The Consequences And Constitutionality Of Training Police To Blame Victims, Margareth Etienne, Richard H. Mcadams

William & Mary Law Review

A common technique in American interrogations is “moral minimization,” in which investigators excuse or justify the suspect’s criminal behavior on moral grounds. A surprising type of moral minimization is explicit victim-blaming, which includes blaming the victim by endorsing negative stereotypes on the basis of gender, race, religion, or sexual orientation, what we call victim-blaming-bystereotype. No one has previously considered the policy wisdom or constitutionality of this technique. We explore the unintended consequences. One cost is the secondary victimization of those who suffer from crime, especially when they discover how detectives have disparaged them. The second is the effect on the …

Transcript: Structural Racism, The Healthcare System And Health Justice, Ruquaiijah Yearby

Journal of Law and Health

The following is a transcript from Racial Disparities and Outcomes presented at Cleveland State University College of Law by the Journal of Law and Health on Friday, February 9, 2024. This transcript has been lightly edited for clarity and to reflect updates in the relevant law since the time of transcription.

The Fourteenth Amendment And The Vénus Noire, Farah Peterson

William & Mary Law Review

This Essay makes two points. The first is that originalism is not a promising path for progressive causes. The second is that as the Constitution is amended, the meaning of the entire document is altered, and earlier text should be interpreted in light of what has changed. But instead of making these observations in the usual law review style, I’m calling on a figure out of nineteenth-century art, the Vénus Noire, to serve as our companion and guide.

This abstract has been taken from the author's introductory paragraphs.

Three's A Crowd: Addressing Discrimination Faced By Queer De Facto Parents In Child Custody Standing Proceedings, Shannon E. Callaghan

William & Mary Journal of Race, Gender, and Social Justice

In the United States, between five percent and eight percent of adults identify as queer, and as of 2020, fifteen percent of queer couples have children in their households. While recent legal victories have expanded queer rights, family law continues to lag in affording legal recognition to “nontraditional” families. This is particularly problematic for unmarried, queer co-parents who have virtually no legal claims to the children they have raised with their partners. Current standing requirements for custody proceedings treat these de facto parents as legal strangers to their children due to the absence of biological, marital, or adoptive ties. As …

Contempt: The Original Judicial Cheat Code, Ryan L. Scott

Dickinson Law Review (2017-Present)

The judicial contempt power challenges the fundamental rights enshrined in America’s Constitution. Imagine spending eight years in federal prison with no right to a jury trial or a court appointed attorney. Your only reprieve is the discretion of the judge who is imprisoning you. Meaningful appeals and even habeas corpus actions are generally not available remedies. Instead, what was originally justified as an inherent power of the court, necessary to maintain order and decorum, is increasingly used for trivial offenses or to incarcerate individuals for far longer than their possible crimes would otherwise warrant.

Despite widespread instances of abuse of …

Dignifying Queerness, Ryan Thoreson

Cardozo Law Review

In recent years, courts that have affirmed the right of lesbian, gay, bisexual, and transgender (LGBT) people to engage in same-sex activity have often invoked the value of dignity. They have done so in spite of the fact that same-sex activity, and many other kinds of sex, have historically been deemed undignified and subject to criminal prohibition. This Article examines a rapidly growing body of comparative jurisprudence to examine how dignity has become an unlikely cornerstone of efforts to decriminalize same-sex conduct. By invoking dignity, courts have persuasively struck down some of the most immediate and egregious restrictions on sexual …

Women On Death Row In The United States, Sandra Babcock, Nathalie Greenfield, Kathryn Adamson

Cardozo Law Review

This Article presents a comprehensive study of forty-eight persons sentenced to death between 1990 and 2022 who were legally recognized as women at the time of their trials. Our research is the first of its kind to conduct a holistic and intersectional analysis of the factors driving women’s death sentences. It reveals commonalities across women’s cases, delving into their experiences of motherhood, gender-based violence (“GBV”), and prior involvement with the criminal legal system. We also explore the nature of the women’s crimes of conviction, including the role of male codefendants and the state’s use of aggravating factors. Finally, we reveal …

Section Three Of The Fourteenth Amendment: Insurrection, Mark A. Graber

William & Mary Bill of Rights Journal

The public, scholarly, and legal debate over whether former president Donald Trump is eligible to hold office under Section Three of the Fourteenth Amendment has focused far more on technical legal questions than on whether Trump engaged in an insurrection. Scholarly and public commentary rarely examines the constitutional/ common law of insurrection, preferring instead to examine whether Trump is exempt from Section Three because Section Three either exempts presidents or the presidency from disqualification or because Section Three is not self-executing. Trump v. Anderson (2024) focused on state incapacity to disqualify “oathbreaking insurrectionists” rather than on whether Trump was an …

Life, Liberty, And Freedom From Non-Consensual Pelvic Exams?, Michaela Cotton

William & Mary Bill of Rights Journal

[T]here is a need for the federal government to intervene and finally ban the practice of performing non-consensual pelvic exams, and it can do so under the Due Process Clause of the Fourteenth Amendment, which guarantees the right to refuse involuntary medical treatment. Part I will provide a brief overview of pelvic exams and informed consent; Part II draws on policy considerations for banning this practice and tackles counter-arguments; Part III will discuss the relevant federal law and case precedent; Part IV demonstrates how federal law applies to non-consensual pelvic exams; and, finally, Part V will further explain the need …

Brown V. Board Of Education: Enduring Caste And American Betrayal, Sheryll Cashin

Georgetown Law Faculty Publications and Other Works

This article reflects on the role of residential caste in reproducing school segregation and how the Supreme Court betrays the equality principles of Brown by applying a colorblind constitutionalism that renders so-called de facto residential caste, and subsequent school segregation, acceptable.

During the seven-decade Great Migration of the 20^th century, northern cities deployed policies to create an architecture of inequality in which African Americans and white Americans did not live in the same neighborhoods. While the Fair Housing Act of 1968 rendered intentional discrimination in housing markets illegal, and the Court also ruled against forms of intentional housing discrimination, …