STU Scholarly Works (St. Thomas University)
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The Meanings of the Privileges and Immunities of Citizens on the Eve of the Civil War
No full textThe Fourteenth Amendment to our Constitution provides, in part, that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” This “Privileges or Immunities Clause” has been called “the darling of the professoriate.” Indeed, in the last decade alone, law professors have published dozens of articles treating the provision. This Article proceeds from the same professorial ardor. Still, relative to many other treatments, this Article is both more modest and more ambitious. On the one hand, I do not propose to offer a full account of the original meaning of the Clause. On the other, I do aim to help build a genuine scholarly consensus by presenting compelling evidence that has been, for the most part, largely overlooked by contemporary scholars. The focus of this particular study is the interpretation of the “privileges and immunities of citizens” offered by American political actors, including not only judges, but also elected officials and private citizens, before the Fourteenth Amendment, and primarily, on the eve of the Civil War. This study proceeds in four parts. First, the Article defends the relevance of this inquiry. I am to refute the conclusion of Justice Miller and (more recently) of Justice Thomas that the “privileges and immunities of citizens in the several states” secured by Article IV were generally understood to be sharply distinct from the “privileges or immunities of citizens of the United States” secured by the Fourteenth Amendment. Rather, the authors of the Clause largely believed that it would provide greater security to the privileges guaranteed in Article IV. Second, the Article provides a brief account of the understanding of the Privileges and Immunities Clause before 1857, concluding that the provision’s original understanding was ambiguous and generated only sporadic (though important) national controversy and commentary. As a result, up to 1857, the Privilege and Immunities Clause’s meaning remained largely obscure, even among jurists. Third, the Article explains that from 1857 to 1861, in the course of national debates, at least three contrasting interpretations rose to substantial public prominence: (1) a pro-slavery, absolute-rights reading; (2) an absolute-rights reading endorsed by Republicans, which sometimes incorporated claims of black citizenship; and (3) a strictly interstate-equality understanding. The prominence of the first two readings represented radical developments relative to the third reading, a reading that had prevailed in the past and would prevail again in courts in the future. Consequently, there arose a substantial gap between the judiciary and the polity as a whole as to the meaning of the constitutional privileges of citizenship. Fourth, this Article concludes by noting the ways in which this antebellum evidence illuminates both (1) the original understanding of the “privileges [and] immunities of citizens of the United States” secured by the Fourteenth Amendment and (2) the vulnerability of this Amendment to judicial misconstruction in the Slaughter-House Cases
Can Law Stop Prosecution of Afghanistan\u27s Women and Girls for Moral Crimes? Searching for an Effective, Practical Legal Methodology
No full textAs a woman working in rule of law in Afghanistan, I was confronted on a daily basis by what it means to be female and the severity of those constraints. This realization began every morning with the choice of what to wear. The daily task of dressing myself in a manner that protected my safety, security, and reputation gave me a tiny glimpse into the lives of Afghan women. I discovered how law is used to reinforce traditional and cultural beliefs and the grave injustices served on Afghanistan\u27s women and girls. I also discovered how vast sums of foreign money and concentrated effort by scores of legal experts aimed at fixing these injustices had made little impact. Out of these experiences grew an intense desire to find a practical and effective method for working on rule of law that would actually yield positive results for my Afghan sisters. This article describes my search and ultimate discovery of the applicability of the world travelling methodology in the Afghan context. World travelling was developed by Law Professor Isabelle Gunning in response to failed attempts to use law to stop female genital mutilation. Gunning argued that the use of law to criminalize harmful cultural practices may actually harm women. Gunning\u27s method gives the practitioner a means to evaluate and develop a practical approach to achieving greater success to stop these practices. Drawing on my three years of experience in Afghanistan, I apply Gunning\u27s method to the prosecution of Afghan women and girls for moral crimes. I describe how rule of law efforts have been largely unsuccessful and suggest alternatives that may yield better results for future generations of Afghan women and girls
Front Matter
No full textFront Matter includes Masthead, advisors, and Table of Contents for the Intercultural Human Rights Law Review Volume 11 (2016)
From the Sophisticated Undertakings of the Genovese Crime Family to the Everyday Criminal: The Loss of Congressional Intent in Modern Criminal RICO Application
No full textDue to the unmanageable development of organized crime in America, principally the growth of La Cosa Nostra, Congress enacted the Organized Crime Control Act of 1970. Through this Act, Congress intended to eliminate organized crime, by criminalizing not only the syndicate but also the activities in which it was engaged. Congress then passed the Racketeer Influenced and Corrupt Organizations Act (RICO), which was to preclude organized crime from infiltrating legitimate American businesses. Although Congress intended courts to construe the RICO statute liberally to combat organized crime, in some cases, American courts have taken this liberal construction too far. The RICO statute was to be employed in pursuit of formalistic corrupt groups of criminals that were engaged in crimes such as robbery, extortion, and fraud. Today, this is simply not the way in which RICO is applied. In an appalling modem-day application of the RICO statute, Planned Parenthood filed a RICO lawsuit alleging that anti-abortion demonstrators comprised a RICO enterprise engaged in demonizing, harassing, and intimidating Planned Parenthood facilities.\u27 The racketeering lawsuit was filed after Planned Parenthood was the target of viral surreptitious videos, depicting Planned Parenthood doctors marketing fetal tissue. The departure from the original congressional intent of the RICO statute is precisely what this Article is about. RICO is no longer a statute exclusively used to fight organized crime; instead, RICO is a statute that has been judicially expanded to encompass loosely affiliated groups who are not engaged in traditional organized crime activities. From Planned Parenthood activists to law firms, and even marriages, RICO is a statute used to prosecute groups of individuals rather than organized crime units that are engaged in crimes such as robbery or extortion
Sexting and the Fate of First-Time Offenders in Florida
No full textThis comment addresses the discrepancy posed in Florida\u27s reorganized sexting legislation, Florida Statute section 847.0141, between the sanctions for first-time sexting offending minors and second-time offenders, and the limited resources available to deter minors from recommitting the same offense. To begin, Part II introduces the pervasiveness of sexting among minors, cases of sexting and current sexting legislation in the United States, Florida\u27s stance on sexting between minors, and diversion programming for delinquent youth. Next, Part III addresses Florida\u27s sexting legislation, as well as Florida\u27s different juvenile delinquency prevention programs. Additionally, Part IV analyzes the changes to Florida\u27s sexting statute, Florida\u27s current cybersafety education, and diversion programming effectiveness. Moreover, Part V offers a practical solution to increase sanctions for first-time offenders to deter repeated offenses, while implementing cyber-safety education that hones in on consensual sexting. Finally, Part VI requests that the Florida Legislature take the solutions into account and amend Florida Statute Section 847.0141
Furthering the Enjoyment of Freedom of Assembly in Sub-Saharan Africa through Its Legal Systems
No full textThis paper will examine the legal right to assemble in sub- Saharan Africa before turning to discuss historic and present protest movements. I will examine the tactics activists today employ in sub Saharan Africa, from flash mob protests to hunger strikes to mass mobilization as they continue to express their right to protest, often in very challenging environments. I will then detail the legal systems through which individuals can attempt to assert their right to assemble and how they have been utilized to this point. I will conclude with recommendations activists and citizens can implement as they further their right to assembly with a specific focus on measures that utilize legal systems
Laudato Si\u27s Challenge to Social Conscience: Society and Nature Together
No full textMy remarks will explore several chapters of Laudato si\u27. First, what is happening to our common home? Let\u27s ask this question, the title of the 1st chapter of the Encyclical, about your home state of Florida. Next, we shall examine integral ecology, following Pope Francis especially in the 4th chapter of Laudato si\u27. This leads up to the main features of ecological conversion as portrayed in the 6th chapter. After looking briefly at how such conversion is played out in the U.S.A., we conclude by reflecting on the role of the Church and of a Catholic university like St. Thomas
Colloquy between State Senators Jamilah Nasheed (MO) and Dwight Bullard (FL)
No full textSYMPOSIUM: THE POWER OF A VOICE: REWRITING POLICY AND IMPLEMENTING CHANGES THROUGH PROTEST MOVEMENTS
COLLOQUY BETWEEN STATE SENATORS JAMILAH NASHEED (MISSOURI) AND DWIGHT M. BULLARD (FLORIDA
Attempting the Unintended: The Problems with Recognizing an Attempted Homicide Offense That Does Not Require Proof of an Intent-to-Kill
No full textStart with a simple syllogism: (1) The mental element of the Florida offense of criminal attempt is an inten[t] to commit [an] offense ; (2) it is logically impossible to intend to do something that one does not intend to do, such as intend to cause an unintended harm; so therefore (3) [t]here is no such criminal offense as an attempt to achieve an unintended [harm], because it is logically impossible to intend, and thus to attempt, to commit an offense that has an element of causing-unintended-harm. Call this the attempt logic. Most courts accept this logic as to homicide offenses, concluding that one cannot attempt to commit a homicide offense unless one intends to kill another.\u27 As one court put it, An attempt, by nature, is a failure to accomplish what one intended to do. Attempt means to try; it means an effort to bring about a desired result. The concept of attempt seems necessarily to involve the notion of an intended consequence, for when one attempts to do something one is endeavoring or trying to do it. Hence, an attempt requires . . . an intended[] consequence. \u27 But in Brown, a sharply divided (4-3) Florida Supreme Court recognized an offense of attempted second-degree murder with no intent to- kill element, which occurs when one commit[s] an act which would have resulted in the death of another except that someone prevented [one] from killing . .. or [one] failed to do so . . A few years later, a unanimous Florida Supreme Court recognized an attempted manslaughter offense with no intent-to-kill element, which also requires proof that one committed an act that would have resulted in death, except that someone prevented one from killing or one failed to do so.9 This article primarily addresses the logic of Brown, although essentially the same arguments apply to Williams. The Brown Court did not consider two arguments that would compel the conclusion that the Florida attempt statute cannot be applied to second degree murder. First, Brown conflicts with State v. Gray, 654 So. 2d 552 (Fla. 1995), and with Knight v. State, 28 So. 759 (Fla. 1900) and its progeny. Second, recognizing an offense of attempted second-degree murder with no intent-to-kill element causes serious problems, including the same problem that led the Gray Court to hold that Florida would no longer recognize an offense of attempted felony murder