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For decades, the Supreme Court has sharply divided in equal protection race discrimination cases. As commonly described, the Justices disagree about whether the Equal Protection Clause is properly interpreted through a colorblind anticlassification principle concerned with individualism or through an antisubordination principle concerned with inequalities in group status. This Article uncovers a third perspective on equal protection in the opinions of swing Justices who have voted to uphold and to restrict race conscious remedies because of concern about social divisiveness which, they believe, both extreme racial stratification and unconstrained racial remedies can engender. The Article terms this third perspective on equal protection concerned with threats to social cohesion the antibalkanization perspective. Employing this triadic model of equal protection, the Article demonstrates how Justice Kennedy reasons from antibalkanization values in the recent cases of Parents Involved in Community Schools v. Seattle School District No. 1 and Ricci v. DeStefano. There Justice Kennedy affirms race-conscious facially neutral laws that promote equal opportunity (such as disparate impact claims in employment discrimination laws) so long as the enforcement of such laws does not make race salient in ways that affront dignity and threaten divisiveness. The Article's triadic model identifies alternative directions equal protection doctrine might develop, and enables critique. A final section raises questions concerning the principle's logic and application. Have those who interpret equal protection with attention to balkanization enforced the principle in an effective and evenhanded way? In this spirit, the Article concludes by suggesting that the antibalkanization principle could be applied to cases of concern to minority communities that do not involve challenges to civil rights laws (for example, government use of race in suspect apprehension).

In the United States (US) the family law litigant will have to consider the implications of laws that are federally recognised and those which the state embodies in its own family law statutes. The function of the equal protection clause and clause of the Fourteenth Amendment of the Constitution protects the parties in family disputes that reach the court. The operation of the Full Faith and Credit Clause is an important consideration and is central to the question if the court can apply the law of the forum court ( ) or that of the state where the dispute emanated. The federal constitution allows the state courts to apply marriage laws of another state. If the issue is procedural, then the law of the state will be applied where the dispute that gave rise to the litigation ( ). This paper examines the interstate in family law by considering marriages, child custody, and adoption rules and it enquires whether the courts have been sufficiently consistent in interpreting family law of the state in accordance with Article IV, Section 1. There is also a section that compares the law in the US with the application of the lex fori rules in family cases in the Scottish jurisdiction and how that influences parties in family law disputes.

A philosophical battle is being waged for the soul of equal protection jurisprudence. One side sees discrimination as a comparative wrong occurring only where a law or policy fails to treat people as equals. The other side embraces a fundamentally noncomparative view that defines impermissible discrimination as a failure to treat each individual as she is entitled to be treated. This Article distinguishes between these conceptions, demonstrates why they are normatively distinct, and identifies specific and seemingly unrelated controversies in modern equal protection jurisprudence that are in fact manifestations of this single schism. The insights in this Article cannot resolve all of these doctrinal controversies, but they can reveal which controversies involve a philosophical muddling of the two competing conceptions and which will require the Supreme Court to choose.

How should a liberal democracy respond to hate groups and others that oppose the ideal of free and equal citizenship? The democratic state faces the hard choice of either protecting the rights of hate groups and allowing their views to spread, or banning their views and violating citizens' rights to freedoms of expression, association, and religion. Avoiding the familiar yet problematic responses to these issues, political theorist Corey Brettschneider proposes a new approach called value democracy. The theory of value democracy argues that the state should protect the right to express illiberal beliefs, but the state should also engage in democratic persuasion when it speaks through its various expressive capacities: publicly criticizing, and giving reasons to reject, hate-based or other discriminatory viewpoints. Distinguishing between two kinds of state action--expressive and coercive--Brettschneider contends that public criticism of viewpoints advocating discrimination based on race, gender, or sexual orientation should be pursued through the state's expressive capacities as speaker, educator, and spender. When the state uses its expressive capacities to promote the values of free and equal citizenship, it engages in democratic persuasion. By using democratic persuasion, the state can both respect rights and counter hateful or discriminatory viewpoints. Brettschneider extends this analysis from freedom of expression to the freedoms of religion and association, and he shows that value democracy can uphold the protection of these freedoms while promoting equality for all citizens.

When Brown v Board of Education prohibited racial segregation in public education, it inaugurated a great debate about equal citizenship and federalism that spanned the second half of the twentieth century. This article explores the relation of constitutional principle and politics in the ways we talk about the decision's meaning. It first revisits early debates over Brown to show how principled justifications for the decision were first forged in debates over its legitimacy. It shows that during the 1960s - when the Court first articulated the presumption that racial classifications are unconstitutional - the practical significance of this commitment was still inchoate. The article then considers how this story of constitutional principle and politics alters the understanding of equal protection law today. It concludes by reflecting on how these concerns have given shape to the Court's recent rulings on affirmative action and to other features of modern equal protection law.

Some constitutional questions implicate multiple, overlapping provisions of the Constitution's text. In resolving these questions, the Supreme Court typically addresses each of the relevant clauses in separate and sequential fashion, taking care not to let its analysis of one clause affect its analysis of any other. But every so often the Court takes a different approach, looking to the clauses in combination rather than in isolation. The Court has sometimes suggested, for instance, that two or more rights-based provisions might require the invalidation of government action, even where no single provision would do so on its own. The Court has also suggested that a federal law might fall too far outside the scope of Article I and too far within the scope of a rights-based provision to withstand constitutional attack. And the Court has very occasionally suggested that a congressional enactment might qualify as a necessary and proper means of enforcing multiple enumerated powers at once. In all of these cases, the Court has embraced (or at least tinkered with) forms of what I call \"combination analysis\"—justifying judicial outcomes by reference to multiple clauses acting together, as opposed to individual clauses acting alone. This Article presents a systematic examination of combination analysis in U.S. constitutional law. In so doing, it seeks to make four contributions to the burgeoning scholarly literature on the subject. First, the Article collects and taxonomizes existing examples of combination analysis in U.S. Supreme Court doctrine, demonstrating that combination arguments have enjoyed a wider range of application than has thus far been supposed. Second, the Article examines the conceptual structure of combination analysis, revealing some underappreciated functional similarities between combination-based constitutional reasoning and other more commonly accepted features of public law adjudication (including, for instance, arguments based on constitutional structure and arguments based on the constitutional avoidance canon). Third, the Article sorts through the practical pros and cons of combination analysis, shedding light on the questions of whether and (if so) when courts should advance combination arguments in the course of resolving a particular case. Finally, the Article offers some preliminary guidance regarding the implementation of combination analysis, identifying in particular four different types of \"combination errors\" that courts should strive to avoid. What emerges from the discussion is the conclusion that combination analysis represents a real and conceptually valid method of constitutional reasoning, which, at least under some circumstances, stands to benefit the development of constitutional law.

Why have American policies failed to reduce the racial inequalities still pervasive throughout the nation? Has President Barack Obama defined new political approaches to race that might spur unity and progress? Still a House Divided examines the enduring divisions of American racial politics and how these conflicts have been shaped by distinct political alliances and their competing race policies. Combining deep historical knowledge with a detailed exploration of such issues as housing, employment, criminal justice, multiracial census categories, immigration, voting in majority-minority districts, and school vouchers, Desmond King and Rogers Smith assess the significance of President Obama's election to the White House and the prospects for achieving constructive racial policies for America's future.

The Supreme Court has long held that disputes that do not lend themselves to resolution under \"judicially manageable standards\" present nonjusticiable political questions. Filling several gaps in the literature, this Article begins by exploring what the Court means by judicial manageability. Professor Fallon identifies a series of criteria that anchor the Court's analysis, but he also argues that in determining that no proposed test for implementing a constitutional guarantee is judicially manageable, the Court must often make an ultimate, all-things-considered assessment of whether the costs of allowing adjudication to proceed would exceed the benefits. This determination is so discretionary, Professor Fallon argues, that if the requirement of judicial manageability applied to the Court's own decisionmaking process (as it does not), the criteria by which the Court identifies judicially unmanageable standards might themselves be disqualified as judicially unmanageable. Although the demand for judicially manageable standards is most prominent in the political question doctrine, Professor Fallon argues that the concern to develop judicially manageable tests pervades constitutional adjudication. Until glossed by judicially formulated tests, most constitutional provisions would not pass muster as judicially manageable standards. Moreover, some of the tests that courts adopt largely for reasons of judicial manageability under enforce, whereas others overenforce, the underlying constitutional guarantees. Linking the phenomena of constitutional under enforcement and overenforcement to the demand for judicially manageable standards, Professor Fallon propounds \"the permissible disparity thesis\" that there can be acceptable gaps between the Constitution's meaning and the doctrinal tests applied by courts. He then deploys the permissible disparity thesis to cast new light on the nature and significance of both constitutional theories and constitutional rights, many of which should be viewed as partly aspirational, not necessarily requiring full immediate enforcement.

Cultures around the world have regarded self-fulfillment as the ultimate goal of human striving and as the fundamental test of the goodness of a human life. The ideal has also been criticized, however, as egotistical or as so value-neutral that it fails to distinguish between, for example, self-fulfilled sinners and self-fulfilled saints. Alan Gewirth presents here a systematic and highly original study of self-fulfillment that seeks to overcome these and other arguments and to justify the high place that the ideal has been accorded. He does so by developing an ethical theory that ultimately grounds the value of self-fulfillment in the idea of the dignity of human beings. Gewirth begins by distinguishing two models of self- fulfillment--aspiration-fulfillment and capacity-fulfillment--and shows how each of these contributes to the intrinsic value of human life. He then distinguishes between three types of morality--universalist, particularist, and personalist--and shows how each contributes to the values embodied in self-fulfillment. Building on these ideas, he develops a Odialectical' conception of reason that shows how human rights are central to self-fulfillment. Gewirth also argues that self-fulfillment has a social as well as an individual dimension: that the nature of society and the obstacles that disadvantaged groups face affect strongly the character of the self-fulfillment that persons can achieve. Bold in scope and rigorous in execution,Self-Fulfillmentis a powerful new contribution to moral, social, and political philosophy.

Professor Harry Kalven Jr once called the public forum \"the poor man's printing press.\" A significant feature of the modern regulatory apparatus governing access to the public forum, however, is that it often charges user fees to cover the costs of directing traffic, policing, and administering the public forum. And, as is the case any time the government puts a price on an activity, some people will be too poor to pay. This Comment asks whether the government must waive fees for indigent applicants for use of this \"poor man's printing press,\" and if so, when and why.