Fourteenth Amendment Commons^™

Law Office History And The Unrelenting Attack On Public Accommodations Law, James M. Oleske Jr.

William & Mary Bill of Rights Journal

In recent years, the cause of commercial liberty has found new life in litigation challenging public accommodations laws that prohibit discrimination by businesses on the basis of sexual orientation. Considerable scholarly attention has been paid to the use of the First Amendment as a liability shield in these cases, which have primarily been litigated on the terrain of free speech and religious liberty. But in amicus briefs filed in both cases that have reached the Supreme Court—303 Creative LLC v. Elenis and Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission—scholars who are skeptical of commercial regulation have also …

No Need To Wait: Congress Has The Power Under Section Five Of The Fourteenth Amendment To Abolish The Death Penalty In The States, Eric M. Freedman

William & Mary Bill of Rights Journal

Reformers currently proposing the abolition of capital punishment by federal legislation have only targeted the federal death penalty. They are aiming too low. Concerns about the roughly 50 prisoners facing execution by the federal government should not cause advocates to ignore the approximately 2,400 on the combined Death Rows of the states. Congress has the authority to abolish the death penalty in the states, and good reason to exercise it.

This Article takes as a given the Supreme Court’s view that the death penalty is not itself unconstitutional.

But under existing law Congress would have no difficulty in compiling a …

Expectation V. Reality: Practical Problems With The Right Of First Refusal As A Defense Against Eminent Domain, Aerin Christensen

BYU Law Review

In the wake of the U.S. Supreme Court’s decision in Kelo v. New London, many states enacted new laws to protect property owners from eminent domain. One possible defense for property owners is a statutory right of first refusal. In theory, this is a common-sense protection that ensures that if property is not needed for a public use, it is returned to the original owner. Unfortunately, in practice a right of first refusal is not always an effective protection for property owners.

The plaintiff’s experience in the Utah case Cardiff Wales, LLC v. Washington County School District demonstrates Utah’s statutory …

Privileges, Immunities, And Affirmative Action In Medical Education, Gregory Curfman

Journal of Law and Health

In Students for Fair Admissions v. President & Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina, the Supreme Court ruled that affirmative action in university admissions, in which an applicant of a particular race or ethnicity receives a plus factor, is unconstitutional. This ruling was based on both the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964. This article argues that a more natural fit as the basis for constitutional analysis would be a different clause in the Fourteenth Amendment, the Privileges or Immunities …

Slaughtering Slaughter-House: An Assessment Of 14th Amendment Privileges Or Immunities Jurisprudence, Caleb Webb

Senior Honors Theses

In 1872, the Supreme Court decided the Slaughter-House Cases, which applied a narrow interpretation of the Privileges or Immunities Clause of the 14^th Amendment that effectually eroded the clause from the Constitution. Following Slaughter-House, the Supreme Court compensated by utilizing elastic interpretations of the Due Process Clause in its substantive due process jurisprudence to cover the rights that would have otherwise been protected by the Privileges or Immunities Clause. In more recent years, the Court has heard arguments favoring alternative interpretations of the Privileges or Immunities Clause but has yet to evaluate them thoroughly. By applying the …

The Witch-Hunt For Spies - A Critique Of The China Initiative And National Security’S Outsized Influence In Equal Protection Analysis, Winni Zhang

Washington and Lee Journal of Civil Rights and Social Justice

The U.S. Government has increased its focus on Chinese espionage in the last decade in a randomized and unpredictable way. Primarily targeting Chinese scientists and academics, the “China Initiative” has resulted in widespread targeting of individuals based on their race, ethnicity, and national origin. The program was formally terminated and said to now be a part of a broader approach to nation-state threats. However, the outcomes and effect of the economic espionage charges in the last 15 years has greatly skewed towards prosecuting Chinese individuals irrespective of the name of the program. While protections typically exist in the law to …

Cherry-Picking History: Witchcraft, The Common Law, And The Weaponization Of Substantive Due Process, Sarah E. Bradley

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

In 2021, the Supreme Court sharply altered its substantive due process analysis in Dobbs v. Jackson Women’s Health Organization, reversing the 49-year-old decision in Roe v. Wade to establish abortion access as a constitutional right. The Court reframed its substantive due process analysis as a two-step test, requiring a right to be narrowly framed and “deeply rooted in history and tradition” before it could be analyzed as “implicit in the concept of liberty,” instead of its previous balancing test that involved a broad description of the right. In the Dobbs majority opinion, the Court cherry-picked elements of common law …

Accessing The Arts: The Use Of Reproductive Justice In The Fight For Lgbt+ Rights, Leila Y. Vicinelli

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

Procreation has long been an integral component within the family structure. While the ability to produce offspring was once a privilege reserved for fertile, heterosexual pairings, modern advancements in Assisted Reproduction Technology (ART) have made same-sex procreation possible. Although ART makes it possible for same-sex couples to biologically produce offspring , accessibility to treatment is often hindered by financial, legal, and social impediments. This Note will explore the current limitations on LGBT+ accessibility to ART treatments and provide much needed solutions for these challenges. In a post-Obergefell world, the prominence of and rights owed to same-sex households can no …

In Pursuit Of Collective Liberation In Feminist Constitutionalism, Yvette Butler

Michigan Law Review

A review of After Misogyny: How The Law Fails Women and What to Do About It. By Julie C. Suk.

Without Due Process Of Law: The Dobbs Decision And Its Cataclysmic Impact On The Substantive Due Process And Privacy Rights Of Ohio Women, Jacob Wenner

Journal of Law and Health

Since the overturning of prior abortion precedents in Dobbs v. Jackson Women’s Health Organization, there has been a question on the minds of many women in this country: how will this decision affect me and my rights? As we have seen in the aftermath of Dobbs, many states have pushed for stringent anti-abortion measures seeking to undermine the foundation on which women’s reproductive freedom had been grounded on for decades. This includes right here in Ohio, where Republican lawmakers have advocated on numerous occasions for implementing laws seeking to limit abortion rights, including a 6-week abortion ban advocated …

Paradoxical Citizenship, Amanda Frost

William & Mary Law Review

In their article, The “Free White Person” Clause of the Naturalization Act of 1790 as Super-Statute, Gabriel J. Chin and Paul Finkelman make a powerful case that the Naturalization Act of 1790 is a “super-statute” that has shaped not only U.S. immigration law and policy, but also America’s conception of itself as a “White nation.”

[...]

This Comment explores the conflict between the Naturalization Act’s racial restrictions on citizenship (and its proponents’ vision of the United States as a White nation) and the Fourteenth Amendment’s Citizenship Clause (and its proponents’ vision of the United States as a multiracial …

Protecting "Sincerely Held Religious Beliefs": Lessons From Mississippi Hb 1523, Lindsay Krout Roberts

MC Law Review

The United States Supreme Court's revolutionary ruling in Obergefell v. Hodges, which guaranteed marriage equality for homosexual couples in every state, gave life to a new challenge in the area of free exercise of religion: to what extent should persons with religious objections to same-sex marriages be forced to participate in them? Should a Christian baker be legally required to bake a wedding cake for a homosexual marriage to which he or she objects? Must a county clerk with religious objections to homosexual marriage sign a marriage license for a same-sex couple?

In an attempt to pre-empt these types of …

“I Wish I Knew How It Would Feel To Be Free”: A Lamentation On Dobbs V. Jackson’S Pernicious Impact On The Lives And Liberty Of Women, April L. Cherry

Cleveland State Law Review

On June 24, 2022, the Supreme Court overturned nearly fifty years of precedent when it declared in Dobbs v. Jackson Women’s Health Organization that abortion was not a fundamental right, and therefore it was not protected by the Fourteenth Amendment and substantive due process. In law school corridors and legal scholar circles, discussion of the Court’s evisceration of abortion rights focused on the corresponding changes in Fourteenth Amendment jurisprudence and the Court’s outright dismissal of stare decisis. But in homes, hospitals, community centers, and workplaces, different conversations were happening. Conversations, mostly had by women, concerned the real-life consequences of overturning …

My Body, Whose Choice? A Case For A Fundamental Right To Bodily Autonomy, Miri Trauner

Brooklyn Law Review

In 2022, the US Supreme Court decided Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade and the fundamental right to abortion it had established nearly fifty years prior. The Court’s decision threw into uncertainty the future of not only reproductive rights in this country, but also many other individual rights. At the same time as the decision, the world was still reeling from a global pandemic, and the development of COVID-19 vaccines had spurred widespread controversy over the constitutionality of vaccine mandates. Both advocates for abortion access and opponents to vaccine mandates shared a common cry: “my …

Rereading Pico And The Equal Protection Clause, Johany G. Dubon

Fordham Law Review

More than forty years ago, in Board of Education v. Pico, the U.S. Supreme Court considered the constitutionality of a school board’s decision to remove books from its libraries. However, the Court’s response was heavily fractured, garnering seven separate opinions. In the plurality opinion, three justices stated that the implicit corollary to a student’s First Amendment right to free speech is the right to receive information. Thus, the plurality announced that the relevant inquiry for reviewing a school’s library book removal actions is whether the school officials intended to deny students access to ideas with which the officials disagreed. …

Fourteen Going On Forty: Challenging Sex Offender Registration For Juveniles Under The Fourteenth Amendment Equal Protection Clause, Emily Baker

William & Mary Bill of Rights Journal

Part I of this Note reviews the historical background leading to the development of sex offender registration laws and examines relevant Supreme Court precedent. Part II analyzes the principles of juvenile justice, the application of juvenile sex offender registration policies, and the collateral consequences of youth sex offender registration. Part III argues that registered juvenile offenders should be considered a quasi-suspect class and thus receive intermediate scrutiny in equal protection analysis, and challenges the constitutionality of juvenile sex offender registries, particularly the South Carolina statutory scheme. Part IV examines the turning legal tide against juvenile registration through the recent Model …

How Can You Tell If There Is A Crisis? Data And Measurement Challenges In Assessing Jury Representation, Mary R. Rose, Marc A. Musick

Chicago-Kent Law Review

No abstract provided.

The Arrival Of The Civil Jury In Argentina: The Case Of Chaco, Shari S. Diamond, Valarie P. Hans, Natali Chizik, Andres Harfuch

Chicago-Kent Law Review

No abstract provided.

Lay Participation Reform In China: Opportunities And Challenges, Zhiyuan Guo

Chicago-Kent Law Review

No abstract provided.

Beacons Of Democracy? A Worldwide Exploration Of The Relationship Between Democracy And Lay Participation In Criminal Cases, Sanja K. Ivkovic, Valarie P. Hans

Chicago-Kent Law Review

No abstract provided.