The substantive Fifth Amendment ideal of preventing the federal government from aiding systemic discrimination receded because of increasing challenges to its substance, judicial fatigue with institutional oversight, and the sweeping scope of the problem—along with collective amnesia regarding the prior decades of constitutional struggle. This Article reveals that forgotten constitutional history. After excavating the Fifth Amendment struggles, I argue that the no-aid norm, and the underlying reality of long-term federal participation in racial apartheid, should be remembered and debated once again.
This Comment responds to the equal protection challenge to merit selection. It argues that merit selection is constitutional by way of multiple exceptions, both recognized and implicit, to the “one person, one vote” principle. And though critics of merit selection often couch their arguments in prodemocratic terms, this Comment argues that merit selection—like the “one person, one vote” principle—promotes rather than thwarts the will of the people.
In the fall of 2019, John Bolton left his position as national security advisor to President Donald Trump after about seventeen months in the role.
In response to the COVID-19 pandemic, several state legislatures and executives limited the circumstances in which landlords could evict their tenants. Predictably, many of these moratoria were met with challenges under the Fifth Amendment’s Takings Clause, which prohibits the government from taking private property for public use without just compensation.
For centuries, mixed-race Americans have felt a sense of isolation as unique as their racial makeup. Whether society perceived a multiracial person as White or non-White could determine everything from whom they could marry to which jobs they could work to which areas and homes they could live in.
In May 2019, the Supreme Court attempted to clarify the long-disputed standard for First Amendment retaliatory arrest claims. Nieves v Bartlett holds that, as a threshold matter, a plaintiff must prove a lack of probable cause for their arrest, but that a “narrow qualification”—an exception to the probable cause burden—“is warranted for circumstances where officers have probable cause to make arrests, but typically exercise their discretion not to do so.”
There has been renewed interest in recent years in the original understanding of “due process of law.” In a recent article, Professors Nathan Chapman and Michael McConnell argue that historically, due process meant only that an individual could not be deprived of life, liberty, or property without a general and prospective standing law, the violation of which had been adjudicated according to a certain minimum of common-law judicial procedures.