Gender and the United States Constitution: Equal Protection, Privacy, and Federalism

Author(s):  
Reva B. Siegel
Author(s):  
Derek W. Black

In this chapter, Derek W. Black surveys the various litigation, judicial, and scholarly theories through which courts might recognize a right to education under the United States Constitution. He begins by sorting those theories into their major doctrinal categories and subcategories and explaining their basic arguments, including substantive due process, equal protection, privileges and immunities, citizenship, and originalism. Black then critically evaluates those theories, examining both the positives and negatives of the leading theories. He concludes that while a number of theories are plausible, scholarly theories have tended toward originalism in recent years and are the most likely to be successful before the courts.


2021 ◽  
pp. 143-164
Author(s):  
Omri Ben-Shahar ◽  
Ariel Porat

This chapter examines personalized law from the perspective of the Equal Protection Clause in the United States Constitution. Some classifications of people, when made for the purpose of differentiated treatment, are subject to stifling doctrinal constraints. Could such classifications be made under personalized law? The chapter argues that personalized law mitigates the constitutional concerns relating to suspect classifications. Treating people as individuals, using multi-attribute data-weighed tailoring, and not as identical members in a certain class, is permissible because members of the class are not singled out for class-specific uniform treatment. The chapter examines landmark Supreme Court cases on sex and race classifications, showing that the limits set by the Court and the narrow permission it granted for some uses of classifications, all fit well within a scheme of personalized law. In addition, the chapter examines problems of unintended disparate impact that could arise under personalized law, and demonstrates the unique advantage of the algorithmic methods fueling personalized law in reducing and eliminating such effects.


2020 ◽  
Vol 32 (5) ◽  
pp. 276-284
Author(s):  
William J. Jefferson

The United States Supreme Court declared in 1976 that deliberate indifference to the serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain…proscribed by the Eighth Amendment. It matters not whether the indifference is manifested by prison doctors in their response to the prisoner’s needs or by prison guards intentionally denying or delaying access to medical care or intentionally interfering with treatment once prescribed—adequate prisoner medical care is required by the United States Constitution. My incarceration for four years at the Oakdale Satellite Prison Camp, a chronic health care level camp, gives me the perspective to challenge the generally promoted claim of the Bureau of Federal Prisons that it provides decent medical care by competent and caring medical practitioners to chronically unhealthy elderly prisoners. The same observation, to a slightly lesser extent, could be made with respect to deficiencies in the delivery of health care to prisoners of all ages, as it is all significantly deficient in access, competencies, courtesies and treatments extended by prison health care providers at every level of care, without regard to age. However, the frailer the prisoner, the more dangerous these health care deficiencies are to his health and, therefore, I believe, warrant separate attention. This paper uses first-hand experiences of elderly prisoners to dismantle the tale that prisoner healthcare meets constitutional standards.


2015 ◽  
Vol 43 (2) ◽  
pp. 177-200
Author(s):  
Stephen Gageler

James Bryce was a contemporary of Albert Venn Dicey. Bryce published in 1888 The American Commonwealth. Its detailed description of the practical operation of the United States Constitution was influential in the framing of the Australian Constitution in the 1890s. The project of this article is to shed light on that influence. The article compares and contrasts the views of Bryce and of Dicey; Bryce's views, unlike those of Dicey, having been largely unexplored in contemporary analyses of our constitutional development. It examines the importance of Bryce's views on two particular constitutional mechanisms – responsible government and judicial review – to the development of our constitutional structure. The ongoing theoretical implications of The American Commonwealth for Australian constitutional law remain to be pondered.


1980 ◽  
Vol 1 (8) ◽  
pp. 3-6
Author(s):  
George J. Annas

In an extraordinary and highly controversial 5-4 decision, the United States Supreme Court decided on June 30, 1980, that the United States Constitution does not require either the federal government or the individual states to fund medically necessary abortions for poor women who qualify for Medicaid.At issue in this case is the constitutionality of the Hyde Amendment. The applicable 1980 version provides:|N]one of the funds provided by this joint resolution shall be used to perform abortions except where the life of the mother would be endangered if the fetus were carried to term; or except for such medical procedures necessary for the victims of rape or incest when such rape or incest has been reported promptly to a law enforcement agency or public health service, (emphasis supplied)


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