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This article looks to the original meaning of the Fourteenth Amendment's provisions on equal citizenship to defend an approach to the free exercise of religion distinct both from Employment Division v. Smith and the Sherbert-Yoder regime it replaced. Members of all religious groups are equally citizens: in the first Justice Harlan's words in The Civil Rights Cases, a "component part of the people for whose welfare and happiness government is ordained." Such citizens are entitled to equal solicitude from their state regarding even indirect costs of that state's laws. Just as trustees must affirmatively promote the interests of their beneficiaries, not merely avoid purposely harming them, states must affirmatively promote the interests of their citizens, not merely avoid targeting them for ill treatment. This obligation applies to all citizens no maKer their religion or race. Contrary to Smith, therefore, the Fourteenth Amendment requires more than a no-religious-targeting rule. And contrary to Washington v. Davis, it requires more than a no-racial-targeting rule. The Court was right in both Smith and Washington, however, that strict scrutiny for any law significantly affecting racial or religious groups would threaten chaos. A refusal to countenance any impact on religious practices, no maKer how socially harmful, would allow religious citizens to be laws unto themselves. A refusal to countenance any disparate impact on racial groups would require racially discriminatory quotas that would themselves undermine equal citizenship. The Fourteenth Amendment requires a more nuanced assessment of the arbitrariness of the distinctions in state law and the costs they impose than a one-size-fits-all "compelling state interest" framework can supply. Instead of focusing solely on explicit or purposeful classifications, the Court should focus directly on the existence of adequate explanations for policies causing particular harms. Such a focus would mirror the manner in which the Court assesses "arbitrary and capricious" agency action in cases like Citizens to Preserve Overton Park v. Volpe and Motor Vehicle Manufacturers' Association v. State Farm Mutual Automobile Insurance Co. The trigger for such an inquiry would not be the nature of the classification at issue, but simply the existence of the impact on particular citizens' interests, including economic interests. The Fourteenth Amendment requires states to offer an adequate explanation of why other citizens' interests maKer more than the interests of those suffering the burden, and it requires states to present their actual reasons for decisions, rather than hiding behind post-hoc judicial rationalizations as approved in Williamson v. Lee Optical. Such a requirement for reasoned aKention to different interests fits how the law of trusts has long required trustees to explain themselves when they deal with multiple beneficiaries. Trustees need not always treat all of their beneficiaries precisely the same, but they must give "impartial aKention" to all beneficiaries' welfare, which in turn requires an adequate explanation of both differential treatment among, and differential impacts on, a trustee's beneficiaries. [ABSTRACT FROM AUTHOR]

I. INTRODUCTION Lee Strang's Originalism's Promise: A Natural Law Account of the American Constitution (1) weaves together each of the major issues of constitutional theory into a nearly-seamless garment. He [...]

Somali is well known to exhibit vowel harmony (Armstrong 1934), but linguists know remarkably little about how the system is implemented. Most presume that harmonic oppositions involve the tongue root and analyze the system relative to the feature [ATR], though the phonetic implementation of the contrast is complicated by a "quirky" (Krämer 2008) vocalic system. Reports also indicate that harmonic alternations vary between speakers and dialects, including in the bounds of the harmonic domain, but again, little systematic comparison has been pursued. To better understand the bearing that vowel quality and vocalic contrasts have on Somali vowel harmony, this paper reports the results of a study aimed at establishing details of the Djibouti Somali vocalic system. Our findings reveal that while a harmony system seems intact for all speakers studied, three consistent trends of acoustic (i.e., vowel space) overlap emerge from the data which may portend eventual mergers. These trends align in notable ways, but not entirely, with reports of harmonic decay elsewhere in the literature. They suggest that loss of harmonic distinctions in high vowels may be underway, but in different ways, in front vs. back vowels and that harmonic contrasts in long vowels are particularly susceptible to weakening. Our interpretation of these results, viewed alongside the typological literature on ATR harmony systems, is that Somali vowel harmony may be threatened or in decline as a result of these acoustic overlaps. [ABSTRACT FROM AUTHOR]

I explain seven problems with the view, suggested by Akhil Arnar. Kurt Lash. and Ryan Williams. that the Fifth and Fourteenth Amendments' ban on 'depriv[ing] any person of life, liberty, or property without due process of law' entails freedom from the sort of racial discrimination banned by Boiling v Sharpe and the Civil Rights Acts of 1866. 1870, and 1875; 1. The federal government long imposed racial restrictions on naturalization, beginning in 1790 and including a statute passed two weeks before the Civil Rights Act of 1875, 2. Six of the seven stales that Williams identifies as following the Daniel-Webster-pioneered 'general law' interpretation of due process imposed openly second-class status on racial grounds without thinking due process might pose any barrier. 3. Democrats fans of due process in 1862 and 1866. most prominently Reverdy Johnson, nonetheless opposed the Civil Rights Act of 1866. They did not think John Bingham's unusual reading of 'law' was baked into the Fourteenth Amendment. 4. Superlawyer Matthew Carpenter made clear that the Privileges or Immunities Clause, and no other clause in the Fourteenth Amendment, banned racial occupational limits. 5. The Republican beloved Northwest Ordinance, Missouri Compromise, and Wilmot Proviso all labeled racially-discriminatory slavery, and fugitive re-enslavement, 'lawful.' 6. 'Law' in the Privileges or Immunities Clause covers racially-discriminatory statutes. 7. Many paradigmatic targets of anti-discrimination rules. e.g., special benefits to one racial group, deprive no one of life, liberty, or property., INTRODUCTION: WEBSTER, WILLIAMS, BINGHAM, AND LASH This paper identifies some problems for a strain of substantive due process lately in vogue one focused on discrimination A strong antidiscrimination reading of [...]

How and why are public officials today obliged to follow the Constitution? Article VI gives us a crystal-clear answer: They are bound "by oath or affirmation, to support this Constitution." But what is "this Constitution"? American constitutional culture today describes its Constitution in ways that presuppose that the Article VI oath binds officeholders to an external, objective, common object: the same commitment for all oath-takers today, and the same commitment today as in the past. Justices on the Supreme Court took their constitutional oaths at different times, spread out over 31 years from 1991 to 2022, but they claim to fulfill those nine oaths by speaking collectively of "the Constitution." Americans regularly describe their Constitution as the oldest, still-operational, written national Constitution in the world. These sorts of contingent practices could, of course, change. But until they do, we should understand oath-takers to be swearing to obey the same entity which has been operative since the eighteenth century. If we have a living Constitution today, it must have been living from the very start. Change in constitutional requirements may be justified only if rooted in the rules for constitutional change operative at the Founding. [ABSTRACT FROM AUTHOR]

The scope of federal power is sometimes seen as a long-running battle between two stories. Story One sees the commerce power as initially broad, mistakenly contracted in the late nineteenth century, then properly restored in 1937 as the national power to deal with national problems. Story Two sees 1937 as the mistake, and the commerce power as properly read to be limited. The truth is more complicated. Story Two is partly right: the interstate commerce power-the power to regulate “commerce among the several states”-is limited to the transportation and sale of goods from one state into another. Local agriculture, mining, and manufacturing lie outside it. But Story One is also partly right. The foreign and tribal commerce powers to regulate “commerce with foreign Nations” and “commerce with the Indian Tribes” are much broader than the interstate-commerce power. Wherever citizens of France or members of the Cherokee Nation travel in America, all their commercial transactions with American citizens, however local or small-scale-purchasing a single cup of coffee, renting an apartment, or making a contract as part of practicing a profession-lie within federal power. Restoring this distinction among the three commerce powers solves several problems in constitutional law: (1) It allows the abandonment of the textually-untethered, Tenth Amendment-flouting “plenary power” over foreign affairs and tribes. (2) It justifies federal protection of tribal members in the Indian Child Welfare Act, challenged in Brackeen v. Haaland.(3) It allows Fourteenth Amendment protection of equality and civil liberty to shift back to the Privileges or Immunities Clause, limiting constitutional protection for non-citizens to “process of law” and “protection of the laws,” but supporting Congress’s 1870 and 1986 prohibitions on discrimination against non-citizens. (4) It explains three gaps in antidiscrimination law: federal citizenship classifications, racial tribal classifications, and state reservations of certain governmental functions to citizens. [ABSTRACT FROM AUTHOR]

Two cheers for Hadley Arkes ('The Moral Turn,' May). I withhold a third cheer because, unmediated by customary norms and institutions foundational to our constitutional order, natural law does not [...]

ABSTRACT This paper argues for four implications of the Thirteenth Amendment's crime exception--'except as a punishment for crime, whereof the party shall have been duly convicted'--for assessing the influence of [...]

This article documents the typological occurrence and interactions of two seemingly independent error patterns, namely Velar Fronting and Labial Harmony, in a cross-sectional investigation of the sound systems of 235 children with phonological delays (ages 3;0 to 7;9). The results revealed that the occurrence of Labial Harmony depends on the occurrence of Velar Fronting, and that, when these processes co-occurred, all three predicted types of interactions were attested. A constrained version of Optimality Theory is put forward that offers a unified explanation for the implicational relationship between these error patterns and their observed interactions. The findings are compared with the results from other studies and are considered for their theoretical and clinical implications. (Contains 1 note.)

Debate over proper methods of constitutional interpretation is interminable, in part because the Constitution seems not to tell us how it should be interpreted. I argue here that this appearance [...]