14th Amendment Research Articles

Editor's Note

OHQ vol. 122, no. 2 102 Editor’s Note© 2021 Oregon Historical Society ONE YEAR AGO, the Oregon Historical Quarterly (OHQ) published our first issue of the COVID-19 era. As we bring this issue to publication, we reflect on the transformations wrought by the virus and the ways human beings, our governments, our scientists, our social institutions, and our cultural organizations have responded. Loss of life in the United States and around the globe has been devastating and is ongoing. Here in Oregon, today, the number of cases of infection is rising, but so is the number of people receiving vaccinations. It truly has been a year unlike any other. This issue is almost entirely focused on White women’s history, including three pieces specifically addressing the work of uncovering that history from the shadows. We offer this compilation for its own value, as we do all issues of OHQ, but also in honor of the missed opportunity to spend 2020’s centennial of the Nineteenth Amendment exploring in person the ways women have shaped Oregon and U.S. history. The first day of COVID-19 closure for the Oregon Historical Society (OHS) was March 14, 2020 — the day we planned to open to the public our new exhibition, Nevertheless, They Persisted: Women’s Voting Rights and the 19th Amendment. That exhibition explores state and national history, showcases the work of women from many eras and backgrounds, and highlights how racism plagued the movement. As racism, voting rights, and women’s rights continue to be major issues of concern and debate in Oregon and the United States today, we are pleased to have extended the exhibition’s run through December 5, 2021. And, as the articles and public history roundtable in this issue demonstrate, there is still much tenacious work to be done in the ongoing effort to bring women — and particularly women of color — from the margins to the center of our historical narratives. For an editor’s note in the Summer 2020 issue, I wrote about the changes to our workflow here at OHQ. Since then, we have settled into the habits of working at home and meeting through our computer screens. Portland State University’s College of Liberal Arts and Sciences and the Rose Tucker Charitable Foundation renewed their support for our partnership; Helen Ryan completed her graduate studies, and Sarah Harris joined our editorial team as the Rose Tucker Fellow in September 2020. OHS’s research library remains closed to the public — as its permanent home undergoes renovation and staff adhere to the social-distancing rules that have helped keep Canty-Jones, Editor’s Note 103 countless people safe — but our coworkers there have continued to assist with research requests for primary documents and images. We are grateful for all the people who have persisted in the myriad work necessary to produce OHQ — authors, peer-reviewers, archivists, oral historians, librarians, curators, photographers, and everyone whose memberships, contributions, and daily work on staff keep OHS running. One part of our work that has been difficult to keep on a regular schedule is our book-review section, the production of which has long relied on regular office work from our stalwart volunteers. Full length book review sections will return; we promise We have so many exciting manuscripts in the pipeline for future issues, as scholars carry on the work of seeking out and making meaning from the remnants of the past. Whatever the future holds, we remain confident that OHQ will be here, every three months, to continue making sense of the people, places, and events that have shaped Oregon. — Eliza E. Canty-Jones THE OREGON HISTORICAL SOCIETY’S exhibition Nevertheless, They Persisted: Women’s Voting Rights and the 19th Amendment was scheduled to open on March 14, 2020 — the day it closed to the public to slow the spread of COVID-19. The exhibit, curated by Lori Erickson, will be on display through December 5, 2021. Oregon Historical Society ...

An Ever-Present Impulse: The Legacy of Anti-Black Violence and the Paradox of Minnesota Exceptionalism

An Ever-Present ImpulseThe Legacy of Anti-Black Violence and the Paradox of Minnesota Exceptionalism William D. Green (bio) With the killing of George Floyd by a Minneapolis police officer on May 25, 2020, the Band-Aid of conventional wisdom applied to a state long noted for its enlightened relations between Blacks and Whites, was ripped off to reveal to many a shocking truth. Belying a racially tranquil setting within the idyllic Land of Ten Thousand Lakes—where such iconic leaders as Frederick Douglass, W.E.B. Dubois, Booker T. Washington, and Ida B. Wells-Barnett received a cordial welcome from public leaders—the specter of violence loomed large against Blacks. This subterranean propensity, an ever-present impulse, an ever-threatening potential—enabled by White Minnesotans' complaisance—comprises what University of Minnesota economist Samuel L. Myers calls the "Minnesota Paradox." Its enablers, including progressive political leaders and their constituents, deferred to mobs—but more frequently to city police departments—to do the dirty work of abusing and endangering Black people. They looked the other way until collective memory faded and the public record gathered dust in some long-obscured footnote.1 During the year preceding the Civil War, police officers and mob members each took extralegal steps in determining the fates of fugitive slaves. One example was the 1860 rendition of Henry Sparks by St. Paul police; they beat him before summarily placing him on a steamboat heading south. Weeks later, Minneapolis Whites rioted after a Hennepin County judge freed Eliza Winston. They completely destroyed the property of Emily Grey, the Black businesswoman who initiated the hearing that led to Winston's liberation. They also demolished Grey's husband's barber shop.2 In 1863, St. Paul police allowed White laborers on strike in the city to stone two [End Page 59] barges transporting contraband slaves from Missouri. The laborers believed the contrabands had been brought to the capital to break their strike. Petitions had circulated for weeks opposing the use of contraband labor and calling on the legislature to enact yet another law prohibiting Black migration into the state. When draft registration began that summer, officials—fearful that draft riots raging in New York and other eastern cities might spread to the already volatile St. Paul—considered posting a provost guard.3 The police department could not be relied upon to confront the fury of White laborers who were convinced that the Black men now residing in St. Paul stood poised to take their jobs and women—while Whites were fighting and dying in the distant South to free all men. The Minnesota Paradox remained evident during the years after Appomattox, as civil rights progress cloaked dangerous inequalities. Minnesota Republicans, after two failed attempts, succeeded in amending the state constitution to extend suffrage to the state's Black men. The following March, they ended school segregation.4 By then, Congress had nationally ratified the 13th and 14th Amendments, and many White Minnesotans who could be counted on to be anti-Black could see the trend toward racial equality. Indeed, some of their own government leaders seemed willing to concede that a new day dawned for Black equality, when, weeks after the new school law passed, court officials in the Democratic stronghold of Ramsey County—who had scorned Black suffrage—now swiftly seated Black men on a jury.5 In January 1870, Minnesota voted to ratify the 15th Amendment.6 It made Black men politically equal to the White laborers who felt abandoned by their own Democratic leaders. But those Whites were not without allies. The police—many of whom came from the laborers' socio-economic ranks—could be counted on to enthusiastically brandish their own form of law and order. That the police would not intervene when Whites threatened Blacks was clear in February 1873 when Frederick Douglass came to St. Paul to speak on the advancement of the "negro" since the Civil War. As he addressed a packed hall of Republican civic, political, and business leaders, a crowd formed outside hurling catcalls and threatening to lynch the speaker. The better-heeled crowd inside responded by shouting louder their support for Douglass's message. The tone of antagonism...

The Originalist Case for an Abortion Middle Ground

Few originalist arguments are as important as the claim that, at the time of the Fourteenth Amendment’s enactment, 27 of the 37 states in the union prohibited abortion at all points in pregnancy. The State of Mississippi and at least five of its amici advance this claim in Dobbs v. Jackson Women’s Health Organization, a case that invites the Supreme Court to overturn Roe v. Wade. Many scholars have repeated it as well. To originalists, the takeaway is clear. If the public in most states in 1868 understood abortion to be prohibited throughout pregnancy, then present-day state bans on abortion after six weeks—or even earlier—cannot violate the Constitution’s original meaning. The 27-states claim is thus as forceful as it is arresting. It is also wrong. This Article uncovers several historical errors on which the claim is founded. For example, the oft-repeated 27 figure includes states whose high courts interpreted the relevant abortion laws not to apply before quickening, or the first sign of fetal movement at roughly sixteen weeks of pregnancy. The 27 count also includes states whose abortion laws punished only particularly dangerous forms of abortion (e.g., via poison), while permitting safer procedures. Other mistakes abound. In one instance, anti-abortion originalists count a state as prohibiting pre-quickening abortions even though the state’s own prosecutors admitted otherwise in court. After assessing the evidence, my best sense is that when the Fourteenth Amendment was ratified, just 16 of 37 states deemed abortion unlawful at all points in pregnancy. In the other 21 states, pregnant persons were free to obtain an abortion at any time before quickening. The public in most states would have thus understood most abortions—those performed before roughly sixteen weeks—to be perfectly lawful when the Fourteenth Amendment was ratified. To be sure, anti-abortion originalists are still correct that Roe’s viability line would have been unrecognizable to the public in 1868. But just as there’s a major difference between banning abortion after twenty-four weeks and banning it after sixteen, so too is there a big difference between banning abortion after sixteen weeks and banning it after six. Of the three positions, originalism is most consistent with the middle ground. [Author's Note on 9/15/21: After further research, I've concluded that an earlier draft made two errors. First, I uncovered an additional case from Iowa leading me to conclude that the state actually prohibited abortions throughout pregnancy when the Fourteenth Amendment was ratified. I also found a case in which the State of Oregon argued that its abortion law as of the amendment's ratification did not apply to pre-quickening procedures, leading me to move that state to the set that permitted abortion before quickening.] [Author's Note on 9/23/21: An updated draft makes three changes. First, in response to incisive feedback from Prof. Larry Solum and other scholars, I no longer rest my argument exclusively on an application of the Court's due process precedents. The draft now presents an additional first principles originalist case for the right to pre-quickening abortion grounded in the Privileges or Immunities Clause. Second, Professors John Finnis and Robert George have identified a Rhode Island statute that has evaded previous scholarly attention. Their finding indisputably moves that state into the category of those that banned pre-quickening abortion at the 14th Amendment's ratification, and I am grateful for their discovery. Third, I respond (at pp.50-57) to Finnis and George's attempts to move other states to the same category, showing why their arguments are deeply misguided.] [Author's Note on 10/21/21: Professors Finnis and George have now posted a new, lengthy response paper. As with their initial reply, I am grateful for the arguments and discoveries they present. I am especially persuaded by their discussion of Massachusetts, which convinces me to move that state to the set that banned pre-quickening abortions. An updated draft reflects this change, other revisions, a slight reorganization, and a substantial new discussion of Virginia law in light of a recently discovered statutory error to which all parties in this debate have succumbed.] [Author's Note on 11/3/21: I have made two substantive revisions in an updated draft. The first is to reference important arguments in a new book by Professors Randy Barnett and Evan Bernick concerning the original meaning of the Privileges or Immunities Clause; the second is to update counter-arguments against my reading of Virginia law based on a recently discovered historical source.].

Black Women's Suffrage, the 19th Amendment, and the Duality of a Movement

America is at an unprecedented time with self-determination for Black women, and this phase of the movement is reverberating throughout this nation and around the world. There is no confusion for those who identify as Black women that this movement is perpetual, dating back to the enslavement of Black people in America by act and by law. One need only look to the intersecting crises of 2020 to discern the reality of Black women’s — and by extension the Black community and by further extension individuals and groups marginalized, subordinated, and oppressed by white patriarchy — perpetual struggle for civil and human rights. To appreciate the genealogy of this perpetual struggle for civil and human rights, it is instructive to look back on the 100th Anniversary of the 19th Amendment and to be immersed in the stories and the legacies of Black women suffragists to gain insights about modern contestations against limiting the franchise. In the forming of this nation, Black women were intentionally excluded and erased from conceptions of humanity. This exclusion and erasure of Black women’s voices and contributions from the annals of social, political, and economic movements throughout history, such as abolitionist and women’s suffrage movements, tarnish the legitimacy of our democratic institutions, our laws, and our collective progress toward equality. This article centers Black women’s lived experiences in the struggle for universal suffrage while also leading and supporting their communities in the fight against racial inequality and oppression. By making the sojourn through history using the lens of Black women, an opening is created to understand the perpetuation of racial injustice and oppression through the practices of withholding citizenship and the franchise. It also offers a window into the expertise and resilience of Black women in building and maintaining relationships, alliances, and coalitions to press for the larger vision of universal suffrage, even when their putative partners choose self-interest over the collective. The purpose of highlighting the duality of the movement is to contribute to the literature that seeks to reveal how Black women and their lived experiences with racism and oppression during the women’s suffrage movement up through and after the ratification of the 19th Amendment can inform today’s efforts at successful coalition building to support modern movements against injustice and inequality.

Educating Antiracist Lawyers: The Race and the Equal Protection of the Laws Program at Dickinson Law

The killing of George Floyd forced the nation to recognize painful realities about systemic racism in our country and our legal system. The deficiencies in our founding documents and the vestiges of our slaveholding past are so woven into our national culture that they became hard to see except for those who suffer their daily indignities, hardships, and fears. The collective experience of watching Floyd’s murder made these undeniably and viscerally visible to all Americans. As legal educators, we must face the role we have played in helping build the machinery of structural racism by supplying generation after generation of those who maintain that machinery and prosper within it. In this critical moment of our country’s history, we, as legal educators, must train and prepare a generation of lawyers to complete once and for all the work of the Civil Rights Movement, a Third Reconstruction and to purge racism from our legal system – to build better safeguards to ensure that all people have the equal protection of the laws promised by the 14th Amendment of our Constitution. As educators, we have a unique opportunity and important responsibility to combat racism in our educational mission. We must do more than transfer legal knowledge and skills to our students. We must cultivate within them a principled, enduring commitment to work for true equality over the course of their careers and to practice law in a way that promotes the equal treatment of all. To do this, we must reconsider not only what we teach, but how we teach it. This article sets out one possibility. It describes the Race and Equal Protection of the Laws program at Penn State Dickinson Law.1F It describes a teaching method I developed for the task of teaching students about the relationship between race and our legal system. It describes how over 50 students, faculty and alumni worked together to create the substantive content of the course. This innovative program draws upon the principles of Critical Pedagogy to develop an educational approach with the objective of transforming how our students see their place and role in our flawed, evolving democracy. It incorporates the literature of different scholars commonly referred to as Critical Race Theorists to help students recognize the indicia of structural racism and better understand its root causes. The structure and methods used in the program guide students towards a deepened consciousness of the relationship between race and our legal system and why, despite its mostly neutral language, it still facilitates and maintains a system that results in Americans of different colors have different lived experiences. It encourages students to identify problems that can be addressed by lawyers and explores with them sources of law and justice that can be brought to bear on the problem. Finally, it shares with students the “Story and Vision” of lawyers who can speak authoritatively and authentically about the areas of law we examine and invites students to develop their own carefully considered response as lawyers. During this yearlong course, students have examined the relationship between race and our legal system in the following areas: housing, health care, criminal justice, democracy, capitalism, and education. Future iterations of the course will broaden this coverage and examine other types of inequality in our legal system.

Amicus Curiae Brief: Private For Profit Incarceration Violates the 13th Amendment of the United States Constitution

Amicus Curiae Brief: Private For Profit Incarceration Violates the 13th Amendment of the United States Constitution

Was Polllock V. Farmers’ Loan & Trust Co (1895) Decided Consistently with Existing Tax Principles?

The foundation of the modern tax system in the United States is based on the 16th Amendment passed in 1909. The Amendment was Congress’s response to the Pollock v. Farmers' Loan & Trust Company, 157 U.S. 429 (1895), affirmed on rehearing, 158 U.S. 601 (1895). Pollock held that an income tax levied on the US population based on “dividends, royalties, and rents” was unconstitutional. Because of this, Pollock v. Farmers' Loan & Trust Company was a key case in the history of taxation and tax law in the United States. Theoretically, the key question is whether a tax on property is the same as “dividends, royalties, and rents” arising from that property. Understanding the reasoning of this case illuminates key concepts in taxation, the history of taxation, and has implications on Constitutional history and interpretation.

The Northern Irish Assembly and the Abortion Issue, 1967-2017

On 25 May 2018, the Republic of Ireland voted in a landslide referendum to repeal the 8th amendment of its Constitution which had, since 1983, put the “right to life of the unborn” on an equal status with the life of a pregnant woman, leading to a near-total ban on abortion, even in cases of rape, incest or fatal foetal abnormality. This historic result, in a country with one of the most restrictive abortion regimes in Europe, instantaneously led to calls for similar reform in Northern Ireland both from within and outside the Province as the region was now the only one in the British Isles where terminations were outlawed except in the most exceptional circumstances. Although these claims were finally heard when, on 22 October 2019, section 9 of the Northern Ireland (Executive Formation) Act provided for the decriminalisation of abortion in Northern Ireland, the British government’s argument until the very last minute was that 1) the issue was one that belonged to the devolved Northern Ireland Assembly whose prerogatives should not be undermined, 2) abortion was “pre-eminently a matter for the people of Northern Ireland” to decide. This position on the part of the central government has led us to examine in this paper the reasons for the Northern Irish exception as well as the mechanisms which have been at play in Stormont for the past fifty years and have prevented any liberalisation of the legislation.

An Assessment of Right to Fair Trial Under the Constitution of Pakistan, 1973: A Comparative Study of the US and Pakistan

Right to fair trial is considered as the basic right affirmed by Islam and recognised by different international documents i.e., ICCPR, UDHR, etc. In Pakistan, the notion of fair trial has been incorporated through Article 10-A through 18th constitutional amendment. The two amendments were made in the US Constitution in 18th and 19th century i.e., 6th and 14th amendments which safeguards right to speedy trial, impartial jury, public trial and equal protection of law. The Investigation for Fair Trial Act, 2013, permits the use of new methods in collection of evidence and also bridles arbitrary powers from being used. However, being dissimilar to the essence of the Constitution, 21st Amendment was made to adopt Pakistan Army Act, 2015 in order to control the extremism. The key purpose of the article is to assess how far the efforts for the enforcement of right to fair trial in Pakistan are sufficient?

PEMBUATAN AKTA/SURAT KETERANGAN WARIS OLEH NOTARIS BAGI MASYARAKAT ADAT BALI

The legal basis justifying the existence of notaries as public officials and a legal profession were Netherland-Indies laws. These colonial laws were, by virtue of Art. I Transitional Rules of the 1945 Constitution of the Republic of Indonesia (4th Amendment), taken over and considered to be still in force. Consequently, one of the public service offered by Notary publics, i.e., issuance of letter of inheritance or written affidavit stating which family members of the deceased may by law be regarded as heir-successor, has not been made available to Balinese adat communities. This service can only be enjoyed by those individuals who submit themselves to the (colonial) Civil Code. The article explores, using a juridical empirical approach, the possibility to extent the above public notary’s service to Balinese adat (traditional) communities.

PEMBUATAN AKTA/SURAT KETERANGAN WARIS OLEH NOTARIS BAGI MASYARAKAT ADAT BALI

The legal basis justifying the existence of notaries as public officials and a legal profession were Netherland-Indies laws. These colonial laws were, by virtue of Art. I Transitional Rules of the 1945 Constitution of the Republic of Indonesia (4th Amendment), taken over and considered to be still in force. Consequently, one of the public service offered by Notary publics, i.e., issuance of letter of inheritance or written affidavit stating which family members of the deceased may by law be regarded as heir-successor, has not been made available to Balinese adat communities. This service can only be enjoyed by those individuals who submit themselves to the (colonial) Civil Code. The article explores, using a juridical empirical approach, the possibility to extent the above public notary’s service to Balinese adat (traditional) communities.

Impact of Political Uncertainty on Pakistan Stock Exchange: An Event Study Approach

Pakistan is struggling against many problems; out of which political instability and terrorism are crucial problems. These issues hindered the economic growth of the country as well as the confidence of investors. This study has investigated the impact of political events on Pakistan Stock Exchange.
 This paper uses a standard event study methodology. Data relating to the stock market index has been collected from the website of Pakistan Stock Exchange and relating to political events has been collected from the newspapers of Business Recorder and DAWN. A total of 18 political events was considered in the study out of which 08 events were coded as positive and other 10 were deemed negative. The first day abnormal return, a five-day cumulative abnormal return and ten-day cumulative return was calculated for all of the events. This study found evidence that political events affected the stock market in Pakistan, but their impact is different considering the economic and political implications of these events. Certain events had the strongest impact on the stock market like Nuclear tests for effective defense, the Supreme Court had revoked the Presidential order and Nawaz Sharif had been reinstated, General elections held in the country and the 14th amendment because 14th amendment was related to the elimination of corruption in political parties. Overall, this study laid the foundation to make further explorations into the phenomenon of uncertainty caused by political events in relevance to the stock market in Pakistan.

The role of cognitive functioning in predicting restoration among criminal defendants committed for inpatient restoration of competence to stand trial

In the United States, the due process and equal protection clauses of the 14th Amendment require that criminal defendants found incompetent to stand trial be committed for competency restoration only for such a time considered to be reasonable to achieve this aim. Adherence to these protections requires that forensic clinicians have the capacity to accurately identify defendants unlikely to be restored and to provide evidence-based estimates regarding anticipated restoration timelines. The present study examines restoration rates in a large sample (N = 492) of incompetent male defendants consecutively admitted for inpatient competency restoration between 2013 and 2017. Expanding on prior research suggesting that shared cognitive deficits might underlie impaired competency-related abilities across diverse psychiatric illnesses, the predictive classification accuracy of the Mini Mental State Examination (MMSE) on restoration was examined. Results showed that 90.4% of all defendants were restored in an average of 90.5 days and that restoration rates differed across psychiatric classification, such that patients with mood and psychotic disorders were more likely to be restored whereas those with intellectual disabilities and neurocognitive disorders were less likely. The MMSE was associated with restoration outcomes, such that over 90% of patients with no or mild cognitive impairment were restored compared to 68% of patients with severe cognitive impairment. Multivariable logistic regression showed that each one-point decrease on the MMSE total score was associated with a 19.7% (p < .001) increased odds of restoration failure and the MMSE total score produced an area under the curve (AUC) of 0.767. The MMSE appears to provide a brief, reliable screening instrument to quantify the presence and severity of cognitive impairment underlying a range of serious psychiatric illness that is capable of discriminating defendants based upon their likelihood of being restored in a reasonable amount of time with a moderate degree of accuracy.

Performances of autonomy: Feminist performance practice and reproductive rights activism in Ireland

This article considers feminist performance practices in relation to reproductive rights campaigns in an Irish context. Following the successful campaign to Repeal the 8th Amendment in 2018 and the decriminalization of abortion in Northern Ireland in 2019, I explore the significance of feminist performance practices in developing discourses concerning reproductive autonomy and challenging the idealizing of motherhood. Through a discussion of key works by Áine Phillips, Amanda Coogan and myself, I outline how in deploying their bodies in their work live artists make visible the impact of oppressive gendered constructs and resist the policing and shaming of reproductive bodies in an Irish context. I demonstrate how through performing transgressive acts, live artists have ruptured the silencing surrounding both abortion and maternal experience. My article further critically reflects on the performances of the London-based direct-action performance group Speaking of IMELDA, drawing on my first-hand knowledge gained through my participation in the group’s successive performative interventions between 2013 and 2018. I discuss the group’s collective public vocalizations and, sometimes brazen, use of performance to unapologetically advocate for reproductive rights within an Irish context in a variety of social and geographical settings. I situate the performance activist aesthetics of IMELDA in voicing the intergenerational perspectives and solidarities of the London-Irish feminist diaspora as contributing to broadening understandings of Irishness. In outlining how the various performance practices discussed within this article have operated against cultural constructs of femininity and unashamedly advocated for reproductive autonomy, I locate performance as contributing to the development of feminist discourses.

Born on U.S. Soil: Access to Healthcare for Neonates of Non-Citizens.

The 14th amendment of the United States (US) Constitution guarantees citizenship to infants born in the US. With documentation of citizenship, typically through a birth certificate, neonates gain official identity and the opportunity to qualify for services like healthcare. Most guidance on caring for immigrant children assumes that access to health care is guaranteed for babies born in the US. In practice, some infants born to non-citizen mothers face barriers in obtaining services fundamental to neonatal health. We conducted a review of the literature to identify articles on access to care for infants born to non-citizen mothers in the US. Because of the scarcity of relevant peer-reviewed published literature on this topic, the search was broadened to grey literature including news articles, online articles, and legal reviews. Using these aggregated sources, we created a framework for understanding maternal immigration status and barriers to healthcare for neonates born in the US. We discuss risk factors from the public health, historical and ethical perspectives. Barriers exist for some mother-infant dyads in obtaining services such as healthcare, health insurance and supplemental nutrition programs. At-risk dyads include neonates of undocumented immigrants and birth tourists as well as neonates born to women on visas. The impact of these barriers on health-seeking behaviors, access to care, and health outcomes for these neonates is largely unknown. The framework for understanding challenges of non-citizen mothers and their infants that we present in this article provides a resource for physicians and public health professionals serving this population. That much of the literature exists outside of healthcare highlights the need for more scholarly work on this problem. Future research will better inform advocacy and public health efforts to protect this vulnerable population of newborn citizens and their mothers.

Sovereign immunity and its implications for neurosurgery

The proportion of neurosurgeons facing a malpractice suit each year is highest among all medical and surgical specialties. It is critical for neurosurgeons to understand local malpractice laws because they vary among states. Sovereign immunity, as described in the 11th constitutional amendment, provides absolute immunity to states from being sued by their residents and by other states. A state may waive its sovereign immunity, however, and substitute itself as the defendant in place of a state-employed physician in the court of law. This means that a physician working for a state-funded hospital may not be liable to a malpractice suit. Further provisions of the law allow the state not to pay indemnity beyond a certain limit, which discourages plaintiff attorneys from pursuing indemnity charges against physicians working for state-funded institutions. In this review, the authors describe the concept of sovereign immunity and its implications for the practice of neurosurgery.

100 Years after Suffrage: Just How Far Have Women Come?

Women earned the right to vote 100 years ago with the ratification of the 19th Amendment, effectively ending the suffrage movement that had transpired over generations. Their hard-won victory doubled the American electorate and provided women with an essential right of citizenship of which they had long been deprived. Not all women were welcomed at the polling place, though, and the exclusion of women of color, particularly in the Jim Crow South, revealed yet another barrier to eventually be struck down. In the 100 years since women earned their right to vote, they have begun “outvoting” their male counterparts and emerged as candidates for office in every branch and at every level of government. Despite great success, women are still underrepresented in public office, however. This article examines the role of women in politics from the decades prior to suffrage to the months leading up to the 2020 election and reminds us that although women have made tremendous strides, there is still a long way to go.

The Speaker of the House and Presidential Succession: An Argument and Addendum

Is Nancy Pelosi, as Speaker of the House of Representatives, properly and constitutionally second in line for the presidency? The question has urgent new relevance in light of President Donald Trump’s recent infection with the coronavirus and the related spread of infections in the top levels of his administration. If a double vacancy occurred due to the death or incapacity of both Trump and Vice-President Mike Pence, who would be next in line?The Presidential Succession Act, passed by Congress 73 years ago, says that Speaker Pelosi would take over as Acting President.But an essay by Professor Jack Goldsmith of Harvard Law School (co-authored with Ben Miller-Gootnick) claims there is “a powerful (though not airtight) argument” that placing top congressional leaders like Pelosi in the line of succession violates the Constitution. Goldsmith, like many others, relies heavily on a 1995 law review article by Professors Akhil Reed Amar and Vikram David Amar.This paper responds to the Goldsmith and Amar articles. It contends that the argument touted by Goldsmith and the Amars is not only “not airtight,” it is not even persuasive. It is stunningly weak. Any challenge to Pelosi in the event of a double-vacancy crisis would be a dangerous and reckless usurpation.The paper argues, in particular (in the addendum expanding on the Jurist essay), that careful readings of the Article VI Oath and Religious Test Clauses, and of Section 3 of the 14th Amendment, powerfully support this interpretation of the Constitution and boomerang devastatingly against the argument set forth in the 1995 Amar article.The paper also notes intriguing evidence (addendum, pp. 6-8) that impeachment may have been originally understood to be available for members of Congress.

What Rights are “Essential”? The 1st, 2nd, and 14th Amendments in the Time of Pandemic

In the span of a year, COVID-19 would affect every corner of the globe. During this period, governments were confronted with difficult choices about how to respond to the evolving pandemic. In rapid succession, states imposed lockdown measures that ran headlong into the Constitution. Several states deemed houses of worship as non-essential, and subjected them to stringent attendance requirements. In short order, states restricted the exercise of a constitutional right, but allowed the exercise of preferred economic privileges. And this disparate treatment was premised on a simple line: whether the activity was “essential” or “non-essential.” If the activity fell into the former category, the activity could continue. If the activity fell into the latter category, it could be strictly regulated, or even halted immediately. Houses of worship challenged these measures as violations of the Free Exercise Clause of the First Amendment. This article provides an early look at how the courts have interpreted the “essential” Free Exercise Clause during the pandemic. This ongoing story can be told in six phases. In Phase 1, during the early days of the pandemic, the courts split about how to assess these measures. And for the first three months of the pandemic, the Supreme Court stayed out of the fray. In Phase 2, the Supreme Court provided its early imprimatur on the pandemic. In South Bay Pentecostal Church v. Newsom, the Court declined to enjoin California’s restrictions on religious gatherings. Chief Justice Roberts wrote a very influential concurring opinion that would become a superprecedent. Over the following six months, more than one hundred judges would rely on Roberts’s opinion in cases that spanned across the entire spectrum of constitutional and statutory challenges to pandemic policies.In Phase 3, the Roberts Court doubled-down on South Bay. A new challenge from Nevada, Calvary Chapel Dayton Valley Church v. Sisolak, upheld strict limits on houses of worship. Once again, the Court split 5 - 4. Justice Kavanaugh wrote a separate dissent. He treated the Free Exercise of Religion as a “most-favored” right. Under Justice Kavanaugh’s approach, the free exercise of religion is presumptively “essential,” unless the state can rebut that presumption. South Bay and Calvary Chapel would remain the law of the land through November.Phase 4 began when Justice Ruth Bader Ginsburg was replaced by Justice Amy Coney Barrett. The new Roberts Court would turn the tide on COVID-19 cases in Roman Catholic Diocese of Brooklyn v. Cuomo. Here, a new 5 - 4 majority enjoined New York’s “cluster initiatives,” which limited houses of worship in so-called “red” zones to ten parishioners at a time. Now, Chief Justice Roberts dissented. Roman Catholic Diocese effectively interred the South Bay superprecedent.Phase 5 arose in the wake of Roman Catholic Diocese. Over the course of five months, the Court consistently ruled in favor of the free exercise of religion. South Bay II and Harvest Rock II enjoined California’s prohibitions on indoor worship. And Tandon v. Newsom recognized the right of people to worship privately in their homes. We are now in the midst of Phase 6. States are beginning to recognize that absolute executive authority cannot go unchecked during ongoing health crises. Going forward, states should impose substantive limits on how long emergency orders can last, and establish the power to revoke those orders.The COVID-19 pandemic will hopefully soon draw to a close. But the precedents set during this period will endure.

Moving Faster Than the Speed of Regulation: Can State-Authorized Sports Wagering Dodge a Game-Fixing Bullet Without the Help of the Feds?

The Professional and Amateur Sports Protection Act (PASPA), was a 1992 law that, as has been well-documented, effectively restricted sports betting to Nevada. PASPA accomplished this by dictating that states could not "sponsor, operate, advertise, promote, license, or authorize by law or compact," sports wagering. A separate provision forbade private parties from operating state-authorized sportsbooks. In 2018, the Supreme Court invalidated PASPA as a violation of the 10th Amendment to the US Constitution. The Court held that Congress did not have the constitutional authority to tell a state how to legislate and PASPA's provision that states could not authorize sports betting dictated to state legislatures what they were permitted to do and not do. The Court's ruling unleashed an explosion of pent-up energy for sports betting that had been building since PASPA became effective in 1993. Since that decision, several states have authorized sports betting in one of the most rapid expansions of a form of gambling in US history. Even more states are considering legislation that would permit sports betting, and the number of states legalizing and regulating sports betting will inevitably increase in 2020 and beyond. The controversy over sports betting has pivoted from whether states could legally offer sports betting, to whether they should legalize sports wagering, and if so, how they should go about regulating it.