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Abstract:
The Court, in its race jurisprudence, has employed a narrative structure of Rhetorical Neutrality, an approach that "privileges individualism over the substantive claims of historically oppressed groups." The Louisville school case represents the Court's colorblind constitutionalism: history and context are ignored, the Fourteenth Amendment is reinterpreted so that race-conscious remedial approaches are rejected, and the present day effects of past discrimination are explained in neutral terms that perpetuate systemic discrimination. Drawing on demographic data and constitutional theory, this Article argues for a doctrinal approach that restores the substantive content of the Fourteenth Amendment. It rejects colorblind constitutionalism and its underlying neutral rhetoric.

colorblind constitutionalism, Fourteenth Amendment, race, affirmative action, school desegregation, integration, Constitutional Law

Abstract:
The First Amendment lies at the core of our notion of a well-functioning democracy. It is the central tenet of our conception of the American polity. Given the permanence of racism in our society, it is a misconception that any effort toward regulating speech should be viewed as unconsitutional censorship (or viewpoint discrimination by the state). In First Amendment jurisprudence, the mesmerizing appeal of an ideological marketplace has elevated the cleansing properties of the marketplace of ideas. More speech is viewed as a panacea, especially when efforts are mounted to regulate hate speech. This article posits several theories: the First Amendment has been construed by the United States Supreme Court in a manner that is antithetical to equality; the constitutional legacy of R.A.V. and Mitchell is totally devoid of any principled analysis of hate speech because literal doctrinal concerns are placed above the rights of oppressed people; this tangled constitutional legacy has lead to disparate results amongst state courts where the decisional outcomes are invariably controlled by how an action is labelled; and states, as bulwarks of liberty, should adopt narrowly tailored hate speech regulations based upon the international approach to racist hate speech.

First Amendment, Fourteenth Amendment, hate speech, race, free speech, hate crimes, regulation of speech, marketplace of ideas

Abstract:
This article argues that Congress has substantive power under Section 5 of the Fourteenth Amendment to define constitutional rights, and that the New Federalism should not be interpreted to displace federal power. Here, I mean to suggest that the Supreme Court has embarked on a jurisprudential course that limits federal power - there has been a marked shift from a deferential approach toward federal power to an approach that narrowly defines federal power. The term New Federalism notes this shift and refers to the Rehnquist Court's activist posture in embracing state sovereignty.

Marbury v. Madison retains its seminal meaning under this substantive reading of congressional power: the Court can say what the law is, but if its pronouncement undercuts the rights of minorities, Congress, as the national legislature, should step in. The Court cannot undermine constitutional rights. Indeed, the Civil Rights Cases, 109 U.S. 3 (1883), cited in City of Boerne v. Flores for the proposition that Congress' Section 5 powers are solely preventive or remedial, illustrate another point: the Court itself can impair rights. The question, then, is whether the national legislature must step aside because it is the Court's province to determine constitutional violations. Should the rights of oppressed minorities be ignored when the Court is wrong ? There are clearly defined poles of constitutional and unconstitutional exercises of power; this article focuses on the middle ground where substantive power overlaps with the Court's interpretive power under the doctrine of judicial review. Congress has substantive Section 5 power to interpret and enforce the Fourteenth Amendment of the Constitution. Yet, Congress cannot unilaterally alter the meaning of the Bill of Rights. Section 5 enforcement power includes the power to restore constitutional rights that have been diluted by the Court.

First Amendment. Fourteenth Amendment, Section 5 of the Fourteenth Amendment, Free Exercise Clause, neutrality

Abstract:
This article traces some of the major doctrinal conceptions and recurring themes in Judge Julia Cooper Mack's constitutional criminal procedure jurisprudence. Through her dissents and concurrences, Judge Mack articulates an absolutist notion of constitutionally mandated rights. That is, the Constitution stands as a non-negotiable guarantee of rights against unwarranted intrusions by the State. Judge Mack is uncompromising in resisting the allure of doctrinal uniformity or practical convenience when analyzing the bedrock cluster of rights embodied in the Fourth, Fifth, and Sixth Amendments. Judge Mack speaks truth to power by adhering to a moral theory of substantive constitutional rights, an unwavering faith in the Constitution as a buffer between the enormous power of the State and its citizens, and the belief that the Constitution is a living, sacred document with a collective resonance. She emphatically rejects colorblind constitutionalism and its reinforcement of a caste system, and she attemtpts to articulate normative constitutional principles rooted in the Fourth, Fifth, and Sixth Amendments. Her dissents and concurrences are not only an expression of passioned disagreement - they are, in essence, the articulation of a substantive theory of constitutional rights.

Fourth Amendment, Fifth Amendment, Sixth Amendment, due process, criminal procedure, constitutional rights

Abstract:
The United States Supreme Court has substantially altered its conception of equality. Equality no longer means that systems of subordination will not be tolerated, it now means that the systemic manifestations of racism will be ignored in the name of colorblindness. Thus, individualized notions of liberty displace the moral claims of oppressed groups; Fourteenth Amendment analysis is doctrinally paralyzed by a futile effort to disconnect it from its historical moorings; and contextual analysis is abandoned in favor of a fairy-tale depiction of American society. In this inverted reality play, everyone is already equal -- we must avoid considering race lest we all return to our horrible "past" of racial discrimination.

colorblindness, race, affirmative action, Fourteenth Amendment, Fifth Amendment, equal protection

Abstract:
We have come full circle. Colorblindness is simply a return to the Plessy v. Ferguson notion of formal race. Formal race, as defined by Professor Neil Gotanda, is the touchstone of colorblindness. Here, references to race imply that black and white are merely classification labels with no connection to social reality. Thus, history and context have no place in colorblind jurisprudence. Strict scrutiny provides a strange form of doctrinal uniformity because race is neutral and racism is largely abberational, and the systemic effects of caste are insulated by the most demanding standard of review in race cases. Thus, invidious discrimination and positive remedial efforts to eradicate racial subordination are placed on the same constitutional plane. This inverted reasoning preserves discrimination. Race-conscious
remedial efforts under the Constitution and Title VII should be viewed less skeptically if their purpose is rooted in the anti-subjugation and anti-caste principles.

colorblind constitutionalism, Equal Protection Clause, race, affirmative action, Adarand, Bakke,

Abstract:
My article is a forward-looking, historical piece that offers a critique of colorblind constitutionalism through an examination of the Court's race jurisprudence. Justice O'Connor's affirmative action decisions serve as a model for a critique of neutrality and inversion - the doctrinal technique of turning substantive concepts inside out in the name of neutrality only to preserve systemic oppression - the Court has dramatically reinterpreted the Fourteenth Amendment. Justice O'Connor's decisions serve as a pivotal point for this radical re-interpretation. What is striking about this shift is that Justice Thomas has become a leading race theorist on the Court - he turns history inside out so that a militant historical figure like Frederick Douglass becomes a proponent for colorblind constitutionalism. This article critiques this doctrinal development through an in depth analysis of the themes underlying Justice O'Connor's race jurisprudence and Justice Thomas's rhetorical use of historical revisionism. This article will serve as a conceptual link between the race jurisprudence of the Rehnquist Court and the emerging conservative race jurisprudence of the Roberts Court.

constitutional law, First Amendment, Fourteenth Amendment, race, affirmative action, neutrality, colorblind constitutionalism, rhetoric, identity