#Due Process Clause

[girderednerve]

thinking in these horrible times about clarence earl gideon, whose appeal to the supreme court, handwritten on a yellow legal pad from his prison library, with the assistance of expert counsel ultimately won the right to legal counsel in all criminal cases, on whose tombstone is written: "i believe each era finds an improvement in law to the benefit of mankind." he died indigent. his tombstone was erected by the ACLU. he was wrong.

[accurate-alignment]

Supreme Court justices appear divided in birthright citizenship arguments : NPR full story

This is going to be one of the most consequential things SCOTUS has ever done: uphold the US Constitution, the 14th Amendment, and the rule of law — or... unilaterally capitulate to Trumpism.

Trump-adjacent people have laid out how, in addition to consolidating power, their attack on the 14th Amendment and specifically our Birthright, the Birthright Citizenship we have and hold, how removing that is the pathway to restoring slavery and slave ownership in America à la the structure of the Roman Empire — really! Same people who fomented the "Green Bay Sweep" coup-attempt and violent storming of the Capitol. They're making sure there's a lot at stake here; they'll try to seize all the power and use what power they seize to seize the power they weren't able to seize at first — fascism generally and Trumpism in particular.

[vaspider]

This is what we are talking about when we say that talking about young adults like they're not old enough to make their own decisions hurts the legal adulthood of all young adults.

Mississippi, unlike most states, does not consider a young person an adult until 21. What does this mean? Well, among other things...

But the courts denied the name change request of SBM, a trans man with the full support of his parents in his transition, because they found 18 years old is not an adequate age to ensure “maturity” and warrant such a “life-altering” decision.

Got that? Because he's not considered an adult, he can't change his name (even with the full support of his parents). The State has decided that he's just not old enough to change his name.

Is this ruling based in transphobia and will it likely not hold up on appeal? Both things are probably true. That doesn't change the fact that this rhetorical line is exactly what's being used to strip rights from young adults.

Also...

The plaintiff may still be able to cross state lines to get a name change, but it is unclear the extent to which Mississippi would honor it. In addition, it threatens to thrust Mississippians of all backgrounds into the epicenter of a constitutional crisis. The ruling and its rollout could call the 26th Amendment into question, which lowered the voting age to 18 after the mass conscription of young people during the Vietnam War. It also tests the Full Faith and Credit Clause, which requires states to respect the records-keeping of other states (such as name changes and marriage licenses); Mississippians’ 14th Amendment right to due process; and an individual’s First Amendment rights.

Republicans are already trying to roll back the voting rights of young people because people under 25 overwhelmingly vote not-Republican. Just... for fuck's sake, y'all. The myth that people's brains "aren't done developing until 25" is just that: a myth.

Stop trying to make young adults into children. You're giving away your rights and the rights of others.

[project2028]

In an interview with ABC News, Donald Trump claims he doesn’t know that the 5th amendment allows due process for every person not just US citizens or permanent residents.

Donald Trump is lying. He absolutely does know about the 5th amendment and what it entails. That is exactly why he is sending people to El Salvador, because since the 5th Amendment only applies on U.S soil he believes sending people to El Salvador will allow them to proceed ahead without the 5th amendment.

The United States used this similar clause to torture suspected terrorist in Guantanamo Bay in Cuba. However, the United States was on an officially declared war with Iraq and Afghanistan which allowed George Bush to use the Alien Enemies Act

It is against the Constitution of the United States to even send a person to a foreign country/deporting them without due process on US soil. If you don’t like it, amend the Constitution. (They don’t have the votes for it)

-Tweet via -@Acyn on X-

[dashcon-two]

Addressing the US/Canada Border

Hi all,

While this is not something myself or the team ever thought we'd have to address when we dreamed up DashCon 2... we have to talk about the US/Canada border.

We have recieved an incredible number of messages from American congoers concerned about the border. Already horror stories have emerged, ICE going so far as to search border crossers' phones or detain them without due process. While the worst, rarest stories are amplified online, we understand how frightening the idea of crossing the border must be. Especially for people of colour and trans people.

I'm writing this to tell you all that we have thought about it. The situation could improve in the next few months, or it could worsen. Regardless of what happens, refunds will remain available.

In the event that something truly catastrophic happens, DashCon 2 will be moved to July 5th of the following year. (There is a clause in our venue agreement that allows for date changes in the event of major crises.) If that happens, attendees will have the option of accepting either the new ticket date, or a full refund.

No matter what, DashCon 2 will be continuing online, even if the physical convention date is moved. Conflict with the USA is part of the reason we decided to create Virtual DashCon 2 in the first place—accessibility isn't just for physical disabilities. So many factors, be they political, social, economic, or otherwise, affect access to our convention. We want to reduce barriers as best we can.

Please stay safe out there.

With love from Canada,

Simone DashCon 2 Co-Director

[justinspoliticalcorner]

Jay Kuo at The Big Picture:

There’s a common reaction to the headlines these days. Over the past 100 days, those of us who spent any time in law school (or paid attention in civics class) find ourselves recoiling, blinking, or shaking our heads in disbelief, thinking to ourselves, “He can’t do that.” “He” being Trump, and “that” being whatever latest affront to our Constitution and laws he has announced or his administration has done. Because these attacks are so rapid-fire in nature, it’s easy to get lost in the fog of his war on our founding principles. When this happens, it’s helpful to climb to a higher vantage point, reassert how things are supposed to be, and then understand more precisely how Trump has come for the constitutional, foundational values of our nation. These are not always so easy to parse or understand at first glance. Trump isn’t acting with pinpoint precision but rather with a heavy hammer. Moreover, he acts primarily in his own self-interest to accumulate power and money, while our Constitution suffers collateral damage. To complicate things further, some of his declarations and actions violate multiple parts of our Constitution, while others leverage one violation to create or amplify others. Today, I want to focus on five basic principles and rights contained within our founding documents, as envisioned by the founders:

The establishment of co-equal, separate branches of government

The prohibition on corruption within the Emoluments Clause

The First Amendment’s guarantee of free speech and a free press

The Fourth Amendment’s right to due process under law

The Fourteenth Amendment’s right to equal protection

For each of the above, I’ll lay out relevant language and principles before discussing a few key ways Trump has shredded them through his executive orders and actions. Note that this is not meant to be exhaustive; that would no doubt fill whole history books and legal treatises. Rather, through some better-known examples, I hope to provide a way to think rigorously and with discipline about how Trump threatens our constitutional foundations. Through a clearer understanding of the precise nature of his attacks and the core values he threatens, we can all feel less overwhelmed and helpless in the face of the flood while steeling and grounding ourselves more firmly in the defense of our constitutional Republic.

Stay in your lane, Donald: Disrespecting the separation of powers

Our Constitution begins with three distinct articles that establish a tripartite government: the legislative, the executive, and the judicial branches. We understand these to be both independent and co-equal, and that they are intended to place checks upon the power of the others. But where does that notion of separate, co-equal branches that check each other come from? It derives partly from the fact that we have three separate branches in the first place, each charged with different roles. The legislature makes laws and controls the public purse. The executive faithfully executes those laws. And the judiciary, at least since Marbury v. Madison, acts as the arbiter and interpreter of our laws and the Constitution. We often take this set-up for granted, but at one point in our history, before we became a sovereign nation, all these powers lay in one party’s hands. It was a major reason we rebelled against the British crown. As James Madison wrote in Federalist No. 47,

[...]

One of the first things his administration did was freeze billions in funds that Congress had already appropriated. This is called “impoundment” and the Supreme Court ruled 50 years ago, when Nixon tried it, that it’s unconstitutional because it usurps the power of Congress over public funds. If our democracy were functioning in a healthy way, Congress would have impeached Trump over this power grab the moment it happened. We face a crisis today precisely because our GOP-controlled Congress is unwilling to stand up to him and reclaim its authority. That means we must fight in the courts until we have a chance to change the balance of power in the 2026 midterm elections. Beyond seizing critical control of the flow of funds, Trump has also unilaterally imposed the most massive tax hike in generations. He’s done this by raising import taxes, also known as tariffs. It’s important to understand that the President doesn’t actually have the power to impose tariffs on his own. Trump is arguing that Congress gave him that power, however, by allowing him to declare “national emergencies” and impose tariffs in response. But these “emergencies” are pretextual and non-existent, and rule by emergency decree is how authoritarians seize power within a democracy, whether it’s Germany in the 1930s or the U.S. today. Once again, it’s largely up to Congress to stop him, but even just yesterday Republicans in the Senate narrowly voted down an effort to repeal Trump’s tariff authority. The most critical test of our system of governance is now well underway. The judiciary is empowered with interpreting our Constitution, and in a 9-0 opinion has ordered the government to facilitate the return of Kilmar Abrego García, a migrant wrongfully sent to a maximum security prison in El Salvador at the request of and with payment from the United States. To date, the White House has not done so, though there are reports that half-hearted efforts to request Abrego García’s return have finally begun. In an interview with ABC News, Trump startlingly admitted that he has the power to obey the Supreme Court but is declining to do so because “the lawyers” said the ruling said otherwise. (It did not.) If the White House can seize the power of the purse from Congress and can thumb its nose at judiciary orders, then it has seized for itself “all powers, legislative, executive, and judiciary, in the same hands” as Madison warned. And that is in fact “the very definition of tyranny."

[...]

That pesky First Amendment: Trump tramples upon free speech and a free press

Of all of the amendments to our Constitution, we are likely most familiar with the First. On the subject of freedom of speech, it says this:

[Congress shall make no law… abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble….]

Courts have interpreted this to include any state official action, including by the White House, that impinges on free speech. These protections importantly include not permitting government officials to favor one type of speech over another. Thus, content-based laws or restrictions are disfavored and presumptively unconstitutional, while content-neutral laws or regulations (which affect the time, place or manner of speech, without regard to content) can more readily pass muster. For example, in 1972 the Supreme Court held in Police Dept. of City of Chicago v. Mosley that the “government may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial rules.” Further, it held in 1992 in R.A.V. v. City of St. Paul that the “government may not regulate speech based on hostility—or favoritism—toward the underlying message expressed.” And in 1995, it held in Rosenberger v. University of Virginia that a public university couldn’t deny funding to a student publication because its statements were religiously themed, provided it was supplying funding to other groups. This was a form of “viewpoint” discrimination—a disallowed form of content-based regulation. You can probably see where I’m going with this. Over the past 100 days, the Trump White House has regularly engaged in content-based bias and viewpoint discrimination, particularly against the press and other institutions such as big law firms and universities. Take its actions toward the Associated Press. When that organization refused to start calling the Gulf of Mexico by Trump’s new name for it (the “Gulf of America”), Trump tried to ban it from the White House. A federal judge quickly ruled that this was improper viewpoint discrimination. “Under the First Amendment, if the Government opens its doors to some journalists—be it to the Oval Office, the East Room, or elsewhere—it cannot then shut those doors to other journalists because of their viewpoints,” wrote federal district court Judge Trevor McFadden. “The Constitution requires no less.” Trump has also come after major law firms and elite universities for their liberal politics and advocacy for his opponents. One executive order targeted the firm of Perkins Coie, which had done legal work for Hillary Clinton’s campaign as well as defended against election-related lawsuits filed by the Trump campaign, by stripping its lawyers of security clearances necessary to do a great deal of high-level government work.

The first 100 days of the Trump Regime reveal that he has systematically trashed our Constitution.

[winteringdream]

in a ricky drought rn😔 literally if you have any ricky thoughts or ideas for a fic with him and fem reader it would be much appreciated!

maybe something where he's a company CEO's son and reader is a corporate lawyer (I'm going to uni soon to study for that career so that's kinda the career I thought of off the bat😭) and the fic is basically like how they meet and get to know one another and open up to each other

I love the way you write so I'd love to see your take on this kind of story<3

CLAUSE 1: COFFEE DATES ONLY ──── ricky shen

✩ ⋅ pairing. ceo son!ricky x corporate lawyer gn!reader ✩ ⋅ genre. first meeting, kinda rival vibes, ricky is kinda smug ✩ ⋅ warnings. none! ✩ ⋅ wc. 1421 ✩ ⋅ a/n. i know nothing about law so actual law related stuff is kept minimal

It was a normal day at the office when it was announced that the CEO was stepping down temporarily due to health issues. Rumours of his son stepping up to replace him were spreading like a wildfire. 

No way that his son would step up, you think as you make your way to your desk. 

From what little you know, Ricky Shen’s reputation is somewhere between "spoiled son" and "burnt-out prodigy". Either way, it didn’t exactly scream leadership material. 

You barely get through your first coffee when an email pings into your inbox:

SUBJECT: Immediate departmental assembly LOCATION: Conference room A TIME: 10:30 am REASON: Executive transition update

You stare at it, a meeting scheduled the day it’s supposed to happen. It’s never good news when meetings aren’t planned ahead of time.

When you enter the conference room, everyone is already there, you’re one of the last ones to join. Department heads murmur among themselves when the door opens.

And in he walks.

Ricky Shen.

He’s in a black suit but his face shows no regard for first impressions, like stepping into this place is just another Tuesday for him.

“As many of you are aware, Mr. Shen will be taking medical leave effective immediately. During this period, his son, Ricky Shen, will serve as Executive Advisor to the Board, with full access to operations, reports, and departmental oversight.”

Your breath catches. Ricky as executive advisor, which means he's now involved in nearly every major decision. Which also means that your world just got significantly more complicated.

You meet his gaze across the room. He recognizes you, you can tell by the way there is a flicker of amusement in his eyes. As if he’s already read your file and isn’t the least bit intimidated.

Then he does the worst thing possible.

He winks.

As expected, Ricky being able to control every decision you make is your personal definition of hell. 

The room is a mess of coffee cups, a whiteboard full of illegible words on it, and open laptops. You're seated at the long table, fingers dancing over your keyboard as you try to think of something. 

Across from you, Ricky reclines in his chair like he’s at home, one leg crossed over the other, sleeves rolled to his elbows. 

He's been shadowing you all week, and you’ve done your best to pretend it doesn’t bother you, but it does. Not because he’s incompetent, but because he’s actually quite the opposite. 

You hated that he seems to always be right.

Tonight is no different. You’re combing through the contracts for the hundredth time, trying to find something to work with. But, as always, it’s never that easy. 

“I underestimated you,” you admit quietly. He looks up from his screen. “Everyone does.”

“And that doesn’t bother you?”

“It used to,” he says. “Now I let them. It’s easier to operate when people expect nothing.”

You stay silent, processing his words. His words make you feel weird, like he’s describing something you also seem to resonate with. 

“I don’t like mistakes,” you say. “If something fails, it’s on me.”

“That’s a lonely way to live,” he says, returning his gaze back to his screen.

You scoff, defensive. “It’s efficient.”

“It’s isolating.”

The two of you sit in quiet space for a while, the storm of papers and screens around you fading into the background.

Eventually, you push back from the table with a sigh. “I need air.”

He follows you without asking. You both end up in the corner of the office, overlooking the dark skyline. The city glows in the distance, and for a second, it feels like all the chaos of work has faded away.

“You ever think about leaving?” he asks suddenly as he presses the black coffee button on the coffee machine. 

You glance at him. “The company?”

“Just this whole thing in general.”

“Sometimes. But I wouldn’t know who I was without it.”

“Exactly,” he says. “That’s the terrifying part.”

There’s an unexpected softness in his voice that makes your stomach twist. You lean against the window, studying his reflection. 

His hair is a mess. It’s just work but you feel a strange kind of quiet companionship.

When you turn to leave, trying to shake off the weird bond you feel growing between the two of you, your foot catches on the uneven carpet strip. You stumble forward, hands bracing for impact, but you never hit the floor.

His hand catches your elbow. “Easy,” he murmurs.

You freeze, not from the stumble, but the way his hand lingers. The warmth of his fingers and how close he is. You look up, and he's already watching you, a little bit of concern beneath his usual composure.

You straighten, trying not to let it shake you. “Thanks.”

He bends to pick up the pen you dropped, hands it back to you without a word. When your fingers brush, something flickers in your chest.

And then, he smiles. It’s not the cocky grin he usually shows, this time it’s almost fond. 

Your heart skips and you hate how much it stays with you all the way back to your desk.

You are on your fourth cup of coffee and second round of redlining a particularly frustrating clause when you hear a knock on your office door. The deadline is coming up and somehow it seems like you’re the only one who’s affected. 

Ricky steps into the room without knocking. He is holding two takeout containers and a bottle of something.

“I heard you didn’t eat lunch. Again,” he said. “That’s technically a violation of worker rights, you know.”

You gave him a dry look. “I’ll add myself to the lawsuit later. What’s that?”

“Late dinner.”

You stared at him. “You brought me food?”

He shrugs. “I’m supposed to make sure my dad’s employees don’t violate worker rights.”

You take the container, trying not to let how tired you feel show. “Thanks.”

He leans against the edge of your desk, arms crossed, eyes scanning the pages you’d marked up.

You are quiet for a moment, watching him, waiting for him to say something smart again. You could really use the help, but this time he doesn’t speak up. 

“You act like you don’t care,” you begin softly. “But you’re always there when someone needs you.”

You both go silent after that, eating from the same takeout box, sitting side by side but not touching. Just existing in the same space in a quiet, tired, strangely comfortable silence.

It isn’t dramatic, but when your hand brushes his as you reach for the pen, he doesn't move away.

For once, being close doesn’t feel like a risk. It feels like progress.

The final days of the project were a blur.  But underneath it all, something had shifted between you and Ricky.

One night, long after everyone else had gone home, you find him leaning against your office doorframe, unusually still. His voice is quieter than usual when he says, “I never wanted this. The company, the boardroom games… any of it.”

You look up from your desk, surprised.

He steps inside. “I used to think coming here meant giving up who I was. Becoming my father’s ghost. But I get it now. It's not about the company. It’s about the people in it. About you.”

You don’t know what to say. For someone who always holds himself apart, that was the closest thing to a confession he has ever offered.

It is then you realise something about yourself, too. How your strict professionalism has always been a shield ,and Ricky has been quietly breaking past that.

So, when his father returned, things changed quickly. The CEO looked at Ricky with something close to pride. When he offered his son a permanent leadership role, you saw Ricky hesitate.

But this time he didn’t look like the Ricky that walked into the room that day anymore. This time he looked more sure, more confident. 

Then, one evening, you return to your office to find a single envelope on your desk.

Inside it is a contract mock-up. The kind you’ve seen way too often on your desk 

Except this one reads:

Clause 1: Coffee dates only. Clause 2: You stay brilliant. Clause 3: No need to define the rest.

No signature, just his name typed at the bottom: R. Shen.

You let out a quiet laugh and shake your head at the ridiculous idea.

Then you pick up your pen and sign it.

zb1 taglist: @tmrwsuns @lakoya @tanghuyuj

[fanfic-obsessed]

Not the Mama...or the Father

This takes place in a universe where Jango Fett survived Geonosis AND where Palpatine is defeated without Order 66 coming into being (the chips still existed, yes that is important).  

After the war ends there is an absolute legal quagmire regarding the clones. Their origins (Possibly commissioned by the Jedi, a Republic Entity, outside of Republic Space, on Kamino, using the DNA of a Non Republic Citizen for a Republic Army, paid for by means that no one has been able to identify-presumably illegal and/or embezzled) mean that acknowledging their sentience also means that everyone involved broke so many laws that prosecution would take a decades. This compounded by the fact that it is an all or nothing kind of situation, on paper the Jedi who did their best were tied to those crimes just as thoroughly as senators who abused the Guard.  While the Jedi, as a whole, would be willing to face that prosecution if it meant the clones would be considered sentient, they had rather less power than the Senators who did not want to face their crimes.  In the end the only way to get the support for the Clone Rights bill was to add a clause that the bill would not be considered retroactive. The clones would be considered sentient after the bill was turned into law but could not seek any kind of reparations, back pay, or even acknowledgement that their rights had been violated prior to the law. 

NOTE: It horrified everyone (though it should be acknowledged that the Jedi and the Clones were horrified for very different reasons than many of the Senate) when the Coruscant Guard successfully sued a number of Republic Senators, their aides, and several citizens for ‘sexual abuse of a non sentient’(It was a very odd lawsuit where Thire, who had taken to law with a frightening passion, was able to argue that the Clones could bring the suit as their own owners, since being sentient with a start start date essentially meant that they now owned themselves and the laws around abuse of non sentients are written so that new owners can sue past owners for abuse-written so that animal abuse could be fully prosecuted even years after the fact).  Criminal charges were even filed, though it was harder to get those charges through the system.

Jango Fett, due both to the Clones legal tangle and how it had to be resolved, could not be brought up on charges for his part in the creation of the clones, their training, and the chips. None of it was technically illegal.  The fact that all of the clones looked like him meant anyone who did not know better tended to consider the clones his children. At first Jango was just as quick to correct people, somewhat violently.  

However as more and more clones began to distinguish themselves he started to play into it. Saying how proud he was of his children and that his genetics must have been superior (incidentally giving Boba more than one complex in the process). Most of the clones have no idea what to do with this behavior, since acknowledgement by Prime was something that almost all of them wanted as children. Also he wasn’t really acknowledging any clone in particular.  He was simply soaking up the accolades of being associated with so many driven, accomplished people.

Though the Commander batches tended to be the most well known, every batch of clones had at least one or two members that distinguished themselves in a positive manner. 

Then comes the very public wedding of Commander Bly and Aayla Secura. While the two are very much in love it is also a political/PR move. The scandal of the Amidala/Skywalker marriage left the galaxy with a very skewed view of the Jedi and marriage.  The fact that Skywalker would go on to tell anyone who would listen that he was kicked out for falling in love made the issue worse.  (Commander Cody and Obi Wan were also considered for this PR move, however they were not quite at the point where they wanted to get married, also Anakin’s…reactions to the scandal of his marriage left some scars for Obi Wan. It would be quite some time before being perceived by a large crowd of beings-with the exclusion of the Jedi or the clones- would be something Obi Wan could tolerate) 

Though the Jedi wedding traditions are typically a private affair, with permission of the happy couple every tradition would be made into a public spectacle with explanations for the traditions. One such tradition is that a parental figure (generally the Master if it is a Jedi) for each member of those getting married would escort their children down the aisle, as it were. This was a way for the parental figure to signal their support, or at least acceptance, of the marriage. Within this tradition it was very noticeable when a particular parental figure did not show up…or was not invited. 

The public nature of the ceremony meant that Jango knew when and where to show up. He did not think much that he was not specifically invited, having bought into his own propaganda of being the father of the Clones. He arrives at the staging area, Boba in tow, to loudly announce that he was there to walk Bly down the aisle.  Very publicly. 

All preparation stopped for a moment, a silence descending that almost echoed. Then Bly scoffed loud enough to be captured by the recording equipment (Every moment of each tradition was being recorded by no less than three recording crews at all times, currently there are six recording the lead up to the ceremony). 

Derision dripped from every syllable coming from Bly’s mouth, “Why should I care about your approval of my life partner” (harkening back to the meaning behind the tradition).

Jango spluttered about being Bly’s parent.

Bly tilted his head, eyes distant as if looking into the past, “What was it you said, when you heard Ponds ask Alpha-17 for a name?” 

Jango looked perplexed, clearly not remembering the interaction. 

Wolffe stepped from crowd, “you said, ‘livestock doesn’t need a name’”

 Cody took his place at Bly’s side ‘You are no parent to us, you lost that title when you sold us.’

Bly nodded along, “Cody is walking me down the aisle (In the background Alpha grumbles that it is only because Cody is tricky little shit. All the clones in the room smother a grin as Cody shoots Alpha a smug smile-NOTE: There was a duel/tournament between fifteen Alpha and CC clones that were considered ‘older’ than Bly on who got the honor of escorting him down the aisle, since the explanation of what constituted a parent left them with the firm belief that any clone that is older than you could be considered such) and you, Prime, are not welcome. Go back to the son you claimed.”

The galaxy at large absolutely ate up the ‘You are not my father’ drama, which frankly served to humanize the clones, and their assorted Jedi, better than anything else.

[xhxhxhx]

Before I started writing here again, I tried to write something else, somewhere else, for about two years. Let's do an inventory.

That's what I wanted to say, at least. I was going to give you an inventory of my failed projects. Instead, I started writing up the first item on my list. And that's where I stopped.

I was going to write something up on the "equal protection component" of the Fifth Amendment's Due Process Clause. See, e.g., Bolling v. Sharpe, 347 U.S. 497, 499 (1954); Schneider v. Rusk, 377 U.S. 163, 168 (1964); United States v. Valleo Madero, 596 U.S. 159, 166 (2023) (Thomas, J., concurring).

I had even read up on some of the literature. See generally Richard A. Primus, Bolling Alone, 104 Colum. L. Rev. 975 (2004); Ryan C. Williams, Originalism and the Other Desegregation Decision, 99 Va. L. Rev. 493 (2013). See also Daniel Farber & Suzanna Sherry, The Pariah Principle, 13 Const. Comment. 257 (1996).

I was explaining to a friend that the affirmative action case, Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, 600 U.S. 181 (2023), turned on structural questions that none of the opinions really spoke to.

But I don't reach any of that in this post. Not the equal protection component. Not the affirmative action case. Not the structural questions, at least not directly. I got stuck earlier than that. I got stuck on maybe the most basic question of all.

Why do we even have two Due Process Clauses?

I.

The United States Constitution, a little instrument of seven articles and twenty-seven amendments, has two Due Process Clauses and one Equal Protection Clause.

The first Due Process Clause provides that "No person shall ... be deprived of life, liberty, or property, without due process of law." That's the Fifth Amendment. The second provides that "No State shall ... deprive any person of life, liberty, or property, without due process of law." That's the Fourteenth.

The Fourteenth is also what gives us the equal protection of the laws. "No State shall ... deny to any person within its jurisdiction the equal protection of the laws." But set that aside for now.

At first impression, the Fourteenth Amendment's Due Process Clause almost seems superfluous. No person means no person. If no person shall be deprived of life, liberty, or property, it follows that no State shall deprive them of it. The Fifth Amendment takes care of everything, doesn't it?

But however general its "[n]o person" language reads on first impression, we take the Fifth Amendment to bind only the United States, not the several States. That's what the Court told us in Barron v. Mayor of Baltimore, 32 U.S. (7 Pet.) 243, 247 (1833), at least. It's what we tell ourselves today, if we care to think about it. It's why we have the Fourteenth Amendment.

II.

At the time, the Constitution was generally taken as an instrument addressed to the United States, not the several States. (That's the Barron idea, at least.) It spoke to the United States, not the several States. It was something more than a treaty, but something less than a full constitution.

The Constitution sets up the United States an imperfect sovereign, with an imperfect power over its territory and people. The Constitution left the several States more or less as they were, but set up a United States, separate and paramount, with a controlling power over the several States' territory and people within the scope of the United States' own imperfect sovereignty.

But it's not the imperfection that makes the Constitution something less than a full constitution. It's the silence. It's that the Constitution leaves the several States more or less as they were, without saying what they can do or how they can do it.

The Constitution leaves the several States not just as imperfect sovereigns, but as uncertain ones. The several States can do as they please with whatever the Constitution has not denied them, unless the United States steps in. But the Constitution doesn't say more than that. It doesn't even quite say that. It's not for them.

The Constitution always speaks to the United States, and always binds it, but it only speaks to the several States when it expressly addresses them. That's when it binds them. That's Barron. And that's how we read the Fifth Amendment.

It doesn't expressly address the several States, so it doesn't bind them. When it says "[n]o person shall ... be deprived of life, liberty, or property, without due process of law," it's only talking to the United States.

The several States don't have to read that bit.

III.

That conclusion wasn't universal. Some thought that the Constitution did bind the several States, even when it didn't expressly address them. Some thought that those parts of the Constitution were always binding, but only enforceable against the several States by the States themselves.

See generally Akhil Reed Amar, The Bill of Rights and the Fourteenth Amendment, 101 Yale L.J. 1193, 1203 (1992); William Winslow Crosskey, Charles Fairman, “Legislative History,” and the Constitutional Limitations on State Authority, 22 U. Chi. L. Rev. 1 (1954).

That conclusion left the United States without the power to enforce the guarantees of the Fifth Amendment against the several States. That conclusion was acceptable in practice, even for skeptics of the prevailing reading of the Constitution, as long as the several States guaranteed and enforced the same rights themselves.

But as States denied what were taken to be fundamental rights, as Southern states did during Jacksonian controversies over antislavery speech and the antislavery press, Northern opinion, and especially the advanced part of Northern opinion that came to constitute the Republican Party, turned against that conclusion.

Republicans came to feel that the United States should have some power to enforce the Constitution's guarantees against the several States, in the several States, even if only in extremis. And so they gave us the Fourteenth Amendment.

And that's why we have two Due Process Clauses.

[cosmicwolfking]

Myung gi is an prime example of the domino effect

First off he’s a crypto bro who scammed him and his viewers meaning if he hadn’t made crypto coin Thanos, nam gyu he and Jun hee would have joined the games in the first place. Then during the confrontation between him and thanos and nam gyu in ho as young il wouldn’t have confronted thanos and ppl wouldn’t know how skilled and capable of a fighter he is.

During mingle when it says 6 ppl if he haven’t pushed young mi out of the way dae ho hyun ju geum ja yon sik and Jun hee would be dead since there was only 4 seconds left on the clock and vice versa if there WAS enough time and young mi was alive myung gi would be dead, and there’d be nobody to team up with Jun hee for 2 players of mingle and there’d be no bathroom confrontation/fight because myung gi isn’t there.

With no bathroom fight 2 Os and 3 Xs wouldn’t have been killed in the process and there probably would not be a rebellion because there won’t be a breaking point for the Os to kill the Xs. Additionally with no midnight lights out fight se mi would still be alive and with no rebellion then the Xs would have won the vote and dae ho and hyun ju would still be alive since they got to go home after winning the x vote.

Even if they didn’t win the vote and they continued playing the games dae ho and hyun ju still would be alive since there would be nobody to blame for Jung bae’s death and hyun ju wouldn’t get stabbed meaning geum ja Jun hee and hyun ju would have passed. Also in the fourth game when Nam gyu would have nobody to team up with and min su wouldn’t have found thanos cross and se mi prolly would be on blue and switch with min su on red and later would protect him. In the forth game and with him not finding the cross nam gyu wouldn’t have voted x.

se mi and min su switch the shaman lady wouldn’t have died bcuz she killed player 100 bcuz he’s a fukn dinosaur who deserves it and shaman would have taken his keys and she’d pass the game

Gi hun wouldn’t be hellbent on hunting dae ho down and he too prolly would have passed the game as well and even if gi hun hadn’t kill someone one blue I think the frontman would have spared gi hun anyway and let him continue the jump rope. With dae ho he’d prolly win jump rope due to playing it ally with his sisters, gi hun Jung bae hyun ju would have passed I’m 50/50 on whether or no Jan geum ja would pass or not I think she’d make it until the gap and the gap would be her death.

Min su wouldn’t have thrown the cross leading to nam gyu’s death and thanos would attempt to carry Jun hee across (confirmed by hwang dong Hyuk himself) tho I’m not sure if he and Jun hee would pass. I think thanos and Jun hee would be eliminated here. She is “weakened” after giving birth less than 24 hours ago so idk how tight of a grip she’d have on another carrying her. It was hard enough for gi hun to carry the baby across the bridge as it is so I can’t imagine how harder it’d be for another to carry a person across.

Jump rope would probably be thanos and Jun hee’s death and with no myung gi nam gyu would have anyone to lash out at and blame for causing the death of thanos.

The finalists being X min su se mi dae ho hyun ju Jung bae and gi hun.

Final O: shaman lady, player 226, nam gyu player 96

Since X won there’d be no 6th game and they’d split the money and there’d be no more heart breaking deaths

Even if they DID play the 6 game I bet the Xs would have found a way to eliminate the Os and they’d invoke clause 3 of the agreement and gi hun Jung bae dae ho and hyun ju would split the money and maybe dae ho takes care of the baby? (I’m still not sure) maybe they all take turns idk

Myung gi is just another player to the others but to the viewers he plays a critical role in the plot and without him most of the plot of s2 and conflicts of s2 would never have happened and our faves would still be alive. Myung gi plays a critical role and is a perfect example of the domino effect. A seemly meaningless person makes one wrong move and it creates a hurricane of casualties.

[daily-martyn-itlw]

Day 501: Obergefell vs. Hodges 10th Anniversary!!!

(Today marks the 10 year anniversary of the Obergefell v. Hodges Supreme Court case, which ruled that the fundamental right to marry is guaranteed to same-sex couples by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment of the Constitution. The 5–4 ruling requires all 50 states, the District of Columbia, and the Insular Areas to perform and recognize the marriages of same-sex couples on the same terms and conditions as the marriages of opposite-sex couples.)

[creatingblackcharacters]

Fungible articles, which [Henry Colebrooke] delineated according to their characteristic quantifiability—“alike liquidate and exigible”—required legal definition in relation to matters of compensation. Yet, Colebrooke maintains, “even things, which are not fungible, may be subjects of compensation; being due under general obligation respectively as cattle, slaves, horses.”

The legal treatment of slaves and animals as both “subjects of compensation” and “not fungible” indicates, at least in part, the anxiogenic time in which the Treatise was produced...

Although the United States formally abolished the importation of people for the purposes of enslavement in 1808, the internal slave trade remained legally intact until 1865. Some states, either by federal ordinance or through state legislation, passed laws that annulled or gradually phased out the legal practice of slavery within their territories.

Alternately expressed in terms of “compromises,” “provisos,” and “clauses,” the demarcation and annexation of territories and states evinced how slavery and settler colonialism structured official discourses of nation building and foreign policy, articulating a grammar rife with euphemism to disavow the violent processes by which land and persons would find primary legal expression as property...

How, then, would the “slave,” as “not fungible” and as a “subject of compensation,” come to emblematize a series of crises in imperial sovereignty, value, and ontology in the twilight of formal slavery?

Black On Both Sides; A Racial History of Trans Identity ; C Riley Snorton

[dreaminginthedeepsouth]

In desperation, the administration threatens to suspend habeas corpus

May 10, 2025

Robert B. Hubbell

Trump threatens to suspend the writ of habeas corpus

The Trump administration has suffered a series of judicial setbacks arising from its illegal actions in detaining and deporting immigrants, visa holders, permanent residents, and citizens without due process. The latest loss was the court-ordered release of Rumeysa Ozturk, the Tufts student who was seized on the street by plain-clothes ICE agents. See Politico, Judge orders immediate release of Rumeysa Ozturk, Tufts student detained by ICE.

U.S. District Judge William Sessions III granted Ozturk’s petition for a writ of habeas corpus—an ancient writ recognized in English common law and the US Constitution. A writ of habeas corpus allows a detained person to seek judicial review of the legality of their detention.

Because Ozturk (and others) have successfully challenged the legality of their detentions by seeking a writ of habeas corpus, Trump administration Architect of Evil Stephen Miller told reporters on Friday that the administration was considering suspending the writ of habeas corpus. See CNBC, Trump administration ‘looking at’ suspending habeas corpus for migrants, Stephen Miller says.

To be clear, it would be a grave breach of the Constitution and the underpinnings of American democracy if Trump attempted to suspend the writ of habeas corpus. The president has no unilateral authority to suspend the writ of habeas corpus.

The fact that Trump is threatening to suspend the writ of habeas corpus is a sign of his desperation and lawlessness. His advisers must be telling him that if he attempts to suspend the writ, he will likely lose in the district court, the court of appeals, and the Supreme Court. However, logic and reality are not Trump's strong suit.

Marc Elias noted the following summary in Democracy Docket: See Library of Congress, Constitution Annotated, Suspension Clause and Writ of Habeas Corpus.

Per Constitution Annotated,

Article I, Section 9, Clause 2: This Clause is the only place in the Constitution in which the Great Writ is mentioned—a strange fact in the context of the regard with which the right was held at the time the Constitution was written . . . .

As a preliminary matter, the US is not experiencing a “Rebellion or Invasion”—as several courts have held in rejecting Trump's invocation of the Alien Enemies Act. See AP News, Two judges rule Trump improperly used Alien Enemies Act for Venezuelan gang.

On the question of which branch of the government (Congress or the Executive) can suspend the writ of habeas corpus, Constitution Annotated says the following:

Congress’s power to suspend was assumed in early commentary and stated in dictum by the Court. President Abraham Lincoln suspended the privilege on his own motion in the early Civil War period, but this met with such opposition that he sought and received congressional authorization. Three other suspensions were subsequently ordered on the basis of more or less express authorizations from Congress.

The somewhat awkward language in the Constitution (“the privilege of the writ . . . shall not be suspended”) leaves room for the administration to claim that it has the authority to prevent detainees from seeking a writ of habeas corpus. However, the history of suspension of the writ demonstrates that only Congress has the authority to do so.

If Trump pushes the issue, it should be another flash point for protests and rallies nationwide. While the courts, Congress, and the executive all have a role in interpreting the Constitution, so do the people. We must make our voices heard—loud and clear. The president does not have the right to suspend habeas corpus.

If he attempts to do so, we must show the judiciary what the people believe the Constitution means: That the writ of habeas corpus may not be suspended during peacetime by anyone, and certainly not by the president acting unilaterally.

[Robert B. Hubbell Newsletter]

[legalkimchi]

Loving day

Today is Loving day. It marks the 57th anniversary of Loving v. Virginia, the Supreme Court case that struck down Anti-miscegenation laws in the United States.

my parents were married in 1976. 10 years prior, their marriage would have been a crime.

Forgive me, i'm tired. i didn't sleep well.

I could wax poetically about how important to my, and my children's existence, this ruling is.

I could tell you how it enforced many of our rights through the use of the Due Process Clause of the 14th amendment.

I could tell you how obergfell and roe v wade were based on the reasoning of the due process clause of the 14th...

I could tell you how justice thomas, who is himself in an interracial marriage, questioned the validity of that right and reasoning.

It is all interconnected. Race, LBGT+ issues, our rights in general.

If you are LGBT, or poc, both, or whatever, you should know that your rights are being targeted. and it isn't in hiding. It isn't a secret.

You can see it on project2025. You can see it in Thomas's concurrence in Dobbs v Jackson women's health. It is out in the open. easy to find. spelled out.

Today is Loving day. and if you want to celebrate this day with me in the future, be sure you fight and support Obergfell, for our trans friends, for women's rights, and all the other interconnected issues out there.

Also: side note. Mildred Loving never wanted to be in the spotlight. She wanted to live a normal life after her and her husband's name became a rallying cry for civil rights. Her husband, Richard Loving, passed away in 1975 from a car accident. She passed away in 2008. Prior to that, on the 40th anniversary of Loving V. Virginia, Mildred Loving came out of her quiet life and said, "I am still not a political person, but I am proud that Richard's and my name is on a court case that can help reinforce the love, the commitment, the fairness, and the family that so many people, black or white, young or old, gay or straight seek in life. I support the freedom to marry for all. That's what Loving, and loving, are all about."

She knew it was all connected. Let's honor her memory.

[schraubd]

Constitutional History

My baby's bris was yesterday. The Rabbi came -- the first time we met him, in fact (we joined the synagogue in December) -- and asked me what I did for a living. I told him I was a professor at Lewis & Clark Law School, teaching constitutional law. "Are they going to move you to the history department?", he quipped. Ha ha ha [sob]. For many, many, many reasons, I'm glad I'm not teaching this semester. But for a while now, I've been reflecting on how I teach constitutional law, and in particular how I triage the limited time I have each term. New law keeps being made and the length of a semester stays the same, so there's always a question of what to drop in order to make room for new material. In my classes, I actually teach a fair amount of constitutional law "history" -- that is, going through doctrinal periods whose prevailing law is no longer valid (alongside, of course, the "current" doctrine" as well). For example, I devote substantial attention to the Lochner era of substantive due process and the pre-New Deal federalism/commerce clause cases. More recently, I've kept teaching Roe and Casey even after Dobbs, and Gratz/Grutter after SFFA. I teach the new cases too, of course, but I do think it is important to trace where we came from, and I don't shirk on allocating time to that project.  At one level, these cases are the easiest to prune for space. They aren't good law anymore; one does not need to know them in order to know what "constitutional law" is today. And I suspect there will soon be even more venerable old cases whose holdings are going to be overturned or superseded in the coming years, to be replaced by new upstart doctrines. But as we prepare to enter what in all likelihood will be a very grim period in our constitutional jurisprudence, I increasingly believe that teaching the history is more important than ever -- simply because it demonstrates that the law does not have to be this way. There is nothing inexorable about the choices that will be made, they are not simply the way the constitution is. Keeping alive the flame of alternative possibilities -- legal regimes that once prevailed and could prevail again -- is going to matter, and it is a way of not surrendering to the totalitarian darkness that is attempting to consume us. This, after all, is one thing that conservatives did very well with their "constitution in exile", and I have no shame in following their example. And while the arc may be long and the path may bend, ultimately, mir veln zey iberlebn -- "we will outlive them." via The Debate Link https://ift.tt/gp3LrNR

[justinspoliticalcorner]

Nikki McCann Ramírez, Asawin Suebsaeng, and Andrew Perez at Rolling Stone:

Donald Trump and his White House have moved to deport green-card holders for espousing pro-Palestinian views, shipped hundreds of migrants to a notorious Salvadoran mega-prison without due process (in defiance of a judge’s order), and are now publicly musing about sending United States citizens to prison in El Salvador.    Trump said last weekend he would “love” to send American criminals there — and would even be “honored” to, depending on “what the law says.” White House Press Secretary Karoline Leavitt confirmed this week that the president has discussed this idea privately, too, adding he would only do this “if it’s legal.” El Salvador’s president, Nayib Bukele, has for months been offering to hold U.S. citizens in his country’s prison system, which he has turned into “a judicial black hole” rife with “systematic torture,” as one human rights advocate recently told Rolling Stone. Legal experts agree that sending American citizens to prison in El Salvador would be flagrantly illegal under both U.S. and international law — and that the idea itself is shockingly authoritarian, with few parallels in our nation’s history.  The Trump administration is indeed discussing this idea behind the scenes, two sources familiar with the matter confirmed to Rolling Stone. In their most serious form, these conversations have revolved around attempting to denaturalize American citizens and deport them to other countries, including El Salvador.  “You can’t deport U.S. citizens. There’s no emergency exception, there’s no special wartime authority, there’s no secret clause. You just can’t deport citizens,” says Steve Vladeck, a legal commentator and law professor at Georgetown. “Whatever grounds they try to come up with for denaturalization or expatriation, the one thing that is absolutely undeniable is that people are entitled to individualized processes, before that process can be effectuated.” 

In the United States, the grounds to strip a naturalized individual of their citizenship encompass serious material offenses. They include: committing treason or terrorism, enlisting in a foreign military engaged in opposition to the United States, or lying in applications for citizenship or as part of the naturalization process. 

[...] For instance, the sources add, Trump administration officials have discussed possibly denaturalizing and deporting activists and other individuals whom they label as having committed so-called “fraud” on their applications for citizenship by subsequently supporting what Team Trump decides are “pro-terrorist” causes or groups — similar to the specious arguments they’ve made to justify stripping pro-Palestine student activists of their green cards or visas.  According to these sources, Trump administration attorneys and some senior appointees have also discussed potential legal justifications and technicalities they can exploit for denaturalizing citizens who are accused or convicted of certain crimes, especially if the Justice Department or other offices deems their offenses to be gang-related.  The administration has already tried to justify deporting Venezuelan migrants to El Salvador under the Alien Enemies Act — the notorious 1798 law used to justify the internment of Japanese Americans during World War II — by claiming the men had ties to gangs. As CBS News’ 60 Minutes has reported, the vast majority of the men who were sent to El Salvador “have no apparent criminal convictions or even criminal charges.” Some of the allegations appear to have been based entirely on the migrants’ completely anodyne tattoos and apparel.  In recent weeks, largely due to the president’s influence, some of the discussions among Trump officials and administration lawyers have touched on the idea of potentially sending some of these denaturalization targets to brutal facilities in El Salvador, the sources add. 

The fact that the Trump Regime is even considering sending US citizens to CECOT in El Salvador is an abomination. Watch his regime decide to throw political dissidents (Democratic Party members, pro-LGBTQ+ rights, pro-Palestine, etc.) there if he can get away with it.