scholarly journals When the Supreme Court Restricts Constitutional Rights, Can Congress Save Us? An Examination of Section 5 of the Fourteenth Amendment

1993 ◽  
Vol 141 (3) ◽  
pp. 1029 ◽  
Author(s):  
Matt Pawa
Keyword(s):  
Supreme Court ◽  
Fourteenth Amendment ◽  
Constitutional Rights ◽  
The Supreme Court

Dangerous Warrants

2017 ◽  
Author(s):  
Nirej Sekhon
Keyword(s):  
Supreme Court ◽  
Fourth Amendment ◽  
Constitutional Rights ◽  
Police Discretion ◽  
Accurate Identification ◽  
Race And Class ◽  
The Supreme Court ◽  
Local Courts ◽  
State And Local ◽  
Municipal Court

The Supreme Court has cast judicial warrants as the Fourth Amendment gold standard for regulating police discretion. It has embraced a "warrant preference" on the premise that requiring police to obtain advance judicial approval for searches and seizures encourages accurate identification of evidence and suspects while minimizing interference with constitutional rights. The Court and commentators have overlooked the fact that most outstanding warrants do none of these things. Most outstanding warrants are what this article terms "non-compliance warrants": summarily issued arrest warrants for failures to comply with a court or police order. State and local courts are profligate in issuing such warrants for minor offenses. For example, the Department of Justice found that the municipal court in Ferguson, Missouri issued one warrant for every two of its residents. When issued as wantonly as this, warrants are dangerous because they generate police discretion rather than restrain it. Nonetheless, the Supreme Court has, most recently in Utah v. Strieff, treated non-compliance warrants as if no different from the traditional warrants that gave rise to the Fourth Amendment warrant preference. This article argues that non-compliance warrants pose unique dangers, constitutional and otherwise. Non-compliance warrants create powerful incentives for the police to conduct unconstitutional stops, particularly in poor and minority neighborhoods. Their enforcement also generates race and class feedback loops. Outstanding warrants beget arrests and arrests beget more warrants. Over time, this dynamic amplifies race and class disparities in criminal justice. The article concludes by prescribing a Fourth Amendment remedy to deter unconstitutional warrant checks. More importantly, the article identifies steps state and local courts might take to stem the continued proliferation of non-compliance warrants.

How Trains Became People: Southern Pacific Railroad Co.’s Networked Rhetorical Culture and the Dawn of Corporate Personhood

2018 ◽  
Vol 43 (2) ◽  
pp. 194-213
Author(s):  
Nicholas S. Paliewicz
Keyword(s):  
United States ◽  
Supreme Court ◽  
Human Subject ◽  
The United States ◽  
Fourteenth Amendment ◽  
Corporate Personhood ◽  
Legal Discourses ◽  
The Supreme Court ◽  
Pacific Railroad ◽  
Southern Pacific Railroad

This essay analyzes how a rhetorical culture emerged in which the Supreme Court of the United States assumed corporations were constitutional persons under the Fourteenth Amendment. Approaching rhetorical culture from a networked standpoint, I argue that corporate personhood emerged from Southern Pacific Railroad Co.’s networks and alliances with environmental preservationists, politicians, publics, lawyers, judges, and immigrants in the late 19th century. Contributing to literatures on rhetorical culture and agency, this study shows how Southern Pacific Railroad Co., through networks of influence and force, was a rhetorical subject that shaped a networked rhetorical culture that expanded the boundaries of the Fourteenth Amendment even though the Supreme Court of the United States had not worked out the philosophical underpinnings of corporate personhood. Corporate personhood remains theoretically restrained by legal discourses that reduce subjectivity to a singular, speaking, human subject.

The Warren Court and the Administration of Criminal Justice

1972 ◽  
Vol 18 (1) ◽  
pp. 49-58
Author(s):  
Donal E.J. Macnamara ◽  
Edward Sagarin
Keyword(s):  
Criminal Justice ◽  
Supreme Court ◽  
Constitutional Rights ◽  
The Supreme Court ◽  
Warren Court ◽  
American Society

Three important changes in American society were given impetus by decisions of the Supreme Court under Earl Warren. These were in the issues of desegregation; one-man, one-vote; and the administration of criminal justice. The accusation against the Warren Court that it was coddling criminals and handcuffing police, belied by statistics, may have been incited by hostility that the Court had aroused because of its decisions on integration and electoral apportionment. Analysis of impor tant decisions in the years before Warren reveals a hesitant and ambiguous Court, taking both forward and backward steps in defense of the constitutional rights of the accused. Some of the Warren decisions on issues of criminal justice were unani mous, and others were made by a split court. A study of the voting records of Warren's colleagues leads to the belief that the major thrust of that court will not be reversed by its successor, unless under the pressure of a precipitate change in America's social atmosphere.

Need for a more Democratic Procedure of Amending the Constitution

1916 ◽  
Vol 10 (4) ◽  
pp. 683-688
Author(s):  
Seba Eldridge
Keyword(s):  
Supreme Court ◽  
Due Process ◽  
State Legislatures ◽  
Fourteenth Amendment ◽  
Political Discussion ◽  
Legislative Authority ◽  
The Supreme Court ◽  
History Of ◽  
Electoral Control ◽  
Democratic Procedure

That final legislative authority in this country is lodged in the letter of a constitution that is amended with the greatest difficulty, and with a supreme court which is entirely independent of electoral control has become a commonplace of political discussion.To quote Professor Goodnow: “Acts of congress and of state legislatures are declared to be unconstitutional ‥‥ because they cannot be made to conform to a conception of the organization and powers of government which we have inherited from the eighteenth century;” and Dr. Blaine F. Moore: “If we may judge from the decisions based on the due process clause in the fourteenth amendment and applying to the States, the court has it in its power to make the similar clause in the fifth amendment cover practically all federal legislation dealing with new problems concerning which there are few or no precedents. If the court does make this entirely possible extension of its power, then the legislation dealing with the more recent and pressing questions is under the control of the popularly inaccessible justices of the supreme court.”Both these quotations are from studies published before the adoption of the sixteenth and seventeenth amendments, but they are only a little less true now than then, as an analysis of the history of those amendments will show.

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