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Judicial Review of State Laws: The Meaning of the Privileges or Immunities Clause

Randy E. Barnett

in Restoring the Lost Constitution: The Presumption of Liberty

This chapter examines the original meaning of the Privileges or Immunities Clause of the Fourteenth Amendment in order to determine what stance federal courts should take toward state laws. The ... More

This chapter examines the original meaning of the Privileges or Immunities Clause of the Fourteenth Amendment in order to determine what stance federal courts should take toward state laws. The original Constitution contained several explicit restrictions on state power. In the early years of the Republic, federal courts actively scrutinized state enactments to ensure they did not violate these expressed prohibitions, especially the Contracts Clause. When it came to legislation not implicating these prohibitions, however, the courts deferred to states in their exercise of their police power. The chapter first considers what the term “privileges or immunities” encompasses before discussing the Supreme Court decision in the so-called Slaughter-House Cases, which set aside the original meaning of the Privileges or Immunities Clause. It then looks at the Due Process Clauses and shows that the due process of law includes judicial review.Less

Ethical Argument

Lackland H. Bloom

in Methods of Interpretation: How the Supreme Court Reads the Constitution

This chapter discusses the use of ethical argument by the Court. It examines the arguable employment of such methodology under the Cruel and Unusual Punishment Clause of the Eighth Amendment focusing ... More

This chapter discusses the use of ethical argument by the Court. It examines the arguable employment of such methodology under the Cruel and Unusual Punishment Clause of the Eighth Amendment focusing on the death penalty and length of sentence cases. It then considers the use of this type of argument through substantive due process by examining punitive damage and the right to privacy cases. Finally, it discusses the concept of ethical argument in the reapportionment decisions.Less

Regulatory Rights

in Regulatory Rights: Supreme Court Activism, the Public Interest, and the Making of Constitutional Law

This chapter discusses the reach of rational instrumentalism in the Supreme Court's development of substantive rights in order to explain and appreciate how thoroughly instrumentalism predominates. ... More

This chapter discusses the reach of rational instrumentalism in the Supreme Court's development of substantive rights in order to explain and appreciate how thoroughly instrumentalism predominates. It primarily concentrates on individual rights (against both federal and state governmental power) associated with the Due Process Clauses of the Fifth and Fourteenth Amendments and the Equal Protection Clause of the Fourteenth. Rational instrumentalism is the basic doctrinal definition of substantive rights, and is also the doctrinal anchor in equal protection cases. Several bodies of Supreme Court case law are conventionally regarded as illustrations of equal protection doctrine in action. Rational instrumentalism dominates the doctrinal tests the Court has established for First Amendment cases. It has proved to be the Court's tool for implementing the lessons of that experience in the endless cases demanding attention. In general, instrumentalism has proved to be an effective doctrinal device for realizing the lessons of that history.Less

The Rule of Law: The Lessons of Due Process

Carl E. Schneider

in The Censor's Hand: The Misregulation of Human-Subject Research

Good decisions come from good law. For government agencies, that means due process: good regulations and good procedures. The IRB regulations address so few issues that IRBs are relegated to ... More

Good decisions come from good law. For government agencies, that means due process: good regulations and good procedures. The IRB regulations address so few issues that IRBs are relegated to subjectivity. IRBs may and do ignore all the elements of due process. And rules and procedures are empty without accountability, but IRBs are unaccountable. They may work in secret, researchers have no recourse against them, and they are not subject to standard hierarchical supervision. IRBs are trapped in inadequate procedures because adequate ones would crush IRBs already overburdened with tasks they lack the resources to accomplish. So they work without law and without accountability.Less

The Warren Court and Its Critics 1962–1969

in The Most Activist Supreme Court in History: The Road to Modern Judicial Conservatism

During 1960, the Warren Court's abandonment of restraint in the reapportionment context was one of a dramatic series of doctrinal innovations expanding the scope of constitutional rights. Harlan's ... More

During 1960, the Warren Court's abandonment of restraint in the reapportionment context was one of a dramatic series of doctrinal innovations expanding the scope of constitutional rights. Harlan's and Black's distinctive approaches to constitutional adjudication led each of them to support certain elements of the rights revolution, but they remained sharply critical of others, and they were, in fact, the leading dissenters during the heyday of the Warren Court. Harlan reiterated that the Due Process Clause was an independent guarantee of fundamental fairness, the content of which should be determined by reference to the nation's legal history and traditions. Black and especially Harlan rejected the Court's emerging egalitarianism, as it violated their fundamental conceptions of individualism and limited government.Less

Federalism and Choice of Law

Symeon C. Symeonides

in Choice of Law

This chapter discusses the federal framework and the impact of the U.S. Constitution on choice of law. It examines the allocation of lawmaking powers between the federal and state governments and the ... More

This chapter discusses the federal framework and the impact of the U.S. Constitution on choice of law. It examines the allocation of lawmaking powers between the federal and state governments and the limitations imposed on state choice-of-law decisions by the Full Faith and Credit, Due Process, and Privileges and Immunities clauses of the Constitution, and the federal government’s power over foreign affairs, including the division of authority between the executive and judicial branches. After discussing each of these four principal clauses in detail, the chapter concludes with a brief discussion of the procedural and substantive law federal courts apply in cases of diversity jurisdiction.Less

‘Deserve’s got [everything] to do with it’: property, process, and justice in Unforgiven

Justin A. Joyce

in Gunslinging justice: The American culture of gun violence in Westerns and the law

This chapter presents a reading of Unforgiven (1992), situating this film within a paradigmatic shift in the extension of due process protections for minorities, and the transformation of American ... More

This chapter presents a reading of Unforgiven (1992), situating this film within a paradigmatic shift in the extension of due process protections for minorities, and the transformation of American self-defense doctrine brought about through a focus on battered women.Less

Criminal Procedure

Michael S. Pardo and Dennis Patterson

in Minds, Brains, and Law: The Conceptual Foundations of Law and Neuroscience

This chapter examines the three primary constitutional provisions that limit the gathering and use of neuroscientific evidence by the government: the Fourth Amendment, the Fifth Amendment privilege ... More

This chapter examines the three primary constitutional provisions that limit the gathering and use of neuroscientific evidence by the government: the Fourth Amendment, the Fifth Amendment privilege against self-incrimination, and Due Process. It argues that the way in which the evidence is conceptualized matters a great deal to the amount of constitutional protection it is likely to receive. Uncertainty about how to characterize evidence produced by new technology is an enduring problem in law, and neuroscientific evidence is no exception.Less

Deferentialism and Adjudication

Gideon Rosen

in The Nature of Legal Interpretation: What Jurists Can Learn about Legal Interpretation from Linguistics and Philosophy

The author argues that Deferentialism offers a distinctive form of judicial restraint. In normal adjudication, the deferentialist judge seeks to apply the law made by the legislature, the content of ... More

The author argues that Deferentialism offers a distinctive form of judicial restraint. In normal adjudication, the deferentialist judge seeks to apply the law made by the legislature, the content of which is fixed, not by the linguistic meaning of the legal text, and not by the intended downstream consequences of the enactment, but by what the legislators said or stipulated when they laid it down. The author suggests that we should identify this stipulated content with the content of certain intentions that an informed interpreter would impute to the authors of the law. The framers and ratifiers of (say) the 14th amendment may have any number of long term goals, and any number of beliefs about the consequences of their legislative act. But according to the deferentialist, these real intentions and expectations are irrelevant. If we want to know the legal content of the Due Process Clause, we should ask: What would an interpreter, apprised of the relevant history and context, take the framers and ratifiers to have intended the legal effect of the provision to be? The author’s view is that the deferentialist should regard this as a hard question for which there is no determinately correct answer.Less

Conventional crime methods

Joe McGrath

in Corporate and white-collar crime in Ireland: A new architecture of regulatory enforcement

The third chapter explores how the social and political inertia documented in Chapter 2 impacted on policy choices in addressing corporate crime. It is shown that addressing corporate wrongdoing by a ... More

The third chapter explores how the social and political inertia documented in Chapter 2 impacted on policy choices in addressing corporate crime. It is shown that addressing corporate wrongdoing by a conventional criminal justice model meant that corporate wrongdoers were entitled to a whole range of due process safeguards. The burden was on the prosecution to prove that the company officer committed the offence beyond a reasonable doubt. In general the accused had to be found subjective culpable and he was protected by the right to privacy, the right to liberty, the right to silence, the right of reasonable access to a lawyer, among others. Though not fully settled in Irish law, companies also seem to be able to claim constitutional protections in criminal proceedings, reflecting the traditional respect for fairness and 42 the fundamental principles of justice. Finally, the accused was entitled on conviction to proportionality in sentencing, whereby his punishment reflected both the particular personal circumstances and those surrounding the commission of the offence. The purpose of this chapter is to show that this system of punishment was developed under an equality of arms framework to act as a check on government power, and against the sweeping use of criminal sanction for instrumental purposes. In keeping with conventional criminal justice, punishment was personal and individuated because the traditional system emphasised punishing blameworthy conduct which was morally reprehensible.Less

From the Ideology of the Township to the Gospel of Germs

Werner Troesken

in The Pox of Liberty: How the Constitution Left Americans Rich, Free, and Prone to Infection

This chapter describes how the evolution of three ideologies simultaneously influenced economic development and the provision of public health in American history. The first of these was the ideology ... More

This chapter describes how the evolution of three ideologies simultaneously influenced economic development and the provision of public health in American history. The first of these was the ideology of the township. This ideology fostered a public health system that was highly localized and predicated on individual consent and private action. The history of smallpox vaccination suggests this township approach worked well so long as communities were small, ethnically homogeneous, and tightly knit. But as America industrialized and urbanized, the ideology of the township began to break down. The demise of the ideology of the township was hastened by the ideology of commerce and the adoption of the Fourteenth Amendment, which created a new language of individual liberty. The rise of the germ theory of disease also undermined the ideology of the township because the public health initiatives it suggestedrendered state actionfar more effective than measures based solely on individual behavior.Less

Making Waves: Schooling and Disability, Sexual Orientation, Religion, and Economic Class

Martha Minow

in In Brown's Wake: Legacies of America's Educational Landmark

The historic treatment of students with disabilities in many ways resembles racial segregation in schools. Brown’s influence in this field is clear but complicated. Also complicated are debates ... More

The historic treatment of students with disabilities in many ways resembles racial segregation in schools. Brown’s influence in this field is clear but complicated. Also complicated are debates over equal treatment of students who identify as gay, lesbian, bisexual, or transgendered. Religious students—and religious schools—elicit further variations on the educational equality debate with consequences for social integration and intergroup relations. Compulsory education laws in the United States for many years exempted students with mental and physical disabilities, and many school systems excluded such students or assigned them to separate institutions well into the 1970s. Before Brown, court challenges to this treatment of students with disabilities failed either on the assumption that the child’s impairments made schooling inappropriate or that the presence of the child with disabilities would harm the best interests of other children and the school. Even schools set up for students with disabilities could exclude a student by asserting that the child’s limitations would prevent educational progress. During the 1920s, communities established separate schools for students who were blind, deaf, or severely retarded, and many schools established separate classrooms for students who were considered to be slow learners. Misclassifications assigning students to separate classrooms or schools was not uncommon, and especially affected students who were immigrants or members of minority groups. This process of segregating persons with disabilities often relegated such persons to squalid residential institutions and imposed forced sterilization, justified in terms set by the eugenics movement. Those children with disabilities who did receive services did so largely in classrooms or schools removed from their peers. Parent advocacy organizations and civil rights activists challenged these practices, often with explicit references to Brown v. Board of Education. Parents and educators pressed for both more funding and experiments placing students with disabilities in regular educational settings. Integration, also called “mainstreaming” and “inclusion,” became a central goal through litigation, legislation, and advocacy for individual students, but for some children, advocates also pursued specialized instruction in separate settings. Intertwined with failures in the treatment of students with disabilities was the problem of racially discriminatory treatment. Less

Not Isolating Isolation

Judith Resnik

in Solitary Confinement: Effects, Practices, and Pathways toward Reform

This chapter explores the distinctive features of solitary confinement and the ways in which isolation is endemic in the structure of U.S. prisons. It analyze the expansion of solitary confinement, ... More

This chapter explores the distinctive features of solitary confinement and the ways in which isolation is endemic in the structure of U.S. prisons. It analyze the expansion of solitary confinement, the debate about the lawfulness of the practice in the federal courts, and recent data on the widespread use of solitary confinement in state and federal prison systems. The U.S. Supreme Court has not prohibited the practice but has licensed courts to inquire about whether a particular version imposes an “atypical and significant hardship” on an individual. If such a showing is made, then prisons must provide some procedural buffers against arbitrary placements. Nation-wide data demonstrate that more than 60,000 individuals were, as of 2018, placed in cells for 15 days or more for 22 hours or more. Almost 4,000 people have been so confined for three years or more. Solitary confinement is thus all too “typical” a facet of prison life. Its commonplace occurrence ought not insulate solitary confinement from the conclusion that it is an illicitly cruel practice that debilitates individuals. The complexity of ending solitary confinement terms not only from its widespread use but also from the ways in which U.S. prisons are committed to many practices that are isolating and disabling of individuals.Less