Fourteenth Amendment

2 2005] BOOK REVIEWS 199 trine is in large measure responsible for the failure of the criminal-procedure revolution," and contends that "current doctrine does not reflect prevailing (and justified) values about the criminal process" (p. xiv). To prove his claim, Dripps has written a book that expertly identifies the flaws, inconsistencies and missteps of the Court's constitutional criminal procedure cases dating back to the adoption of the Fourteenth Amendment. About Guilt and Innocence: The Origins, Development, and Future of Constitutional Criminal Procedure is a comprehensive and thoughtful critique of the Court's criminal procedure jurisprudence. While Dripps surveys the entire field of constitutional criminal procedure, the book pays close attention to the Court's Fourth, Fifth and Sixth Amendment cases. Topics such as search and seizure, the exclusionary rule, police interrogation and the right to counsel receive scrupulous analysis by Dripps. This book is not casual or beach reading. Dripps' legal analysis is meticulously researched. Parts of the book discuss constitutional law cases and theories that are rarely taught (or even mentioned) in a standard criminal procedure course. A firm knowledge of constitutional law is essential to understand many of Dripps' arguments. 6 Although the book is intellectually rigorous, it is not a book that should be confined to the bookshelves of law professors. The Justices of the Supreme Court should read this book. The issues discussed by Dripps are addressed by judges-both federal and state-on a regular basis. Moreover, the impact and meaning of many of the rulings discussed in the book-Terry v. Ohio, 7 Miranda v. Arizona 8 and Strickland v. Washington 9 -remain highly controversial among marijuana and cocaine are roughly comparable, blacks are five times more likely than whites to be convicted of these offenses. Police decisions to stop, search and arrest, and prosecutorial decisions to charge, clearly have a massively disproportionate impact on black Americans" (p. xiv). For two thoughtful views on the role of race in the criminal process and the inequalities inherent in the criminal justice system, see RANDALL KENNEDY, RACE, CRIME, AND THE LAW (1997) and MICHAEL TONRY, MALIGN NEGLECT: RACE, CRIME, AND PUNISHMENT IN AMERICA (1995). 6. The only frustrating part of the book was the endnotes. Professor George Thomas is right about the use of endnotes, particularly in a book like this one, where the endnotes often contain a large amount of useful information. See George C. Thomas III, An Assault on the Temple of Miranda, 85 J. CRIM. L. & CRIMINOLOGY 807, 808 n.4 (1995) ("Is it not late in the day for endnotes? Having become accustomed to footnotes in this computer age, the endnotes were quite frustrating, all the more so because readers will want to examine [the author's] notes carefully."). Of course, Professor Thomas' own book on Double Jeopardy, a fine piece of legal scholarship, also has endnotes.

Welcome to this afternoon's session: The Court and the Changing Constitution: A discussion. By discussion we mean something more akin to a free-for-all. We have various different topics here: we have appointments, we have separation of powers, we have disincorporation (I have no idea what that might be), and we have the exclusionary rule. And among the common denominators I see here are complaints about court of appeals' jurisprudence and complaints about all kinds of stuff, even complaints about one another. I just told Professor Carl Swidorskil at the break that his dissertation on the court of appeals' appointment process, the changeover from elections to the so-called merit selection system, was the first I had ever read. So, Carl, go to it.

2 Helmholz's paper importantly points out, however, that, although property was a locus for much natural-law talk, natural-law thinkers had no canon of specific rights. He also notes that "[i]n [early nineteenth century] practical jurisprudence, the law of nature was thought to play a basic but limited role." Helmholz, supra note 1, at 402.

Abstract
This paper examines the interplay between federal habeas corpus and freestanding claims of actual innocence in the context of state convictions. It begins by establishing the ideal of objective truth as a foundational goal of the judicial process, contrasting it with the prevailing legal standard of fairness, which often prioritizes procedural finality over substantive justice. The discussion highlights the critical role of actual innocence as a potential independent basis for challenging wrongful convictions, emphasizing that the American legal system must ensure that innocent individuals are not unjustly punished.

The paper reviews the historical evolution of the Supreme Court's stance on actual innocence, noting significant cases that have shaped its current interpretation, particularly the limitations imposed by the Antiterrorism and Effective Death Penalty Act (AEDPA). It argues that the existing legal framework inadequately addresses claims of actual innocence, frequently relegating them to mere procedural gateways rather than recognizing them as substantive grounds for relief.

Furthermore, the paper critiques the judicial reluctance to acknowledge actual innocence as a freestanding claim within federal habeas corpus, despite the moral and constitutional imperatives to do so. It calls for legislative reforms to facilitate the recognition of actual innocence in habeas proceedings, advocating for a more robust judicial approach that prioritizes justice over finality. Ultimately, the paper contends that the pursuit of truth and the protection of innocent lives should be paramount in the American criminal justice system, urging a reevaluation of current practices to uphold the ideals of justice and fairness.

In the legal imagination, Frederick Douglass is often viewed as a “constitutional utopian” for his efforts to salvage the prewar Constitution with an antislavery construction. Rejecting the views of both the Taney Court and the followers of William Lloyd Garrison, who saw the Constitution as “a covenant with death, and an agreement with hell,” Douglass and other political abolitionists put forward a redemptive view of the Constitution rooted in both the letter and the spirit of the document. For Douglass, the fierce contest over constitutional meaning suggested the amenability of the Constitution’s “plain meaning” to abolition and the importance of wresting
political power, and thus interpretive power, from pro-slavery forces. The long-term potency of Douglass’s adaptive, literalist, and purposive method suggests the importance of his constitutional interpretation for formulating a racial justice jurisprudence today.

The textualism practiced by the current Supreme Court, however, poses multiple challenges to the pursuit of that same goal. The questions that occupied Douglass’s day—whether and how to embrace a document tied to foundational injustice—have come to swirl not only around Douglass’s legacy but also around contemporary questions of constitutional theory, particularly pertaining to the relation of the text and textual interpretation to racial justice. In this paper, I argue that Douglass’s textualism offers progressive constitutionalists a theory of interpretation that meets originalism on many of its own terms but also insists on a radically revised conception of constitutional meaning, one that centers racial justice first and foremost.

Recently, the Fifth Circuit held that classications involving the mentally retarded were quasi-suspect and should be reviewed under a heightened scrutiny analysis. The Supreme Court reversed that holding but granted the retarded a remedy by applying a more genuine scrutiny under the rational basis test. The Court's decision in City of Cleburne, Texas v. Cleburne Living Center, Inc. raises the question whether the Court intends to apply an increased level of scrutiny under the rational basis test or whether this case merely respresents another ad hoc decision made on the horns of a dilemma. This Note discusses the uncertain impact of Cleburne on the retarded and similarly situated individuals.

This is a review of Mark Tushnet’s Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law. The review outlines the main arguments in the book and then moves to elaborate on two preconditions which are necessary for Tushnet’s project to succeed: the existence of a strong civil society and an institutional willingness to implement social welfare rights. In addition, this review seeks to situate the book within Tushnet’s broader constitutional theory project. In particular, the review attempts to reconcile this work with Tushnet’s 1999 Taking the Constitution Away from the Courts, a work that initially seems to be diametrically opposed to his new book.

This Article focuses on my work in Illinois to use the Voting Rights Act1 (VRA) to improve minority representation at the local level, but the themes and findings are applicable across the country because many states have growing minority populations in the suburbs just outside of large city centers.2 These minority populations tend to be much less segregated than the minority communities in the cities,3 and so it is more difficult to use Section 2 of the VRA4 (“Section 2”) to ensure both descriptive and substantive representation. I recommend the use of fair representation systems like ranked choice and cumulative voting (with multi-member districts) to improve minority representation in these decreasingly segregated areas. I introduce three case studies from Illinois to highlight the numerous burdens facing those that seek to reform their local government redistricting systems. I finish with some thoughts on how litigation and legislative advocacy may be used to promote fair repre...

The United States of America is founded on the principle of “no taxation without representation.” It stands to reason, then, that any document used by the federal or state government for taxation assessment constitutes sufficient tax­payer identification to register and vote for that government.
Extracts By MicroSoft Copilot AI of  Green Pages Article.

The fundamental purpose of a tort trial is to allocate responsibility. However, attributing fault is difficult, and decades of research in psychology have shown that human beings are prone to make systematic errors in performing this task. What can be done about this? The United States and countries in continental Europe adopt diametrically opposed strategies to reduce errors in the attribution of responsibility in the courtroom. American law delegates fact-finding to jurors and makes some type of evidence inadmissible in court to protect jurors from potentially biasing information, such as character evidence. European legal systems, instead, employ almost exclusively judges to perform fact-finding and allow character evidence at trial, under the assumption that judges are better than laypeople in weighing the probative value of this type of evidence. There is a longstanding debate among legal scholars on whether the American or the European approach reduces more trial errors, but the relative performance of the two legal systems remains largely untested. This article is the first to provide evidence on the relative performance of these two systems. Our results suggest that jurors fail to correctly apply European rules of character evidence. The American rules on the inadmissibility of character evidence seem therefore a more appropriate choice when fact-finding is performed by jurors. We find also that, contrary to jurors, judges apply European rules correctly and thus reduce the risk of errors in the attribution of responsibility. Overall, this result indicates that the American and the European evidence rules to improve fact-finding are well set up. Nonetheless, we also find that neither of the two systems is able to prevent factfinders' errors in the attribution responsibility when these mistakes are not due to the type of evidence presented at trial but to (unconscious) beliefs held by factfinders themselves. We thus propose a set of policies † Visiting Researcher, Cornell Law School. We thank Maria Bigoni, Jeffrey Rachlinski, the participants of the 13th Conference on Empirical Legal Studies at Cornell Law School, of the IMPRS poster presentation at the Friedrich-Schiller-Universität Jena, of the BACT Lunch Seminar at Erasmus University Rotterdam, and of the Italian Society of Law and Economics 12th Annual Conference for useful discussion. The usual disclaimer applies. We are also very grateful to Sara Mahmoud for invaluable organizational support.

It is absolutely essential to consider the abject ineffectiveness of counsel in a significant number of death penalty cases involving defendants with serious mental disabilities and how such ineffectiveness is often (scandalously) accepted by reviewing courts. We must also assess all of the concerns raised in this excellent paper by Hiromoto and colleagues through the filter of therapeutic jurisprudence as a way to guide counsel to thoroughly investigate all aspects of such cases (especially those involving defendants with PTSD) and to present substantial mitigating evidence to the fact finders in the sorts of cases the authors are discussing.

The constitutions of Bangladesh and the United States of America (USA) are thoroughly compared in this paper. It looks at a number of topics, such as general features, key differences, constitutional problems, judicial review, federalism and devolution, rights and freedoms, principles and values, historical settings, government systems, amendment procedures, supreme court and impact of globalization in both constitutions. This study attempts to shed light on the similarities and contrasts between these two countries' constitutions in order to further our understanding of constitutional governance and its consequences in various sociopolitical circumstances..

DIGNITAS n Pravna filozofija Narava socialnih pravic POvzETEk Evropa je znana po spoštovanju socialnih pravic in socialne pravičnosti, ki predstavlja velik premik od ameriškega dojemanja človekovih pravic. To spoštovanje izhaja iz vključevanja socialnih pravic v številne domače ustave in regionalne instrumente. Socialne pravice so, kljub temu, še vedno sporna tema. Članek se ukvarja predvsem s teoretičnimi temelji teh pravic. Njegov namen je raziskati vire teh pravic, razsvetliti njihovo pravno naravo in poudariti njihove posebnosti. Prvi del prispevka preučuje status teh pravic in kaj zagotavljajo njihovim imetnikom. Pri tem poskuša opredeliti in pojasniti utemeljitev njihove uvedbe v ustavnih besedilih in regionalnih konvencijah. Drugi del članka izpodbija ugovore zoper socialne pravice. Prvič, potrebno je zavreči razlikovanje med državljanskimi in političnimi pravicami kot negativnimi in socialnimi pravicami kot pozitivnimi pravicami. Drugo vprašanje se nanaša na možnost njihove sodne uveljavitve. Če je to mogoče, kljub njihovi nedoločnosti, ali je še vedno upravičeno razlikovanje med socialnimi ter državljanskimi in političnimi pravicami glede njihove iztožljivosti?

Harvard University's legacy admissions practices should withstand civil rights challenges because they are protected by the First Amendment's freedom of association, do not violate Title VI of the Civil Rights Act when adequately interpreted, and provide unique educational benefits. The disparate impact theory the Office for Civil Rights proffered does not overcome Harvard's expressive rights to shape its student community. Even if this theory is applied, Harvard can demonstrate that legacy preferences are legitimate and integral to its mission. Legacy admissions ensure academic continuity and strengthen alumni bonds, furthering Harvard's educational objectives.

This draft rebuts specious and utterly offensive arguments by John Eastman and members of the Trump administration that children born on American soil to non-citizen mothers should be presumed to be disloyal or viewed as owing allegiance to foreign governments (Trump's solicitor-general actually compared them to a kid take from the US, raised in Afghanistan, and placed in the Taliban). I also note our treaty obligations under the International Covenant of Political and Civil Rights, which requires us to ensure that every child born in the US has a nationality.

This memo will explain how a forgotten but crucial part of the Constitution can now be revived to help improve voting rights across the United States. Its goal is to help legislators and scholars understand how the real constitutional requirements for apportionment of House members among the several states was supposed to work following the Civil War amendments, and how its requirements can be implemented through well-conceived new statutory language. Brief History Section II of the 14 th Amendment was written in 1866 as an indirect way to secure voting rights to newly-freed former slaves and other African Americans across all states-many of which did not allow Black men to vote even in the North. When Representative Thaddeus Stevens (R-PA) introduced his radical reconstruction plan in December of 1865, he proposed two constitutional amendments-one requiring that "all national and State laws shall be equally applicable to every citizen, and no discrimination shall be made on account of race or color;" 1 and a second that would have based representation in the House on "the number of legal voters, who were required to be American citizens." And January 1866, he pushed for these provisions within the Joint Committee on Reconstruction. 2

“Notice of Claim” filed against the County of Oklahoma County, the State of Oklahoma, and its representative(s) David L. Prater, Oklahoma County District Attorney in accordance with the Oklahoma Governmental Tort Claims Act, 51 Okla. Stat. Ann. § 156 for Retaliatory Firing to cover up Grand Jury Misconduct

No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. 1 1 Civil Rights Act of 1964. 42 U.S.C. § 2000d (1970). 242 U.S.C. § 2000d-1 (1970). 3 Id. The applicable portion of the Act states: Each Federal department and agency which is empowered to extend Federal financial assistance to any program or activity, by way of grant. loan. or contract other than a contract of insurance or guaranty, is authorized and directed to effectuate the provisions of section 2000d of this title with respect to such program or activity by issuing rules, regulations, or orders of general applicability which shall be consistent with achievement of the objectives of the statute authorizing the financial assistance in connection with which the action is taken. 4 Id. The applicable portion of the Act states: Compliance with any requirement adopted pursuant to this section may be effected (1) by the termination of or refusal to grant or to continue assistance under such program or activity . . . or (2) by any other means authorized by law: Provided, however, that no such action shall be taken until the department or agency concerned has advised the appropriate person or persons of the failure to comply with the requirement and has determined that compliance cannot be secured by voluntary means.

Title VII of the Civil Rights Act of 1964 forbids job discrimination based on race, color, religion, sex, or national origin. 1 Title VII was originally enacted as a regulation of interstate commerce and applied only to private employers. In 1972, however, the Act was extended to the public sector pursuant to Congress's Fourteenth Amendment authority to ensure that ''[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws.'' Because the Equal Protection Clause was intended to guarantee equal opportunities rather than equal outcomes, the Supreme Court's application of that clause has focused on intentional discrimination. Title VII initially barred only disparate treatment, which encompasses only such intentional discrimination and, under some interpretations, also unconscious bias. But under Title VII, Congress expanded the reach of anti-discrimination litigation: Employers may be held accountable not only for disparate treatment, but also for disparate impact, which refers to discriminatory effects arising out of workplace policies or procedures, even when an intent to discriminate cannot be proven. On its face, the New Haven firefighters' case, Ricci v. DeStefano, is about the tension between these two sides of Title VII. 2 At root, however, the real war is between disparate impact and the Equal Protection Clause.

%-:1 1 lispule arose over the old Japanese Young Women's Christian Association ("Y\rcA") building in San Francisco's Japantown neighborhood, it seemed ye^t another example of a communiry institution'inevitably.Jding to the demands of the modern market economy. Instead, what has resulted has bien an exercise in legal archaeolog', a refreshing. insight into the collective memory of the Japanese American communiry, and a. legal theory that brings to light sweral central episodes in Asian American legal history and puts theti to pritical use in a conremporary property dispute. rn 1996' the San Francisco y\rcA decided it could no longer afford ro main-tain^the oldJapanese Ys7CA,building at lg30 sutter Street "rri *".rted to put it up for sale in san Francisco's hot rial estate market. Members of the J"p"rr.s. American communiry were disturbed to hear of the ywcA's plans. Thef wanted t9 plglg.re the historic building as a com_muniry asset, but theii efforts to'persuade the Y\fcA to change its minJ faired. \w&en it b.."-. a.", ,i"i "" "ne in the communiry could_come up with the $1.65 million the ySTCA wanted for the building, it seemed as though the preservation effort *", doo*.d. ---- In an efforr ro save rhe ywcA building, a lawsuit was fired in 1997 6y ::f:j:ll:.t1.: of,the Japanese American. comm"uniry. The lawsuit is striking in iis orlgrnallry' r he plarntitf presenrs not only^a moral claim to the properry bui also a legal properry inrerest. In this Article, professor Brant Lee exploies irow this single, Tll*iTtll conremporary case.brings to light s.,,rer"l oi rhe most sig,rifi.'ani eprsocres rn rhe lasr century.ot fuian American legal history. First, rhe flaintiffs lesal t|tegv is based on california's version or *r? a,ti." il""e i;*;;i'i.h *.r. intended ro prohibit the_ownership oF properry by Japanese immisranrs. The Alien Land Laws were themselves.dependeni o., th. *.i.r$ Jrr.ri*i*i..y i.d.rrr n",rralization law that was in place from 1790 ,t-"gnin. n;;;Hi;Tth-Jmentieth century. Seco-nd, the cause of action relies in pi.t o., an aspecr of the wartime internmenr of erhnic Japanese that has received little attentioni ,t. po*", ,".,rr' ot camP resrdents to the coasts and the internal and external forces that prevented the reestablishment of vibrant Japanese neighborhoods ""a ."."-""i.i.r. ri""tty, this case is a good example of a situation" in which the law should ...ognir. , properry interest based on the vulnerabiliry of_the Japanese American comiruniry in,the early mgnliet\ cenrury and the reliance by Japano. Americans o.r th. goodwill of white individuals and insdtutions which ihe law necessitared, even if the traditional formal prerequisites for a legal trust cannor be establishej. Lee argues * Assistant Professor gf _L1w,

CHILD SUPPORT: THE DOUBLE STANDARD Karen Colby Weiner* Historically and presently, the purpose of imposing a legal duty of child support upon a ... v. Walker, 281 NE2d 1 (Ohio 1972);Johnston, Sex Discrimination and the Supreme Court—1971-1974, 49 NYU L. Rev. ...

This book chapter from the Cambridge Companion series provides an introduction to nineteenth-century Asian American literature and the early history of Chinese immigrants in the United States. In the first section, I address the history of the Chinese in America, focusing on key economic issues and laws related to immigration. In the second section, I track the widely known figure of the “Heathen Chinee” through works of the 1870s and 1880s, highlighting how this literary trope directly mediated political and economic issues of the period, while also illustrating its shaping role in English-language writings by early Chinese immigrants (Wong Chin Foo and Yan Phou Lee). Some of this latter work, I conclude, anticipates the later emergence of Asian American politics and the contemporary racialization of Asians as America’s model minority.

This Article considers the Supreme Court's current approach to judicial review of federal legislation enforcing the Equal Protection Clause. It starts from the assumption that the Court will not abandon the judicial supremacy principle it expressed in City of Boerne v. Flores; thus, any approach to congressional enforcement power must accommodate that supremacy. The Article begins by critiquing the Court's current understanding of Boerne, and explaining how new and pending enforcement legislation pose major challenges under that doctrine. It then sketches a theory of the enforcement power which requires Congress to abide by judicial statements of constitutional meaning, but where judicial opinions are read more carefully to distinguish between true statements of constitutional law and subconstitutional decision rules. Congressional enforcement power must not conflict with the former. In addition, to the extent those statements are vague or general, they nevertheless channel congressional enforcement discretion by pointing to follow-on inquiries that Congress must satisfactorily answer in order for the Court to uphold its legislation. The Article then applies this new approach to three new pieces of equality legislation that are either currently in force or under consideration: the Employment Non-Discrimination Act, employment protection for transgendered people, and the Genetic Information Nondiscrimination Act. This application illustrates the theory in action. It also allows us to draw more general conclusions about the theory's workability and appropriateness as a tool for reviewing future enforcement legislation, both under the Equal Protection Clause and other components of the Fourteenth Amendment. I. Introduction .

Cleburne Living Center, of why it would not grant suspect cass status to the mentally retarded Cleburne s explanation allows a comparison of Congress s and the Court' abilities to determine whether a classification runs a highnIsk of being constitutionally unreasonable. The Article then confronts a final theoretical problem: If most rational basis cases don't reflect true declarations of equal protection law, and if rational basis cases comprise the vast majoriy of equal protection claims, then where is the law in the Equal Protection Clause? The Artcle suggests that lurking in the rational basis cases is a fundamental principle of equal protection law--e nule against animus. The last major part of the Article considers if, and how, this antianunus rule could cabin would otherwise seem to be a very broad Section 5power The Article concludes by speculating about what this analysis means for Section 5 enactments addressing genderandrace. Inparticula, the Court~sgenderjurzsprudence implies a significant role for congressional input via the Section 5 power The Article also speculates whether this analysis illuminates the scope of Congress s power to address substantive rights under the Due Process Clause or other clauses of the Fourteenth Amendment.

M itchell W. Berger is apartner andf ounderofBergerS ingerman,a nd he serves as Co-Chairo ft he firm.M r. Berger wouldl iket ot hank Omar Pereza nd Stephen Ayenifor theirassistanceinthe draftingand editingthisArticle. *Z acharyP.Hyman is an associateatBerger Singerman.H ew ouldliketo thankJeremy VanEttenand Ashley Falcone fortheir assistanceinthe draftingofthisArticle. Mr. Hyman especially thanks Jeremy VanE ttenf or hist imea nd effort in creatingt he appendix. 1. What Is theE lectoral College?,N AT'L ARCHIVES &R ECORDS ADMIN.: U.S. ELECTORAL C., (last visitedMay 1, 2019). 2. Id. Id. Some states require electors to pledge that they will vote forthe party that appointedthem.

M itchell W. Berger is apartner andf ounderofBergerS ingerman,a nd he serves as Co-Chairo ft he firm.M r. Berger wouldl iket ot hank Omar Pereza nd Stephen Ayenifor theirassistanceinthe draftingand editingthisArticle. *Z acharyP.Hyman is an associateatBerger Singerman.H ew ouldliketo thankJeremy VanEttenand Ashley Falcone fortheir assistanceinthe draftingofthisArticle. Mr. Hyman especially thanks Jeremy VanE ttenf or hist imea nd effort in creatingt he appendix. 1. What Is theE lectoral College?,N AT'L ARCHIVES &R ECORDS ADMIN.: U.S. ELECTORAL C., (last visitedMay 1, 2019). 2. Id. Id. Some states require electors to pledge that they will vote forthe party that appointedthem.

137 For the view that a fetus may still deserve certain protections even if it does not fall within the constitutional definition of a "person," see LEONARD GLANTz, ABORTION AND THE STATUS OF THE FETUS 107 (H. Tristam Engelhardt, Jr. & Stuart F. Spicker eds., 1984).

The Fourteenth Amendment begins with a deceptively simple declaration that embodies one of the most profound commitments in our constitutional tradition: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." This language, now facing direct challenge through executive action, established a revolutionary principle of birthright citizenship that demands careful analysis through both historical and contemporary lenses.

The Ninth Amendment's declaration that certain rights are "retained by the people" has long puzzled courts and scholars. This Article offers a novel interpretation grounded in newly uncovered historical evidence. During ratification, newspaper coverage reveals Americans engaged intensively with parallel developments in revolutionary France, viewing both the American Constitution and French Declaration of Rights as part of a universal project to constrain governmental power and secure inalienable rights. This evidence suggests the founding generation understood the Ninth Amendment as protecting individual sovereignty against what this Article terms "governmental commandeering"-laws that force citizens down rigidly regulated paths by eliminating meaningful choice. While other scholars have sought the amendment's meaning primarily in state ratifying conventions or founding-era legal treatises, this Article demonstrates how ordinary Americans' engagement with Enlightenment rights theory shaped the amendment's original public meaning. The anti-commandeering principle that emerges from this historical understanding provides what competing interpretations cannot: a theoretically coherent and practically workable framework for protecting fundamental rights while respecting legitimate regulation. This reading illuminates both canonical privacy cases from Roe to Obergefell and offers solutions to emerging controversies, from the Comstock Act to Grants Pass. Most profoundly, it reveals the Ninth Amendment as the Constitution's structural cornerstone for dualist democracy-a textual and principled basis for distinguishing the sovereign choices of free citizens from the legitimate but limited regulatory authority of their governmental agents.

rule-of-law proposition that no person-no matter how exalted-was above the law, and that all free persons were entitled to the evenhanded protection of the law. The Magna Carta was reaffirmed, revised, and expanded in 1227 during the reign of Henry III. The new charter provided, No Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the Land. We will sell to no man, we will not deny or defer to any man either Justice or Right. 9 The word "Freeman" applied broadly, including both sexes and serfs (with some limits). In subsequent acts of Parliament, the phrase "law of the land" was replaced with "due process of law." This alteration of text was meant to endorse the same rule-of-law principle established in the Magna Carta and represent the same quest for a just system of laws. 10 As Sir Edward Coke explained in his explication of the revised charter, No man shall be disseised, that is, put out of seison, or dispossessed of his free-hold (that is) lands, or livelihood, or of his liberties, or free customes, that is, of such franchises, and freedomes, and free customes, as belong to him by his free birth-right, unlesse it be by the lawfull judgement, that is, verdict of his equals (that is, of men of his own condition) or by the Law of the Land (that is, to speak it once for all) by the due course, and processe of Law. 11

The American Constitution does not mention slavery until 1865, with the adoption of the Thirteenth Amendment, which abolished the institution. Yet the Constitution, written in 1787, is riddled with provisions tied to slavery which protected it without naming it. The goal of this chapter is relatively modest: to examine how the US Constitution and the Supreme Court 'understood' what slavery was and how the Court defined it. I begin by exploring how seventeenthcentury Englishmen in colonial Virginia developed a legal system to accommodate and perpetuate slavery within a common law regime that was essentially hostile to human bondage. The colonial lawmakers had to develop rules to balance the tension between treating Africans and others as persons held to labor and as property owned by other people. This colonial background sets the stage for understanding how the framers at the Constitutional Convention in 1787 protected slavery in law. Next, I examine how the US Supreme Court came to define slavery through its jurisprudence. A constant theme of this discussion is how the legal system balanced the dual status of slaves as 'people' and as 'property'. The Spanish and the Portuguese, who first settled the New World, had well developed slave cultures at the time of the first voyage of Columbus in 1492. Not surprisingly they brought concepts of slavery with them and quickly established the institution. 1 Ironically, the first trans-Atlantic slave trade went from west to east, when Christopher Columbus sent 500 Carib Indians to Spain in 1495. 2 1 They did not of course introduce slavery to the New World. Slavery could be found throughout Central and South America, and flourished among the Maya, Inca, and Aztec. In addition, various North American Indians held slaves, and some, like the Tlingit, were vigorous in capturing slaves from other nations. See entries on Maya, Aztec, Inca, and other native peoples in Paul Finkelman and Joseph C. Miller (eds), The Macmillan Encyclopedia of World Slavery (Macmillan 1998).

New Orleans ranks dubiously among the poorest communities in the United States. 2 If the survivors of Katrina look like something out of the Third World, Professor Cornel West says, it is precisely because they are. "New Orleans was Third World long before the hurricane. It's not just Katrina, it's povertina. People were quick to call them refugees because they looked as if they were from another country. They are. Exiles in America. Their humanity had been rendered invisible." 3 Focusing on the federal government's laggard response to the disaster, Senator Barack Obama, Democrat from Illinois, spoke in a similar vein: "The people of New Orleans weren't just abandoned during the hurricane, they were abandoned long ago -to murder and mayhem in the streets, to substandard schools, to dilapidated housing, to inadequate health care, to a pervasive sense of hopelessness." 4 Nationwide, the U.S. has a poverty rate of 12.7 percent, that is assessed as the highest in the developed world and "more than twice as high as in most other industrialized countries." 5 The already dismal statistics are further compounded by racism and the legacy of racial segregation. About 70 percent of New Orleans's nearly half a million residents and 84 percent of those living in poverty are black. 6 African Americans make up less than 13 percent of the U.S. population, but 25 percent of American poor; in contrast, Whites make up 72 percent of the total population, but only 8 percent of American poor. 7 The average annual income in some of the predominantly black parishes (or counties) of New Orleans is $8,000, compared to the national average of $33,000. 8 A United Nations report released in the wake of the hurricane projects that about 85,000 lives could be saved annually in the U.S. just by an insightful analysis that ties the death and destruction of Katrina and its aftermath to race, see

New Orleans ranks dubiously among the poorest communities in the United States. 2 If the survivors of Katrina look like something out of the Third World, Professor Cornel West says, it is precisely because they are. "New Orleans was Third World long before the hurricane. It's not just Katrina, it's povertina. People were quick to call them refugees because they looked as if they were from another country. They are. Exiles in America. Their humanity had been rendered invisible." 3 Focusing on the federal government's laggard response to the disaster, Senator Barack Obama, Democrat from Illinois, spoke in a similar vein: "The people of New Orleans weren't just abandoned during the hurricane, they were abandoned long ago -to murder and mayhem in the streets, to substandard schools, to dilapidated housing, to inadequate health care, to a pervasive sense of hopelessness." 4 Nationwide, the U.S. has a poverty rate of 12.7 percent, that is assessed as the highest in the developed world and "more than twice as high as in most other industrialized countries." 5 The already dismal statistics are further compounded by racism and the legacy of racial segregation. About 70 percent of New Orleans's nearly half a million residents and 84 percent of those living in poverty are black. 6 African Americans make up less than 13 percent of the U.S. population, but 25 percent of American poor; in contrast, Whites make up 72 percent of the total population, but only 8 percent of American poor. 7 The average annual income in some of the predominantly black parishes (or counties) of New Orleans is $8,000, compared to the national average of $33,000. 8 A United Nations report released in the wake of the hurricane projects that about 85,000 lives could be saved annually in the U.S. just by an insightful analysis that ties the death and destruction of Katrina and its aftermath to race, see

provided outstanding research assis tance. The Michigan Law Review provided outstanding editorial assistance. Finally, I am grateful to the many new colleagues and friends who have niade UT-Austin School of Law a wonderfully supportive and engaging place. 1. 347 U.S. 483 (1954). 2 See, e.g., FLORENCE KELLEY, SOME ETHICAL GAINS THROUGH LEGISLATION (1905). Today, we associate the term "social citizenship" most readily with the English sociologist T.H. Marshall and his classic lectures on the rise of the welfare state as a new "stage" in the development of citizenship. See T.H. MARSHALL, CmzENSHIP AND SOCIAL CLASS (1949).

Author(s): Nelson, Steven | Abstract: Federal courts have consistently rejected plaintiffs’ arguments that the government is liable when citizens suffer injuries at the hands of private third parties. In the context of education, there are few cases where federal courts have held that schools are liable for the injuries that students incur at the hands of private third parties. This Article puts forth a theoretical argument for schools, specifically schools operating under the governance of a state takeover district in a predominately Black school district with a predominately Black-elected school board, to be held liable for participating in disciplinary practices that are linked to the school-to-prison pipeline. The Article first traces the roots of the State-Created Danger Doctrine and then discusses the role of education reform policies in enabling the school-to-prison pipeline. Next, the Article provides a statistical analysis of three case studies in state takeover districts (...

In 2003, he joined the Florida International University College of Law as a founding faculty member, then serving as Associate Dean for Academic Affairs from 2005 to 2007. His principal research interest involves analyzing the construction and interpretation of constitutional law and immigration policy. Professor Roman has published law review articles, news columns, blog essays, and book chapters on immigration policy, international law, securities regulation, evidence, con-

Good afternoon, Chairman Hostettler and members of the Committee. I am delighted to be with you today as you begin what I consider to be an extremely important inquiry with profound consequences for our very notion of citizenship and sovereignty. My remarks will focus on a recent case decided by the Supreme Court in 2004, which has presented us all with an important opportunity to reconsider-and correct-a century-old misinterpretation of the Constitution's Citizenship Clause that has already eroded the bilateral consent foundation of citizenship, before that erosion of our national sovereignty becomes irreversible.

Court held that the Fourth Amendment effectively preempts any substantive due process claims that law enforcement officers used excessive force in the course of an arrest. Graham's disarmingly simple rationale was that an explicit textual provision trumps a more general constitutional provision. Professor Massaro argues that this rationale, as subsequently invoked by the Supreme Court and expansively applied by the lower courts in First, Fourth, Fifth, and Eighth Amendment cases, may ultimately have a pervasive impact on substantive due process. At the very least, the logic of Graham requires that substantive due process be confined to its current doctrinal limits. Carried to its furthest extreme, Graham requires overruling the Court's substantive due process "unenumerated rights" caselaw altogether. The author argues that Graham is an analytical and doctrinal oddity, inconsistent with well-accepted and regularly enforced principles of constitutional interpretation, that should be overruled rather than used to revive Hugo Black's "jot for jot" account of substantive due process. Imaged with the Permission of N.Y.U. Law Review October 1998] NEW YORK UNIVERSITY LAW REVIEW United States v. Lanier. 6 Graham thus has crept beyond the excessive force context 7 and may ultimately have a pervasive impact on substantive due process in ways belied by the scant attention paid it by commentators. There is reason to believe that this impact will occur if one consults emerging lower court caselaw invoking Graham. Unlike constitutional law scholars, the lower courts definitely have discovered Graham and have applied its logic in First, Fourth, Fifth, and Eighth Amendment cases. 8 Indeed, it was one of these decisions that first drew my attention to this little-noticed comer of due process law. A former student who was researching a case pending before the Court of Appeals for the Ninth Circuit asked whether Graham applied in a takings scenario. Much to my surprise, and to the student's, the appellate court ultimately held that Graham did apply to takings cases. 9 After reading Graham, I had to concede that this interpretation of Graham was entirely plausible, if not the best reading of the decision:1 ° Nothing in Graham suggests that the Court's preemptive approach to substantive due process should apply only to Fourth 6 117 S. Ct. 1219, 1228 n.7 (1997) ("Graham simply requires that if a constitutional claim is covered by a specific constitutional provision, such as the Fourth or Eighth Amendment, the claim must be analyzed under the standard appropriate to that specific provision, not under the rubric of substantive due process."). 7 Last term, the Court decided County of Sacramento v. Lewis, 118 S. Ct. 1708 (1998), which determined that substantive due process analysis was not foreclosed by the Fourth Amendment in the context of reckless high-speed police pursuits of criminal suspects. The Court held that the Fourth Amendment was inapplicable, thus precluding a Graham analysis, because no "search" or "seizure" occurs when police unintentionally injure a bystander during a high-speed pursuit of a criminal suspect. See id. at 1713. 8 See, e.g., Ivey v.

Board's denial of a conscientious-objector claim despite ample evidence of insincerity in the registrant's file. 131 Without acknowledging the novelty of its reasoning, the Bates Court explained that the National Appeal Board had committed a procedural error when it denied Bates's claim without first forwarding his file to the Justice Department for an advisory opinion. As evidence of the need for this procedure, the Court simply cited the draft-law provision that entitled a registrant to a Justice Department hearing if his local draft board denied his initial conscientious-objector claim. 132 That provision, however, was not applicable to Bates's case. Bates's local board had in fact granted his initial conscientious-objector claim. 133 It was only when Bates refused to comply with the work requirements for conscientious objectors and requested instead a ministerial exemption on dubious factual grounds, that the Presidential Appeal Board concluded that Bates's initial conscientious-objector classification was unwarranted. 134 The lower courts had found this conclusion to be reasonable given Bates's evasive actions. 135 The Bates decision implied that any time the Selective Service System intended to deny or rescind a conscientious-objector classification-whether at the local draft-board stage or after several requests for alternative classification-the matter had to be referred to the Justice Department before a final administrative decision could be made. Not only would this new requirement slow down the draft classification process, but it was also an utter invention of the Supreme Court, nowhere to be found in the draft law and imposed without explanation. Indeed, it was unclear what the Justice Department was supposed to do after receiving such a case from the National Appeal Board. The statutory provision cited by the Supreme Court instructed the Department to send its advisory opinion to the registrant's state appeal board. But in Bates, the state appeal board had already ruled on the case-denying Bates's ministerial request and affirming his CO request. Was the Justice Department instead expected to send its advisory opinion back to the National Appeal Board? Presumably. But the Supreme Court did not say so. Nor did it say that such a procedure was required by the Constitution. It simply cited a provision of the draft law that did not apply to the case at hand. At Selective Service headquarters, the Bates decision was met with a beleaguered shrug. As two lawyers in the General Counsel's Office reported:

This is the text of a speech delivered at the University of Connecticut Law School on September 26, 1990 as part of the Day, Berry & Howard Visiting Scholar Program. I am grateful to the students and faculty there for their extraordinary kindness and hospitality on that occasion. The reader is asked to make allowances for the informality that characterizes an essay originally written for the lecture format. Some of the ideas found in the second half of this essay also appear in Sunstein, Constitutional Polities and the Conservative Court, I THE AMERiCAN PROSPECT 51 (1990).

Since the Supreme Court declared education is not a fundamental right in the landmark case San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973), a cottage industry of scholars and litigators have developed alternative theories to distinguish or reverse that decision. Two recent cases target different alleged educational failings; in one, a lack of instruction in civics; in another, a failure to provide basic literacy skills. Based on those alleged failings, these cases seek to establish a constitutional guarantee to an equal education that ensures that students gain the necessary skills to fully participate in our democracy. While the goals of these cases are laudable, attempts to reverse Rodriguez are both misguided and dangerous. Misguided because they repackage arguments consistently  Bruce Meredith, J.D., is the former General Counsel to the National Education Association Wisconsin Affiliate. He received his B.A. from Northwestern University and J.D, with honors, from the University of Wisconsin Law School. After graduation, he served as a law clerk to the chief judge for the Northern District of Florida and as a Field Attorney for the National Labor Relations Board before his employment with the Wisconsin Education Association Council. He has litigated numerous educational policy cases, including those involving school finance, voucher and charter schools, and desegregation orders.

This Article considers the Supreme Court's current approach to judicial review of federal legislation enforcing the Equal Protection Clause. It starts from the assumption that the Court will not abandon the judicial supremacy principle it expressed in City of Boerne v. Flores; thus, any approach to congressional enforcement power must accommodate that supremacy. The Article begins by critiquing the Court's current understanding of Boerne, and explaining how new and pending enforcement legislation pose major challenges under that doctrine. It then sketches a theory of the enforcement power which requires Congress to abide by judicial statements of constitutional meaning, but where judicial opinions are read more carefully to distinguish between true statements of constitutional law and subconstitutional decision rules. Congressional enforcement power must not conflict with the former. In addition, to the extent those statements are vague or general, they nevertheless channel congressional enforcement discretion by pointing to follow-on inquiries that Congress must satisfactorily answer in order for the Court to uphold its legislation. The Article then applies this new approach to three new pieces of equality legislation that are either currently in force or under consideration: the Employment Non-Discrimination Act, employment protection for transgendered people, and the Genetic Information Nondiscrimination Act. This application illustrates the theory in action. It also allows us to draw more general conclusions about the theory's workability and appropriateness as a tool for reviewing future enforcement legislation, both under the Equal Protection Clause and other components of the Fourteenth Amendment.

Cleburne Living Center, of why it would not grant suspect cass status to the mentally retarded Cleburne s explanation allows a comparison of Congress s and the Court' abilities to determine whether a classification runs a highnIsk of being constitutionally unreasonable. The Article then confronts a final theoretical problem: If most rational basis cases don't reflect true declarations of equal protection law, and if rational basis cases comprise the vast majoriy of equal protection claims, then where is the law in the Equal Protection Clause? The Artcle suggests that lurking in the rational basis cases is a fundamental principle of equal protection law-e nule against animus. The last major part of the Article considers if, and how, this antianunus rule could cabin would otherwise seem to be a very broad Section 5power The Article concludes by speculating about what this analysis means for Section 5 enactments addressing genderandrace. Inparticula, the Court~sgenderjurzsprudence implies a significant role for congressional input via the Section 5 power The Article also speculates whether this analysis illuminates the scope of Congress s power to address substantive rights under the Due Process Clause or other clauses of the Fourteenth Amendment.