Fourteenth Amendment Commons^™

The Sickness Unto Death Of The First Amendment, Marc O. Degirolami

Scholarly Articles

Part I of this paper describes early American understandings of the purposes and limits of freedom of speech. During this period, the outer bounds of freedom of speech reflected similar limits on the right of religious freedom: both were conceived within an overarching framework of natural rights delimited by legislative judgments about the common political good. Though there is scholarly debate about how much the Fourteenth Amendment may have altered that approach in certain details, the basic legal framework remained intact in the nineteenth century.

Part II traces the replacement of that framework with a very different one in the …

Conversion Therapy: A Brief Reflection On The History Of The Practice And Contemporary Regulatory Efforts, Tiffany C. Graham

Scholarly Works

This brief symposium essay offers a broad-stroke sketch of the history of conversion therapy, its current status as a locus of regulation, and some preliminary questions about the direction the law might take to protect individuals who elect or are forcibly subjected to the practice.

Some Kind Of Hearing Officer, Kent H. Barnett

Scholarly Works

In his prominent 1975 law-review article, “Some Kind of Hearing,” Second Circuit Judge Henry Friendly explored how courts (and agencies) should respond when the Due Process Clause required, in the Supreme Court’s exceedingly vague words, “some kind of hearing.” That phrase led to the familiar (if unhelpful) Mathews v. Eldridge balancing test, in which courts weigh three factors to determine how much process or formality is due. But the Supreme Court has never applied Mathews to another, often ignored facet of due process—the requirement for impartial adjudicators. As it turns out, Congress and agencies have broad discretion to fashion not …

Dying Constitutionalism And The Fourteenth Amendment, Ernest A. Young

Faculty Scholarship

The notion of a “living Constitution” often rests on an implicit assumption that important constitutional values will “grow” in such a way as to make the Constitution more attractive over time. But there are no guarantees: What can grow can also wither and die. This essay, presented as the 2018 Robert F. Boden Lecture at Marquette University Law School, marks the sesquicentennial of the Fourteenth Amendment’s ratification as a powerful charter of liberty and equality for black Americans. But for much of its early history, the Fourteenth Amendment’s meaning moved in reverse, overwhelmed by the end of Reconstruction, the gradual …

Federal Guilty Pleas: Inequities, Indigence And The Rule 11 Process, Julian A. Cook

Scholarly Works

In 2017 and 2018, the Supreme Court issued two little-noticed decisions—Lee v. United States and Class v. United States. While neither case captured the attention of the national media nor generated meaningful academic commentary, both cases are well deserving of critical examination for reasons independent of the issues presented to the Court. They deserve review because of a consequential shared fact; a fact representative of a commonplace, yet largely overlooked, federal court practice that routinely disadvantages the indigent (and disproportionately minority populations), and compromises the integrity of arguably the most consequential component of the federal criminal justice process. In each …

Everyone Bleeds Guilty: Blood Draws For Law Enforcement Purposes In Light Of The Hipaa Privacy Rule And Recent Supreme Court Decisions, 52 Uic J. Marshall L. Rev. 489 (2019), Bianca Valdez

UIC Law Review

Intoxicated driving claims more than 10,000 lives per year. In efforts to combat this devastating statistic, states have enacted laws that permit law enforcement officers to order warrantless blood draws from suspects of driving under the influence. In doing so, law enforcement officers seek the assistance of medical personnel to carry out the phlebotomy process. While medical personnel are obliged to assist law enforcement with their investigations, they also have an ethical duty to their patient and a legal duty to comply with the Health Insurance Portability and Accountability Act of 1996. What are the legal implications when the suspect …

The Diverging Right(S) To Bear Arms: Private Armament And The Second And Fourteenth Amendments In Historical Context, Alexander Gouzoules

Faculty Publications

This article compares the historical evolution of the social understanding of private armament with contemporary legal doctrine on the right to bear arms. The District of Columbia v. Heller decision, which held that the Second Amendment protects a personal right to self-defense, and the McDonald v. City of Chicago decision, which held the Second Amendment to be incorporated by the Fourteenth Amendment, both turned on extensive historical analysis. But by reading a broad “individual right to self-defense” into both the Second and Fourteenth Amendments, the Court assumed continuity between the social understandings at the time of these amendments’ respective ratifications. …

Working 9 To 5? Equal Protection And States' Efforts To Impose Work Requirements For Medicaid Eligibility, David Wasserstein

American University Law Review

No abstract provided.

The Supreme Court, Due Process And State Income Taxation Of Trusts, Bridget J. Crawford, Michelle S. Simon

Elisabeth Haub School of Law Faculty Publications

What are the constitutional limits on a state's power to tax a trust with no connection to the state, other than the accident that a potential beneficiary lives there? The Supreme Court of the United States will take up this question this term in the context of North Carolina Department of Revenue v. Kimberley Rice Kaestner 1992 Family Trust. The case involves North Carolina's income taxation of a trust with a contingent beneficiary, meaning someone who is eligible, but not certain, to receive a distribution or benefit from the trust, who resides in that state. Part I of this Article …

Oh, What A Truism The Tenth Amendment Is: State Sovereignty, Sovereign Immunity, And Individual Liberties, Sharon E. Rush

UF Law Faculty Publications

The Supreme Court under the late Chief Justice Rehnquist and now Chief Justice Roberts takes the Tenth Amendment and state sovereignty seriously. It also takes the Eleventh Amendment and state sovereign immunity seriously. Moreover, the contemporary Court’s interpretations of Congress’s Article I powers are based on its concomitant interpretations of the Tenth and Eleventh Amendments, which the Court has infused with the idea that an inherent part of a state’s sovereignty is not just its prerogative not to have its treasuries invaded, but also includes its right not to have its dignity assaulted. Protecting the dignity of states and other …

Wealth-Based Penal Disenfranchisement, Beth A. Colgan

Vanderbilt Law Review

This Article offers the first comprehensive examination of the way in which the inability to pay economic sanctions-fines, fees, surcharges, and restitution-may prevent people of limited means from voting. The Supreme Court has upheld the constitutionality of penal disenfranchisement upon conviction, and all but two states revoke the right to vote for at least some offenses. The remaining jurisdictions allow for reenfranchisement for most or all offenses under certain conditions. One often overlooked condition is payment of economic sanctions regardless of whether the would-be voter has the ability to pay before an election registration deadline. The scope of wealth-based penal …

Harmless Constitutional Error: How A Minor Doctrine Meant To Improve Judicial Efficiency Is Eroding America's Founding Ideals, Ross C. Reggio

CMC Senior Theses

The United States Constitution had been in existence for almost two hundred years before the Supreme Court decided that some violations of constitutional rights may be too insignificant to warrant remedial action. Known as "harmless error," this statutory doctrine allows a court to affirm a conviction when a mere technicality or minor defect did not affect the defendant's substantial rights. The doctrine aims to promote judicial efficiency and judgment finality. The Court first applied harmless error to constitutional violations by shifting the statutory test away from the error's effect on substantial rights to its impact on the jury's verdict. Over …

Solitary Confinement Of Juvenile Offenders And Pre-Trial Detainees, Nicole Johnson

Touro Law Review

No abstract provided.

Arlington Heights Won In The Supreme Court But The Fair Housing Act’S Goal Of Promoting Racial Integration Saved The Low-Income Housing, Henry Rose

Touro Law Review

No abstract provided.

How To Get Away With Murder: The “Gay Panic” Defense, Omar T. Russo

Touro Law Review

No abstract provided.

The Structural Underpinnings Of Access To Justice: Building A Solid Pro Bono Infrastructure, Latonia Haney Keith

Mitchell Hamline Law Review

No abstract provided.

The School Civil Rights Vacuum, Emily Suski

Faculty Publications

Recent cases of pervasive sex abuse at universities, including those committed by Larry Nassar at Michigan State University and by Jerry Sandusky at Pennsylvania State University, demonstrate the limitations of Title IX as a tool for protecting college students. What has gone far less recognized is that in the K–12 public school context, Title IX and other civil rights laws, including the Fourteenth Amendment, are at least as ineffective at protecting students from sexual, physical, and verbal abuse and harassment. Public school students rarely succeed on Fourteenth Amendment or Title IX claims, even in some of the most egregious cases. …

Minneapolis Municipal Construction Contracts: Awarding Methodologies And Affirmative Action, Jon Schoenwetter

Minnesota Journal of Law & Inequality

No abstract provided.

Adequate Education: The Disregarded Fundamental Right And The Resurgence Of Segregation Of Public Schools, Neubia L. Harris

Mitchell Hamline Law Review

No abstract provided.

From Poverty To Personhood: Gideon Unchained, Ken Strutin

Mitchell Hamline Law Review

No abstract provided.