Fourteenth Amendment Commons^™

First Amendment Lochnerism & The Origins Of The Incorporation Doctrine, James Y. Stern

Faculty Publications

The 20th century emergence of the incorporation doctrine is regarded as a critical development in constitutional law, but while issues related to the doctrine's justification have been studied and debated for more than fifty years, the causes and mechanics of its advent have received relatively little academic attention. This Essay, part of a symposium on Judge Jeffrey Sutton's recent book about state constitutional law, examines the doctrinal origins of incorporation, in an effort to help uncover why the incorporation doctrine emerged when it did and the way it did. It concludes that, for these purposes, incorporation is best understood as …

Do Abolitionism And Constitutionalism Mix?, Aya Gruber

Publications

No abstract provided.

Making Litigating Citizenship More Fair, Ming H. Chen

Publications

No abstract provided.

Reproductive Health Care Exceptionalism And The Pandemic, Helen Norton

Publications

No abstract provided.

A Unified Constitutional View Of Financial Punishment: Synthesizing The Excessive Fines Clause And Bearden­ Based Protections, Joshua A. Feinzig

Faculty Scholarship

This Note coordinates the Eighth Amendment Excessive Fines Clause with the Fourteenth Amendment wealth-discrimination protection set forth in Bearden v. Georgia It is generally assumed that the two protections operate independently: while the Excessive Fines Clause protects individuals against exorbitant financial obligations, Bearden limits the state from converting criminal debt into a severe liberty deprivation. But in recognizing how the two doctrines are normatively and functionally reinforcing, this Note proposes a single framework for considering financial punishment's constitutionality.

If the Eighth Amendment protection applies at the imposition of a financial punishment, Bearden provides a "second look" at the constitutionality of …

The Rise And Fall Of Transcendent Constitutionalism In The Civil War Era, Cynthia Nicoletti

Faculty Scholarship

In the aftermath of the Civil War, American intellectuals saw the war itself as a force of transcendent lawmaking. They viewed it as a historical catalyst that had forged the United States into a nation. In writing the Fourteenth Amendment, Congress sought to translate the war's nationalistic spirit into text. But in the eyes of many contemporary thinkers, the war's centripetal energy was a doubleedged sword. It could create a nation out of disparate parts, but it was also potentially uncontainable, divorced from the regular lawmaking process and beyond the control of human actors. As a result, many American jurists …

The Separation Of Migrant Families At The Border Under The Trump Administration’S Zero-Tolerance Policy: A Critical Analysis Of The Mistreatment Of Immigrant Children Held In U.S. Custody, Dhillon Ramkhelawan

Child and Family Law Journal

This article provides a critical analysis of the Trump Administration’s zero-tolerance policy that separated migrant families at the Southwest United States border from April to June 2018. It will provide a statistical analysis regarding the number of migrant children that were separated from their parents during this time period, and it will describe the poor living conditions that many of these children were subjected to as they waited for their parent’s immigration cases to be decided. Additionally, this article will also critically analyze the United States’ history of mistreating migrant children who started to flee their war-torn countries in Central …

The Privileges Or Immunities Clause, Abridged: A Critique Of Kurt Lash On The Fourteenth Amendment, Randy E. Barnett, Evan D. Bernick

Notre Dame Law Review

In earlier writings, both of us have expressed sympathy for the view that the Privileges or Immunities Clause affords absolute protection to unenumerated rights, such as those contained in the Civil Rights Act of 1866, and authorizes Congress to enact protective legislation. Neither of us, however, has engaged with Kurt Lash’s most recent and unique two-class interpretation of the original meaning of the Privileges or Immunities Clause in the depth that it deserves. Nor have we evaluated his recent efforts to demonstrate that the Fourteenth Amendment’s Due Process of Law Clause empowers the federal courts and Congress to protect unenumerated …

The Enumerated-Rights Reading Of The Privileges Or Immunities Clause: A Response To Barnett And Bernick, Kurt T. Lash

Notre Dame Law Review

In their new article, The Privileges or Immunities Clause, Abridged: A Critique of Kurt Lash on the Fourteenth Amendment, Randy Barnett and Evan Bernick insist that this historical evidence does not support the enumerated-rights reading. Instead, Barnett and Bernick embrace what I call the “fundamental-rights” reading of the Privileges or Immunities Clause. This view maintains that the Clause should be understood as protecting a set of absolute rights nowhere expressly enumerated in the text of the Constitution, for example the unenumerated economic right to contract or to pursue a trade.

Rather than agreeing with John Bingham, Barnett and Bernick …

The Difference Narrows: A Reply To Kurt Lash, Randy E. Barnett, Evan D. Bernick

Notre Dame Law Review

We thank the Notre Dame Law Review for allowing us to respond to Kurt Lash’s reply to our critique of his interpretation of the Privileges or Immunities Clause. We could forgive readers for having difficulty adjudicating this dispute. When Lash argues, evidence always comes pouring forth, and the sheer volume can overwhelm the senses. We sometimes have a hard time following his arguments, and we are experts in the field. We can only imagine how it seems to those who are otherwise unfamiliar with this terrain.

So, in this reply—with a few exceptions—we will avoid piling up any new evidence …

Rediscovering Corfield V. Coryell, Gerard N. Magliocca

Notre Dame Law Review

This Article reveals new details about Corfield v. Coryell based on archival research. In 2017, the author found Justice Washington’s original notes on Corfield in the Chicago History Museum. The most important revelation about Corfield is that the Justice was initially inclined to hold that the state law his decision upheld was, in fact, unconstitutional under the Privileges and Immunities Clause. The notes also say that he saw Livingston v. Van Ingen as the leading precedent on the Privileges and Immunities Clause and backed Chancellor Kent’s view in that case that the Clause articulated a nondiscrimination rule for out-of-state citizens …

De Facto State: Social Media Networks And The First Amendment, Paul Domer

Notre Dame Law Review

In Marsh v. Alabama, a Jehovah’s Witness was arrested and convicted of trespassing for proselytizing on a public sidewalk that nonetheless was, like everything else in the “company town,” privately owned. The Court reversed, holding that the First and Fourteenth Amendments applied against a private actor if it exercised all the powers and responsibilities traditionally associated with a government—policing, utilities, and traffic control, for example. Writing for the majority, Justice Black declared, “The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the …

Wealth, Equal Protection, And Due Process, Brandon L. Garrett

William & Mary Law Review

Increasingly, constitutional litigation challenging wealth inequality focuses on the intersection of the Equal Protection and Due Process Clauses. That intersection—between equality and due process—deserves far more careful exploration. What I call “equal process” claims arise from a line of Supreme Court and lower court cases in which wealth inequality is the central concern. For example, the Supreme Court in Bearden v. Georgia conducted analysis of a claim that criminal defendants were treated differently based on wealth in which due process and equal protection principles converged. That equal process connection is at the forefront of a wave of national litigation concerning …

American Legion V. American Humanist Association, Seth T. Bonilla

Public Land & Resources Law Review

The separation of church and state is a key element of American democracy, but its interpretation has been challenged as the country grows more diverse. In American Legion v. American Humanist Association, the Supreme Court adopted a new standard to analyze whether a religious symbol on public land maintained by public funding violated the Constitution’s Establishment Clause.

Mestizaje/Mesticagem: Racism & Citizenship In Latin America, Tanya Hernandez, Yuko Miki, Nitza Escalera

Posters

Maloney Library lecture series, Behind the Book

The Noisy "Silent Witness": The Misperception And Misuse Of Criminal Video Evidence, Aaron M. Williams

Indiana Law Journal

This Note examines recent developments in the research of situational video evidence biases. Part I examines the current and growing body of psychological research into the various situational biases that can affect the reliability of video evidence and the gaps in this research that require further attention from researchers and legal academics. Because these biases do not “operate in a vacuum,” Part I also examines some of the recent and exciting research into the interaction between situational and dispositional biases. Part II examines the development of camera and video processing technology and its limitations as a means of mitigating such …

Dehumanization, Immigrants, And Equal Protection, Reginald Oh

Law Faculty Articles and Essays

This article is divided into three parts. Part I explores the concept of dehumanization and its central role in the subordination of marginalized groups. Part II discusses the equal protection doctrine of suspect classes by analyzing key decisions by the Court and its reasoning for whether or not to consider a particular group as a suspect class. Part II also argues that the decision in Brown v. Board of Education regards racial segregation in public schools as a form of racial dehumanization and provides the doctrinal basis to consider dehumanization a central factor in determining suspect class status. Part III …

Making The Leap From Bullying To Equality: An Analysis Of Transgender Student Rights, Nathan Ades

Cardozo Journal of Equal Rights & Social Justice

The note examines the legal and political landscape surrounding transgender students' rights, particularly under Title IX, following the withdrawal of Obama-era guidelines by the Trump administration. This withdrawal has led to significant legal confusion and variability in protections across jurisdictions. The analysis suggests that advocating for antibullying policies may offer a more effective strategy for advancing transgender rights, especially in conservative states, by avoiding direct confrontation with gender identity issues.

Out Of The Quandary: Personal Jurisdiction Over Absent Class Member Claims Explained, A. Benjamin Spencer

Faculty Publications

Since the Supreme Court's decision in Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County, litigants and lower courts have wrestled with the issue of whether a federal court must be able to exercise personal jurisdiction with respect to each of the claims asserted by absent class members in a class action and, if so, what standard governs that jurisdictional determination. This issue is rapidly coming to a head and is poised for inevitable resolution by the Supreme Court in the near future; multiple circuit courts have heard appeals from district courts that have reached varying conclusions on …

When Deprivation Of Access To Literacy Infringes On Indigent Parents' Right To Direct The Education Of Their Children, Dana Leone Kennedy

Cardozo Law Review

No abstract provided.