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William & Mary Bill of Rights Journal
Number of Followers: 6  Open Access journalISSN (Print) 1065-8254 Published by College of William and Mary  [5 journals]
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- Appendix B - Tax Funds for Religious Schools
Authors: Allan Walker Vestal
PubDate: Tue, 07 May 2024 12:56:49 PDT
- Originalism v. Originalism: How James Madison's Understanding of the
Establishment Clause Can Help Combat Christian Nationalism
Authors: Patrick Sawyer
Abstract: This Note will focus on what can be done to prevent Christian Nationalism from ending the Establishment Clause. Part I will focus on the cases that defined former Establishment Clause doctrine and how recent cases have done away with the parameters laid out in those earlier cases. Part II will focus on the understanding that James Madison had about the Establishment Clause. Part III will argue that Madison’s understanding of complete separation can and should be codified either under Congress’ enforcement power under the Fourteenth Amendment or the Spending Power of Article I. Part IV will consider how a statute could affect future Establishment Clause cases. Part V will discuss the feasibility of a federal statute being passed and the alternative option of secular activists passing similar statutes at the state level.This abstract has been taken from the author's introduction.
PubDate: Thu, 02 May 2024 13:18:23 PDT
- Fourteen Going on Forty: Challenging Sex Offender Registration for
Juveniles Under the Fourteenth Amendment Equal Protection Clause
Authors: Emily Baker
Abstract: Part I of this Note reviews the historical background leading to the development of sex offender registration laws and examines relevant Supreme Court precedent. Part II analyzes the principles of juvenile justice, the application of juvenile sex offender registration policies, and the collateral consequences of youth sex offender registration. Part III argues that registered juvenile offenders should be considered a quasi-suspect class and thus receive intermediate scrutiny in equal protection analysis, and challenges the constitutionality of juvenile sex offender registries, particularly the South Carolina statutory scheme. Part IV examines the turning legal tide against juvenile registration through the recent Model Penal Code draft and state supreme court decisions on the constitutionality of juvenile sex offender registration policies. Finally, Part V offers policy analysis and recommendations for state legislatures to create effective registration schemes for juvenile sex offenders, specifically tailored to the specific needs and circumstances of youth sex offenders.This abstract has been taken from the author's introduction.
PubDate: Thu, 02 May 2024 13:18:19 PDT
- Tax-Funded Education Savings Account Payments to Religious Schools Violate
State Constitution Compulsion Guarantees: the Iowa Example
Authors: Allan Walker Vestal
Abstract: [...] This Article makes the unremarkable and conservative argument that the transfer of public funds to religious schools under Iowa’s education savings account program violates the Iowa Constitution’s compulsion guarantee.We start by looking at the Iowa compulsion guarantee, including a review of the Iowa authorities which have construed it, the historical record and setting of its adoption, and the history of its New Jersey antecedent. We then introduce the education savings account mechanism by which Iowa’s religious schools stand to receive more than a third of a billion dollars annually by FY 2027. After that, we consider whether education savings account transfers of public funds to religious schools are constitutional under Iowa’s compulsion guarantee, specifically considering three questions framed by the relevant authorities: first, are the religious schools ministries and are their teachers ministers'; second, do the religious schools teach their students religion'; and third, are the religious schools pervasively religious' We then consider the application of the compulsion guarantee to the education savings account program in light of the Supreme Court’s ruling in Carson v. Makin. We conclude by asking where we go from here.This abstract has been taken from the author's introduction.
PubDate: Thu, 02 May 2024 13:18:15 PDT
- Eavesdropping, the Fourth Amendment, and the Common Law (of Eavesdropping)
Authors: Donald A. Dripps
Abstract: This Article addresses two of the most momentous and controversial issues raised by the Fourth Amendment. These issues are closely related but distinct. First, is eavesdropping a “search” subject to the Fourth Amendment' Second, are Fourth Amendment “searches” limited to the interests against physical intrusion protected by the common-law torts of trespass and false arrest'[...]Remarkably, the debate about the Fourth Amendment, the common law, and eavesdropping has almost completely ignored the common law of eavesdropping. This Article is the first to consider the Fourth Amendment in light of an in-depth examination of the common law’s prohibition of eavesdropping as a public nuisance. The evidence presented here shows that the prohibition of eavesdropping was an integral part of the common law’s protections for the security of the home. Insofar as the Fourth Amendment incorporates Founding-era common-law protections for the security of the home, those protections were not limited to physical invasions.This abstract has been taken from the author's introduction.
PubDate: Thu, 02 May 2024 13:18:11 PDT
- Harmonizing Freedom of Speech and Free Exercise of Religion
Authors: John Fee
Abstract: [...]The close relationship between the free exercise of religion and the freedom of speech points to the sensible assumption that they should receive similar interpretation when dealing with parallel types of problems, or at least that differences in interpretation should be carefully justified.With this premise, this Article compares freedom of speech and free exercise jurisprudence in various parallel applications, with the suggestion of harmonizing them more closely. While other commentators have compared freedom of speech and free exercise case law with a narrower focus (most commonly, focusing on the incidental burdens issue presented in [Employment Division v. Smith]), I consider here multiple ways in which free exercise and free speech standards of protection differ, or where some have argued that they differ. These include the treatment of incidental burdens, underinclusive regulations, regulations that allow individualized exemptions, freedom of association, regulations that compel behavior, and conditions on public employment. In addition, I consider the overlapping protection these freedoms provide for religious expression, and what the Court’s apparent preference for using speech jurisprudence here signifies.This abstract has been taken from the author's introduction.
PubDate: Thu, 02 May 2024 13:18:08 PDT
- The Private Abridgment of Free Speech
Authors: Erin L. Miller
Abstract: This Article challenges the orthodoxy that First Amendment speech rights can bind only the state. I argue that the primary justification for the freedom of speech is to protect fundamental interests like autonomy, democracy, and knowledge from the kind of extraordinary power over speech available to the state. If so, this justification applies with nearly equal force to any private agents with power over speech rivaling that of the state. Such a class of private agents, which I call quasi-state agents, turns out to be a live possibility once we recognize that state power is more limited than it seems and can be broken down into multiple, equally threatening parts. Quasi-state agents might include a limited set of corporations, from the largest social media platforms to powerful private employers. However, because quasi-state agents are not exactly like state agents but pursue important private aims that the state cannot, I argue that the First Amendment might bind them slightly differently (and less demandingly) than it does the state. Drawing on examples from American state and comparative constitutional law, I offer several analytical models for understanding this differential application.
PubDate: Thu, 02 May 2024 13:18:04 PDT
- Table of Contents (v. 32, no. 3)
PubDate: Thu, 02 May 2024 13:18:00 PDT
- On Inmates and Friendship
Authors: Jared Deeds
Abstract: That humanity both cherishes friendship and finds it to be fundamental for its own good should be reason enough to justify its legal protection. Yet, there is a serious deficiency of legal discourse on the rights and liberties of friends in America’s courts. In the absence of such discourse—perhaps partially because of it—friendship as a social institution experiences a lack of legal protection in the United States. Though all friends may be exposed to abuses as a result of deficient safeguards, inmates and their unincarcerated friends suffer with particular severity.[...]Part I of this Note will further discuss the nature of friendship for the purpose of showing its personal and legal value, with particular attention paid to Aristotle’s account of friendship in Nicomachean Ethics. Part II will provide background on associational liberties pertaining to friendship protections under the Supreme Court’s ruling in Roberts v. United States Jaycees. Part II will also discuss the divisions between courts on whether Roberts actually extends associational liberty protections to friends and outline a legal argument that could be used in support of friendship protections. Part III will discuss potential legal definitions courts could use in making friendship determinations, arguing that the best definition would be found under judicial determinations using the Leib test. Finally, Part IV will analyze the available visitation and contact protections for friends in the inmate context in and beyond the scope of Overton v. Bazzetta.This abstract has been taken from the author's introduction.
PubDate: Thu, 14 Mar 2024 13:08:41 PDT
- "There's a New Sheriff in Town": Why Granting Qualified Immunity to
Local Officials Acting Outside Their Authority Erodes Constitutional
Rights and Further Deteriorates the Doctrine
Authors: Josephine McGuire
Abstract: Part I traces the history of qualified immunity and the doctrine’s analytical changes over time, detailing the twofold test as it currently stands. Part II considers Large and Sweetin, comparing the courts’ approaches to essentially similar scenarios and evaluating the differences in outcome. Part III addresses the Supreme Court’s denial of the Large plaintiffs’ petition for certiorari and explicates the “scope of authority” question the Court declined to address. Part IV breaks down the decision in Large and conducts the qualified immunity analysis anew, determining that the court misapplied the doctrine regardless of its failure to consider the scope of authority inquiry and concluding that had the court correctly followed the proper analysis (as demonstrated in Sweetin), the official in Large would have rightly been denied qualified immunity for committing an unconstitutional seizure.Part V argues that courts justifying grants of qualified immunity to undeserving low-level officials through labeling each violated right as not clearly established will result in an over-broadening of the qualified immunity doctrine with potentially dire consequences for civil rights.Part VI suggests solutions to end this slippery slope, including a return to the order of analysis in Saucier v. Katz, an addition of a good-faith element to the existing standard, and the inclusion of the scope of authority analysis. Finally, Part VII employs recent scholarship to consider whether qualified immunity deserves to be bolstered by these solutions, or if it should be abandoned altogether as a doctrine too bereft of benefit.This abstract has been taken from the author's introduction.
PubDate: Thu, 14 Mar 2024 13:08:37 PDT
- Remedying the Insular Cases: Providing Tribal Sovereignty to
Unincorporated Territories to Ensure Constitutional Rights for All U.S.
Nationals and Citizens
Authors: Allison Ripple
Abstract: This Note will focus on the Supreme Court’s decisions in the Insular Cases to demonstrate the origins of denying jus soli citizenship to those born in unincorporated territories and to analyze its direct contradiction to the Fourteenth Amendment and other Supreme Court decisions. It will argue that the Court’s decisions in the Insular Cases were influenced by colonial rule and rooted in racism. Furthermore, this Note will argue that because of these influences, the continued application of the Insular Cases by Congress and the Supreme Court to deny constitutional rights for U.S. nationals and citizens born in unincorporated territories violates the Due Process Clause of the Fifth Amendment.[...]Part I of this Note will provide historical and legal background through a discussion of the context surrounding the Insular Cases and the colonization of American Samoa. Part II will discuss recent applications of the Insular Cases and argue that the decisions made in the Insular Cases have been consistently applied to deny the constitutional rights of U.S. nationals and citizens born in unincorporated territories in a manner that violates the Constitution and effectively perpetuates U.S. colonial rule in the twenty-first century. Part III will argue that to end the arbitrary denial of constitutional rights and U.S. colonial rule over unincorporated territories, unincorporated territories should be granted a degree of “tribal sovereignty.” Part IV will address counterarguments arising from the arguments made throughout this Note and its proposed solution.This abstract has been taken from the author's introduction.
PubDate: Thu, 14 Mar 2024 13:08:33 PDT
- Historians Wear Robes Now' Applying the History and Tradition Standard: A
Practical Guide for Lower Courts
Authors: Alexandra Michalak
Abstract: Never before has the Supreme Court relied on the history and tradition standard to such a magnitude as in the 2021 term to determine the scope of a range of constitutional rights. [...] In reaffirming this standard, the Supreme Court provided no guidance to lower courts on how to apply and analyze the history and tradition standard. Along with balancing the lack of resources in deciding cases with the history and tradition framework, lower courts must face the reality that this standard presents ample opportunity for one-sided historical analysis. To combat the temptation of conducting unbalanced and cursory reviews of historical sources and to ensure consistent interpretation and application of the law, lower courts must administer a workable, practical, and predictable method to apply the history and tradition standard. Acting within the vague boundary lines set out by the Court in Bruen, Dobbs, and Kennedy, lower courts must evaluate the history and tradition surrounding a given right through finding historical evidence that the right, or foundations of the right, survived to become the law of the Founders or adopters. But lower courts must recognize the pitfalls of the history and tradition test. Lower courts should avoid over-relying on amicus briefs, listening to “law office history,” or scrutinizing historical outliers in drawing conclusions.[...]Part I of this Note provides background on the origins of this test, the rise of originalism, and the evolution of the use of history and tradition. Part II discusses how lower federal courts have used history and tradition to inform its decisions thus far. Part III breaks down the modern doctrine at the Supreme Court, most significantly the use of the history and tradition test in the 2021 term. Part IV describes how lower courts have struggled to apply the history and tradition test. Part V establishes a practical way for lower courts to apply the history and tradition test, balancing the interests of justice with the realities of the limits of the lower courts. The workable standard suggests that lower courts, in tandem with the use of expert witnesses or special masters, must engage in “historical quarrying.”This abstract has been adapted from the author's introduction.
PubDate: Thu, 14 Mar 2024 13:08:29 PDT
- Unleashing the Guarantee Clause Against the Spirit of Innovation
Authors: Ricardo N. Cordova
Abstract: [...] Of special significance is Madison’s defense of the Guarantee Clause in Federalist 43, in which he argued that the Clause is intended to prevent “aristocratic or monarchical innovations” by the states. This phrase is a critical clue to uncovering the full meaning of the Guarantee Clause. Yet scholars have mentioned it only in passing and divorced from its historical context, as part of apocryphal claims that the Clause supports radical modern causes. This is unfortunate because Madison’s phrase, properly construed, speaks volumes.Preliminarily, the phrase shows that the Guarantee Clause was originally understood to prevent changes of a monarchical or aristocratical nature—not just the extreme (and, today, unlikely) situation when a state formally establishes an aristocracy or monarchy. It should therefore be obvious that we need not wait until a state crowns a king to find that it has violated the Clause. But just what did Madison, not known to choose his words carelessly, mean by “innovations'” As used by the Founders, the word was a term of art usually understood to mean, quite pejoratively, novel changes to the structure of government. Such innovations, especially when implemented under the auspices of an emergency, were strongly disfavored under the common law tradition. The Founding generation fully embraced this long-standing principle (which, for ease of reference, I will call the anti-innovation principle), including in the Declaration of Independence. Indeed, by 1787, the anti-innovation principle was deeply engrained in the American understanding of “Republican” government.Viewed against this historical backdrop, a vital but long-neglected purpose of the Guarantee Clause comes into focus. As I will demonstrate, the Clause was originally understood to encompass the anti-innovation principle. This Article examines the evidence supporting this interpretation beginning, in Part I, with a review of the origins of the anti-innovation principle. Part II explores the refinement of the anti-innovation principle in the Colonial era. Part III turns to the emergence of a prototype of the Guarantee Clause in the Confederation era. Part IV discusses the drafting of the Guarantee Clause at the Philadelphia Convention. Part V brings us to the ratification debates relevant to the Guarantee Clause. The Conclusion sets forth my parting thoughts.This abstract has been taken from the author's introduction.
PubDate: Thu, 14 Mar 2024 13:08:26 PDT
- Pathways to Liberty: What Colonial, Antebellum, and Postbellum Education
Can Teach Us About Today
Authors: Danielle Wingfield
Abstract: Education is a critical part of nation-building. More specifically, it can also be a powerful pathway to liberty and a tool for disseminating knowledge. However, historically it has been used to subjugate and censor vulnerable groups like women, socio-economically disadvantaged persons, as well as men of color. Therefore, to avoid subordinating members of such minoritized groups and suppressing uncomfortable historical facts, advocates must continually evaluate the purpose and method of education. Such persistent monitoring can provide a basis for constructive reform of public education in the United States. Such reform must also consider changing social conditions.Presently, for example, public education is at the center of culture wars involving issues such as censorship and the ongoing battles for access to quality education. In addition, efforts have mushroomed to prevent the teaching of comprehensive, fact-based American history and to silence discussion of marginalized groups. To effectively understand this crisis, there is a need to better understand the historical relationship between public education, representative government, and liberty.In this fraught context, this Article excavates history and narratives important to the goal of an educated citizenry and liberated society to show that America has been here before. The Article’s overarching goals are to show the subjective practices of education in the Colonial, Antebellum, and Postbellum eras in Virginia, the birthplace of America. The Article also aims to amplify the narratives of formerly enslaved and free Black Americans who leveraged education to achieve liberty and contribute to the democratic project. Further, this Article underscores the significance of access to a quality and robust education for advancing equality and empowerment—and, ultimately, freedom.
PubDate: Thu, 14 Mar 2024 13:08:22 PDT
- The Illusion of Due Process in School Discipline
Authors: Diana Newmark
Abstract: Long-term suspensions and expulsions can be enormously consequential for students and their families. Not only do exclusionary disciplinary measures directly result in lost learning opportunities for children, but school discipline decisions can also result in significant collateral consequences. These consequences range from lower rates of graduation and higher rates of contact with the criminal justice system to disruptions in foster care placements, violations of juvenile probation, and even possible immigration consequences for undocumented students.The Supreme Court has recognized the significance of suspensions and expulsions, requiring due process for such exclusionary discipline measures. But the Supreme Court has never explained what process is actually due for long-term suspensions and expulsions. Lower courts have been left to fill in the gaps and, in doing so, have generally shown enormous deference to school officials, upholding hearing procedures that amount to kangaroo courts. For example, courts have found that a student facing exclusionary discipline has no right to know the identity of her accusers, confront witnesses, or have notice of the specific charges against them.This Article argues that courts analyzing student due process cases have misunderstood the interests at stake in exclusionary discipline, undervaluing a child’s interest in attending school and overestimating a school’s capacity or inclination to adjudicate school discipline issues fairly. Drawing on case law, research into the consequences of exclusionary school discipline, and case studies from the Education Advocacy Clinic at the University of Arizona, James E. Rogers College of Law, this Article illustrates the high stakes for students facing suspensions and expulsions— and how brittle the due process protections are. As the Article shows, courts are wary of supplanting a school’s judgment in school discipline matters, assuming schools will adjudicate discipline issues fairly so that additional process for students is not needed. But this assumption is wrong.A comparison to special education law demonstrates that courts do have reason to be wary of a school’s decision-making in school discipline matters. Federal special education laws demonstrate a well-earned skepticism toward school officials and a concern that, without oversight, schools will exclude children they deem difficult to educate. In response, these laws establish detailed statutory requirements, numerous procedural safeguards, and regulatory oversight regarding the education of children with disabilities. This framework stands in stark contrast to the deference afforded school officials in the discipline context and shows that courts are naive to assume school officials will adjudicate discipline issues fairly without more due process protections.This Article re-envisions what process should be due to students facing exclusionary discipline under existing Supreme Court precedent and provides specific recommendations for procedures that should be required by the courts. Due process— or even basic fairness—can feel far off for many students facing exclusionary discipline. This Article provides a path forward.
PubDate: Thu, 14 Mar 2024 13:08:18 PDT
- The Unfinished Business of Desegregation: Race Conscious College
Admissions
Authors: Wendy B. Scott
Abstract: This rejection of race conscious admissions practices under the Equal Protection Clause of the Fourteenth Amendment by the [Supreme] Court requires a revisit to desegregation jurisprudence and practice to demonstrate why the considerations of race in higher education admissions fulfills the desegregation mandate. Given its rich history and contributions to the formation of equality norms and affirmative action, desegregation jurisprudence and practice provide a foundation for the premise that the use of race in college admissions constitutes a compelling state interest, supported by specific evidence of discrimination, that moves us closer to the democratization of education and racial equality under the Fourteenth Amendment’s Equal Protection and Due Process Clauses.Part I summarizes the jurisprudence of desegregation law in K–12 and higher education. The jurisprudence supports the rationale proffered in Part II for a compelling governmental interest—undergirded by evidence of the present effects of past discrimination in K–12 education traceable to de jure segregation—for considering race as a factor in college admissions.This abstract has been taken from the author's introduction.
PubDate: Thu, 14 Mar 2024 13:08:14 PDT
- Table of Contents (v. 32, no. 2)
PubDate: Thu, 14 Mar 2024 13:08:10 PDT
- The Evolution of Sodomy Decriminalization Jurisprudence in Transnational
and Comparative Constitutional Perspective
Authors: Ayodeji Kamau Perrin
Abstract: In this Article, I demonstrate that legal mobilization by activist litigants combined with a comparative methodological jurisprudence has been central to the “transnational legal process” of the generation and diffusion of the sodomy decriminalization norm since the 1950s. My analysis of the transnational comparative jurisprudence relies on a comprehensive legal survey of seven decades of decriminalization jurisprudence (1954–2022), primarily using successful cases. Although the scholarship on the well-known Dudgeon, Toonen, and NCGLE cases often asserts the influence that these cases had on subsequent domestic court constitutional jurisprudence, I suggest that it is the domestic privacy jurisprudence of lobbyists, legislators, claimants, and judges from the United Kingdom and United States in the 1950s through 1970s that shaped the claims-making in Dudgeon and Toonen. Conversely, I argue that the difference between the outcomes in Bowers v. Hardwick and Lawrence v. Texas can be explained in part by developments in transnational equality and human dignity jurisprudence that resulted in a shift from the privacy legal frame to the equality and human dignity legal frame and a shift from a spatial conception of privacy to a decisional (personal choice) conception of privacy. Additionally, I move beyond scholarship centered on European and U.S. case law to include the jurisprudence from the Global South (2005 to present) that, to my knowledge, has yet to be analyzed systematically and comparatively. My Article is among the first to analyze the five landmark decriminalization cases decided in 2022, and one of the few that discusses judicialized sodomy decriminalization in transnational and comparative constitutional perspective.This inquiry is retrospective: how has legal mobilization and comparative methodological jurisprudence contributed to understandings of sexual freedom and the justifications for sexual freedom' But it is prospective as well. Sixty-six countries retain sodomy prohibitions; will the sodomy decriminalization trend continue, and if so, what role(s) will legal mobilizations play' There is also the question of backlash and retrenchment—whether homosexual conduct will be recriminalized in jurisdictions that have decriminalized. In 2022, in Dobbs v. Jackson Women’s Health Organization, Justice Clarence Thomas essentially invited reactionary and regressive forces in society to bring to the U.S. Supreme Court cases that would overturn Griswold v. Connecticut and its progeny in the LGBTQ rights space—Lawrence and Obergefell v. Hodges. I recommend activists and their allies begin the work of upholding Griswold, Lawrence, and Obergefell by exploring not only U.S. domestic jurisprudence but also transnational jurisprudence—in international human rights law and comparative constitutional law—to support the continued legalization of adult, consensual, same-sex sexual conduct and same-sex marriage.
PubDate: Tue, 19 Dec 2023 10:34:14 PST
- Revisiting Rights-Talk in Magna Carta: Applying Hohfeld to the Problem
Authors: Jason Taliadoros
Abstract: This Article attempts to resurrect rights-talk in Magna Carta and, in doing so, to revisit rights discourses in the histories of rights more generally. It does so by means of a rights discourse that is axiomatic and therefore arguably free from the contentious underpinnings that potentially beset many historical accounts of rights. This is the formalistic account of rights offered by influential legal theorist Wesley Hohfeld. Against charges that it is anachronistic to apply a modern formalist legal theory such as Hohfeld’s to pre-modern sources, it is contended that this same accusation could be levelled at any other attempt to trace a modern concept into premodern sources, as I demonstrate in this Article. This Article nevertheless will carefully attend to contextualising the sources and explaining the methodology. In applying Hohfeld’s so-called “fundamental legal conceptions” to the provisions of Magna Carta, this Article is consistent with recent works by Thomas Duve advocating an approach to legal history that incorporates “praxis.”[...]Part I outlines a proposed solution to this problem, namely the analysis of rights put forward by legal theorist Wesley Hohfeld, contrasting this to historian Brian Tierney’s well-known studies on the lineages of rights analysing objective and subjective understandings of the term ius and a later iteration examining permissive natural rights. It also turns to the notion of praxis hinted at by Tierney but given greater emphasis in recent scholarship by Thomas Duve. Part II provides the background to the problem of rights in Magna Carta by outlining its provisions and then tracing scholarship on it: the traditional approaches before Holt, which found a place for discussions of rights; the monumental work of Holt, which shifted the focus away from rights; and the diversity in readings that followed Holt, further moving away from rights. Part III then turns to Hohfeld in praxis by applying his conceptions of legal entitlements to the provisions of Magna Carta. It also, by way of contrast and illustration of the usefulness of Hohfeld in this context, applies Tierney’s rights analyses to those chapters. Part IV completes this revisiting of rights-talk in Magna Carta by comparing and contrasting the approaches of Holt, Tierney, and others with Hohfeld in their conception of the traditional binary that separates conceptions of rights as modern (individual) or pre-modern (communal). The Article concludes with some observations on how the term “rights” can still be meaningfully applied to historical examinations of Magna Carta and rights more generally albeit with some important qualifications.This abstract has been taken from the author's introduction.
PubDate: Tue, 19 Dec 2023 10:34:11 PST
- Dobbs' Sex Equality Troubles
Authors: Marc Spindelman
Abstract: Part I traces Dobbs’ constitutional sex equality troubles with a particular eye on sex equality rights under the Fourteenth Amendment’s Equal Protection Clause. Of note here among the sex equality threats that Dobbs poses is how the ruling practically clears the way for the state to give husbands authority over their wives in the context of abortion rights and choice. Part II engages conventional legal intuitions that are inclined to doubt that Dobbs places Fourteenth Amendment equal protection sex equality rights in substantial danger. This Part shows how Dobbs’ suspension of certain traditional rules of regular constitutional order conditions the grounds for far-reaching transformations in existing constitutional sex equality doctrine—a doctrine that has helped alter the meaning of, and expectations around, sex equality under law by promising women equality to men in the nation’s economic and social life. At the same time, this Part measures the prospects of major transformations in the Court’s sex equality jurisprudence—including its elimination—against the potential scale of Dobbs’ contemplation of a new Privileges or Immunities Clause jurisprudence, which generates sex equality concerns of its own, given the prospects of the Court announcing and protecting ancient economic and social rights, including in the family law setting. Part III then details some of the complexities of both the Dobbs majority opinion and Kavanaugh’s Dobbs concurrence on the way to a biographically focused account of the material social grounds and life experiences behind Kavanaugh’s Dobbs concurrence and thus Dobbs itself. Having shown what those social grounds and life experiences look like and how they manifest in doctrinal form in Kavanaugh’s Dobbs opinion, the analysis turns to diametrically opposed sexual politics prospects for what Dobbs may come to mean for, and do to, constitutional and positive law sex equality rights. The Conclusion briefly sketches in other terms what might be next for those committed to robust visions of sex equality principles—both at the Court and in the court of American politics.This abstract has been taken from the author's introduction.
PubDate: Tue, 19 Dec 2023 10:34:07 PST
