Gender and the Law Prof Blog

Editor: Tracy A. Thomas
University of Akron School of Law

Tuesday, May 26, 2020

Court Strikes Down Florida Felon Pay-to-Vote Law, but Rejects 19th Amendment Claim of Gender Discrimination

Press Release, In a Victory for Voting Rights, Federal Court Rules that Florida's Pay-to-Vote System is Unconstitutional 

The full opinion is here: Jones v. DeSantis (N.D. Fla. 2020)

I want to think more about the new opinion from a federal district court dismissing women voters claims under the 19th Amendment.  Two issues strike me on an initial read.

1.  The court says there is no reason to treat the 19th differently from the 15th or 14th.  This conclusion results in requiring an intentional state of mind for gender discrimination under the 19th Amendment.  The standard of discriminatory purpose is a requirement of proving gender discrimination under the 14th Amendment, and the court says also for the 15th.  However, reading in the historical context may raise a question here.  SCOTUS explicitly held in Minor v. Happersett (1874) that the 14th Amendment did not apply to women's state voting rights.  Reading the 14th Amendment standards into the 19th, seems to do just this.  There is also some significant history on the 19th A itself that might suggest a different conclusion.

2.  It is troubling the court discounts the gender discrimination claim by focusing on the impact on men.   The court notes that more men than women are felons, so more men generally are impacted by the law.  Rather than comparing the two groups similarly situated -- felons -- and then addressing the discrimination against those women felons.  This focus on men, rather than the women plaintiffs in a case, was also seen recently in the US Women's Soccer pay discrimination case.  It may represent an emerging litigation trend of dismissing, both legally and socially, women's claims of disparate impact.  

Here is the court's 19th Amendment claim analysis:

XII. Gender Discrimination


The McCoy plaintiffs assert the pay-to-vote requirement discriminates against women in violation of the Fourteenth Amendment’s Equal Protection Clause and violates the Nineteenth Amendment, which provides that a citizen’s right to vote “shall not be denied or abridged . . . on account of sex.”

 

To prevail under the Fourteenth Amendment, the plaintiffs must show intentional gender discrimination—that is, the plaintiffs must show that gender was a motivating factor in the adoption of the pay-to-vote system. This is the same standard that applies to race discrimination, as addressed above.


The plaintiffs assert the Nineteenth Amendment should be read more liberally, but the better view is that the standards are the same. The Nineteenth Amendment was an effort to put women on the same level as men with respect to voting, just as the Fifteenth Amendment was an effort to put African American men on the same level as white men. Indeed, the Nineteenth Amendment copied critical language from the Fifteenth, which provides that a citizen’s right to vote “shall not be denied or abridged . . . on account of race, color, or previous condition of servitude.” As is settled, a claim under the Fifteenth Amendment requires the same showing of intentional discrimination as the Fourteenth Amendment’s Equal Protection Clause. See, e.g., Burton v. City of Belle Glade, 178 F.3d 1175, 1187 n.8 (11th Cir. 1999) (stating “vote dilution, vote denial, and traditional race discrimination claims arising under the Fourteenth and Fifteenth Amendments all require proof of intentional discrimination”). In sum, there is no reason to read the Nineteenth Amendment differently from the Fifteenth.

 

On the facts, the plaintiffs’ theory is that women with felony convictions, especially those who have served prison sentences, are less likely than men to obtain employment and, when employed at all, are likely to be paid substantially less than men.  The problem is even worse for African American women. This pattern is not limited to felons; it is true in the economy at large.

 

As a result, a woman with LFOs is less likely than a man with the same LFOs to be able to pay them. This means the pay-to-vote requirement is more likely to render a given woman ineligible to vote than an identically situated man.

 

This does not, however, establish intentional discrimination. Instead, this is in effect, an assertion that the pay-to-vote requirement has a disparate impact on women. For gender discrimination, as for race discrimination, see supra Section IX, disparate impact is relevant to, but without more does not establish, intentional discrimination. Here there is nothing more—no direct or circumstantial evidence of gender bias, and no reason to believe gender had anything to do with the adoption of Amendment 4, the enactment of SB7066, or the State’s implementation of this system.

 

Moreover, the pay-to-vote requirement renders many more men than women ineligible to vote. This is so because men are disproportionately represented among felons. As a result, even though the impact on a given woman with LFOs is likely to be greater than the impact on a given man with the same LFOs, the pay-to-vote
requirement overall has a disparate impact on men, not women. Even if disparate impact was sufficient to establish a constitutional violation, the plaintiffs would not prevail on their gender claim.

 

May 26, 2020 in Constitutional, Legislation | Permalink | Comments (0)

Friday, May 22, 2020

"Jane Roe" from Roe v. Wade Retracts Anti-Abortion Conversion in Posthumous Documentary, "AKA Jane Roe"

Michelle Goldberg, Jane Roe's Pro-Life Conversion Was a Con

It was a cultural coup for the right when McCorvey publicly turned against legal abortion. Jane Roe rejecting Roe v. Wade was something abortion opponents could throw in the faces of pro-choice activists. So it is a bombshell that McCorvey has revealed, in the posthumous new documentary “AKA Jane Roe,” that it was, at least in some sense, an act. “I am a good actress,” she said.

 

The movie, which debuts on Friday on FX, also makes clear that anti-abortion leaders understood this. They’ve been perpetrating a scam on us all for 25 years.

 
In the documentary’s final 20 minutes, McCorvey, who died of heart failure in 2017, gives what she calls her “deathbed confession.” She and the pro-life movement, she said, were using each other: “I took their money, and they put me out in front of the cameras and told me what to say, and that’s what I’d say.”
 

In her career as a pro-life icon, she collected nearly half a million dollars. But at the end of her life, she once again affirmed a belief in the right to abortion, and evinced pride in Roe v. Wade. “Roe isn’t going anywhere,” she said early on election night in 2016, when she thought Hillary Clinton was going to win. “They can try, but it’s not happening, baby.”***

 

Given the political damage done by her cynical about-face, it’s surprising how sympathetic McCorvey — campy, foul-mouthed and irreverent — comes off. She was a lost soul from a traumatic background. Her father was absent and her mother beat her, and she ended up in reform school after running away from home at 10. She entered an abusive marriage at 16, became addicted to drugs and alcohol, and lost custody of her first child.

 
As she’s told the story, she signed up as the plaintiff in Roe v. Wade not because she wanted to make history but because she was desperate for an abortion. She never got one: By the time the case was decided, she’d given birth and put the baby up for adoption.

 

Later, McCorvey resented not being given a more prominent role as a pro-choice activist. The movement found her embarrassing, especially when, in 1987, she admitted that she’d lied when she’d said the pregnancy at the heart of Roe was a result of rape.***

 

“She was not the poster girl that would have been helpful to the pro-choice movement,” Charlotte Taft, a former director of the Abortion Care Network, says in the film. “However, an articulate, educated person could not have been the plaintiff in Roe v. Wade.” It was women like McCorvey — those without the resources to travel to pro-choice states — who endured forced childbirth in the years before Roe was decided. “People who are plaintiffs in cases are usually messy people,” said Kissling.

 

Many of the headlines about “AKA Jane Roe” have emphasized that McCorvey was paid to renounce abortion rights, but after watching it I don’t think it was all about money. McCorvey wanted respect and attention, to be honored and cherished. At times, people in the pro-choice movement tried to help her; for a while she was represented by the feminist superlawyer Gloria Allred. She made money giving speeches and selling the rights to her story, including for an Emmy-winning made-for-TV movie.

May 22, 2020 in Abortion, Constitutional, Pop Culture, Reproductive Rights | Permalink | Comments (0)

Wednesday, May 20, 2020

Papers from the Feminist Legal Theory Research Network at Next Week's Law & Society Association Virtual Meeting

I am probably one of the few people in the world who is thrilled that the Law & Society Annual Conference is virtual -- since I will now be able to attend.  In general virtual conferences open up access to some barriers to participation due to finances,  travel, family, disability, and health issues.

You can register for the virtual conference here at the Law & Society Association website.  

Scheduled papers to be presented from the Feminist Legal Theory Research Network:

 

Time

Title

Type

Wed, 5/27
1:00 PM - 2:45 PM

#MeToo: The Narrative of Resistance Meets the Rule of Law

Plenary Session 

Thu, 5/28
11:00 AM - 12:45 PM

Moving Rules: Struggles for Reproductive Justice on Uneven Terrain

Paper Session 

Thu, 5/28
11:00 AM - 12:45 PM

Sexual Harassment: Victims and Survivors

Paper Session 

Thu, 5/28
1:00 PM - 2:00 PM

CRN07: Feminist Legal Theory Business Meeting

Business Meeting 

Thu, 5/28
2:15 PM - 4:00 PM

Families, Laws, and Institutions

Paper Session 

Thu, 5/28
2:15 PM - 4:00 PM

The State and Violence: New Proposals for Stopping the Cycle

Paper Session 

Fri, 5/29
11:00 AM - 12:45 PM

Normativity in Men, Women, and Bodies

Paper Session 

Fri, 5/29
11:00 AM - 12:45 PM

The Politicization of Safety: Critical Perspectives on Domestic Violence Responses

Roundtable Session 

Fri, 5/29
1:00 PM - 2:15 PM

Sexual Harassers, Sex Crimes, and Accountability

Paper Session 

Fri, 5/29
4:00 PM - 5:45 PM

Women's Rights in the Shadow of the Constitution

Paper Session 

Sat, 5/30
11:00 AM - 12:45 PM

Perspectives on Sex, Work and New Legal Orders

Paper Session 

Sat, 5/30
1:00 PM - 2:45 PM

Trans and Queer Life in Private and Public

Paper Session 

Sat, 5/30
4:00 PM - 5:45 PM

Human Rights in an Unequal World: Autonomy, Status, and Other Stories

Paper Session 

Sun, 5/31
11:00 AM - 12:45 PM

Feminist Legal Theory in a Public/Private World

Paper Session 

Sun, 5/31
11:00 AM - 12:45 PM

Laws of Social Reproduction

Paper Session 

Sun, 5/31
1:00 PM - 2:00 PM

Intimate Lies and the Law

Author Meets Reader (AMR) Session 

Sun, 5/31
2:15 PM - 4:00 PM

Feminist Judgments on Reproductive Justice and Family Law

Roundtable Session 

Sun, 5/31
2:15 PM - 4:00 PM

Women and Gender in Private, Public, and Places in Between: Old Doctrines Meet New Realities in the Twenty-First Century

Paper Session 

May 20, 2020 in Conferences, Constitutional, Equal Employment, Family, Masculinities, Reproductive Rights, Theory, Violence Against Women | Permalink | Comments (0)

Tuesday, May 12, 2020

Video: Voting Rights in a Time of Pandemic, Thinking About Women's Suffrage and the 1918 Spanish Flu

Kimberly Hamlin, Laptop Lecture Series: Voting Rights in a Time of Pandemic

Have a minute? Check out today’s Laptop Lecture “Voting Rights in a Time of Pandemic” by Kimberly Hamlin, Associate Professor of History and American Studies, which explores how the 1918 Spanish Flu pandemic complicated suffragist efforts to pass the 19th Amendment in the House.

 

May 12, 2020 in Constitutional, Legal History | Permalink | Comments (0)

Trump Administration Seeks to Dismiss Lawsuit to Certify ERA

Trump Administration Asks Court to Toss Lawsuit Over ERA

The Trump administration has asked a judge to throw out a lawsuit filed by three Democratic state attorneys general seeking to force the U.S. archivist to recognize Virginia’s vote to ratify the Equal Rights Amendment and adopt it in the U.S. Constitution.

 

Virginia became the 38th and final state needed to make the ERA part of the Constitution in January, after the General Assembly passed and ratified the amendment.

 

Attorney General Mark Herring sued David Ferriero, the archivist of the United States, after the National Archives and Record Administration said Ferriero would “take no action” to certify the adoption of the Equal Rights Amendment. Herring was joined in the lawsuit by Illinois Attorney General Kwame Raoul and Nevada Attorney General Aaron Ford, the attorneys general of ratifying states number 36 and 37.**

 

On Thursday, the Trump administration asked the court to dismiss the lawsuit, arguing that ratification is not an issue to be decided by the courts.

 

In a memo supporting the motion to dismiss, Assistant Attorney General Joseph Hunt said the Supreme Court held nearly a century ago that Congress may set a deadline for the ratification of constitutional amendments so that the contemporaneous will of the people is reflected in the amendments.

 

Herring and other attorneys general argue that the deadline — first set for 1979 and later extended to 1982 — is not binding.

 

The administration argues that the three states ratified the ERA decades after Congress’ ratification deadline and are asking the court to mandate that the archivist certify the ERA.

 

“But that request is contrary to Supreme Court precedent prohibiting courts from second-guessing the legislature’s inclusion of a deadline for ratification,” they argued.

 

In the lawsuit, filed in U.S. District Court for the District of Columbia, the attorneys general argue that a proposed constitutional amendment automatically becomes valid as part of the Constitution as soon as it is ratified by the legislatures of three-quarters of the states, or 38. They also argue that the archivist’s duty to certify the amendment is “mandatory and purely ministerial.”

May 12, 2020 in Constitutional, Legislation | Permalink | Comments (0)

Monday, May 11, 2020

The Women of the Supreme Court are Sick of These Nonsense Objections to Birth Control

The Women of the Supreme Court are Sick of These Nonsense Objections to Birth Control

Conservatives have been trying to unwind the birth control benefit in the Affordable Care Act (ACA) for nearly a decade now, and the women justices on the U.S Supreme Court are over it.

 

That much was apparent during oral arguments Wednesday in Trump v. Pennsylvania and its companion case, Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania.

 

It’s the third time the Court has heard a challenge to the birth control benefit, which guarantees access to FDA-approved contraception methods at no additional cost or co-pay in most employer-sponsored health plans. But this case is the most absurd and dangerous challenge yet

 

Justice Ruth Bader Ginsburg drove that point home from the hospital, where she was recovering from a gallbladder procedure while defending the rights of hundreds of thousands of employees the Trump administration is trying to “toss to the winds entirely,” to use her words. Justice Sonia Sotomayor reminded Solicitor General Noel Francisco that should the Court side with the Trump administration, the benefits of around a hundred thousand employees (by even the most conservative estimate) would be in jeopardy. And Justice Elena Kagan appeared to be searching for a compromise she could get the chief justice to sign onto.

 

At its core is the same central question: Can your boss deny you health insurance coverage for contraception based on a religious objection? But these cases take that question and, like everything in the Trump years, extend it to absurd lengths by asking if your boss can deny you those same benefits based on a moral objection as well.

 

The moral exemption to the birth control benefit is a toxic addition inserted by the Trump administration three years ago after conservative efforts to upend the benefit in court fell flat. Trump announced the exemption in a Rose Garden ceremony flanked by the Little Sisters of the Poor, the nuns who would continue on as the face of the administration’s efforts to undermine the benefit. It was the kind of reality-TV spectacle that has come to define this administration—full of pomp, empty on substance, but with the potential to unleash an unfathomable amount of chaos in its wake.

 

And that’s precisely why the administration brought the nuns along. Someone has to sell this pile of garbage to the Roberts Court, and the nuns have proven more than willing to play along.

 

There is no world in which the nuns would have to provide contraception coverage for their employees. None. Not a single one. They are covered by exemptions, court orders, and a provision of employee benefits law that guarantees the federal government mostly stay out of their business. So when Paul Clement, the attorney representing the Little Sisters, suggested that the nuns would stop providing care to the elderly and poor should they have to simply fill out a form noting their objection to the benefit, I was glad to be covering the arguments from home. Had I been at the Court, I definitely would have been ejected for the spontaneous, “OH COME THE FUCK ON, PAUL” that response requires.

 

Turns out, I’m as fed up with these cases as the women justices of the Court.

May 11, 2020 in Constitutional, Religion, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Tuesday, May 5, 2020

Call for Authors Feminist Judgments -- Rewritten Criminal Law Opinions

Call for Authors

Feminist Judgments: Rewritten Criminal Law Opinions

The U.S. Feminist Judgments Project seeks contributors of rewritten judicial opinions and commentary on those opinions for an edited collection entitled Feminist Judgments: Rewritten Criminal Law Opinions. This edited volume is part of a collaborative project among law professors and others to rewrite, from a feminist perspective, key judicial decisions. The initial volume, Feminist Judgments: Rewritten Opinions of the United States Supreme Court, edited by Kathryn M. Stanchi, Linda L. Berger, and Bridget J. Crawford, was published in 2016 by Cambridge University Press. Subsequent volumes in the series have focused on different courts and different subjects. This call is for contributions to a volume of criminal law decisions rewritten from a feminist perspective.

Feminist Judgments: Rewritten Criminal Law Opinion editors Sarah Deer, Corey Rayburn Yung, and Bennett Capers seek prospective authors to rewrite criminal law opinions covering a range of topics. With the help of an Advisory Committee, the editors have chosen a list of cases to be rewritten (as noted below). Potential authors are welcome to suggest other cases, though certain constraints (including a preference for avoiding cases that have already been or soon will be rewritten for other volumes in this series) may preclude their addition to the volume. We also seek authors to provide brief commentary on the original and rewritten cases.

Rewritten opinions may be reimagined majority opinions, dissents, or concurrences, as appropriate to the court. Feminist judgment writers will be bound by law and precedent in effect at the time of the original decision (with a 10,000-word maximum for the rewritten judgment). Commentators will explain the original court decision, how the feminist judgment differs from the original judgment, and what difference the feminist judgment might have made going forward (4,000-word maximum for the commentary). The volume editors conceive of feminism broadly and invite applications that seek to advance, complicate, or critique feminist ideas and advocacy. We are “big tent” and welcome all types of feminism, from liberal feminism to abolitionist feminism. We certainly welcome an intersectional analysis of cases where sex or gender played a role alongside racism, ableism, classism, and other concerns.

Those who are interested in rewriting an opinion or providing the commentary on one of the rewritten criminal law cases should email the volume editors (sarah.deer@ku.edu, coreyyung@ku.edu, and capers@fordham.edu) and put “Feminist Judgments: Rewritten Criminal Law Opinions” in the subject line. In the body of the email, please indicate whether you are interested in writing an opinion or providing a commentary, and specify one or more of the cases from the list below that you would like to rewrite or comment on. You are also free to suggest a case not listed.

Please note that the editors are committed to diversity in all of its forms, and committed to including a diverse group of authors in this volume. If you feel an aspect of your personal identity is important to your participation in this volume, please feel free to include that in your expression of interest.

Applications are due by June 1, 2020. The editors expect to notify accepted authors and commentators no later than July 1, 2020. First drafts of rewritten opinions will be due on October 1, 2020. First drafts of commentaries will be due on November 1, 2020.

List of cases:

  1. Oliphant v. Suquamish, 435 U.S. 191 (1978) (tribal criminal jurisdiction)
  2. Winnebago v. BigFire, 25 Indian L. Rptr 6229 (1998) (strict scrutiny for gender cases)
  3. Elonis v. United States, 575 U.S. 723 (2015) (threatening communications case)
  4. U.S. v. Nwoye, 824 F.3d 1129 (2016) (domestic violence/duress)
  5. Keeler v. Superior Ct of Amador Cnty, 470 P.2d 617 (Cal. 1970) (killing of fetus)
  6. Whitner v. State, 492 S.E.2d 777 (1977) (criminalizing prenatal activity)
  7. Coker v. Georgia, 433 US. 584 (1977) (death penalty and rape)
  8. McCleskey v. Kemp, 481 U.S. 279 (1987) (death penalty and race)
  9. People v. Berry, 556 P.2d 777 (1976) (provocation)
  10. Girouard v. State, 583 A.2d 718 (Md. 1991) (provocation)
  11. People v. Helen Wu, 286 Cal. Rptr. 868 (1991) (cultural defense)
  12. State v. Norman, 324 N.C. 253 (1989) (self-defense)
  13. State v. Rusk, 424 A.2d 720 (1981) (acquaintance rape)
  14. Massachusetts v. Blache, 880 N.E.2d 736 (Mass. 2008) (rape/intoxication)
  15. McQuirter v. State, 36 Ala. 707 (1953) (rape/race)
  16. State re M.T.S., 609 A.2d 1266 (N.J. 1992) (juveniles/rape)

May 5, 2020 in Books, Call for Papers, Constitutional | Permalink | Comments (0)

Friday, April 17, 2020

New Series "Mrs. America" Showcases Feminist Leaders and the 1970 Fight for the ERA, While Featuring Staunch Opponent, Phyllis Schlafly

NYT, "Mrs. America Review: The Voice of an ERA"

FX on Hulu’s breathtaking “Mrs. America,” from the “Mad Men” writer Dahvi Waller, picks up in 1971. . . . The story of the fight for and against the Equal Rights Amendment, it’s not a sequel, either literally or in format: It’s a nine-part series following real historical figures.***

 

Like “Mad Men,” “Mrs. America” finds a fresh angle on a much-observed age of revolution by focusing, first, on a counterrevolutionary: Phyllis Schlafly (Cate Blanchett), the cold warrior who, in Waller’s telling, seized on the culture war over women’s rights to raise her political profile and advance a broader conservative agenda.***

 

The insight of “Mrs. America,” in the punchy words of Representative Bella Abzug (Margo Martindale), is that Schlafly “is a goddamn feminist. She may be the most liberated woman in America.” She just chooses not to see herself that way.***

 

Parallel to Schlafly’s story is an ensemble series about the 1970s feminist movement. Its principals aren’t introduced until the end of the first episode: among them, Abzug, Gloria Steinem (Rose Byrne), Representative Shirley Chisholm (Uzo Aduba), Betty Friedan (Tracey Ullman) and some less-celebrated E.R.A. warriors, including the G.O.P. activist Jill Ruckelshaus (Elizabeth Banks).***

 

The decade-long fight that unfolds is epic and swaggering, bubbling with cultural ferment and bouncing along on a soul-laced soundtrack. There is an “Avengers Assemble” feeling here, both in the gathering of historical figures — a young Ruth Bader Ginsburg even appears, briefly — and the bumper crop of acting talent. Waller is producing feminism’s most ambitious crossover event, and she relishes it.***

 

While Schlafly is the driving force of the series — it is not, after all, called “Ms. America” — the show spotlights one character at a time. The third episode, about Chisholm’s 1972 run for the presidency, rings familiar not just in the story of an outsider fighting what she calls a “rigged” party machine, but in the intra-movement clashes over whether race and gender are equal priorities. (Chisholm, whom Aduba gives a fierce magnetism, gets this from black politicians, too, who see her more as a “women’s” candidate. “I don’t look black to you?” she asks.)

April 17, 2020 in Constitutional, Legal History, Pop Culture, Women lawyers | Permalink | Comments (0)

Monday, April 6, 2020

Divorce as a Substantive Gender-Equality Right

Karin Carmit Yefet, Divorce as a Substantive Gender-Equality Right, 22 U. Penn J. Const'l L. 455 (2020)

This Article—the first half of a diptych that continues with Divorce as a Formal Gender-Equality Right,
22 U. PA. J. CONST. L. (forthcoming April 2020)—draws on the insight that the position of women in society
is nowhere better reflected and constituted than in a nation’s personal status laws. Contemporary feminist and
constitutional scholars have devoted much attention to how the laws of marriage affect women’s status in society,
but they have largely ignored the potential for divorce to vindicate gender equality norms—and many have
overlooked recent political and legal developments that threaten to substantially restrict dissolution rights.

This diptych seeks to fill in the academic void in feminist and constitutional scholarship by developing the
constitutional argument for divorce as a gender equality right. Recognizing that there are competing conceptions
of what constitutional gender equality means, the thesis is that every interpretation of equal protection must
guarantee a right of unilateral, no-fault exit from matrimonial chains. This Article establishes the status of
marital freedom as a gender-equality right under various substantive visions of constitutional equality. The
subsequent Article, Divorce as a Formal Gender-Equality Right, 22 U. PA. J. CONST. L. (forthcoming
April 2020), establishes the status of marital freedom as a gender-equality right under a formal understanding
of constitutional equality.

To expose the gender-equality implications of divorce law, this diptych unearths the lineage and function of divorce
restrictions as gender-status regulation and outlines the gender-specific burdens they impose on women. It further
unveils contemporary attempts to restrict divorce as reflecting impermissible status-based judgments about women’s
capacities, roles, and destinies. All in all, this diptych concludes that divorce restrictions coerce women to perform
the work of wifehood without altering the conditions that continue to make such work a principal cause of their
subordination. This makes unilateral no-fault divorce a fundamental right for women attempting to navigate the
world as equals and an imperative for a constitutional system committed to disestablishing gender hierarchy.

April 6, 2020 in Constitutional, Family | Permalink | Comments (0)

Friday, April 3, 2020

Sex Segregation and Economic Opportunity in the Supreme Court's Decision in Roberts

Elizabeth Sepper, Sex Segregation, Economic Opportunity, and Roberts v. U.S. Jaycees, 28 William & Mary Bill of Rights J. (2020)  

This symposium on the intersections, synergies, and conflicts between rights largely focuses on constitutional rights and their relationships in judicial decisions. From this perspective, Roberts v. U.S. Jaycees—and the issue of sex-segregated clubs more generally—stands at the intersection of First Amendment rights to association, expression, assembly, and privacy. But rights construction, or dynamism, is not so neatly bounded by the Constitution.

In this essay, I argue that what was dynamic and synergistic in Roberts was not the Jaycees’ constitutional interests, but rather women’s statutory rights to economic opportunity and to equal membership. Litigation came to set mere statute against constitutional freedom of association. But the statutory and cultural commitments of the time influenced the construction of those constitutional rights. In a decade-long movement culminating in the Supreme Court, working women, local Jaycee chapters, and feminist groups forged connections between legal frameworks—federal and state, statute and constitution—that the law holds separate. Public accommodations equality under state statutes coalesced with landmark employment law protections under the Civil Rights Act of 1964.

The movement shifted public discourse and, eventually, governmental and judicial perspectives from unexamined acceptance of a pervasively sex-segregated public to the integration of clubs once thought private. It highlighted dual harms of the U.S. Jaycees’ treatment of women—an affront to fair play in the business world and the maintenance of gender hierarchy within the organization and society-wide. Justice O’Connor’s noted concurrence and Justice Brennan’s majority opinion respectively adopt these frames. Although the Jaycees might seem a relic of a time long past, the social and legal movement leading to the Supreme Court proves relevant for ongoing debates about the permissibility of segregated organizations, the emergence of #MeToo, and the tactics of effective social movements.

April 3, 2020 in Constitutional | Permalink | Comments (0)

The Map Strategy of State Adoption of Women's Suffrage as Critical to Passage of the 19th Amendment

Really enjoyed the talk by historian Dr. Susan Schulten this morning at the virtual conference, Women's Enfranchisement Beyond the 19th Amendment

Here is a written essay that summarizes some of Dr. Schulten's points.  Susan Schulten, The Crooked Path to Women's Suffrage, Wash. Post.

Schulten discussed the "map strategy" of women's suffrage leaders during primarily the 19 teens.  Leaders used visuals and media to illustrate the acceptance of women's suffrage in the West.  The geographical maps boldly displayed the evolution of thought and the wave of progress moving from west to east. 

This map strategy supports a thesis that the suffrage state strategy was critical to the passage of the federal constitutional amendment.   We often dismiss this state strategy - dominant from 1885 to 1918, - as ineffective.  But Schulten's talk showed the converse.  That not only did the state by state approach work for full or partial suffrage in many states, but that it was this state success that provide the evidence for a federal amendment.  The state progress demonstrated the state experimentation with the issue and decision in favor of such rights as a foundation to bolster the legitimacy of the federal amendment.

As an aside, Schulten also added some facts to the historical question of why President Woodrow Wilson switched from anti suffrage to pro suffrage.  Schulten suggests it was the National American Women's Suffrage Associations (NAWSA's) support of Wilson and WWI  that swayed him to support it.  This was in contrast to Alice Paul and her National Women Party's (NWP) opposition to both Wilson and the war and her militant pickets of the White House in support of women's suffrage.  Kimberly Hamlin also tracks the active lobbying work of Helen Hamilton Gardender, NAWSA's lead lobbyist, as critical to Wilson's shift.  See Free Thinker: Sex, Suffrage, and the Extraordinary Life of Helen Hamilton Gardener (Norton 2020).  Schulten notes that Wilson wrangled the final vote for the 19th Amendment from peace talks at Versailles and as he battled the pandemic Spanish flu. 

April 3, 2020 in Constitutional, Legal History | Permalink | Comments (0)

Thursday, April 2, 2020

CFP: Pandemics and the Constitution (Deadline 4/19)

Call for Papers

Pandemics and the Constitution

In response to the COVID-19 outbreak, governments have rapidly imposed restrictions on everyday life that would have seemed unthinkable only a few weeks ago. While as late as mid-March media was repeating the line that draconian measures to contain the virus like those taken in Wuhan, China, could not occur in the United States, Americans have very quickly adjusted to tight restrictions on daily life. Commentary about the constitutionality of coronavirus-related restrictions by legal scholars has just begun to appear in the popular media. Existing jurisprudence has been characterized as recognizing a “seemingly unlimited power to quarantine” on the parts of states.  Much of this legal precedent, however, is over a century old, predating many shifts in thinking in legal thinking and constitutional law on civil liberties, procedural due process, and the role of the federal government.

Because scholarship on this subject will be a vital guide to the public and legal community in the months ahead, ConLawNOW is seeking to publish, on an expedited timeline, a written symposium of short essays (preferably 5–10,000 words, about 10 published pages) on the constitutional boundaries of government response to pandemics.  Topics may include, but are not limited to, constitutional permissibility of restrictions on movement and travel, legitimacy of closing and limits on commerce, the proper scope of state power to act for the public health, constitutionality of the suspension of fundamental rights like abortion or gun rights, constitutional implications of delays in courts, trials, and juries, First Amendment parameters of restrictions on gatherings and religious services, permissibility of mandated medical testing, surveillance, and tracking, government ability to delay or cancel elections, and Eighth Amendment implications for inmates.

Submissions will be considered and published on a rolling basis.  Papers submitted prior to April 19 will receive priority consideration.  To submit, please email your manuscript to conlawjournal@uakron.edu.  Questions may be directed to conlawjournal@uakron.edu or editor David Belfiglio at dsb82@zips.uakron.edu.

 ConLawNOW is an online journal sponsored by the Congressionally-established Center for Constitutional Law and the Akron Law Review.   It is an open access journal, also indexed in Westlaw, Lexis, and Hein.

April 2, 2020 in Call for Papers, Constitutional, Healthcare, Pop Culture | Permalink | Comments (0)

Tuesday, March 31, 2020

5th Circuit Upholds Texas Ban on Abortions During Coronavirus Pandemic, Staying Contrary Ruling of District Court

Appeals Court Allows Texas to Ban Abortions During Pandemic

A federal appeals court on Tuesday ruled that Texas can temporarily enforce a ban on abortions as part of its coronavirus response.

 

The 5th Circuit Court of Appeals issued a temporary stay on a ruling from a lower court that had blocked Texas from enforcing the ban. State officials argue the ban is intended to conserve medical supplies for health workers on the front lines of the coronavirus response. But abortion rights advocates say states are using the pandemic as an excuse to block access.

 

In a 2-1 opinion, the appeals court ruled that the order from the lower court be stayed until an appeal from Texas is considered. The two judges who ruled in favor of a stay were nominated to their posts by President Trump and former President George W. Bush.

 

"The temporary stay ordered this afternoon justly prioritizes supplies and personal protective equipment for the medical professionals in need," Texas Attorney General Ken Paxton said in a statement Tuesday. 

 

Circuit Court Judge James Dennis, a Clinton appointee, dissented, writing “a federal judge has already concluded that irreparable harm would flow from allowing the executive order to prohibit abortions during this critical time.” 

 

Texas Gov. Greg Abbott (R) issued a directive earlier this month suspending nonessential medical procedures in an effort to conserve masks and gloves for health workers on the front lines of the pandemic. 

See also CBS News, Texas Abortion Ban Can Go Back into Effect, 5th Circuit Court of Appeals Rules

Several states have issued similar orders, but a divide has emerged between red and blue states about whether abortion is an essential procedure.

March 31, 2020 in Abortion, Constitutional, Courts, Reproductive Rights | Permalink | Comments (0)

Federal Courts Enjoin States' Attempts to Prohibit Exercise of Abortion Rights During Coronavirus Pandemic

Reuters, US Judges Stop Texas, Ohio, Alabama From Curbing Abortions During Coronavirus 

Federal judges on Monday blocked officials in Texas, Ohio and Alabama from banning most abortions in those states as part of their orders to postpone surgeries and other procedures deemed not medically necessary during the coronavirus crisis.

 

U.S. District Judge Lee Yeakel in Austin ruled that Paxton’s action “prevents Texas women from exercising what the Supreme Court has declared is their fundamental constitutional right to terminate a pregnancy before a fetus is viable.”

 

The Texas lawsuit was filed last Wednesday after clinics said they were forced to cancel hundreds of appointments for abortions across the state.

 

“Abortion is essential healthcare, and it’s a time-sensitive service, especially during a public health crisis,” said Amy Hagstrom Miller, president of Whole Woman’s Health, an abortion provider with three clinics in Texas and a plaintiff in the case.

Dahlia Lithwick, Federal Judges Block Texas and Ohio Coronavirus Abortion Bans

There was bad news on Monday for states trying to use the coronavirus pandemic to halt abortions: Two federal judges ruled that pretextual pretexts are just pretexts. Clinics in Ohio and Texas will remain open, at least for the time being. As my colleague Christina Cauterucci reported last week, Republican governors in both Ohio and Texas tried opportunistically to halt abortions in their states by claiming that the procedures are not-essential and that states should redirect personal protective equipment, including masks and gloves, away from clinics so they can better serve coronavirus patients. Of course, women actually need abortion services even more during such crises, clinics don’t use most of the essential medical equipment necessary to fight the virus, and most abortions are time-sensitive procedures that can’t be delayed indefinitely.

 
Texas and Ohio weren’t alone, though. Iowa, Mississippi, Alabama, and Oklahoma had all recently moved to suspend abortion access using the same excuses. The Texas guidance, which was particularly draconian, would have applied to “any type of abortion that is not medically necessary to preserve the life of the mother,” and violations would include a $1,000 fine or up to 180 days in jail. Meanwhile, Ohio’s deputy attorney general, Jonathan Fulkerson, had sent letters to a handful of abortion clinics accusing them of violating the Ohio order, but the clinics had replied that they were in compliance and continued to perform procedures.
 
 
Two of these suits have already paid dividends. On Monday, U.S. District Judge Lee Yeakel lifted Texas’ restriction on abortion just a few hours before Senior U.S. District Judge Michael Barrett enjoined Ohio officials from implementing their ban. In his opinion judge Yeakel, a George W. Bush appointee, found that Texas’ attempt to shut down abortions would cause “irreparable harm” to abortion clinics and their patients, and rested his decision in the constitutional right to terminate a pregnancy: “Regarding a woman’s right to a pre-fetal-viability abortion, the Supreme Court has spoken clearly. There can be no outright ban on such a procedure,” Yeakel wrote. “This court will not speculate on whether the Supreme Court included a silent ‘except-in-a-national-emergency clause’ in its previous writings on the issue.” 

WSJ, Judges Block States From Limiting Access to Abortion During Coronavirus Pandemic [pay wall]

Federal judges for now blocked Texas, Ohio and Alabama from curbing most abortions amid the new coronavirus pandemic, after the states recently cited the need to preserve medical equipment and public health as reasons to halt the procedure.

Coronavirus in Ohio: Judge Temporarily Blocks State Health Order Blocking Abortions During Coronavirus 

U.S. District Court Judge Michael Barrett ruled that Ohio's abortion clinics could perform surgical abortions if they could not be delayed because of a medical condition or the delay would prevent the abortion under Ohio law. 

 

The Ohio Department of Health had threatened to apply the ban on all elective surgeries to surgical abortions, effectively banning all abortions after 10 weeks gestation, according to a motion filed by Ohio's surgical abortion clinics, including Planned Parenthood of Southwest Ohio, on Monday. 

 

Barrett, who granted the temporary restraining order later for 14 days, said the state had not proven that performing surgical abortions would "result in any beneficial amount of net saving of PPE (personal protective equipment) in Ohio such that the net saving of PPE outweighs the harm of eliminating abortion," Barrett wrote.

Iowa, Ohio Sued Over Abortion Bans During Coronavirus Crisis

State officials in Iowa and Ohio were hit with lawsuits on Monday over their decisions to ban abortion during the coronavirus outbreak. 

 

Both states recently deemed abortion a nonessential surgical procedure that must be deferred or canceled in order to preserve medical supplies for the pandemic.

 

Planned Parenthood Federation of America and the American Civil Liberties Union of Iowa and Ohio are asking district courts to immediately restore abortion access, arguing that it’s an essential, time-sensitive procedure that has been improperly categorized as elective.

 

A growing number of states largely governed by Republicans are using the coronavirus outbreak to crack down on abortion. In addition to Ohio and Iowa, Texas and Mississippi have ordered health care facilities to stop providing abortions.***

 

Leading medical experts, such as the American College of Obstetricians and Gynecologists and the American Board of Obstetrics and Gynecology have urged state leaders to classify abortion as a time-sensitive, essential medical procedure that cannot be delayed.

March 31, 2020 in Abortion, Constitutional, Healthcare, Reproductive Rights | Permalink | Comments (0)

Monday, March 30, 2020

During Coronavirus Shutdowns, Guns are Essential, Abortions are Not

Are Gun Stores "Essential" During Coronavirus Outbreak?

More than 200 million people in about half of the states are under orders to stay indoors to slow the transmission of the coronavirus.

 

Under those decrees, businesses have closed unless deemed "essential," which has sparked a nationwide debate among state and local leaders: Should gun stores be considered essential?

 

"A lot of people may find themselves in situations where they may need to be their own first responders," said Michael Cargill, who runs Central Texas Gun Works in Austin.

 

Gun owners, he said, "want to protect their family in case things go the other way." .  . . .

 

"Guns will not make Americans safer in the face of COVID-19," Feinblatt said. "Gun stores do not deserve special treatment. In fact, a surge in gun sales will put many communities at greater risk if guns aren't stored securely and if background checks aren't completed."

 

Increasing concerns for gun control advocates are reports of people using firearms out of fear created by the coronavirus crisis. In Alpharetta, Ga., for instance, a man was arrested for allegedly pulling out a gun on two women wearing medical masks at a post office because he worried they had the coronavirus.

 

Gun and ammo sales have rocketed since the outbreak surfaced. And some of the panic driving the purchases is also present because of what gun rights advocates see as preserving their constitutional right to bear arms. They argue short-term emergency restrictions on gun sales could erode their enshrined rights.

 

"Just because we're in a pandemic, American rights do not go away," Mark Oliva, a spokesman for the National Shooting Sports Foundation, told NPR. "There are disparate interpretations on how people want to view these orders, but the Second Amendment is unequivocal."

State Officials are Battling Over a Push to Suspend Abortions During Medical Supply Shortage

State officials in Kentucky and Oklahoma are among a growing number of Republican officials who say abortion is a nonessential procedure that should be put on hold during the coronavirus pandemic.

 

Kentucky Attorney General Daniel Cameron and Oklahoma Gov. Kevin Stitt have joined the list of officials calling for a suspension of most abortions in their states as part of a larger effort to help free up protective equipment for healthcare workers caring for COVID-19 patients.

 

In a statement, Cameron said abortion providers "should join the thousands of other medical professionals across the state in ceasing elective procedures, unless the life of the mother is at risk."

 

Reproductive health groups say abortion is an essential, time-sensitive procedure that should not be delayed, and that doing so can jeopardize the health and well-being of pregnant women.

March 30, 2020 in Constitutional, Healthcare, Pop Culture | Permalink | Comments (0)

Friday, March 27, 2020

How Ohio Women Legislators are Working to Keep Abortion Access Available

This is my local rep, supporting the constitutional rights of women.

How Ohio Women Legislators Are Working to Keep Abortion Clinics Open

Last weekend, Ohio Attorney General Dave Yost ordered Ohio reproductive health clinics to cease providing abortions—claiming that abortion services are not “essential” medical care during the COVID-19 pandemic.

When Ohio state House Representative Tavia Galonski—chair of the Ohio Women’s Democratic Legislative Caucus—first heard the news, she felt rage.

“Now is not the time to overturn the U.S. Constitution in the middle of a pandemic,” she said.

After his announcement, Attorney General Yost faced immediate pushback from abortion rights advocates and pro-choice state legislators.

Following a round of intense negotiations, Ohio clinics remain open.

March 27, 2020 in Abortion, Constitutional, Legislation, Reproductive Rights | Permalink | Comments (0)

Tuesday, March 24, 2020

Commission to Recommend to Congress that Women Be Included in Registration for Military Draft

NYT, Women Should Have to Register for Military Draft, Too, Commission Tells Congress

Women have been serving in the United States military since the Revolutionary War, helping to sew uniforms, heal the wounded and, eventually, fight in combat. But they have never been required to register for a military draft.

 

That could soon change. Under a new recommendation to Congress by a national commission, all Americans ages 18 to 25 — and not just young men as currently covered by the law — should be required to register with the government in case of a military draft. The move sets up a debate over a divisive issue that has been simmering for years.

 

The question of whether to expand draft registration to women was among the most contentious issues considered over the past two years by the National Commission on Military, National, and Public Service, a bipartisan group that was appointed by Congress to address the issue of conscription. The commission is set to release it recommendations to Congress on Wednesday.

March 24, 2020 in Constitutional, Equal Employment, Legislation | Permalink | Comments (0)

States Ban Abortions as Part of Coronavirus Shutdowns

.NYT, Texas and Ohio Include Abortion as Medical Procedures that Must be Delayed

Texas and Ohio have included abortions among the nonessential surgeries and medical procedures that they are requiring to be delayed, setting off a new front in the fight over abortion rights in the middle of the coronavirus pandemic in the United States.

 

Both states said they were trying to preserve extremely precious protective equipment for health care workers and to make space for a potential flood of coronavirus patients.

 

But abortion rights activists said that abortions should be counted as essential and that people could not wait for the procedure until the pandemic was over.

Ohio Halts Procedures at Abortion Clinics Amid COVID-19 Outbreak

Pro-choice groups such as the American Civil Liberties Union and Planned Parenthood say the order is an excuse from the state to restrict access to abortion.

 

Ohio's legislators have sought to curb people's access to abortion prior to the pandemic.

 

“Planned Parenthood’s top priority is ensuring every person can continue accessing essential healthcare, including abortion,” Planned Parenthood of Ohio said in a statement, adding that they are still being compliant with the state order. 

 

“Under that order, Planned Parenthood can still continue providing essential procedures, including surgical abortion, and our health centers continue to provide services that our patients depend on,” they added.

Yost Orders Clinics to Stop Non-Essential and Elective Abortions (Ohio)

Despite a state health order banning non-essential procedures during the coronavirus health emergency, Ohio abortion clinics remained open last week.

 

But after receiving complaints, Ohio Attorney General Dave Yost ordered two of them to follow Ohio Department of Health Director Amy Acton’s orders.

 

“You and your facility are ordered to immediately stop performing non-essential and elective surgical abortions. Non-essential surgical abortions are those that can be delayed without undue risk to the current or future health of a patient,” Yost said.

 

“If you or your facility do not immediately stop performing non-essential or elective surgical abortions in compliance with the [health director’s] order, the Department of Health will take all appropriate measures.”

 

On Wednesday, Acton issued an order saying “all non-essential or elective surgeries and procedures that utilized [personal protective equipment] should not be conducted.” The state is attempting to preserve supplies of equipment needed in combating the vir

Texas is the Latest State Using Coronavirus to Stop Abortions

Republicans in states around the country are doing their best to use the growing coronavirus epidemic in order to push through their rightwing, anti-abortion agendas. The latest—on Sunday night, Texas Governor Greg Abbott issued an executive order to “postpone all surgeries and procedures that are not immediately medically necessary” until April 21. In response, the state’s Attorney General Ken Paxton ordered all abortion clinics to stop providing “any type of abortion that is not medically necessary to preserve the life or health of the mother,” or face penalties of up to $1,000 or 180 days of jail time.

 

The move by Republican officials in Texas comes on the heels of Ohio’s attorney general’s office ordering abortion clinics in Dayton, Cleveland, and Cincinnati to “immediately stop performing non-essential and elective surgical abortions.”

 

Framing these moves as a way to ensure that health care professionals have the resources they need, which is what officials in both Texas and Ohio have done, is an incredibly manipulative and underhanded way to sneak in anti-abortion measures under the guide of public health. In a statement to Jezebel, NARAL Pro-Choice Texas executive Aimee Arrambide wrote, “Abortion is essential healthcare, but especially in the wake of the public health crisis we are facing now.... Abortion is a procedure where time is of the essence and cannot be delayed without profound consequences.”

Abortion Care is Essential Health Care

Over the weekend, two states made moves to ban certain abortions under the guise of preparing for the expected surge in coronavirus cases. In Ohio, Attorney General Dave Yost sent letters to three abortion clinics ordering them to stop performing “nonessential” surgical abortions that “can be delayed without undue risk to the current or future health of a patient.” In Texas, Gov. Greg Abbott ordered a halt to all procedures performed on patients not facing an immediate risk of “serious adverse medical consequences or death.” The Texas attorney general confirmed on Monday that most abortions would fall under the order.

 

Both officials have said the bans are necessary to reduce coronavirus-induced strain on health care systems and reserve personal protective equipment, including masks and gloves, for more urgent uses during a time of nationwide medical supply shortages. Their misclassification of abortion as nonessential health care betrays a deep-seated indifference for the health and welfare of pregnant women. Abortion care isn’t a delayable luxury, even during a pandemic. It’s essential preventive care—and if anything, it might be more essential than usual.

 

Abortion providers in Texas and Ohio have said they consider themselves exempt from the orders and will continue seeing patients, since the care they provide is necessary and time-sensitive. Though abortion care is extremely safe, it gets riskier, more expensive, and more difficult—or impossible—to access as a pregnancy progresses.

March 24, 2020 in Abortion, Constitutional, Healthcare, Reproductive Rights | Permalink | Comments (0)

Colorado Law Conference on the 19th Amendment and Women's Enfranchisement Moved Online

From the announcement: 

Please join Colorado Law for the 28th Annual Ira C. Rothgerber Conference, “Women’s Enfranchisement: Beyond the 19th Amendment," which has been modified to take place remotely on Friday April 3rd8:30 a.m. - 5:00 p.m. MT, through the use of a Zoom Webinar. The web-event is free, and has been approved for 6 general CLE credits.

2020 marks the centennial of the 19th Amendment, formally extending suffrage to some, but not all, women, and is a presidential election year with an unprecedented number of female candidates running for offices nationwide. But barriers to both political rights and social, lived equality persist, particularly for women at the intersections of race, sex, and class. This web-based conference will use the centennial to take stock of how far we’ve come—and how far we have to go—in terms of formal political enfranchisement, as well as the social and economic empowerment of women more broadly. 

Register here for the 2020 Rothgerber Conference, to receive important email updates, including the link needed to join the webinar. Participants will be able to use this link to join at any point during the conference. 

For more information on the panels and speakers please visit the CU Law Rothgerber event page.  We look forward to sharing this occasion with you!

Rothgerber Webinar Schedule | April 3, 2020

8:30-9:00am  Introductory Remarks by Suzette Malveaux (CU Law) 

9:00-10:00am  Keynote Address: Reva Siegel (Yale Law)

10:00-10:15am  BREAK

10:15am-12:00pm  PANEL 1

"Historical Perspectives on the 19th Amendment: Looking Back, Looking Forward”

  • Susan Schulten (University of Denver)
  • Carolyn Ramsey (Colorado Law)
  • Julie Suk (CUNY)
  • Mary Ziegler (FSU Law)

12:00-12:15pm  BREAK

12:15-2:00pm  PANEL 2

“Barriers to Political Representation”

  • Bertrall Ross (Berkeley Law)
  • Dara Strolovitch (Princeton)
  • Atiba Ellis (Marquette Law)
  • Ming H. Chen (Colorado Law)

2:00-2:15pm  BREAK

2:15-4:00pm  PANEL 3

“Lived Equality: Beyond Formal Political Rights”

  • Aya Gruber (Colorado Law)
  • Chinyere Ezie (Center for Constitutional Rights)
  • Diana Flynn (Lambda Legal)
  • Scott Skinner-Thompson (Colorado Law) 

4:00-4:30pm  Closing Remarks 

March 24, 2020 in Conferences, Constitutional, Legal History | Permalink | Comments (0)

Wednesday, March 18, 2020

Historical Precedent and Originalism in Support of Recognizing the Equal Rights Amendment Without a Time Limitation

John Vlahoplus, Ratification of the Equal Rights Amendment: Lessons from Special Elections to the House of Representatives in 1837, 95 Indiana J. Supp. (forthcoming)

In 1837 the House of Representatives considered a governor’s attempt to include a limitation in a writ issued to fill a vacancy in representation pursuant to Article I, Section 2 of the federal constitution. The Representatives agreed almost unanimously that the limitation was unconstitutional and should be disregarded as mere surplusage rather than invalidating the writ and the election.

This Article suggests that the similar text of Article V gives Congress only the power to propose amendments, without any limitation, and states the power to ratify amendments or not, without any power to rescind. Consequently, the time limit that Congress purported to impose on ratification of the Equal Rights Amendment is unconstitutional surplusage, and state rescissions are ineffective. Virginia’s ratification on January 15, 2020 pushed the amendment past the three quarters threshold, making it a valid part of the federal constitution. The Article also considers lessons from the subsequent 1837 general elections and suggests that the Supreme Court — rather than Congress — should and likely will ultimately adjudicate the validity of the Amendment’s ratification.

March 18, 2020 in Constitutional, Legal History | Permalink | Comments (0)