Showing papers on "Substantive due process published in 1994"

Progressive constitutionalism : reconstructing the fourteenth amendment

Abstract: The Fourteenth Amendment guarantees all citizens equal protection under the law as well as immunity from laws that deprive them of life, liberty, or property without due process of law. In Progressive Constitutionalism, Robin West develops an interpretation of this amendment that contrasts with the views, conservative and liberal, of the Rehnquist, Burger, and Warren Courts, and with the radical "antisubordinationist" account provided by the critical legal studies movement and many prominent feminist and critical race theorists. Her interpretation consists of a "substantive" argument regarding the Amendment's core meaning, and a jurisprudential argument regarding the role of the courts and Congress in fulfilling the Amendment's progressive promise. West shows how the "equal protection" clause, far from insulating the private spheres of culture, market, and home life, as is commonly held, directly targets abuses of power within those spheres. She develops a number of arguments for the modern relevance of this understanding, from the failure of the state to provide equal protection against private domestic violence, permitting a "private sovereignty" of patriarchal power within the home, to the the state's failure to provide equal protection against material deprivation, allowing "private sovereignty" between economically privileged and desperate people in private markets. West's argument extends to the "liberty" prong of the due process clause, seen here as a protection of the positive, not negative, liberty of citizens, covering rights in such typically controversial areas as welfare, education, and domestic safety. This interpretation recasts a number of contemporary constitutional issues, such as affirmative action and hate speech, and points to very different problems-notably private, unchecked criminal violence and extreme economic deprivation-as the central constitutional dilemmas of our day. Progressive Constitutionalism urges a substantive, institutional, and jurisprudential reorientation of our understanding of the Fourteenth Amendment, one that would necessarily be pursued through Congressional rather than judicial channels. In doing so, with attention to history and both feminist and critical race scholarship, it should reinvigorate our politics and our constitutional conversations-and, perhaps, point us toward a more just society.

Organizational governance and the grievance process: In need of a new model for resolving workplace issues

Abstract: This article begins by providing insights from the research literature on the union and nonunion grievance processes in the United States. We then take a look at the status of “voice” in the American workplace and identify both inherent and practical implementation problems in providing employee “voice” regarding workplace rules. Finally, we lay out the elements of a viable system that would best meet the criteria for procedural and substantive due process in the employment relationship.

"Life" and "liberty": their original meaning, historical antecedents, and current significance in the debate over abortion rights.

Abstract: Central to the legal debate regarding abortion has been the concept "liberty." The US Supreme Court based its decision in the Roe vs Wade case on the liberty guaranteed by the Constitutions Due Processes Clauses. This review traces the history of "life liberty or property" from their origins in the Magna Carta their interpretation by 17th and 18th century British philosophers and their importation to America in the colonial era. To the social contract theorists such as Locke and Hutcheson life rather than liberty was the most basic right but life was defined broadly to encompass physical integrity health and "indolency of body" and a minimum quality of life. It was this expansive conceptualization of life that informed the Constitution and the 14th Amendment. Not until the 1905 Lochner vs New York case did the Supreme court move away from social contract conceptions toward a definition of liberty as freedom from restraint. In this case the Court struck down a health law that limited the workday of bakery employees. This trend was reversed however during the New Deal period when social contract theory was restricted. Modern conceptualizations of liberty are grounded in incorporation rational basis review and substantive due process. Although the Roe vs Wade decision has been criticized for not explaining how privacy follows from liberty the application of the privacy doctrine to abortion rights is consistent with the Lockean right of "life." According to Locke rights are universal moral principles that cannot be impeded by government interests or authority. The government interests recognized in Roe vs Wade--the health of the woman as well as the potential life of the fetus--represent aspects of the Lockean right of life which in turn encompasses health as well as human existence.

American Legal and Constitutional History: Cases and Materials

Abstract: Chapter 1 Preface to the Second Edition Acknowledgements Chapter 2 American Colonial Legal History Chapter 3 Constitutions of Revolutionary America Chapter 4 Philadelphia Convention and Federal Constitution Chapter 5 Shaping the Constitution in Antebellum America Chapter 6 Family Law in Early America Chapter 7 Vested Rights and Due Process of Law Chapter 8 Tort Law in Industrializing America Chapter 9 Slave and Free Labor in Antebellum America Chapter 10 The Fourteenth Amendment and Substantive Due Process Chapter 11 Corporations, Trusts, and the Sherman Act Chapter 12 Freedom of Contract, Interstate Commerce and the New Deal Chapter 13 Organizing the Legal Profession and Explaining the Law Chapter 14 Epilogue Table of Cases Index