Showing papers on "Substantive due process published in 2017"

The Constitutional Compromise to Guarantee Education

Abstract: Although the U.S. Supreme Court refused to recognize education as a fundamental right in San Antonio Independent School District v. Rodriguez, the Court in several other cases has emphasized the possibility that the Constitution might afford some protection for education. New litigation is attempting to fill that void. This litigation comes at a perfect time. Segregation, poverty, and achievement gaps are all rising, while state courts and federal agencies have recently retreated from enforcing educational equity. New litigation, however, has yet to offer a theory of why the Constitution should protect students’ educational rights, relying instead on the fact that the Court has consistently emphasized the importance of education. Prompting a significant doctrinal shift to protect education will require more than laudatory dicta. It will require a compelling affirmative constitutional theory. This Article offers that theory. It demonstrates that the Framers of the Fourteenth Amendment specifically intended to guarantee education as a right of state citizenship. This simple concept was obscured by the unusually complex ratification of the Amendment. First, the Amendment required the assent of Confederate states that were no longer part of the Union. Second, Congress expressly indicated that it would not readmit those states to the Union until they ratified the Fourteenth Amendment and rewrote their state constitutions. Third, education was part of the deal: Congress permitted states to retain discretion over education but expected state constitutions to affirmatively guarantee education. Through this process, education became an implicit right of the Fourteenth Amendment’s Citizenship Clause. As a right of state citizenship and consistent with historical practices and goals, this Article argues that the Fourteenth Amendment prohibits states from partisan and other illegitimate manipulations of educational opportunity.

Orzecznictwo Sądu Najwyższego Stanów Zjednoczonych jako autonomiczne źródło tworzenia norm konstytucyjnych

Abstract: The landmark decisions of the Supreme Court change the ethos of adjudicating. The substantive due process doctrine allowed the Court to become an actual lawgiver. This doctrine widely extended the understanding of the due process clause of the 5 th and 14 th Amendments. Increased power of statutory construction corresponded with the doctrine of loose constructionism (living constitution). Decisions like Griswold v. Connecticut and Roe v. Wade created new constitutional rights, emanating from the radical liberal anthropology. Adjudication became a field of an ideological battle in the culture war over anthropology determining the law’s content . In the classical and Christian understanding, being free is considered as having one’s identity discovered as an ontological constant, thus allowing an individual to develop himself according to the nature’s essence . The liberal anthropological revolution defines freedom as a power of self-creation, serving individual’s preferences. The liberal elites, employing ideas of social engineering, attempt to enforce rules based on coexistence and relationship of equal rights. Individual rights emanate from the autonomous, personal choice of life values, the key of the constitutional interpretation. The wider this right of self-definition , the wider the scope of the state’s intervention. In Griswold v. Connecticut the right to privacy signified deep cultural change rooted in such an anthropology. This “emancipation project” is thus built on an axiology destroying relations, becoming a kind of a religion of secular salvation. The state serves here as a demiurge and is sacralized. This causes an increasing abyss between the elites and the rest of the citizens, with a corresponding social disintegration of it’s public life. For instance Obergefell v. Hodges enforces a new anthropological definition of marriage, beginning to delegitimize creeds and actions of religious communities. This reflects a global phenomenon of connecting individual liberal rights with politics of identity and the post-modern culture of right understood as autonomous will without reasoning about its ontological, universal basis. The Supreme Court decisions are not separated from wider culture, but based on the new anthropological understanding of man as a consumer, with his individual will becoming the very basis of rights.

Introducing consensual criminal justice in Brazil

Abstract: This article of law review makes a comparative study between the criminal systems of Brazil and the USA. Using the functional method focusing on similarities between the criminal legal systems of Brazil and the United States. it first examines the North American system, which is based on popular participation in the administration of justice and the consensual truth. The article reviews the principles of due process and substantive legal process from judicial interpretations of the US Supreme Court. This system has allowed the US 95% of criminal trails are resolved through negotiation between prosecution and defense, which makes the system faster, efficient and democratic, for allowing the accused to participate in the decision on the criminal sanction that will be reckoned. Finally, the author criticizes the Brazilian legislation, which from the Act n. 9099/95 introduced the consensual truth in the Brazilian criminal system to crimes punishable by up to two years in prison. The article proposes the extension of this legal institute for any type of crime.

Take the Fifth . . . Please!: The Original Insignificance of the Fifth Amendment's Due Process of Law Clause

Abstract: The Fifth Amendment’s Due Process of Law Clause adds nothing to the Constitution’s original meaning. Every principle for limiting federal executive, judicial, and even legislative powers that can plausibly be attributed to the idea of “due process of law” – from the principle of legality forbidding executive or judicial action in the absence of law to the requirement of notice before valid judicial judgments to a limitation on arbitrary governmental action that today goes under the heading of “substantive due process” – is already contained in the text and structure of the Constitution of 1788. The Fifth Amendment Due Process of Law Clause confirms those principles but does not create them. Accordingly, originalist attention should be focused on the Constitution itself, not on the “exclamation point” added to it in 1791. This article defends those claims and also briefly explores why and how modern doctrine has moved from this substantively-oriented account of limitations on governmental powers to a focus on executive and judicial procedures. That shift may result in some measure from doctrine under the Fourteenth Amendment’s Due Process of Law Clause. The limitations on federal power built into the Constitution of 1788 obviously do not apply to state governments, so attributing the Fifth Amendment’s meaning to the Fourteenth Amendment makes little sense (though if that really is what the original meaning of the Fourteenth Amendment does, that is just life). A proceduralist account of due process of law makes some sense under the Fourteenth Amendment, but it is a large mistake to read that proceduralist account back into the Fifth Amendment. The bottom lines are that the Fifth Amendment’s Due Process of Law Clause (1) is much more about substance than about procedure and (2) is basically irrelevant to the Constitution’s original meaning.

Due Process and Delegation: ‘Due Substance’ and Undone Process in the Administrative State

Abstract: Due process as a notion of basic fairness has deep roots and broad intuitive appeal. It is a guarantee, stretching back at least to Magna Carta, that government’s most feared impositions on those within its reach — using coercive powers to take away our lives, our liberty, or our property — can only be accomplished through processes that have qualities of regularity and impartiality under rules adopted through mechanisms that historically carried the hallmarks of legitimacy, generality, and neutrality. The same instincts that underlie due process guarantees also inform the structural protections that are the central features of our Constitution. The goal under either label is to protect liberty by regulating the way government goes about setting and applying legal rules. The intuitive appeal of the notion of “due process,” however, at times has obscured the limited reach of the core concept, which is restricted in both what it applies to and what it requires. Transformation of due process from that core to a looser constraint that can be shaped to fit particular notions of good governance has produced serious failures, both encouraging episodes of judicial adventurism that invade space reserved to electoral-representative processes (the story of “substantive due process”) and weakening protections against inappropriate exercises of official discretion. Reliance on softer notions of due process may be especially problematic in respect to questions of administrative process, which often lie outside the ambit of appropriate due process constraints. Even where due process does apply, other legal rules strongly influence the degree to which administrative processes work and frequently provide better avenues for constraining them. Addressing directly the problematic nature of many delegations of authority to administrators and of inappropriate judicial deference to administrative determinations by and large will be preferable to due process challenges to administrative action. Due process can be a complement to reinvigorated delegation constraints and reformed deference rules or a partial substitute — used to compensate for failure to properly reform those doctrines — but it is at best a “second best” option.

Protecting Prenatal Persons: Does the Fourteenth Amendment Prohibit Abortion?

Abstract: What should be the legal status of human beings in utero under an originalist interpretation of the Constitution? Other legal thinkers have explored whether a national “right to abortion” can be justified on originalist grounds. Assuming it cannot, and that Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey were wrongly decided, only two other options are available. Should preborn human beings be considered legal “persons” within the meaning of the Fourteenth Amendment, or do states retain unfettered authority to make abortion policy? The late Justice Scalia famously argued for the latter position and pledged he would strike down a federal ban on abortion. But is this view consistent with the original meaning of the term “person”? Using originalist interpretive methods, this paper argues that preborn human beings are legal “persons” within the original meaning of the Fourteenth Amendment.

Anchoring More than Babies: Children's Rights after Obergefell v. Hodges

Abstract: The Supreme Court’s recent decision upholding a constitutional right to same sex marriage in Obergefell v Hodges was a huge advance not just for LGBT Americans, but also for children Obergefell suggests children have a fundamental right to be raised by their parents without being demeaned or marginalized by the state This has important implications for other vulnerable children, including US citizen children with undocumented parents This Article argues that deporting these children’s parents contravenes their fundamental right to be raised by a loving parent, to equal protection of the law, and to remain in the United States as US citizens It explains the important shift in perspective on children’s rights suggested by the Obergefell decision and its implications for children with undocumented parents It describes the current situation confronting US citizen children whose parents lack legal immigration status and the unconstitutional harm they suffer when their parents are deported It notes that three important constitutional rights are implicated: children’s substantive due process right to be raised by their parents, their right to equal protection of the laws, and their right under the Privileges and Immunities Clause to live in the United States Finally, the Article discusses procedures to protect the rights of US citizen children with undocumented parents It concludes that executive action to prevent the deportation of parents of US citizen children is clearly warranted Given the fundamental rights of children that are at stake, the Article contends that mechanisms to prevent the deportation of US citizen children’s parents are not only lawful, but perhaps constitutionally required

Take the Fifth... Please!: The Original Insignificance of the Fifth Amendment's Due Process of Law Clause

Abstract: The Fifth Amendment’s Due Process of Law Clause adds nothing to the Constitution’s original meaning. Every principle for limiting federal executive, judicial, and even legislative powers that can plausibly be attributed to the idea of “due process of law” – from the principle of legality forbidding executive or judicial action in the absence of law to the requirement of notice before valid judicial judgments to a limitation on arbitrary governmental action that today goes under the heading of “substantive due process” – is already contained in the text and structure of the Constitution of 1788. The Fifth Amendment Due Process of Law Clause confirms those principles but does not create them. Accordingly, originalist attention should be focused on the Constitution itself, not on the “exclamation point” added to it in 1791. This article defends those claims and also briefly explores why and how modern doctrine has moved from this substantively-oriented account of limitations on governmental powers to a focus on executive and judicial procedures. That shift may result in some measure from doctrine under the Fourteenth Amendment’s Due Process of Law Clause. The limitations on federal power built into the Constitution of 1788 obviously do not apply to state governments, so attributing the Fifth Amendment’s meaning to the Fourteenth Amendment makes little sense (though if that really is what the original meaning of the Fourteenth Amendment does, that is just life). A proceduralist account of due process of law makes some sense under the Fourteenth Amendment, but it is a large mistake to read that proceduralist account back into the Fifth Amendment. The bottom lines are that the Fifth Amendment’s Due Process of Law Clause (1) is much more about substance than about procedure and (2) is basically irrelevant to the Constitution’s original meaning.

The State of the Art in Constitutional Amendment (Introduction)

Abstract: In this Introductory Chapter to an edited volume on "The Foundations and Traditions of Constitutional Amendment," I explore the functions and operation of constitutional amendment, the architecture of constitutional amendment rules, the current challenges in the study of constitutional change, and the major fault lines in the field of constitutional change. I also introduce the other chapters in the collection and I situate this collection in the field, explaining how the volume advances our understanding of constitutional amendment, both formal and informal.

A Critical Guide to Using the Legislative History Of The Fourteenth Amendment to Determine The Amendment's Original Meaning

Abstract: Judges, lawyers, and scholars often look to the Fourteenth Amendment’s legislative history for evidence of the Amendment’s original meaning. Members of the Supreme Court, for instance, have cited floor statements, committee records, preliminary proposals, and other documents relating to the drafting and approval of the Fourteenth Amendment in many important cases. The documents containing this legislative history, however, are difficult to use. As explained in this Article, the Amendment came about through a complex process, in which Congress rejected several prior proposals for constitutional amendments before settling on a markedly different proposal that became the Fourteenth Amendment. Although the primary sources containing the legislative history are widely available online, some of them lack useful indexes and are only partially electronically searchable. In addition, statements made during the drafting and debate over the Fourteenth Amendment do not always yield clear answers to modern questions. Aggravating the situation, most lawyers, judges, law clerks, and legal scholars receive little or no instruction on how to use the documents containing the legislative history of the Fourteenth Amendment. Accordingly, they may feel unequipped either to use the legislative history to make claims about the Amendment’s original meaning or to evaluate the claims of others. Even the Supreme Court appears to have difficulty with the details. This Article seeks to improve the situation by providing a critical guide to the Amendment’s legislative history.

Deported by Marriage: Americans Forced to Choose between Love and Country

Abstract: As the Loving v. Virginia case barring prohibitions against interracial marriages reaches its fiftieth anniversary, marriages between people of different national origins continue to be undermined by the law. The Constitution does not protect the marital rights of citizens who marry noncitizens in the same way that it protects all other marriages. Courts have consistently held that spousal deportation does not implicate the rights of American citizens, and the Constitution does not protect the substantive due process rights of noncitizens facing deportation — including the right to marriage. Given the spike in deportations over the past decade, hundreds of thousands of American citizens face a dilemma the Supreme Court has referred to as “intolerable” in other contexts: they must choose between the fundamental right to marriage and the right to live in the United States. This article draws upon the experiences of women whose husbands have been deported to challenge the foundational assumptions underlying many of the cases that have held that spousal deportation does not implicate the rights of citizen spouses, arguing that the Constitution should protect the marriages of binational couples in the same way it protects all other marriages, and that strict scrutiny should apply to assess the constitutional validity of deportations that involve the husbands and wives of U.S. citizens.

Arming the Second Amendment — and Enforcing the Fourteenth

Abstract: The right to keep and bear arms presents a timely and fascinating case study of Congress’s power to enforce the Fourteenth Amendment. Congress’s enforcement power, which for twenty years has been governed by the “congruence and proportionality” standard announced in City of Boerne v. Flores, acknowledges a meaningful congressional role in vindicating Fourteenth Amendment rights while insisting that courts retain ultimate authority over the meaning of the Constitution. Legislation enforcing the Second Amendment — made more likely by the results of the 2016 election and continued geographic divisions over gun control — will test that intricate balance. Second Amendment doctrine is complex and, importantly, methodologically varied. That complexity and variety will require the Court to perform a more nuanced, granular approach to the enforcement power than it has thus far during the Boerne regime. Part I of this Article quickly recaps the Court’s congruence and proportionality jurisprudence. It concludes by observing that the Court’s most recent enforcement power cases have left the doctrine adrift and susceptible to accusations of ad hoc second-guessing of congressional policy judgments. Part II provides a similarly quick recap of the Supreme Court’s decision in District of Columbia v. Heller and lower courts’ attempts to apply Heller, especially after the Court’s 2010 decision incorporating the Second Amendment. It identifies at least five steps that courts have taken in analyzing Second Amendment issues. In addition to the sheer number of doctrinal steps, those steps reflect different levels of core constitutional meaning. That variety matters for the enforcement power question when one recalls Boerne’s attempt to balance judicial and congressional authority over the meaning of Fourteenth Amendment rights. Part III examines the extant approaches to congruence and proportionality review, to consider whether they offer viable models for evaluating challenges to Second Amendment enforcement legislation. It rejects the approach the Court has used to evaluate legislation enforcing equal protection rights, given that those cases turn heavily on the suspect class status of the group the challenged legislation protects. That status, as a decisional heuristic ultimately grounded in the Court’s anxiety about its inability to fully enforce the equal protection guarantee, provides an inadequate model for Second Amendment enforcement legislation, which Heller insists be at least partially grounded in originalist analysis that purports to uncover core constitutional meaning. Part III also rejects the models offered by due process enforcement legislation cases. Those cases, including Boerne itself, involved underlying constitutional rights that were more clearly defined than the Second Amendment right is turning out to be. Because those cases involved constitutional rights that could be identified with at least some precision, it was easier for the Court to either compare the challenged enforcement statute with the constitutional right sought to be enforced, or to determine whether Congress had amassed a sufficient factual record detailing violations of that right. By contrast, the muddiness of the underlying constitutional right makes such approaches less viable in the Second Amendment context. Part IV offers an alternative. It argues that congruence and proportionality review of gun rights enforcement legislation should account for the different constitutional status of each step of Second Amendment doctrine. Thus, for example, steps that reflect core, judicially-stated constitutional meaning should be relatively immune from congressional supplementation. By contrast, doctrinal steps that are heavily fact- or policy-laden should be amenable to significant congressional input. To be sure, the analysis is more nuanced than this simple distinction implies: even questions of core constitutional meaning embed fact and policy inquiries, while fact- and policy-laden steps are often so outcome-determinative that full congressional control over them essentially results in congressional power to interpret the Constitution, in contravention of Boerne. Part IV works through these difficulties, using the example of a hypothetical enforcement statute granting Americans the right to carry firearms in their automobiles. Part V briefly and speculatively expands the scope of this proposed approach to legislation enforcing other substantive Fourteenth Amendment rights. It notes that the difficulties posed by Second Amendment enforcement legislation will likely reappear in legislation enforcing other such rights. It concludes by urging the Court to adopt an approach of this sort, in order to credibly implement Boerne’s acknowledgement of both courts’ supremacy in stating constitutional meaning and Congress’s important role in vindicating constitutional rights.

The History Of ‘Substantive’ Due Process: It's Complicated

Abstract: The history of what has come to be known as substantive due process is fraught with political implications, even more so now that same-sex marriage has joined abortion as a right protected by the Court under the rubric of due process. It’s tempting to create a simplified version of the past that explains how we got from point A to point B, and that implicitly or explicitly teaches some profound lesson about the present. History, rarely truly lends itself to such convenience. It’s complicated. With that in mind, this essay discusses a recent Texas Law Review article by Joshua Hawley. Hawley seeks to demonstrate that modern substantive due process jurisprudence was a novel invention of the Warren and Burger Courts, having no significant antecedents in the due process jurisprudence of the so-called Lochner era. Hawley makes some eminently reasonable points, especially with regard to how the Court replaced its historic natural-rights-based constitutionalism with a positivist understanding of the law that invites Justices to read their own philosophical views into the Due Process Clauses. Nevertheless, not all of Hawley’s claims are persuasive. In this essay, I complicate the story Hawley tells, by discussing alternative and additional explanations for the developments he discusses.

The Ninth Amendment and the Politics of Creative Jurisprudence: Disparaging the Fundamental Right of Popular Control

Abstract: The Ninth Amendment holds that every right not explicitly granted to the federal government by the Constitution belongs to the states or to the individual. Further, those rights held by the government should not be construed to deny or disparage other rights held by the people. As in other areas of contention between federal power and states' rights, the Ninth Amendment has become subject to activist Supreme Court interpretation whereby the traditional model of federalism, in which states had meaningful public policy prerogatives, has given way to a model in which states become mere extensions of the U. S. government. In this volume, Marshall DeRosa provides a thorough analysis of Supreme Court unenumerated rights policy and offers suggestions toward reestablishing American federalism as envisioned by the framers of the Constitution. The book opens with a review and analysis of current debates over Ninth Amendment rights and then utilizes the privileges and immunities clauses as demonstrative of the traditional relationship between the states' police powers and unenumerated fundamental rights. DeRosa then considers the critical role of academia in shifting public policy away from popular control and toward the judiciary. Later chapters include national and state case studies as instances of judicial creativity, an examination of the effects of Ninth Amendment jurisprudence on the Second Amendment as it bears on the gun control debate, and a comparative analysis of contrasting theories on the status of unenumerated rights. In his conclusion DeRosa offers some prescriptive thoughts on how to restore the original constitutional concept of popular consent as a remedy to an increasingly unaccountable federal judiciary. By restoring the Ninth Amendment to the context of American federalism, this volume constitutes a major contribution to contemporary scholarship, challenging a corpus of commentary that either ignores, misunderstands, or misrepresents the relevance of popular control in the articulation of unenumerated rights. The Ninth Amendment and the Politics of Creative Jurisprudence will be of interest to political scientists, historians, legal theorists, and political practitioners.

Constitutional Confusion: Slavery, Abortion, and Substantive Constitutional Analysis

Abstract: A comparison of two U.S. Supreme Court cases about fundamental rights, one on slavery, the other on abortion, sheds light on constitutional law and the principles undergirding liberal constitutional democracy. The Dred Scott case in 1857 denied constitutional rights to enslaved Africans and their descendants living in the United States. The Roe v. Wade decision in 1973 created a constitutional right to abortion that denied constitutional personhood to human beings prior to birth. Both cases involved applications of what legal scholars call “substantive due process”—that is, a substantive interpretation of the constitutional requirement that governments provide persons with “due process of law” that moves beyond procedural formalism. Although many constitutional scholars deny the legitimacy of substantive due process as a legal doctrine, this article proposes that the judicial system cannot ultimately avoid substantive moral questions in constitutional interpretation. In both cases examined here, the crucial question was about who counts as part of the people whom the Constitution protects, and that question could not be answered in purely formal terms. Both Dred Scott and Roe v. Wade erred not by engaging substantive moral questions but rather by denying, in different ways, the natural rights of human persons.

“Undue” Delegation: Private Delegation And Other Strategies To Challenge Admitting-Privileges Laws

Abstract: INTRODUCTION In November 2015, the Supreme Court granted certiorari to Whole Woman 's Health v. Cole (1) the first reproductive rights case to reach the court since Gonzales v. Carhart (2) eight years before. In the intervening time, states have passed an astonishing number of laws and regulations that encroach on women's access to abortion. Many such laws ostensibly aim to protect the woman and her fetus. Yet these same laws do so by imposing medically unnecessary and onerous procedural requirements on women, (3) which can erect massive barriers to abortion access for individuals. Other state laws aim to regulate not the activities of women, but those of abortion providers, who are not a protected class. The reproductive rights movement terms these laws Targeted Regulations of Abortion Providers, or TRAP laws. (4) State legislatures' passage of TRAP laws accelerated after the Supreme Court's decision in Carhart, which was taken to signal judicial willingness to uphold state laws that aim to protect an unborn fetus at the expense of reducing a woman's ability to choose. (5) This Note focuses on admitting-privileges laws, a type of TRAP law that requires physicians who provide abortions to obtain staff privileges at a hospital within a certain distance from their clinics. Without these required privileges, physicians performing abortions risk civil and criminal penalties. These laws are especially concerning because they give area hospitals an effective veto over a clinic's operations, effectively outsourcing the power to deny licenses to private entities. Admitting-privileges decisions are often discretionary for hospital administrators; a hospital's denial of admitting privileges also lacks state oversight or external appeals. Admitting-privileges laws are being ratified throughout many states, but have proven resistant to traditional substantive due process challenges. In addition to traditional "undue burden" analysis, a multipronged approach to reproductive rights litigation and advocacy is necessary. Part I of this Note sets forth a brief history of the right to choose an abortion and the current federal legal framework. Then, it details recent state legislative and ballot initiatives aimed at regulating abortion providers. Part II explains the complications of using the "undue burden" doctrine in constitutional challenges to state action, as illuminated by recent cases litigating admitting-privileges laws. It further introduces private-delegation challenges as an alternative method to examine the constitutionality of these laws. Part III looks at the history of private-delegation challenges with respect to admitting- privileges laws and touches on other possible avenues to challenge admitting-privileges regulations. I. Abortion in the Post-Roe Era In 1973, the Supreme Court decided Roe v. Wade, which recognized that the Due Process Clause of the Fourteenth Amendment protects a right to privacy that extends to a woman's decision to have an abortion. (6) Roe's effect was remarkable. Before Roe, each individual state regulated abortions and the accessibility thereof with their traditional police powers. At the time of the decision, four states had repealed anti-abortion laws, while thirteen had begun reforms of their abortion laws. (7) Almost all the rest banned abortion in most cases. (8) After the Supreme Court identified a right to choose an abortion grounded in the federal Constitution, the annual number of legal abortions rose through the 1970s, leveling off in the 1980s. (9) After Roe, the Supreme Court also decided Doe v. Bolton, (10) which assessed the elaborate procedural barriers to abortion erected by the state of Georgia and invalidated some of them for being not reasonably related to the state interest (11) or redundant. (12) Doe has been interpreted to signal that "just as states may not prevent abortion by making the performance a crime, states may not make abortions unreasonably difficult to obtain by prescribing elaborate procedural barriers. …

“Time Enough” for Scrutiny: The Second Amendment, Mental Health, and the Case for Intermediate Scrutiny

Abstract: IntroductionWhen analyzing challenges to laws that burden a constitutional right, courts generally adopt some analytical framework for determining whether the burden the law places on exercising that right is appropriate. How are lower courts to decide which analytical framework to apply when the Supreme court has not established one for a particular doctrinal area? This is the current situation in contemporary Second Amendment jurisprudence. Having interpreted the Second Amendment to protect an individual's right to keep and bear arms in the home for self-defense in District of Columbia v. Heller,1 the Supreme Court confirmed a constitutional right without providing an answer to the framework question.2Specifically, the Court did not apply any of the traditional levels of judicial scrutiny to the law at issue in Heller.3 Instead, the Court cautioned against deciding a question it felt was unnecessary on the facts before it.4 "[N]othing" in the Court's opinion, however, "should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill."5 The Court had little to say about these "presumptively lawful" prohibitions, except that "there will be time enough to expound upon the historical justifications for [them] . . . if and when those exceptions come before us."6 No such challenges have since been decided by the Court. The Courts of Appeals, however, have dealt with many of these exceptions, and their approaches are crucial to answering the scrutiny question.7Since Heller, the Courts of Appeals have, by a large majority, adopted some form of intermediate scrutiny in most Second Amendment challenges.8 In 2014, however, the Sixth Circuit considered a challenge to a federal law banning gun possession for any individual who previously had been committed to a mental institution, or who had been adjudicated as a mental defective.9 In Tyler v. Hillsdale County Sheriff's Department (Tyler I ),10 a panel of the Sixth Circuit became the first Court of Appeals to apply strict scrutiny to a Second Amendment challenge.11 The Sixth Circuit panel presented several arguments for the general application of strict scrutiny over intermediate scrutiny in Second Amendment cases.12 Moreover, Tyler I was the first case in which a federal Court of Appeals has heard a challenge to a law restricting gun possession based on mental heath concerns.13Less than six months after the Tyler I decision, the Sixth Circuit vacated the opinion and granted a rehearing en banc.14 Sitting en banc, the court in Tyler v. Hillsdale County Sheriff's Department (Tyler II)15 rejected the previous panel's conclusion that strict scrutiny applies in Second Amendment challenges to laws restricting gun possession based on mental health concerns.16 The Sixth Circuit thus fell in line with many of the other circuits in applying intermediate scrutiny in such cases.17 Although the Sixth Circuit no longer splits with the other circuits on the scrutiny question, the general discussion of scrutiny in Tyler I and analysis of the arguments in favor of strict scrutiny for Second Amendment challenges is instructive. The Tyler I court's opinion provided a more in-depth discussion of the scrutiny question than any other earlier circuit court's opinion, marshaling many different arguments in favor of strict scrutiny over intermediate scrutiny.18 Importantly, the panel's arguments were not dependent upon the specific facts in Tyler I, but, rather, if sound, would support the adoption of strict scrutiny across many types of Second Amendment challenges.19 Although the Sixth Circuit, sitting en banc, ultimately rejected the application of strict scrutiny in the case of a law burdening the Second Amendment right due to mental health concerns,20 because the Supreme Court has not yet decided the scrutiny question, the issue remains open.This Note considers the question of which analytical framework, or level of judicial scrutiny, is applicable to Second Amendment challenges. …

Flint of Outrage

Abstract: Officials replaced safe water sources with contaminated water sources for tens of thousands of people living in Flint, Michigan from April 2014 to October 2015. Overwhelming evidence indicates that the officials knew the water was potentially harmful to residents’ health and property. This unfathomable disregard for the residents of Flint sparked national outrage and prompted criminal charges as well as multiple civil suits. Residents’ civil claims included two strands of substantive due process: that the actions infringed residents’ fundamental liberty rights to bodily integrity and to state protection from harmful acts by third parties, and that the government actions “shocked the conscience.” The litigants also raised equal protection arguments that government targeted the community based on race and poverty. This Article makes three claims. First, it asserts that fundamental rights and equal protection arguments that challenge the denial of uncontaminated water face the serious, perhaps insurmountable obstacles that plague any call for new or expanded constitutional rights. Constitutional law is clunky and often formalistic. Doctrine and principles of judicial restraint here militate against categorically elevated judicial scrutiny—which we call thick rights strategies—of these and similar public officials’ actions. Moreover, the thick rights strategies may entail liability questions that are not—as yet—judicially manageable. Second, it asserts that shocks the conscience arguments offer a viable alternative to a thick rights strategy. Properly understood, this test enforces a liberty baseline, even absent a fundamental right or suspect classification. This thin rights test is properly reserved for worst-case scenarios, not for garden-variety government blunders. Flint qualified. Third, it argues that this constitutional baseline liberty may apply to all environmental cases in which shocking government conduct elides established fundamental rights or suspect classification categories. Invoking it would not open judicial floodgates or risk undue judicial intrusion into regulatory matters better left to other government branches. It would maintain a difficult-to-flunk but critical liberty limit on extreme official disregard for human well-being and environmental justice. It also would provide space for the development of a potential fundamental right to uncontaminated water while allowing public airing of the serious harms to life, the failure of government processes, the citizen powerlessness, and how grave environmental harms threaten multiple communities but impose their most horrific costs on the most vulnerable people. The Flint tragedy offers a constitutional cautionary tale that should be noted and heeded. "The Flint water crisis is a story of government failure, intransigence, unpreparedness, delay, inaction, and environmental injustice." 1 1 Flint Water Advisory Task Force, Final Report 1 (2016), https://www.michigan.gov/documents/snyder/FWATF_FINAL_REPORT_21March2016_517805.

Redefining parental rights: the case of corporal punishment

Abstract: Discussions of the constitutional elements of family law have largely focused on adult intimate relationships, yet it was a line of cases about parenthood, not marriage, that first reflected a substantive due process relational protection. Since deciding Meyer in 1923, the U.S. Supreme Court has repeatedly expressed a parent’s fundamental right to raise her child as she sees fit, according parents significant choice in education, medical care, and other aspects of child rearing. In this symposium essay, I argue that this thick conception of parental rights has been overread to shield the only remaining categorical exception to interpersonal violence, parental corporal punishment. Every state has a parental discipline privilege, often little changed since Blackstone’s time. Permissible discipline often goes well beyond “spanking” to include hair-pulling, beatings with belts or sticks, and even choking. Corporal punishment continues to be widely practiced, despite the research consensus demonstrating that it is ineffective at discipline, impedes children’s socialization, and brings harms including elision into serious physical abuse, as well as a strong correlation to future intimate partner violence. This is a particularly propitious time for an examination of the parental discipline privilege. The constitutional analysis of family status and privacy in the context of marriage and adult intimacy has changed significantly in recent years to recognize new equality norms. It is time for the jurisprudence of parenthood to catch up. The constitutional analysis of parental rights should adapt to new empirical data and evolving social norms against the exculpation of intrafamilial harms. I conclude that abolishing the parental discipline privilege is consistent with the dominant family rights framework and fitting in a post-Obergefell world.

Flint of Outrage

Abstract: Officials replaced safe water sources with contaminated water sources for tens of thousands of people living in Flint, Michigan from April 2014 to October 2015. Overwhelming evidence indicates that the officials knew the water was potentially harmful to residents’ health and property. This unfathomable disregard for the residents of Flint sparked national outrage and prompted criminal charges as well as multiple civil suits. Residents’ civil claims included two strands of substantive due process: that the actions infringed residents’ fundamental liberty rights to bodily integrity and to state protection from harmful acts by third parties, and that the government actions “shocked the conscience.” The litigants also raised equal protection arguments that government targeted the community based on race and poverty. This Article makes three claims. First, it asserts that fundamental rights and equal protection arguments that challenge the denial of uncontaminated water face the serious, perhaps insurmountable obstacles that plague any call for new or expanded constitutional rights. Constitutional law is clunky and often formalistic. Doctrine and principles of judicial restraint here militate against categorically elevated judicial scrutiny—which we call thick rights strategies—of these and similar public officials’ actions. Moreover, the thick rights strategies may entail liability questions that are not—as yet—judicially manageable. Second, it asserts that shocks the conscience arguments offer a viable alternative to a thick rights strategy. Properly understood, this test enforces a liberty baseline, even absent a fundamental right or suspect classification. This thin rights test is properly reserved for worst-case scenarios, not for garden-variety government blunders. Flint qualified. Third, it argues that this constitutional baseline liberty may apply to all environmental cases in which shocking government conduct elides established fundamental rights or suspect classification categories. Invoking it would not open judicial floodgates or risk undue judicial intrusion into regulatory matters better left to other government branches. It would maintain a difficult-to-flunk but critical liberty limit on extreme official disregard for human well-being and environmental justice. It also would provide space for the development of a potential fundamental right to uncontaminated water while allowing public airing of the serious harms to life, the failure of government processes, the citizen powerlessness, and how grave environmental harms threaten multiple communities but impose their most horrific costs on the most vulnerable people. The Flint tragedy offers a constitutional cautionary tale that should be noted and heeded. "The Flint water crisis is a story of government failure, intransigence, unpreparedness, delay, inaction, and environmental injustice." 1 1 Flint Water Advisory Task Force, Final Report 1 (2016), https://www.michigan.gov/documents/snyder/FWATF_FINAL_REPORT_21March2016_517805.