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It was with great interest that we read David Law and Mila Versteeg’s thoughtful article on the influence of the U.S. Constitution. Their piece contributes some very useful and clearly-drawn empirical benchmarks, which will undoubtedly advance the conversation about the historical role of the U.S. Constitution in interesting and even provocative ways. Law and Versteeg provide many empirical nuggets to consider.

Of the many questions raised by David Law and Mila Versteeg’s important article, I want to focus on two. First, as a methodological matter, do they measure constitutional convergence and divergence in the right way? Second, what is the relationship between quantitative, large-n work of the genre represented by Law and Versteeg’s article and small-n, qualitative work that has hitherto been the favored methodological approach in comparative constitutional law and politics?

Fat discrimination is rampant in education, health care, and employment. Antiobesity activists claim that it is not only acceptable, but actually desirable to stigmatize fat bodies because this stigmatization shames fat people into better health. In response, the fat acceptance movement turned to science to show that fat bodies can be healthy. As part of this movement, legislative advocacy and litigation strategies have utilized the argument that fat discrimination should not be permitted because fat people can be healthy. I argue that this move undermines the true justice that the fat acceptance community seeks. In the quest towards the fat acceptance movement’s ultimate goal of acceptance for all fat bodies, the movement must demand dignity and respect for all bodies, including fat bodies that are unhealthy. In this Note, I will discuss the theoretical problems inherent in the two most frequent arguments employed by fat able-bodied plaintiffs: that they are healthy in comparison with unhealthy or disabled people, and, alternatively, that they are disabled. In addition to being theoretically problematic, as a practical matter, fat discrimination challenges using claims based on the good health and able bodies of fat persons have been mostly unsuccessful. On the other hand, some contemporaneous fat plaintiffs have won cases in which they claimed that fatness is a disability. I argue that fat plaintiffs who use disability claims must work in solidarity with the disability rights movement, which demands respect, self-determination, and access for disabled people. If they do not, fat plaintiffs risk creating precedent that will make it harder for disabled people to prove their own discrimination claims and perpetuating stereotypes about disabled people. In all cases, as an anti-oppression movement within a broader social justice framework, the fat acceptance movement must work in solidarity with the disability justice movement rather than undermining the legal protections disabled people have won.

New York City’s A1C Registry is a paradigm of “emergent” public health surveillance: It subjects a population with a non-communicable, non-exposure-related health condition to individualized, ongoing, and intimate government surveillance. In so doing, it employs a surveillance model that was developed in the context of serious contagious disease and was justified in part by the efficacy of government interventions to prevent contagious disease from spreading. This justification for the surveillance model does not apply to the principal present-day threats to public health: obesity and other chronic conditions like diabetes. In addition, emergent public health surveillance mimics three features of law enforcement and national security surveillance that courts and commentators have found both troubling and relevant to the scope of privacy protections afforded under the Fourth Amendment. Like security programs, emergent public health surveillance involves comprehensive, intimate and individualized surveillance, employs electronic data collection systems which have a low marginal cost and to which data mining techniques are easily applied, and scrutinizes politically vulnerable domestic populations. Building in part on Fourth Amendment challenges to, and critical commentary about, security surveillance programs, this Note argues that emergent public health surveillance programs intrude upon a fundamental privacy interest. Accordingly, they should receive strict scrutiny under the Fourteenth Amendment. The constitutional inquiry should turn in part upon the efficacy of the public health intervention enabled by the challenged surveillance program.

Since the early 1970s, the Fourteenth Amendment’s emancipatory potential has dramatically eroded, with rapid plunges followed by ever-lower plateaus. In 2007, we entered another cycle of precipitous devolution. Today, this latest drop seems to be accelerating along two supposedly distinct tracks: intent doctrine and colorblindness.

Ostensibly, the search for discriminatory intent provides a means of ferreting out unconstitutional racial discrimination. In contrast, colorblindness subjects race-conscious laws to strict scrutiny whether their impetus is benign or invidious, rendering intent irrelevant. On and off the Supreme Court, supporters and critics spar over whether these doctrines fulfill the Fourteenth Amendment’s guarantee of equal protection. Nevertheless, both sides accept the seemingly fundamental division in racial jurisprudence between intent and colorblindness.

This Article challenges the notion of a divided equal protection. First, it shows that before the advent of colorblindness, intent doctrine formed the undivided—and reasonably efficacious—heart of equal protection. Intent doctrine once worked tolerably well for detecting the mistreatment of non-Whites, and also in distinguishing benign from invidious discrimination—the two tasks at which current equal protection grievously fails. Second, it demonstrates that colorblindness developed in response to intent doctrine, and in turn led to a disastrous reworking of that approach. Intent and colorblindness are not separate, but inextricably intertwined. Rather than seeing equal protection today as bifurcated, we should understand it as again unified, though under what might best be termed “intentional blindness.”
Combining the names of the two doctrines, this portmanteau captures the marrow of the Court’s racial jurisprudence—which seems intentionally blind to the persistence of racial discrimination against non-Whites. It is this resistance that connects the current assaults on antidiscrimination statutes to the impending demise of affirmative action. It also links both of these to a larger history of reversals in equality law spanning four decades.

In New York State, unmarried fathers have only tentative rights to parent their children. Unmarried fathers, unlike mothers and married fathers, must prove that they are “consent fathers”—that is, a father who pays child support and maintains contact with his children—before they are allowed to intervene in adoption proceedings. While this makes sense in a private adoption scenario, in which the interests and rights of the mother must be balanced against those of the father, and in which the State has a substantial interest in promoting already intact families, the same analysis should not be unthinkingly applied to termination of parental rights proceedings, as it is now. Unlike the private adoption scenario, a termination of parental rights proceeding involves very different interests on the part of the mother and the State as well as a completely different analysis of what may be best for children. I argue that unmarried fathers should be given the protections in termination of parental rights proceedings that are automatically afforded mothers because the law as it currently stands works against the State’s interest in promoting unified families and violates the Equal Protection Clause of the U.S. Constitution.

The United States immigration detention regime that was reborn in the 1980s is not only unprecedented in scale, but also in rationale. Whereas immigration detention had historically been justified primarily as a means of ensuring immigration compliance, with a secondary purpose of protecting national security, today’s system increasingly functions in collaboration with criminal law enforcement systems to incapacitate allegedly dangerous individuals for the purpose of preventing potential domestic crime. Regardless of the validity of judicial deference when immigration detention truly serves to aid in the removal process, this Note argues that such deference cannot legitimately be extended to the newly ascendant crime control function of immigration detention. At minimum, Due Process requires immigration detention procedural safeguards that are parallel to those in other preventive detention contexts, in which the government bears the burden of individually demonstrating a need for confinement.

Courts have increasingly scaled back children’s First Amendment rights and deferred to schools’ fear of disruption; today, children face discipline for even off-campus expression. Meanwhile, in the name of others’ free speech rights, the Supreme Court has discounted the state’s claimed interest in children’s welfare and has repeatedly rejected restrictions on third parties’ abilities to approach children with sexually explicit, commercial, and violent speech. These dueling trends have created a paradox: Although First Amendment principles indicate that children’s ability to speak is more important than their access to others’ speech, the doctrine errs in the wrong direction and protects speech to children more strongly than it protects children’s own expression. Therefore, the Court should both allow for greater government restrictions on speech to children and more strongly protect children’s speech rights, especially outside school. This modified doctrine would be more sensitive to the government’s regulatory interest in children and to the principles behind the First Amendment.

There is significant uncertainty as to what types of remedial affirmative action programs in government contracting are constitutional. This uncertainty adversely affects policymakers, courts, government agencies, and businesses. This Note discusses how one remedial contracting affirmative action effort, the Department of Transportation (DOT) Disadvantaged Business Enterprise (DBE) Program, has a unique cooperative federalist structure that can help policymakers address this constitutional uncertainty. This structure, constrained constitutional experimentation, has three aspects: (1) an underlying context of constitutional uncertainty, (2) the use of the federal government’s Spending Power to create incentives for and constrain state action, and (3) the preservation of state governments’ flexibility to experiment. Because of this structure’s ability to transfer the results of experimentation from one state to others, the DBE program helps policymakers resolve the constitutional uncertainty surrounding remedial contracting affirmative action programs.

The last decade has seen a noted increase in the amount of traffic-stop data available for researchers hoping to analyze racial profiling on America’s highways. A group of economic scholars—Knowles, Todd, and Persico—proposed a bright-line statistical test that asks whether different racial groups have the same hit rate, or to put it differently, are searches of individuals equally efficacious, regardless of their race? Accepting this conception of racial profiling as a minimum floor, I apply the test to a superior and newly-compiled data set of nine million Illinois traffic stops. The Illinois police fail the bright-line test and show signs of discrimination against Hispanic, Asian, and Black motorists. I then examine whether Seventh Circuit equal protection precedent would permit an Equal Protection claim based on that statistical disparity alone, concluding that additional evidence is needed to satisfy the discriminatory intent prong.