Modern Fourteenth Amendment doctrine is difficult to square with constitutional text. The text of the Equal Protection Clause, for example, makes no distinction between racial classifications and other discriminatory practices; it requires equal protection of the laws for every “person” within a state’s jurisdiction. Nor does the text require equal treatment or equal rights; it…
Theories of legal interpretation have taken a “positive turn” in recent years. Some scholars have argued that disputes over how to interpret statutes and the Constitution should be resolved by looking to the social facts that determine what our positive law requires. Most of the commentary on the positive turn has focused on the substantive…
Though scholars have identified the expanding scope of First Amendment speech doctrine, little attention has been paid to the theoretical transformation happening inside the doctrine that has accompanied its outward creep. Taking up this overlooked perspective, this Article uncovers a new speech theory: the libertarian tradition. This new tradition both is generative of the doctrine’s…
Most prisoners in the United States are counted where they are incarcerated for the purposes of legislative redistricting. This practice—which critics label “prison gerrymandering”—inflates the representation of mostly white, rural prison host communities at the expense of the urban and minority communities from which prisoners disproportionately hail. A battle to reform the practice has intensified…
This Note examines the practical consequences of the Supreme Court’s decision in Turner v. Rogers. In 2011, the Supreme Court held that there is no constitutional right to counsel for parents who face civil contempt for failure to pay child support. Although those parents face incarceration, the Court believed that “substitute procedural safeguards” could adequately…
