Con Law Outline – UVA – Klarman – S2005 – 1
| Constitutional Law – UVA – Klarman – Spring 2005 – 1 | |
| Judicial Review; Marbury v. Madison |
In Marbury v. Madison, outgoing president John Adams appointed midnight judges who were confirmed by Congress. Jefferson refused to deliver the appointments. Marbury sued Madison, Jefferson’s secretary of state, under a law enacted by Congress that gave the Supreme Court original jurisdiction to issue writs of mandamus to officials of the United States. Court: - Constitution only grants original SCOTUS jurisdiction to ambassadors, etc. - Thus, the act by Congress giving it original jurisdiction to issue writs to officials is unconstitutional - The Constitution is dispositive where it conflicts with ordinary laws, else the Constitution has no value Marshall’s Justifications for judicial review: - Logical argument: Written Constitution is binding (interpreting it differently would make the language superfluous, and there can be no superfluous language in it) – it would be absurd to have a written Constitution if it can be easily ignored by Congress
- Textual arguments: Role of the judiciary includes interpreting laws/constitution Supremacy clause (“laws in PURSUANCE” of the Constitution implies that the Constitution has overriding power)
Grant of jurisdiction over laws under the Constitution (Article III) would be meaningless without authority to examine the constitutionality of Acts
Judge’s oath includes agreeing to Constitutional principles
Klarman: - Marshall was reaching: the statute doesn’t tie jurisdiction tightly with the power to issue writs as he was insisting - Best piece of textual reference wasn’t even mentioned (Article VI, 2: state judges should strike down state laws if they violate the Constitution). BUT,
Marshall may have avoided this so as not to beg these questions - Marshall’s examples are clear-cut, hardly the controversial issues that come from open-ended clauses in the Constitution today |
| Judicial Review; Federalist Papers |
No judicial review in Britain. American States had written constitutions but didn’t have many guidelines for striking laws down - But in the 1770s-1780s, the concept started being discussed, but was very controversial and some judges were threatened with impeachment It was discussed at the Philadelphia convention, but there were dissenters. - Even those who favored it had two qualifications: Only for cases of special judicial concern
Only for cases of “clear constitutional violation”
Arguments in favor of judicial review: - Judges have lifetime tenure, so they are less swayed by political fears But this may be a “vice and not a virtue”, in that they may differ from popular desire - Judges can only be reactive, not pro-active (they don’t create statutes, they can only strike them down) - Federalist 78 (Hamilton, “formalist response”): It doesn’t put the judiciary over the legislature: it merely puts the Constitution over the legislature (the Constitution serving as the will of the people through the courts). The judiciary is also the least powerful branch, able to cause the least damage Sometimes mentioned as founders’ intent for judicial review. BUT:
Intended here as an argument against Brutus
Klarman:
Arguments against it: - By removing the review from the legislature, legislators stop trying to correct their own mistakes and try to get away with anything they can - Judges are using their own views and not those of the drafters Counter-majoritarian problems of judicial review: - Will of the majority maybe should not always be the rule (1) Unreflective (precommitment strategy – if a resolution is made, there has to be an enforcement mechanism) (2) Minority rights But how do you know what issues should be determined by the majority and which shouldn’t?
- Legislators are not necessarily representing the majority Special interests (using money to lobby, etc.)
Issues like term-limits - Maybe courts reflect popular opinion as well Court wants to keep credibility Justices are drawn from the same society as the public Justices can be impeached if they’re really egregious Presidents pack the courts with justices that back his (popular?) views
It arose out of a process in which we, or the people, agreed to it - But didn’t that exclude Indians, blacks, women, etc.? It’s a good one - But documents in general aren’t binding just because they’re good It’s enabling rather than constraining to treat it that way (chaos would ensue otherwise)
Original meaning/intent - Whose understanding? - Intent at what level of generality? Text of the Constitution - But should the text be expanded to cover more areas? Tradition and precedent Prevailing morality and social consensus Conceptions of justice and principle |
| Supreme Court: appellate jurisdiction over state courts |
Conflict between treaty and state law regarding a land grant Case made it up to the Supreme Court which overturned the Virginia Supreme Court and remanded it for them to reverse. The Virginia Court refused and this issue made it back to the Supreme Court Virginia Court: - Yes, the Constitution, treaties, etc. are supreme, but the Constitution says state judges are bound to it, and they should have the ultimate power to analyze the issues (no question of federal supremacy) - The Constitution does not give the Supreme Court the power to overturn state decisions: (1) State judges are bound to the same oaths that federal judges are (2) The cases can be removed to federal court prior to judgment instead of insulting state judges by reviewing them after their decisions Justice Story: - Supremacy clause: federal law is supreme and state judges are bound by it. BUT, to make the supremacy effective, there needs to be a federal judicial body in charge. - Responses to Virginia: Need to counteract state bias:
Want to promote uniformity across the U.S.
Constitution already limits state sovereignty (limits on bills of attainder, etc.)
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| Supremacy of SCOTUS decisions on officials |
Supreme Court required Little Rock officials to integrate the schools after the Arkansas governor defied the SCOTUS Brown decision The governor ignored the initial Brown decision because the case didn’t involve his district and he believed differently on the Constitutional questions Court: - Where there are questions of Constitutionality, it’s the obligation of the Supreme Court to *resolve* the Constitutional issues with priority over others (this goes further than Marbury)
Example: on Constitutional grounds, Jefferson pardoned several who were convicted via the Sedition Act even though the federal courts rejected 1st Amendment arguments against it: - Court believed one thing, but the executive branch is given the power to execute the laws on Constitutional grounds. The Constitution intended this in a system of checks and balances. - Klarman: BUT, isn’t it inefficient and a formula for chaos to have multiple interpreters? - Klarman: ON the other hand, how would the court ever be able to change its mind with social changes? It could only happen if someone is allowed to disagree, defies the decision, and allows a case to go back to the Court Lincoln, a year after Dred Scott: The Supreme Court’s decisions should not be the be-all-end-all, but should be afforded respect. - Taking them as completely binding isn’t perfect: how would you ever let the court overrule itself without another case? - But the opposite (leaving them completely unbinding) would lead to anarchy What if a president disagrees? - He can disagree with the court with a pardon or a veto - But on the power of exercising enforcement of the law: Worcester v. Georgia (1832): Georgia wanted to ignore a federal treaty and exercise sovereignty over Cherokee land.
14th Amendment: - 1 prevents states from denying equal protection - 5 gives Congress the power to enforce the rest of the Amendment - Does 5 give congress the right to enforce laws it passes on equal protection even if the Court has struck down a definition of rights under 1 (Can it interpret “rights” differently?) Congress and flag-burning - If the Court is supreme, does that discourage lawmakers from even questioning Constitutionality? - This was essentially the case when a law was passed barring flag-burning and the Court promptly struck it down (Texas v. Johnson) Theory of unitary executive: - The President and the independent counsel law Same issue, but with the President (Reagan signing the Independent Counsel Law) Court ultimately found it Constitutional, but Reagan was delegating the task of questioning the Constitutionality to the Court - 200 years ago, Presidents certainly didn’t think this way Supreme Court supremacy can act as a way of allowing legislators and executives of ducking hard questions (abortion, Dred Scott, etc.) Klarman: there’s no real answer to how supreme the Court is, but today the Court will not accept that the President has final authority on questions |
| Sources of Constitutional Law |
Maryland: - The Constitution was a compact among the people of the initial thirteen states Marshall: - United States can legally charter a bank and states may not tax it - The U.S. Government and the Constitution is one of the collective *people* (not merely of sovereign states) and laws provided via it are the supreme law of the land Rejects Maryland’s argument that it was a compact by the state legislatures It was ratified by a convention of the people even though there were assemblies in each states Klarman: But would you prefer to go back to the state conventions or the Supreme Court as a final arbiter? - Argument 1: It’s a living document 1. Accumulated wisdom implies that the bank is Constitutional
2. Reliance interest 3. Benefit of experience BUT, Klarman: couldn’t the point of the Constitution be to *prevent* these types of arguments from changing interpretation, to maintain stability? (debate between originalists and living-document believers) - Argument 2: Textual interpretations 1. “Necessary and proper” (Art I, 8, cl.18) is *not* a restriction on Congress
2. Elsewhere in the Constitution adverbs are used before “necessary” such as “absolutely necessary”: therefore there must be degrees of necessity, and this one has no such restrictive adverb. 3. Constitution doesn’t *expressly* bar the federal government from chartering a bank (the 10th Amendment doesn’t say “expressly”)
- Argument 3: Nature of a Constitution Nature of a Constitution is that it would only specify the grand intentions of the government and not every little power necessary - Argument 4: Nature of a national government Though “bank” and “incorporation” aren’t found in the enumerated powers of the government, there also aren’t details for whether law violators can be punished, yet it’s understood that that power is necessary. The framers would not have intended to impede the most effective means of implementing the grand goals of the document Powers should include those which are “plainly adapted, appropriate, and not prohibited” by the Constitution No one can deny the appropriateness of the Bank Klarman: BUT, where would the government’s accumulated power end? Degree of necessity should be determined by Congress (degree of necessity is a political question)
- Argument 5: Representation-reinforcement theory / political process theory The power to tax is the power to destroy, and if interpreted by the court as a right, would be absolute. The Constitution does not afford the states the power to destroy what the federal government creates.
Klarman: If it had just been a Maryland bank, one would look to the Maryland legislature for relief, otherwise it’s reasonable. But here the Maryland legislature would have the power to tax mostly people living outside the state (externalizing the costs of the law)
- Argument 6: Natural law Covered in Calder v. Bull, not here Klarman: useful for how broadly Congressional power should be construed, but also for methods of interpreting the Constitution - It was generally accepted that the Bank was Constitutional at this point, but Marshall’s dicta re: Congress’ power upset many - Real issue in the background that Marshall likely was thinking about, though he didn’t address it was the ability of Congress to restrict slavery in the territories and in the existing states Missouri Compromise (1819) Questions would involve the scope of Congress’ implied power given its express power to admit states and create rules in relation to them |
Justice Chase: - Legislative rule is a compact with the people of the state, and it can’t be assumed that the people afforded the legislature the power to pass laws that violate natural rights - If the legislature passes acts which violate them, they are void Justice Iredell: - The courts can only declare void laws that are unconstitutional. The Constitution notes out specific guidelines for what is allowed and what is not. - It is not appropriate for a court to void a law just because it, in the court’s own judgment, is against the principles of natural justice
We are not as confident in the existence of natural law - Though most people will think some things are not a matter of preference, that they’re just *wrong* (i.e. genocide) It is clearly indeterminate Comparative institutional competence - But why are courts the better position? The 9th Amendment might sound like it’s a power been given to the judges Also, legislators are not always focused on these issues (moral issues) |
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| Federalism |
Individual-rights restrictions - Example: 1st Amendment (freedom of speech) Federalism restrictions - Example: Gun-free schools zone act (Lopez, 1995) Court said that this was beyond the power of the federal government. One argument, in fact, was that every state already regulated this – why did the federal government have to get involved?
National government: enumerated powers - It doesn’t have a power unless it’s been granted (explicitly or implicitly – McCullough) by the Constitution - This was further made clear with the 10th Amendment (though others felt it was already clear) State governments: inherent powers
Judicial enforcement (Lopez) - Compensating adjustments: thought that the court should make up for more broad interpretation of some elements of the Constitution with more state-friendly interpretations of other sections Structural constraints: - States had a lot of power in composing the national government (Senators and electoral college specified by state legislators) - Framers also expected that electors would use discretion - States draw up district lines for Congressmen Political/ideological concerns (legislators would want to keep control within the states)
McCullough (1819): “necessary and proper” Gibbons v. Ogden (1924): commerce clause Interstate commerce act (1887) Sherman antitrust act (1890) - E.C. Knight (1895): validity of the Sherman antitrust act Court says that a company acquiring another is not “commerce” and so the Sherman antitrust act doesn’t reach it. If it did reach it, it may be unconstitutional Hammer v. Dagenhart (1918) - Struck down to child-labor act because Congress doesn’t have a general policing power – it’s not really about commerce Hoke (1913) - Allowed the Mann Act, which made it illegal to transport women across state lines for immoral acts (construed the Commerce Clause broadly) Shreveport rate cases (1914) - Act allowed the federal government to regulate intrastate railroad rates - Court allowed it, noting that to protect competition in interstate transport, the federal government needed to regulate intrastate rates Stafford v. Wallace (1921): “stream of commerce” New Deal cases - Schechter Poultry (1935) Court struck down provisions – Congress’ power had gone too far (the power is not to regulate the economy, just interstate commerce) - Jones v. Laughlin (1937) The Court became more receptive to federal regulation, upholding the National Labor Relations Act Early wartime years: - Darby, Wickard It appeared the Court would not strike down laws for federalism concerns Civil rights cases: - Many federal regulations were upheld for stretches in the Commerce Clause (the fact that hamburger meat crossed state lines, etc.) Recent turnaround favoring federalism restrictions - About 15 years ago, the Rehnquist court started enforcing federalism more strictly (Lopez, etc.)
Advantages: - Local preferences / maximizing satisfaction - Experimentation - Tyranny checking (creating multiple power sources) - Elimination of competition between states (good and bad) - Local decision-making - Advancing democracy Disadvantages - Federalism #10 problem – factions - Elimination of competition between states (good and bad) - Violation of “fundamental rights” - Inefficiencies/inconsistencies - Protectionist legislation possible - Race to the bottom – hard for a state to solve a problem because capital may just flee Many of these are opposite sides of the same point - Factions / advancing of democracy - Race to the bottom / competition - Violation of fundamental rights / experimentation Debate today: - Normally about wealth redistribution (which can’t be handled well on a state level) - Social issues are inconsistent
National Industrial Recovery Act attempted to artificially keep up prices and wages by suspending the antitrust laws, authorizing corporations to negotiate among themselves to keep up prices, require minimum wages, restrict the hours of work, and promote collective bargaining (unions) Court: - Federalism arguments: This has gone beyond interstate commerce – this is labor relations, etc. Rejects argument that extraordinary conditions require expanded power Rejects that it’s not part of the stream of commerce: by the time poultry have reached the slaughterhouse, the stream has ended. There was no continued “flow” Rejects a connection to the Shreveport Rate cases – this regulation is too far distant from interstate commerce - Individual rights argument: Also notes that no level of government should be telling individuals how many hours to work or their employers how much to pay them - Non-delegation argument: Congress did not state the regulations – they decided that collective bargaining should decide the power. In the 1930s, it was thought that legislatures should write statutes not just broad guidelines to be provided to administrative agencies. This argument has largely died away today
The Bituminous Coal Conservation Act of 1935 was intended to stabilize the industry during a crisis. Congress felt that the coal industry affected the rest of the economy of the U.S. and so implemented a scheme similar to Schechter Poultry, only limited to the coal industry (collective bargaining, etc.) Court: - Rejects connection with interstate commerce: this is regulating mining which precedes commerce (commerce is exchange) - Says it doesn’t matter how vital the coal industry is to the economy It’s not quantity that matters, it’s the quality. It’s the manner that matters (though he doesn’t describe what “manner” is) |
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National Labor Relations Act established a comprehensive system for regulating labor/management relations. It established the right of employees to organize and bargain collectively and prohibited practices such as discrimination against union members Court: - Constitutionality depends on the “effect upon commerce, not the source of the injury” - Unlike Carter and Schechter, a shutdown of production due to a strike would not be indirect or remote to interstate commerce. It would cause industrial strife throughout the nation. Is very different than prior cases. What happened? - Traditional interpretation: court capitulated to changing views - Revisionist interpretation: Some of the statutes in the 1937 cases were drafted as part of the “second” New Deal post-1935, when more attention was paid to careful drafting The NLRA was drafted with specific attention to explaining how labor relations can affect interstate commerce. There’s an argument that Jones & Laughlin Steel was just a more favorable set of facts for considering the labor relations issue than Schechter, say
Court invalidated New York’s minimum wage statute. Substantive due process argument: no government should be regulating wages because it interferes with individual liberty. |
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| Post-New Deal Approach | Wickard v. Filburn (1942)
In Lopez, the Court called this case “perhaps the most far-reaching example of Commerce Clause authority over intrastate activity.” Court upheld the Agricultural Adjustment Act, which was intended to restrict agricultural production. The act was originally struck down in 1936 in Butler on the grounds that agriculture is not commerce. Jackson took a realist approach here and dismissed the old categories of direct and indirect. Focuses on *national* market of wheat (as opposed to the specific plants in Laughlin, etc.) Aggregation - The home-production of wheat on one farm might not matter, but in the aggregate of all similarly situated farmers it does. Substitution - Home-grown wheat does not go to the market, but farmers would have to buy on the market without it. This case marked the beginning of a federalism revolution. Under the Fair Labor Standards Act, the Court said the goods produced under poor working conditions should be excluded from interstate commerce. Court upheld the act, and overruled Hammer v. Dagenhart (which covered the issue of covering child labor, not interstate commerce, according to the court) Court: - Congress has complete power to regulate interstate commerce. Motive does not matter. The power to regulate commerce includes the power to prohibit commerce. - The Darby bootstrap. If Congress can prevent the goods from moving in interstate commerce, why can’t it just prevent the goods from being produced in the first place? But, under this rationale, Congress could basically regulate anything. - Race to the bottom argument. It’s hard for a state to regulate working conditions because if a company wants to pay low wages and require ad hours, it will just move to a state where it is not illegal. - The Tenth Amendment is not an independent restraint on national power.
1. Political process (explanation/justification) - Wechsler: Political elements (elections, etc.) can make up for it This may sound quaint today (we don’t see it at work) - Framers would have seen the structural elements of the political system as a restriction on unbridled nationalism 2. Doctrinal incoherence (absence of judicially manageable standards) - Judges cannot draw lines that inherently make sense. - Maybe they gave up because they couldn’t come up with a test that made a line that appeared anything less than arbitrary 3. Guilt by association - Constitutional concepts often get attached to other social issues. Federalism, historically, was associated with slavery and so left a bad taste in people’s mouths. - Today, however, we’ve seen a return to federalism, possibly because slavery and discrimination is sufficiently historical 4. Generational - Newer, younger justices may have felt differently on certain issues
If the police and prosecutors are involved in a case where people have been accused of trespassing on private property (because of discrimination), then it becomes a state issue, a state endorsement of discrimination - Counterargument: But wouldn’t it be state action, then, as well, if a private homeowner excluded some people from a dinner party and had party-crashers arrested for trespassing? Fourteenth amendment (sections 1 and 5) create a right against discrimination by the state and the right of Congress to draft legislation to enforce it - It doesn’t sound like discriminating in a privately owned business would violate Section 1 of the Amendment, so how could a law under Section 5 enforce something not available under Section 1? This is what the Court said of the 1875 Civil Rights Act which required “full and equal access to public accommodations” - Congress wasn’t sure what the Court would do with this Section 5 argument (because it had been overruled in the 1880s), so that’s why they invoked the interstate commerce clause
Court upheld Title II of the Civil Rights Act, which prohibited discrimination in places of public accommodation, defined as those places whose “operations affect commerce.” Court: - Hotels and motels that provide rooms for transient guests affect commerce per se. - Valid exercise of Congress’s power to regulation interstate commerce. - The fact that Congress was also dealing with what it considered a moral problem did not detract from the “overwhelming evidence of the disruptive effect that racial discrimination has had on commercial intercourse.” Ollie’s Barbeque in Birmingham served some interstate travelers and used hamburger meat that moved in interstate commerce. The restaurant challenged the application of Title II of the 1964 CRA to it. Ways it affects commerce: - Discrimination in restaurants has a direct and highly restrictive effect upon interstate travel by Negroes. - It affects the national economy in that civil rights demonstrations often had a dampening effect on business activity - Hamburger meat moved with interstate commerce
Globalization - International and national economies Cold War - Isolationism Transportation and communication advances (mobility) Immigration Guilt by association - States rights lost its appeal because of the civil war |
| Return to Federalism |
Congress always has had this incentive: it’s politically expedient - But maybe they just took federalism more seriously before The courts don’t have this same incentive - They wouldn’t want an overwhelming workload - Federal judges like to distinguish themselves from state judges, considering themselves more important that state judges because they don’t normally hear criminal cases – they would just prefer the cases stay in the states
Congress made it a crime to possess a gun near a school. This is a federalism question, not an individual rights issue. Court: - Three things Congress can regulate under the Commerce Clause: Channels of interstate commerce Instrumentalities of interstate commerce (i.e. trains, planes), and persons or things moving in interstate commerce Activities having a substantial relation to interstate commerce. (Substantial effect test) - Court says the connection is just too attenuated here. Guns affect education; education affects productivity of the citizenry; which in turn affects interstate commerce. Slippery slope concern. The arguments for Congressional regulation of guns near schools could apply to virtually any activity that it found related to the economic productivity of the citizenry, even family law, an area we all see as intuitively outside the realm of the federal government. Court distinguished this case from Wickard. At least in that case there was an economic element.
- Upholding the act here would basically mean granting Congress a broad police power of the sort retained by the states, court says. Later, Congress reenacted the Gun-Free Schools Act, modifying the statute to make it a criminal offense to possess a weapon near a school if the gun moved in interstate commerce. - This is called adding a jurisdictional hook, places the statute within the second category of what Congress can regulate under the commerce clause. Ambiguities in Lopez: - Absence of Congressional findings justifying the regulation: It’s not clear how much this really bothers the justices. In the Violence Against Women Act, Congress did make findings and the court struck down the act anyway. See Morrison. - Economic vs. Non-economic dichotomy - “Traditionally local.” Court says it is standing up for tradition by preventing Congress from regulating things which have traditionally been locally regulated. But is it? - Absence of a jurisdictional element i.e. the gun had to move in interstate commerce. Does there have to be one? Congress added such a hook when it rewrote the statute. Is that enough to withstand constitutional challenge? - How much does it matter that this is a criminal, not a civil statute? How seriously should we take Lopez? It’s tough to know, especially since the justices themselves don’t know how seriously to take it. - If everyone agreed with Thomas’ concurrence, Lopez would be a big deal. He is critical of federal police power, and of the entire idea of a substantial effects test. He likes the old distinctions between manufacturing and production. He is very critical of post-1937 commerce clause jurisprudence, but he is not arguing for original intent. - But O’Connor and Kennedy write separately to indicate that Lopez is not really a big deal. They are not interested in going back to the old days of looking to the framers. Is there any good argument for returning to original intent in this area? - Few people are going to argue this since the country has changed so much since that time. - But, what if we ask what principles the framers were committed to? Then consider how those would apply today. This is different from asking, would the framers have intended the regulation of guns near schools? Names for this approach:
Significant problems with this approach:
- It is hopelessly speculative where the framers would have come down on these issues.
The court held the civil remedy provision of the Violence Against Women Act unconstitutional. Congress couches the Act under its commerce clause power instead of under the 14th, based on the rationale from the 1880s civil rights cases The perpetrators of violence are private individuals, not state actors. Act provided a civil remedy for women targeted as victims of gender-motivated bias. Court: - 1. The claimed effect on commerce is too remote. Congress’s argument is that women will be deterred from traveling and engaging in business in interstate commerce. - 2. Again, court saw the risk of erasing the distinction between national and local authority. - 3. No jurisdictional element. - 4. There were Congressional findings, but court struck them down. Klarman: - Different from Lopez: Civil not criminal (so this isn’t a distinction) There were Congressional findings (so this isn’t a distinction either) - Majority thinks there needs to be some limitation to Congressional power But the dissent notes that even an added jurisdictional limit would be a joke (Breyer lampoons the concept) because it would accomplish the same goal (e.g. “An Act Forbidding . . . When Items Have Moved in Interstate Commerce”) - Court suggests that if Congress is really trying to go after violence toward women among police, etc., the law should have been written as such, not to create a cause of action against private individuals Also, Court sees this act as merely symbolic anyway, because each state had its own law on violence anyway
There are a lot of federal statutes that are now up for grabs based on these two cases. There is not a consensus among lower court judges about how seriously to take these decisions. Questionable statutes: - Freedom of Access to Abortion Clinics Commercial? This is a key test from Lopez. Substantiality of the effect is pretty strong Congressional findings. But Morrison tells us these are not dispositive. 14th Amendment 5 not invoked likely because this is clearly individual activity, not state actions - Car-jacking statute: armed theft of a vehicle that has moved in interstate commerce Jurisdictional element. How important is it? Is it enough? Commercial activity? Stealing a car is a substitute for buying a car… - Child Support Enforcement Act. Makes it a crime not to pay child support when the child lives in a different state than the paying parent Jurisdictional element? Does the different-state requirement count? Unlike Lopez/Morrison, it may actually be difficult for a state to coordinate enforcement on their own, so there may be a good reason for this Commercial? It is money, but it’s not a market transaction. Family law and child support have traditionally been regulated by local authorities. |
| Other sources of Congressional power |
Narrowest view: 5 only gives Congress power to provide remedies for violations of 1 - 1 would allow a court to strike down a state law, but a corrupt official couldn’t be punished without a law that Congress would provide under 5 Middle view: Congress can anticipate court rulings - The Court must then agree or disagree with what Congress believed is Constitutional/unconstitutional Expansive view: Congress can “remedy” and “deter” by going beyond the right - Prophylactic rule going beyond the right to ensure that violations of the right get caught: e.g., we think it’s hard to prove racial motivation, so to make sure those cases are caught, Congress may shift the burden to the other side to make them show that there *wasn’t* a racial issue - Washington v. Davis (1976): Equal protection clause prevents laws that have race on their face or are motivated by race – this is the scope of the EP right as defined by SCOTUS Most-expansive view: Congress can redefine right
Congressional prohibition of literacy tests. This is Congress using its 5 power to prevent a 14th amendment violation. 4(e) of the Voting Rights Act of 1965 provided that no person who has completed sixth grade in a Puerto Rican school could be denied the right to vote because of his or her inability to read or write English. Court rejected a constitutional challenge to this section. Adopted two theories that would preserve Congressional power: - Congress is allowed to remedy and deter violations of 1 of the 14th Amendment By protecting the right to vote, Congress is deterring future (subsequent) discrimination This has been limited somewhat by congruence and proportionality limitations (but for the most part is still good law). Morrison. - Congress may redefine constitutional rights. It just have to have a rational basis Just because the Court defined a right one way – said literacy tests were okay in Lassiter – does not mean that Congress cannot disagree. Court is not the supreme interpreter of constitutional issues City of Boerne v. Flores (1997) discards this rationale. Congress cannot disagree with court’s view of constitutional issues. Klarman: - Court originally noted that there’s nothing facially wrong with literacy tests, but later after Congressional findings that they were applied in a discriminatory finding, they passed the new law.
A party seeking a permit to build a church filed suit under the Religious Freedom Restoration Act of 1993 when the permit sought was denied. Court: - The RFRA was unconstitutional because Congress does not have the power to determine what constitutes a constitutional violation. - Congress’s power under 5 of the 14th extends only to enforcing the provisions of that amendment and does not give it the power to determine what constitutes a constitutional violation. - Congress can go beyond the right, but only a bit. TEST: There must be congruence and proportionality i.e., if Congress is limiting activity wholly not in the Constitution, it’s really just redefining the right, and this isn’t acceptable Klarman: - This is two years after Lopez and it makes sense the case came out this way. The Court had just limited Congressional power under the Commerce clause – it makes sense it would limit 5 power too - The Court here is protecting its own powers to determine constitutional violations from encroachment by other branches of government: Congress isn’t allowed to redefine the right - Court said that state regulations with a burdensome impact of religious freedom must have a compelling justification behind it, regardless of whether the intention was to limit religion, etc. This is a change from Smith. Smith (1990) – purpose or impact? With a generally applicable law (re: peyote and anti-narcotic laws) that does not on its face say anything about religion, is it enough to show that it burdens a religious group? Court says you *do* have to show that the law was motivated by that purpose. - Other view: Congress had immediately redefined a right after a SCOTUS decision (quickly overruling it). It’s possible the Court just saw this as a major affront and was backlashing against the redefinition being so quick and obvious.
SCOTUS has limited congressional power not only by its construction of the Constitution’s grants of substantive power but also by limiting Congress’s power to create judicial remedies for enforcing federal constitutional and statutory rights. - Chisholm v. GA (1793): A state could be sued by a citizen of another state in federal court (by an expansive reading of Article 3) - The 11th amendment was passed to overrule Chisholm. The text of the 11th amendment only covers suits against states brought by citizens of other states of foreign nations. Hans v. Louisiana (1890) - The judicial power of the United States did not extend to suits by citizens against their own states. States’ immunity from suit was a presupposition of the constitutional order, not displaced by the mere adoption of the Constitution. Seminole Tribe (1996) - States do have immunity from suit in federal court. - Congress can only waive sovereign immunity under 5 of the 14th, not under its Article I powers. The 11th was not directly applicable here, but the Court said that those who adopted the original Constitution did not believe that they were creating a national government authorized to eliminate sovereign immunity. Same application if a state citizen sues its own state. Individuals cannot sue states in federal court under the 11th amendment unless there is a 14th amendment violation. Exceptions:
Alden v. Maine (1999) - The same rule applies in state court as in federal court under Chisholm. - Congress could not require state courts to entertain suits by individuals seeking damages for violation of a national statute, where the state courts refused them on the basis of state sovereign immunity rules. - This indicates that state sovereign immunity does not flow from the 11th amendment but from the original design of the Constitution. ADEA (age discrimination) and ADA (disabilities) have issues with being applied to public and private employers. - It is justified under the commerce clause - BUT in order to get money damages from state governments, it must be justified under 5. - Court says NO for both (Kimel and Garrett, p. 52 in the supplement) Tennessee v. Layne - Disabled people having trouble getting access to certain public places - Question again: Can Congress justify requiring elevators, etc. under 5? It doesn’t appear to be an equal protection violation in the Constitution, so how can Congress justify the requirement? - Court says that access to the justice system is a fundamental right under the 14th Amendment even though it may not be a concern with other facilities, and so the states *can* be sued for money damages - Scalia’s dissent: Only states that have, themselves, engaged in Constitutional discrimination can be “roped in” to the remedy
Ways to read it: - Congress can do anything it wants to provide for the general welfare - Congress can tax or spend for the general welfare (not limited to other enumerated objectives) Hamilton’s view - Congress can tax or spend, but only for the objectives enumerated in the other clauses in the section (military, tribunals, war, etc.) Madison’s view
Regarding a law that taxed cotton farmers and redistributed it as subsidies to those who agreed to restrict production Court: - Role of the court is not to approve or condemn legislation using the justices’ preferences, only to announce judgment on the Constitutional question (formalist view) - The government looks to find its power under the clause “to lay and collect taxes . . . and provide for the general welfare” Accepts Hamilton’s broader vision - The government is invading the reserved rights of the states, using a tax as a means to an unconstitutional end of regulating agriculture Regulation is not voluntary Power to confer or withhold is the power to coerce or destroy Dissent: - Threat of loss, not the hope of gain is the essence of economic coercion (and this act promotes the hope of gain) - The promotion of general welfare is supported by the act - There need only be a genuine national purpose Klarman: - Court appears to think that the 10th Amendment is not just a “truism”, that instead there is some overlap between areas that appear to be enumerated powers and yet are restricted by the 10th Amendment - It finds this type of coercion in that area that is general welfare (and so reasonable under Article 1), but still restricted and left to the states under the 10th Amendment - If Congress has the power to make this type of cash offer, it would have the ability to get around almost all federalist division of powers - What makes this coercion and not just a good offer? Court doesn’t seem to draw a bright line A lot of this may turn on the government’s right to have access to money raised in taxes but distributed in an uneven (extorted?) way
Court upheld a federal unemployment compensation system that allowed employers a 90% tax credit for any money paid into state-run unemployment programs Court: - To hold that every motive or temptation is coercion is to “plunge the law into endless difficulties” Klarman: - Court seemed to switch its view from 1936
Court upheld a federal statute that withheld highway funds unless states increased the drinking age Court: - Four parts to the test as to whether conditional spending is permissible: It must be in pursuit of the general welfare
If there is a conditional element, it must be unambiguous They must be related to the federal interest in particular national projects or programs (nexus test)
There must be no Constitutional provision that otherwise bars the act - Also (5th point): must not be “coercive” 5% wasn’t “coercive” – but this has no elaboration and the reasoning isn’t clear Klarman: - This was prior to the 1990s return-to-federalism push in the SCOTUS. This may not hold up as good law today |
| Commandeering |
In the FLSA, Congress passed a law regulating employers and didn’t exempt states as employers Unlike commandeering, this is general regulation (commandeering is when Congress specifically looks to regulate states in their capacity as governments)
NO. The commerce clause does not empower Congress to enforce minimum wage and overtime provisions of the Fair Labor Standards Act against the states in their “traditional government” functions. The court found that wages and hours of state employees affected state commerce, but that the application of the statute to state and local employees was unconstitutional
YES. Overrules Usery, and holds that the “traditional governmental functions” test is unworkable. The FLSA does not grant immunity from wage and overtime standards to entities engaged in traditional governmental functions. State sovereign interests are more properly protected by procedural safeguards inherent in the structure of the federal system than by judicially created limitations on federal power.
Congress cannot commandeer a state legislature to enact certain legislation. Congress was trying to conscript the states as regulators and agents for enforcing federal regulation on the disposal of radioactive waste. Act offers three incentives: - Monetary: States with disposal sites could charge fees to out-of-staters. Some of that money goes into a fund and then gets kicked back to states that create new sites. Court says this one is ok. Conditional spending power. Congress can give the states money with a string attached. - Access: Surcharges for access to sites escalates, and after a series of deadlines, access could be denied. Court says this is ok too. This would otherwise be a violation of the dormant commerce clause. States cannot adopt a barrier to commerce with other states. Under the “dormant commerce clause” doctrine, a state could not say that it would accept waste made in its state and not in others. But, Congress can allow what would otherwise be a violation of this doctrine. - Taking title: If a state could not provide for disposal of its waste, it was obligated to take title and take possession of the waste, and be liable for any damage resulting from it. This is the provision the Court has a problem with. This provision is too coercive, makes the states the agents of enforcement of the federal regulation. This effectively forces the states to pass legislation to deal with it What Congress *can* do under the act: - Congress can pay states to provide disposal sites. Conditional spending. Conditional spending is a very powerful tool. Congress has so much money it can basically force states to do anything under the threat of withholding funding. - Congress can allow other states to prevent NY from sending it to other states (overriding the DCC) - But, Congress CANNOT force states to take title and accept liability Congress is going to get what it wants under this Act because of the top 3 points, so why make a big deal about not allowing the take-title provision? - This may merely be symbolism. Several of the justices are offended that Congress is trying to order around the states. Trying to educate the country about the sanctity of federalism. - But, the bottom line practical result is that Congress can do whatever it wants, so are the words empty then?
Congress does not get to commandeer the state executive Brady Bill created a temporary system where gun sellers had to go to state law enforcement to run background checks before selling guns. Under this, state law enforcement officials have to participate in the enforcement of a federal directive. Court held that this violated the tenth amendment. Congress cannot conscript state law enforcement. This is a bright line rule. Arguments on the other side that Scalia addresses: - Quantitative. It does not take much effort required to run the background checks. - Distinction between policy-making commandeering and ministerial commandeering. |
| Equal Protection |
NY transit authority adopted a rule prohibiting the employment of narcotic drug users. The rule applies to those who use methadone – a narcotic used in the treatment of heroine addicts – included those who had undergone a 1-year treatment program proved to be very successful. Supreme Court rejects the Equal Protection challenge. Klarman: - Some possible motives for over-inclusiveness of the TA classification: Maybe all groups of people don’t deserve protection, just those who have a history of discrimination. Administrative convenience. It would be difficult to distinguish successful methadone treatment people from others. Disincentive to drug use. Public perception that drug users can’t be safe employees. - Other possible (bad) explanations: Ulterior motive – prejudice against drug users.
Ulterior motive – drug use as a proxy for race.
- Motives for under-inclusiveness (why treat drug users different than alcoholics, etc.): An ulterior motive might be the real motivating factor here. If the rationale the legislature claims is actually the motivating factor behind the statute, then the legislation actually seems under-inclusive. It does not include ex-offenders, alcoholics, mental patients and others who could be voided as unemployable in this context. Under-inclusiveness is potentially worrisome if there are a bunch of groups who might be excluded but the legislature only targets one. Maybe drug users are different and worse and justifiably singled-out.:
Klarman: - Beazer is not a typical minimal-rationality equal protection case. In most, the court is extremely deferential to the legislature. - See McGowan v. Maryland (1961): state legislatures are presumed to have acted within their constitutional power despite the fact that their laws result in some inequality. - Any statute is going to raise some differences in treatment, so an equal protection claim can be made against almost any law. But under minimum rationality, you’re almost never going to win. High deference for the legislature. - Federal courts are extremely deferential to the legislature, but state courts are not nearly so deferential to their state legislatures.
An Oklahoma statute made it unlawful for anyone not a licensed optometrist or ophthalmologist to fit lenses to a face or to duplicate or replace lenses into frames except on a written prescription from an eye doctor. District Court held that this discrimination against opticians violated the equal protection clause, but the S.C. reversed. Klarman: - Court could say there was a public policy defense here in that the law encourages people to go to their eye doctors. - BUT, it’s pretty clear that is not what’s going on. This is one of the clearest examples of a legislature awarding a special interest group. Naked preference. Why then uphold the law? Maybe the legislature thinks interest group pluralism is fine. Evidentiary problem with the motive inquiry. Interest group pluralism is not fine, but it’s too hard to determine what is actually motivating a law. See Lochner v. New York. There’s a public health defense to the statute, but there’s also a chance it’s motivated by a naked preference favoring unionized bakers over non-unionized immigrant bakers. Hard to tell what a “genuine public purpose” is Minimum rationality is really no review at all
Sunstein: Court could defer to most anything State system: Courts are more aggressive; states are often willing to strike down naked interest groups
Court: - There is no requirement of equal protection that “all evils of the same genus be eradicated or none at all”
City denied a special use permit for a group home for the mentally disabled. Court struck it down as an equal protection violation. Court: - Says it’s a “minimum rationality review” test just like in Lee Optical Klarman: But they’re not really applying it the same way - Mental disability is not a suspect class. - The legislature should not have to justify its treatment of the mentally disabled every time, because often the legislature is right in treating them differently - But, requiring a permit here appears to rest on an irrational prejudice Stevens: - Spectrum of classifications ranging from “strict scrutiny” to “rational basis” Marshall: - Under normal standard of review, the statute would be legal (i.e. see Railway Express), so why is the majority deviating? Klarman: - This is not minimum rationality review as it is traditionally applied. Unlike the normal case of just trying to imagine a justifiable reason, the court looks at the actual facts of the legislature to figure out intent (also see Fritz) It violates the traditional view that discrimination may be reasonable even if there isn’t a great reason (see Railway Express) - Court ordinarily, re: race, sex, etc. says that there’s a presumption that discrimination is off-limits, but thinks that’s not the case with mental disability. They want to strike down the rule without casting doubt on larger issues. - Why does the court want to strike down the law, going against the traditional view? Mentally disabled are politically powerless Prejudice – history of discrimination Immutability. Mental disability is not a characteristic you can change.
Examples: - Cleburne: excluding mentally disabled is unconstitutional - Beazer: NYTA excluding drug users is okay - VMI: exclusion of women is unconstitutional - James v. Valtierra: Court upheld a provision of the California constitution prohibiting state entities from constructing low-rent housing projects unless approved by a majority of those voting in a community election. Excluding the poor is okay. - Dale: Boy Scouts excluding gay scout masters is okay, and the Boy Scouts even have a constitutionally protected right to exclude - Excluding same-sex couples from marriage How do we reconcile these outcomes? - Threats of safety? Mentally disabled pose no more threat, but drug users may Court could be correcting factual mistakes about the mentally retarded - Immutability? Some of these characteristics are arguably chosen. But the Court has no trouble with laws imposing maximum age or minimum height requirements for police officers. - Value judgments. A lot of constitutional law is the Court trying to legitimately disqualify legislative value judgments. The Court feels like it cannot just disagree with legislative value judgments. - Consumer preference. Justifying a value judgment based on how your customers would feel i.e. they eat your barbeque if there are blacks there. It’s not that you have a problem with blacks. Palmore v. Sidoti (1984): Couple divorced and the wife got custody. She then married a black man and the judge took away custody on the grounds that it would be difficult for a kid to grow up in early 80s Florida in an interracial family. It’s in the best interest of the child to live with the same race parent. But the Supreme Court said this is the same consumer preference justification and it does not hold. Brown II: this indicates that maybe customer preference doctrine is not so clear. The court said it would approve delays in implementing Brown because it would be difficult administratively. But the conference notes show that really they approved delay because they knew how resistant white Southerners were to integration.
Statute aimed at raising the nutrition level of low-income children prohibits the use of food stamps by households containing unrelated individual. Court strikes this down, finding the real motivation to be to discourage hippie communes. Equal protection must as the very least mean “that a bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.” Said that animosity or hatred can’t be sanctioned
Colorado passed an amendment preventing local ordinances that prevent discrimination based on sexual orientation Court invalidated the amendment - Did not say that sexual orientation is a protected category - Majority did not say they rejected a moral judgment; they said this was hatred or animosity - What makes this different than drug use (unprotected) or race (protected)? Actions versus statuses?
- Klarman: The majority is necessarily rejecting a value judgment but isn’t prepared to admit it Couldn’t this just be disapproval and not hatred?
Means-vs.-ends test
Congress had changed the pension program for a group based on age and employment - Congress thought it was protecting everyone whose pension had vested, but the law didn’t reflect this - Possible reason: statute was written by railroad companies and railroad unions who were not looking out for the best interests of those who were vested but no longer were working for the railroad Should the Court look at actual legislative intent, or just conjecture about what intents were possible? - Weakened the standard further: Majority said it just should look as to whether there could have been any rational reason involved - Dissent: The real purpose is important
Is the law: - *Not wholly unrelated* on some set of facts the legislature - *Might have believed to exist* to some objective the legislature - *Might have had*? Race, sex, and alienage explicitly applies a different standard Expressly says minimum rationality review, but not in fact: Cleburn, Beazer dissenters, Romer |
| History of race discrimination |
Although the state Constitution refers to “all men [as being] free and independent”, if the state legislature had intended to abolish slavery, it would have stated it clearly, as it’s a controversial subject
Slave was taken by his owner from Missouri (slave state) to Illinois and then Minnesota (non-slave states) and then back to Missouri years later where he was sold to Sandford. Scott argued that as slavery was abolished in those other states, he was no longer a slave and shouldn’t be “falsely imprisoned” Also, Sandford (NY) argued that Scott was not a citizen of Missouri, and so the court had no jurisdiction Court: - “Free blacks” are not state citizens for federal constitutional purposes Dred Scott is not a citizen of Missouri no matter whether or not he is a slave. For purposes of diversity jurisdiction, whether someone is a citizen of a state is a federal constitutional question.
- Missouri Compromise, which forbids slavery in the Louisiana Purchase territory north of Missouri, is unconstitutional. Article IV does not create an enumerated power to forbid slavery in a federal territory. Under substantive due process, you cannot deprive someone of their property rights just because he goes into another state. - Dred Scott is not a citizen, and he is still a slave of his owner. Klarman: - Tauny says that he’s not being racist himself, that he’s just looking at the founders’ intent Lessons (Klarman): - The S.C. is not always good at predicting the future. This is pretty much the worst job it did. In this case in 1857, the Court protected slavery in the federal territories. Four years later was the Civil War. So this case looked wrong to pretty much everyone after not too long. Brown on the other hand looked right to everyone within 15 years or so. That case is one of the best examples of the court predicting the future. - Delegating a controversial political issue to the courts as a way of reducing the heat is not always a successful strategy. See abortion. Once the Supreme Court makes a pronouncement about a politically charged issue people are still going to fight about it. But in Bush v. Gore, Gore retired within 24 hours of the court’s decision indicating that maybe the court is good at resolving a controversial issue. But in that case the legal issue is not one that is going to reemerge. The court there resolved a case not a controversy. - Ambiguity of minority rights: The idea of the court standing up for minority rights is a difficult one. Which minority’s rights deserve protection? In Dred Scott, the court is defending the rights of slave owners against oppression by the government. - The court is not always on the side of racial minorities
1875 Civil Rights Act forbade racial discrimination in public accommodations (privately owned businesses that are open to the public) How can Congress restrict private businesses choosing their own clientele? - Under the common-law there’s a general requirement that you take all comers (e.g. railroads must take all passengers), but under the common-law, state precedent stated that racial discrimination was a reasonable distinction Court ruled against the Civil Right Act
Amendments 13-15: - 13: Eradication of slavery - 14: Equal protection - 15: Right to vote Marked a shift in concern: - Prior to the Civil War, the greatest threat to liberty was seen as the federal government. The amendments give greater federal power as many saw that individual states were the greatest threat, as they couldn’t be trusted to enforce laws equitably
Suit over the constitutionality of a state law that required railroads to provide “separate but equal” accommodations to whites and non-whites. The court held the separate but equal was okay. Lessons from Plessy. This is one of the court’s most infamous opinions. - The justices were influenced by broader social and political context of the time. They are reflecting the change. Segregation was becoming pervasive in the 1890s, not only in schools but in places of public accommodation, transportation, etc. By 1910, blacks had almost entirely been disfranchised, even though the Constitution explicitly forbids restricting the right to vote based on race. The US was going on an expansion craze, and the country wasn’t prepared to offer citizenship to Puerto Ricans, Filipinos, etc. More than 100 lynchings a year in the South. Huge disparities in educational funding between black and white schools. Once blacks couldn’t vote for funding this became a real problem. Blacks are excluded from juries. Juries can make racial distinctions in deciding cases. North and South are reconciling by now and thus the North is allowing the white South to determine its own race relations. The price of reconciliation is that the civil and political rights of blacks are no longer protected. - Two ways to look at Plessy: You could argue that the justices were inclined to strike down the legislation in Plessy, but didn’t think they had the power. It seems more likely that the Court was not inclined to invalidate the policy as unconstitutional. It was reflecting the context of the times. Harlan’s dissent: - He’s a former Kentucky slave owner, perhaps trying to counter the criticism lodged against him in his confirmation hearings. But, Harlan is not adopting a modern color blind stance. - This is not modern egalitarianism. He distinguished the railroads but there is no reason to think he wanted school desegregation. - See Cumming v. Board of Education (1899): Harlan wrote the opinion rejecting a challenge Separate and unequal with regard to public schools. Blacks challenged the use of their tax money to support a high school open only to white students. The school board had initially operated a separate black high school, but the facility had been closed to free funds for the education of black primary school students. |
| Brown |
The case. Black school children were denied admission to white schools by state segregation laws. In a 9-0 decision, the court holds that separate facilities in public education are inherently unequal and therefore violate equal protection. - Brown is actually five consolidated cases. - Bolling v. Sharpe (1954): decided on the same day as Brown. Raised a different issue. The case is about segregation of schools in D.C. The 14th does not apply to Congress, so the issue is whether the Due Process clause of the 5th invalidates segregation. This is a tougher legal argument to make, but it would be inconceivable for the Court to strike down segregation in the states and not in the nation’s capital. Symbolically you can’t have segregated schools in the capital of the free world.
Great Migration. Tons of blacks move from the South to the North, so instead of having the black population concentrated in the South, the numbers even out. - Blacks could vote in Northern cities and tended to determine the balance of power between the parties. - Economic consequences. Industry in the north would hire blacks. - Salience. The nation is dominated by the North, so when the race issue moved North it became salient on the national scene. Urbanization and industrialization have political and economic effects. Collective action barriers fall when more people are living in urban areas instead of rural areas. It’s easier to get people together to mobilize. World War II - How can you send Blacks off to fight and then not let them vote when they come home to the South? African American soldiers are the vanguard of the Civil Rights movement. - WWII ideology is highly egalitarian. But see Korematsu. Japanese internment. This is the court deferring to the executive branch in terms of what it would take to win the war. Cold War imperative. National government competing with Soviets for the allegiance of Africans and Asians. Jackie Robinson, black person getting the Nobel Prize etc.
Breakdown: - Reaffirm Plessy: Vinson Reed - Overrule Plessy: Black Douglas Burton Minton - Undecided: Frankfurter Jackson Clark Vinson: Chief Justice has the unfortunate task of presiding over a court that is divided both personally and professionally. The other justices don’t have a lot of respect for him. - Congress passed the 14th amendment and did not declare segregation to be unconstitutional, so this indicates that the two aren’t in conflict. - He’s concerned with the fact that Harlan in his Plessy dissent did not refer to schools. Black: The only justice from the Deep South – Alabama. Black more than any of the others how people will respond in SC or Mississippi if segregation is outlawed. Had been a Klan member in the 1920s, but there is evidence that he joined it more as a social club and for political reasons. Spent a lot of time trying to prove he was not a Klan member at heart. - Black’s position in Brown is an act of extraordinary courage. He more than anyone has his family and friends to answer to. - But even so, it does not seem like he had a lot of doubt on which way to go on this. - Notes that there may be violence in the South. He was trying to scare the other justices into realizing this was a big deal. The district judges are really going to be the ones on the firing line with this because they are the ones at home. - There was a consistent body of precedent in the lower courts in favor of segregation, so he’s a bit worried about this. Reed: from the border state of Kentucky, solicitor general under Roosevelt. - Proves to be the most sympathetic of all the justices to segregation. Not only does he think it is constitutional, he thinks it’s probably a good thing. - Sees it as an issue reserved to the states as a matter of federalism, and to the legislative branch under separation of powers. - He thinks segregation will disappear in 15 or 20 years in the border states without judicial intervention. In the Deep South separate but equal schools must be allowed. - Reed is talked out of voting to uphold segregation in the end for the good of the Court, but he never changed his mind on the legality of it. Frankfurter: Harvard Law professor before he was appointed to the court by FDR. Unpopular with the other justices. - Sounds like he’s leaning toward striking down segregation because he’s addressing enforcement – you don’t talk about a remedy unless you think there is a right. - Does not believe the 14th was meant to abolish segregation. - Kansas trial court found material equality, intangible inequality and said Plessy controlled. But Frankfurter says that if there is any inequality than Plessy has been violated. Jackson: a lawyer from upstate NY, didn’t give a lot of thought to race before he was on the court. Prosecuted Nazis at Nuremburg. - He sees a moral right answer to Brown – he prosecuted Nazis after all – but he can’t find a legal rationale for defending it. - He finds nothing in the text of the Constitution, nothing in precedent, and nothing in original intent that says segregation is unconstitutional. - He is pretty cognizant of the disadvantages of integrated schools. Black teachers will be out jobs. - With Frankfurter, he finds Brown to be the hardest because they see the moral wrong but they have trouble finding a legal rationale. - His clerk noted that he may be embarrassed by the opinion. As a political maneuver, he can deal with it, but not as a matter of law Douglas: a westerner, not confronted with race issues before he made it to the court. He’s a true liberal but before Brown a lot of liberals didn’t really think much about race. - No doubt that he’d vote to overturn Plessy. Burton: a pro-New Deal Republican. He was a Senator of Ohio, past mayor of Cleveland, which has a strong history of racial equality. - Sweatt v. Painter (1950): Texas law school case. Court said Texas had to admit Sweatt because the intangible differences between the black and the white law schools are highly significant. If you apply this to elementary and secondary schools, then the issue in Brown has been decided. - He’s a clear vote to overrule. Clark: from Texas, peripheral South. Truman’s attorney general. - The same rule should apply throughout the country. Why pick on the South about segregation? Northern schools were segregated too. - He seems pretty ambivalent. “He would go along on that basis…” There seems to be an element of bargaining going on here. The DOJ said the Court did not have to choose between two stark alternatives: overrule Plessy but allow a very slow transition. Minton: another of Truman’s buddies. He is not a liberal on all issues, but on race he is. - He’s a clear vote to overrule.
Mark Tushnet argument. Don’t take the conference notes so literally. The justices already knew they would strike down segregation and were trying to come up with a theory as to how. - This makes it easier to understand unanimity. - Problem with this approach: doesn’t take seriously the justices’ own headcounts. Frankfurter thought they were divided 5-4, Burton 6-3, etc. There were 4 clear votes to overturn Plessy and then Vinson, who wanted to reaffirm, died. Eisenhower appointed Earl Warren of California, who went on to become one of most liberal justices of all time. Warren is the fifth vote. - Once there are 5 votes, the justices understand how controversial the decision will be. Rationale for unanimity: Fear of putting institutional prestige and respect of court at risk. Dissent will provide ammunition for critics who want to undermine the strength of the court. Avoid giving white Southerners something to latch on to
How much of what judges do in deciding cases is law and how much comes from or the judges’ own values or the social/political context? - Legal axis: text, original intent, precedent, custom/tradition Range is between determinacy, where there is a clear legal outcome, and indeterminacy. - Political axis: judges’ values, external political pressure, broader social and political context Range is from intense preferences to indifference - Analysis: when legal axis is at the determinate end, judges normally follow. When indeterminate, they will have to look elsewhere. Sometimes even when law is determinate, justices will still allow intense preferences to sway them. Justices themselves appreciate how much world has already changed when it comes to race. Is the legitimacy of the Court much more a product of reaching results that conform with public opinion, rather than what is legally right? - In the 1950s, criticism of Brown was a frequent topic of discussion. - But what people really cared about is that the Court did what was obviously right, got the right result, and got there before rest of country did. - Brown became a representation of the Court’s legitimacy. It predicted the future brilliantly. In long term, what detracts from Court’s legitimacy is not the legal reasoning but the result. (Klarman’s argument) Why were justices like Minton and Burton, so conservative on so many issues, so liberal on segregation? - They were fierce Cold Warriors. That usually lines them up with the government. On this issue, lines them up with the federal government who had intervened on the side of the NAACP against state governments. As a matter of national security, must strike down segregation.
Impact on race relations Warren Court revolution: Criminal procedure, reapportionment revolution, First amendment revolution Romantic image of the Court as counter-majoritarian hero that rescues oppressed minorities. - Is this an overstatement? Opinion polls reveal that in the 1950s a slight majority of the population was in favor of desegregation. The real counter-majoritarian hero would have been in Plessy?
In fact separate isn’t and can’t normally be equal - NAACP prefers desegregation orders over equality largely because it’s very expensive to prove inequality district-by-district, but one law suit on a state level can eliminate segregation Sends a message of inferiority and assumes blacks’ inferiority Segregation makes government too conscious of race Integration is a social good Interferes with free choice Purpose of discrimination is to inflict disadvantages onto blacks
Court speaks about inherent message of segregation: inferiority. Court rejects the relevance of history. We can’t turn clock back to 1868 when the14th was ratified to figure out what that amendment meant re: segregation. Relies on controversial social science evidence to justify the inevitable message of inferiority.
Some people say that if one’s theory of Constitutional interpretation can’t accommodate Brown then the theory is invalid - So, there’s been a lot of effort, particularly among originalists to find a way to reconcile the issues Original Intent of the 14th Amendment is somewhat supportive of the Brown decision. (Klarman does not think originalism will get you to Brown.) - Originalist justifications of Brown: Bork’s view. Framers of the 14th believed in racial equality and segregation. They thought the two were compatible (even though history proved otherwise). So they made a mistake in their facts. They would have been committed to equality once shown you couldn’t have both.
Bickel’s view (Clark’s law clerk). People who wrote 14th didn’t think they were enfranchising blacks and integrating schools. But the “equal protection” language could be seen as a compromise between Republican radicals and moderates, as a delegation to the future.
McConnell’s view.
- Arguments against originalist justification of Brown: DC schools were segregated in 1860s, and through Brown. How could Congress think the 14th forbade segregation if they continued to segregate schools? Most northern states either segregated blacks in public schools, or excluded them altogether. Yet they ratified the 14th. Statements during debates. The main purpose of the 14th was to provide a sound constitutional basis for the 1866 Civil Rights Act, which focused on the right to contract, own property, sue in court.
Political process justification (Klarman’s own publication) - In 1954, 80% of African Americans still couldn’t vote in the South because they weren’t registered). Massive black disenfranchisement. - Malapportionment of state legislatures. Huge problem in 1950s. Malapportionment is a product of population shift from rural areas to the cities. Cities did not get more representatives, so state legislatures heavily overrepresented people living in rural areas, who tend to have more regressive racial attitudes. - Together, this signifies that political process was broken. If you had a majoritarian process that was functioning correctly, maybe legislatures wouldn’t have segregated schools in first places. Court is just fixing the problem. - Critiques of this argument: The solution, if this is all true, is to fix the problem. It’s an indirect solution to say you’re going to desegregate the schools. In every southern state, whites are a majority. May simply outvote blacks. Substantive Justice: the best justification for Brown? - Court decides that racial segregation is evil, and that it was “right” to strike it down - But, does the Court then have the power to exercise this method of “substantive justice” in every single controversial issue-like abortion, prayer in schools, etc? This argument is problematic, but it may well be the best justification for Brown. |
| Brown II |
Was delayed somewhat by Jackson’s death The deep South refused to file briefs in the case (fearing legitimizing the process)
The Court ordered a rehearing in the case to determine appropriate relief for the violation of a black student’s equal protection rights. Three issues: - Is desegregation going to be immediate or gradual and delayed? NAACP is asking for immediate desegregation. The South (those who are willing to participate in argument) wants gradual - How detailed will Court’s order be? How much guidance to provide, how much to leave to district courts? - Will Court treat this as a class action or an individual suit? Three parts to the holding: - Part I. Federal district courts have primary responsibility for supervising desegregation because of their proximity to local conditions and the possible need for further hearings - Part II. Court gave no precise guidelines for carrying out desegregation. Instead, it directed the district courts to use “general equitable principles” - Part III. District courts were authorized to take into account the public interest when eliminating desegregation-desegregation could be implemented with “all deliberate speed” Court opts for gradualism and vagueness (doesn’t uphold the idea that an unconstitutional act should be remedied immediately). Language in Brown II – “prompt and reasonable start”, “all deliberate speed”, “desegregation at the earliest practicable date” – emphasizes the flexibility of equity. - Why did they do it this way? It was part of a deal with the opposing justices in the first opinion Trying to avoid creating “unenforceable” orders Conciliation/accommodation to opponents. It will manage the resistance if you appear reasonable.
Enhance credibility by limiting defiance. Unanimity. Sense of guilt/bad conscience about lack of legal justification. Residual racism. Justices more empathetic for white southerners being coerced out of segregation than to blacks being coerced into integration? - Criticisms: The Court being lenient made it hard for anyone to go along with Brown because the Court seemed to be weak and vacillating. Slow implementation made the decision seem less inevitable. This was seen as a victory in the south, like the court “blinked under pressure”
Citizens’ councils. Critics call these types of groups the “uptown Klan.” They eschew violence but they want to preserve the segregationist status quo. They present themselves as the respectable face of Southern White opposition. - Leveraging white economic power to undermine black efforts to alter the racial status quo – fire black parents from jobs, foreclose on mortgages of black parents who push for integration. Rebirth of the KKK. Interposition/nullification resolutions. The declarations deem the Brown decision null and void and purport to overturn it. Most Southern legislatures passed these. No one took them as legally valid, but they were powerful political instruments. Southern Manifesto (1956). The vast majority of reps in the South signed it. It said the Brown decision was illegitimate and pledged to use all methods (aside of violence) to resist it. Noticeable political shifts in all Southern states. Politicians compete against each other to be the most radical segregationists, and the middle ground collapses. Blacks rarely brought any law suits for fear of reprisals. Medger Evars was the first in Mississippi, and he was chairman of the NAACP and was assassinated later that year
Eisenhower sent in the National Guard to enforce a court order to integrate Little Rock schools. In Cooper, the Court denies the Little Rock School Board a reprieve from desegregation, which they wanted because of the effect of resistance on the educational environment. Court is standing up for the President. He signaled his approval here, and the Court has to reciprocate. - Before this case, the Court had removed itself from the desegregation issue for a while. - This isn’t really a turn back toward court involvement, because the Court is doing the bare minimum. There’s no choice but to deny the reprieve here, or else the court would be giving an incentive to resist. After Little Rock, the only remaining option to resist integration is to close schools. This incident makes it clear you can no longer simply resist without troops showing up. - In Virginia – see Griffin – and Little Rock, schools did close for the 1958-59 school year. They tried to create a private school system overnight so they wouldn’t be bound by Brown, but this turned out to be disastrous. Massive resistance basically came to an end by the end of the decade in the upper South. Went on for four or five more years in the Deep South. Klarman: - There’s some impressive language in here, but the case really doesn’t mean very much. It just says that they support the President (but of course they’re going to support the President after he supported them)
Large cities in the border states acquiesced pretty quickly to the decision, because they didn’t really feel strongly against it. In the South – 11 states – Brown did nothing for a while. Only 1 or 2 in a 1,000 black students attended integrated public schools in the upper South. In the Deep South – Alabama, SC, and Mississippi – 0 blacks attended integrated public schools in 1963. - “Massive resistance” - How can this be? Court did not see itself as a super school board. It decentralized the process. First, the schools boards got a crack at integration:
There are hardly any lawsuits in the Deep South. Brown itself only applies to five school districts. So to get it to apply to others, you have to sue.
Also, it would be hard to get past local judges which support local white views
So for ten years after Brown, very little happens toward integration. - After massive resistance, Southern states adopted delay and evade strategies. They switched from massive resistance to “Tokenism” integration strategies: Desegregate one grade a year. - Freedom of choice. Tell whites and blacks to do wherever they wanted. Whites would stay in white schools, and blacks could basically be pressured to stay in black schools. - Minority-to-majority transfer. But then whites put in black schools would transfer out, and blacks put in white schools could be convinced to. Minority race could transfer to where they were in the majority. - Pupil placement. An effort to preserve segregation by putting a lot of discretion in the hands of the school boards. Students were allocated to particular schools based on a list of criteria – aptitude testing, place of residence, psychological profiles, sibling placement. If you have enough criteria, it’s almost impossible to prove discrimination. Preserving segregation, but purporting to do it without discrimination. Couldn’t be challenged in federal court without going through the expensive administrative appeals process. Purports to be individualized based on student, which would make it hard to stage a class action suit. Burden is on those seeking desegregation. They have to ask to be assigned to white schools. Lower courts were pretty lenient on this, because instead of blatant resistance, at least the schools were pretending to comply. Two cases that show Court approval of token integration: - Shuttlesworth (1958): facial challenge to pupil placement. Supreme Court summarily affirms lower court decision rejecting the challenge. On its face, pupil placement is not unconstitutional. There were adequate legal grounds for the court to come out the other way if it had wanted to:
The perception is that this case is the Court approving of a tokenist approach. - Kelly (1959): cert. denial. Nashville used grade-a-year, and minority-to-majority transfer. Sixth Circuit upheld this, and the Supreme Court denies cert. You’re supposed to draw no inference from a cert. denial about what the court would have said if they had heard the case. But, the message here then was that the S.C. was ok with token integration |
| Subsequent desegregation |
It didn’t really want to get involved in school desegregation, but had to in schools
Watson v. Memphis (1963): Public parks in Memphis. The court says “all deliberate speed” concession only applies to schools, and other institutions have to be integrated immediately. - In dicta, the justices also said that “all deliberate speed” may mean something different then than it did 8 years ago. - This is the court signaling that it is picking up the pace. Happened the same month as the Birmingham street demonstrations. Goss (1963): invalidates minority-to-majority transfer. This is the same type on plan the Court denied cert on in Kelly. Griffin (Prince Edward County, VA 1964): this is one of the original Brown cases, had been in litigation for 14 years. In 1959, PEC decided to close schools. By this time, the schools had been closed for 5 years. Whites got their education through private avenues, but 1,700 blacks went uneducated. Court strikes down PEC school closure, holds that it is unconstitutional not to run a school system, and orders tax increase to support it. - Why is it unconstitutional to not provide a public school system? Constitutional right to public education?
Motive. Traditionally (and in the 1960s), the Court didn’t look to motive behind certain actions i.e. poll taxes, literacy tests, but maybe it is here.
Tuition grants to attend private schools have a disparate impact. Facially, they are as available to blacks and whites equally.
Geographical inequality. This is the main basis for the holding. It violates the 14th amendment for PEC to not provide public education when all the other counties do. - None of these arguments are all that strong. More likely than not, what the court is doing here is responding to political pressure: PEC is an embarrassment. Green (1968): New Kent County, Virginia is a rural county that has whites and blacks living near each other. This was not how it was in cities. In rural counties, neighborhood schools would automatically mean integration because the two races lived mixed. Under a freedom of choice plan, all the whites picked the majority white school and 80% of blacks picked the black school. - Is there something wrong with the people choosing to be segregated as along as the school district gives them the option not to be? YES. Court invalidates a freedom of choice plan. The focus is on effect. If the schools are not actually integrated it’s not okay. - Background: 1964 CRA Title IV: Federal funds will be entirely withheld from non-integrated programs 1965 Elementary and Secondary Education Act: States with most poverty are most eligible for federal funds 1966: Dept. of Health and Welfare guidelines: Freedom of choice is evaluated based on results - Why is freedom of choice unconstitutional? Effect. Constitution requires actual integration
Choice wasn’t really free: it’s influenced by community pressure
Discriminatory motive – school district anticipated the effect from the beginning Obligation to un-do segregation: remedy for the past Swann v. Charlotte-Mecklenburg (1971): Busing. The first big urban desegregation case. By 1968, over half the black students in Charlotte were still attending schools that were 99% black. The district court adopted a plan involving gerrymandering of school districts and busing between inner-city and outlying schools. SCOTUS affirmed the desegregation plan. - Some segregation is a result of the fact that there are segregated housing patterns. De jure segregation – state mandated
De facto segregation – results from private choices - The court talks out of both sides of its mouth in this case. It says the state only has to work to correct state-mandated (de jure) segregation, but the remedy it suggests looks more like it is remedying de facto segregation. - Swann is a big victory for school desegregation. How? Approves busing to desegregate Presumption against single race schools. Presumption that these were caused by de jure segregation and not by housing patterns. Starting point is that every school should reflect the larger racial balance of the community. Keyes (1973): the first Northern case, Denver. Another big victory for desegregation. - There is no state-mandated segregation in the North. Almost all states have a law against segregation. Segregation exists through the in-between level surreptitious actions by lower level administrative officials. How? Gerrymandered attendance zones School placement decisions Transfer options if you’re in the minority in a school - Keyes asks what to do about this type of segregation in the North. What the court does is similar to in Swann. - Segregation was proved in parts of the city. Once you’ve proven that there was deliberate segregationist design in a part of the city, the effect on the whole district is presumed, and the court authorizes a remedy covering the whole district. Milliken (1974): Detroit. 5-4 ruling. This is the most important desegregation case since Brown. Not a victory for desegregation. The Keyes remedy is fine within a district but not once you cross district lines. Suburban white school districts can’t be included in plans to desegregate urban schools. They were not part of the violation, so they cannot be included in the remedy. - This is massively important because most urban school systems consist of a city district – often largely black – surrounded by white suburban districts. - If you can show that the lines were drawn so as to affect segregation, then the remedy could apply to the suburban districts, but this will be very hard to do since district lines were drawn long before. - This basically means that Northern cities with different districts were immune to desegregation via busing, but in the South where a single district often encompassed the city and the suburbs, like in Charlotte, desegregation by busing was effective. - Nixon ran on a platform that included opposition to busing. His four appointees were four of the votes that made Milliken. - There was talk of a Constitutional amendment to prevent courts from requiring busing, but Milliken quieted that Following Milliken, not much changes for 15 years or so. Court basically just keeps the status quo. - Spangler (1976): desegregation orders can’t be adjusted to reflect demographic shifts. - Dayton and Columbus (1979): affirm Keyes presumption. If you can show deliberate segregation in part of the district, you can get a district-wide remedy. - Court changes: 1986: Scalia 1987: Kennedy 1990: Souter (a surprise, as he’s very liberal) 1991: Thomas
1993: Ginsberg 1994: Breyer Dowell (1991): an important case. In 1972, Oklahoma City institutes desegregation remedy. In 1984, it alters the plan to reduce amount of busing. The effect of this would be to re-segregate, because busing was the only thing achieving segregation because of segregated housing patterns. Court remands the case. The remaining segregation is based on private housing choices and it is not the business of the court to change those. Unless there is some cure for segregated housing patterns, the district would have to bus forever, and the Court won’t support that. Key points: - Desegregation remedies were supposed to be temporary. Eventually, a district is supposed to achieve unitary status and be relieved from the remedies. - Districts must have complied for a “reasonable amount of time” and have desegregated “to the extent practicable” Missouri v. Jenkins (1985): Remedial funding. District court imposed an especially lavish remedial funding order. Ordered the creation of magnet schools to attract white children, and ordered that the property tax levy be raised almost 100%. Can a district court do this? - Yes, according to the court in Milliken II (1977), where a court imposed a remedial funding order after Detroit lost on the busing question. - Federal court can’t order tax increases, but can order local officials to impose them. - In Missouri v. Jenkins, the court: Upholds the rights of district courts to order local officials to impose tax increases. Cites Milliken I to say that the objective cannot be “desegregative attractiveness” i.e. a goal of luring white students back into the city schools. Says there is too attenuated a connection between salary increases and desegregation goals. Refuses to find that past discriminatory behavior leads to lower test scores. Lower test scores are not a block to unitary status. They could be the result of lots of things. - Again, court remands the case but with a strong hint that Kansas City has achieved unitary status. |
| More race-based issues |
Schools today are actually more segregated than they were 50 years ago There has been more re-segregation in the last 15 years Schools in the north are more segregated than ever BUT, if you look at general developments in a race context, people see Brown as a success
One view (Derek Bell): - If the focus was just on equalization, we would have gotten better schools overall, and today we still have integration anyway - Southern whites would have been more willing to give blacks equal schools to buy off people who wanted integration Response: - Ahistorical: Looking at the position of people coming out of WWII, they weren’t willing to accept separate but equal: they wanted the ideal of integration. Bell’s suggestion doesn’t fit in with the historical context - Missing incentives: Whites move from cities to suburbs starting in the 1950s, so they didn’t have to worry about integration any more anyway. Thus, they had no incentive to support equalization because there were no blacks to be in their schools anyway State equalization cases: Though these were passed and upheld, legislatures would often not fund them
Strict scrutiny is the standard. The classification must be necessary to a compelling governmental purpose. - Classifications based on ethnicity also get strict scrutiny. - Definition: it’s necessary to show a “compelling purpose” BUT:
Distinguish these from: - Racially neutral classifications that have a disparate impact. See Washington v. Davis - Affirmative action plans that purport to benefit minorities. Why does the Court treat racial classifications differently? It’s hard to justify on normative ground why we have a ban on racial classifications. - History of discrimination based on race. The history of the 14th also shows that the framers were intending to redress past wrongs based on race. But: Dead-hand problem The 14th amendment points us to race, but does not get us all the way to a presumptive ban. - Race is almost always irrelevant and irrational BUT, if they’re truly irrational, why does there have to be a heightened scrutiny? - Immutability. But: See Cleburne. Mental disability is immutable, and that’s not a suspect class. Religion is a suspect class, and in a lot of cases that is immutable. - Consensus This may be the strongest argument BUT, again, why would a court be the better judge of consensus than a legislature? Maybe this is a “national” consensus being imposed on renegade states - Political process arguments (Caroline Products): Access prong: Black’s can’t vote
Prejudice prong. An unjustifiable refusal to make deals.
Most persuasive criticism of this is that it does not work without making substantive value judgments. Two illustrations:
- Consensus within society against racial classifications But then why would we need a constitutional ban? Shouldn’t the consensus be self-enforcing? Maybe there is a consensus but with pockets of outliers. But our federal system is supposed to recognize local opinion, not suppress it, so this argument might not work. - Normative condemnation. It’s just wrong for the Court to take race into account. This is the position Scalia and Thomas take on affirmative action. Do we really want the court in the business of making normative judgments? Then they could do so about homosexuality. - Discrete and insular minority Discrete – you can tell a characteristic by looking at someone. Insular – the group tends to stick together. These are neither necessary nor sufficient to constitute a suspect class. See Ackerman argument in notes that discreteness and insularity may be a good thing. Why is strict scrutiny the doctrinal test? Two explanations that diverge when we get to Washington v. Davis. - Ely’s process justification The purpose being served by strict scrutiny is ferreting out bad purposes. Historically race specific classifications have been used for bad reasons, so we put the burden on the government to show otherwise. - Fiss’s group-rights (effects) justification Focuses on the burdens and effects suffered by historically disadvantaged groups. If you are going to again burden a historically burdened group, you’d better have a really good reason and it better be the only way to accomplish the objective at hand Korematsu v. United States (1944): the principal case on race specific classifications that disadvantage minorities. Law discriminates on its face. President authorizes military commanders to issue exclusion and internment orders against Japanese Americans. Korematsu, a citizen of unchallenged loyalty, but of Japanese descent was tried and convicted for remaining in his home contrary to the exclusion order. - Reasoning behind those who favored internment: National security Self-protection Difficulty of distinguishing invaders Peter Irons:
- BUT: Underinclusiveness
- Holding: All legal restrictions which curtail the civil rights of a single racial group are immediately suspect and subject to strict scrutiny. Here, though, Court held that exclusion of Japanese Americans was within the war power of Congress and the Executive. Internment passes strict scrutiny. - This case came down in 1944 when the war was close to over. It could conceivably have come out the other way. But if it had been heard in 1942, say, there’s no way the Court would’ve ruled against internment. Public opinion matters. - Justice Jackson made a separate opinion advocating neutrality. It’s impossible to expect the Court to stand up against the military in war time. But rather than legitimizing military action by calling it constitutional and setting dangerous precedent for peacetime, suspend judicial review and just let the military do what it wants without interfering one way or the other. - See Merryman (1861). Since September 11, 2001: - Maybe the court will intervene, but only after the fear dissipates Hamdi (2004) - When there are interventions, they should be only around the margins Legislative authority Minimal due process protections Habeas corpus - Insidious legitimization If judicial review is taken away, the legislature/executive branch may go even further Palmore v. Sidoti (1984): Supreme Court overturned a lower-court ruling awarding custody to the other parent after the original white parent with custody remarried a black person - Though the child may live with the social stigma of living in a biracial household, the “reality of private biases and the possible injury” due to them is not “permissible considerations.”
Palmer v. Thompson (1971): City council closed a municipal swimming pool following court-ordered integration. Narrowly divided Court held 5-4 that the law did not violate the EP clause. - Court did not look to motive. Two paradoxes if the focus is on motive: The legislature could just come back and pass the same law again for a different reason. The same law could be valid in one place if pools were closed to save money, for example, and not in another is closed to prevent integration. - Maybe the way to explain the Court’s ruling is to say there was racially influenced motive, but not disparate impact on the races. Closing the pools affected both races the same way. But in Loving v. Virginia the court struck down the prohibition against inter-racial marriage. That law theoretically puts the same restrictions on white as on blacks, but the court struck it down on the basis of stigma. Washington v. Davis (1971): Case involves the validity of a qualifying test administered to applicants for positions as police officers in DC. Unsuccessful black applicants challenge that the test measuring verbal ability, vocabulary and reading comprehension discriminated against them unconstitutionally. - The rule: laws that are facially race neutral do not violate the Equal Protection Clause simply because they have a disproportionate impact on one race. - Disparate impact is not enough, there has to be discriminatory *purpose*. If you can’t prove purpose, then the law only has to pass minimum rationality review. Klarman: Pro
Klarman: Con
- Enactment v. administration. This is the first time we see that bad purpose in enactment of a law is an EP violation. In Yick Wo v. Hopkins, (1886), we see that bad purpose in administration of a law is unconstitutional. There, a local ordinance prohibited operating a laundry not located in a brick or stone building without the consent of the board of supervisors. Petitioner and more than 200 other Chinese nationals had had their petitions for consent denied. Court the administration of the law so as to disadvantage a particular class of people violates equal protection. Personnel Administrator v. Feeney (1979): the most important statement of what it means to show bad purpose. Massachusetts adopted a veteran’s preference in terms of employment. Had a disparate impact on women because 98% of veterans were men. Is that enough to invalidate? - To invalidate a statute you need to show the legislature adopted it *because* of the disparate impact not merely that they knew of the disparate impact and adopted the law in spite of it. Mobile v. Bolden (1980): Whether a certain practice of allocating city representatives on the city council allocates votes disparately - Klarman: Two methods for voting Ward system: Dividing the city into regions with each region’s citizens voting for a candidate At-large system: Keeping one large region and giving each voter in the city three votes for different candidates
- Mobile used the at-large system and so never got a black representative - Court: Disparate impact is not sufficient (Washington v. Davis). Purpose would have to be shown This is not unconstitutional Rogers v. Lodge (1982): Very similar circumstances to Bolden - Court: Comes out differently, saying that an at-large voting system *is* unconstitutional That there was never a black elected is enough to prove purposeful exclusion - Klarman: It seems that when it comes to voting, the court doesn’t use the normal Washington v. Davis discriminatory purpose test. It uses disparate impact as an inference for discrimination This time (in contrast to Mobile), there was more past history of discrimination Voting Rights Act of 1982 - Watered-down the standard: now it the statute requires “equal opportunity to elect members of one’s race” - This act was considered questionably constitutional: what gives Congress the authority to determine the standard for interpreting the Constitution? Village of Arlington Heights (1977): Village denied respondent a rezoning permit for the construction of low and middle income housing. Respondent argued the denial was racially discriminatory. - Court: Respondents failed to meet their burden of proving a discriminatory purpose. - Klarman: It’s hard to use an iterative test in this case. There’s not much else to compare to this time, so this was a “one-shot” test, and didn’t give enough proof to show that there was a discriminatory purpose. Dan Ortiz argument: - Private sector cases tend to require more than just disparate impact, generally needing proof of a discriminatory purpose - Public sector cases don’t need much more usually than just disparate impact Gomillion v. Lightfoot (1960): Tuskeegee boundaries were redrawn by the state in such a way that all blacks were drawn out of the city - Court: Disparate impact was so great and so obvious that it clearly had a discriminatory purpose Batson (1986): If you can show that the prosecutor is excluding blacks from the jury in a racially charged case, it is unconstitutional. Becomes clear in subsequent cases that this applies regardless of the race being excluded, or regardless of who is bringing the challenge to a person’s participation on the jury. But this is a hard thing to prove. - Arguments by dissenters that the court rejects: This is a unique context where arbitrary government action is permissible. Peremptory challenges don’t require anything except the prosecutor not liking the looks of someone. So if that level of arbitrariness is allowed, why not allow race to be considered? This was equality in discrimination. Whites can be kept off juries for race too. McCleskey v. Kemp (1987): 5-4 decision. McCleskey argues that the death penalty is unconstitutional because of discrimination based on the race of the victim. People who kill whites are four times as likely get the death penalty than those who kill blacks, exhibiting devaluation of the life of blacks. - McCleskey argues that the Georgia legislature has gone on enforcing the death penalty knowing that it has had this disparate impact. - It doesn’t matter if they knew of the impact and continued in spite of it, but rather legislature would have had to enforce death penalty because of its disparate impact. This is the Washington rule as refined by Feeney. - See notes for Powell’s response to the Baldus study.
Discriminatory purpose - Washington v. Davis Unconscionable discrimination / selective indifference - Example: punishing crack users more than cocaine users Congress wasn’t sadistically trying to impose harsher penalties on blacks, but it may have been indifferent to the results This switches the burden: what would have happened if the scenario had been swapped?
Disparate impact - Palmer v. Thompson |
| Affirmative action |
The law regarding affirmative action has changed significantly since first articulated in Bakke, has become more conservative. Court said in 1995 that the same strict scrutiny purported in Korematsu will be applied to affirmative action challenges. Still, we don’t really know which affirmative action plans will be upheld and which will not. There’s a block on either side, and the split basically comes down to O’Connor. PRO arguments:: - Backward-looking: an effort to redress past discrimination These plans have to be necessary to a compelling purpose. Court is really wary of over-compensatory plans. 25 years ago it was enough for a plan to redress general societal discrimination. See Bakke. Now, in Croson, the court looks for specific discriminatory violations to which the remedies are closely tied. There’s been a shift on this. Court is interested in both whether the discrimination came from society as a whole or from a specific actor, and whether the person benefiting was himself discriminated against or just part of a general group that has faced discrimination. - Forward-looking: create an integrated society or diverse student body CON arguments: Note that a lot of these arguments stress effect. Washington stresses purpose. Why shift the emphasis here? - Takes race into account. Doesn’t afford individual treatment. Government should not be cognizant of race. Criticism: nowhere in the Constitution does it say government cannot take race into account. - Inaccurate; over-compensatory – when do you draw the line? - Innocent victim argument. The people that are bearing the costs – the white guy who doesn’t get into med school – are not those that caused the harm. Criticisms: an effect argument again. Also, there is not constitutional rule protecting innocents. - Under-compensatory – limited to only some groups - Harmful/stigmatizing to the group it purports to advantage. Creates a dependency or appearance of a dependency on government help. Criticisms: effect is debatable. Why should the court be the one to determine if policies are harmful? Focus here is on effect, not purpose. - Problems in implementation - Efficiency argument – you’re making selection decisions based not just on merit Criticism: the Constitution does not require efficiency. This ties back in to the first argument – there must be something different about race. - Prophylactic argument – you don’t know if something is benign or invidious until you take a close look at it. Malevolent racial classifications may be disguised as benevolent affirmative action plans. Criticism: Washington evinces confidence in the Court’s ability to discern legislative purpose. Why abandon that now?
Criticism: Washington doctrinal argument. As to the subgroup, there is facially no classification, so you have to show discriminatory purpose. - Affirmative action policies are really just racial politics. Criticism: interest group politics is not normally a problem. Is race somehow different? - Racially divisive Criticism: it is not unconstitutional to produce divisive results. Brown was extremely divisive, and Roe still is. Differences in racial classifications in Brown versus in affirmative action - Assumption of inferiority In Brown, the law assumes that blacks are inferior and that they need help - Purpose is to disadvantage - Stigmatic effect One reason that Brown may be right is that racial classifications convey a stigma on minorities Judicial activism v. Judicial restraint - When the SCOTUS strikes down AA, it is judicial activism from the right, when normally this comes from the left - What is “judicial activism”? Mostly just a pejorative term people throw around First have to define what judges can do to decide what they are doing that goes beyond this because “activism” is going beyond the legitimate realm of courts’ power Judges are allowed to strike down laws (judicial review), but where should the line be drawn? There is no agreement on what courts are even supposed to do (living Constitution versus originalism). So, then how can one decide what goes *beyond* this if you can’t even define what’s *supposed* to be done? - SCOTUS today is maybe the most “activist” in history, so why do we (especially conservatives) characterize activism as bad, and imply that it only cuts one way? Activism from the right:
Activism from the left:
Bakke (1978): UC Davis reserved 16 spots in its medical school class of 100 for minorities. Four liberal justices upheld the set-aside provision, 4 conservative justices would have struck it down. Powell was the difference. He said race can be considered as a factor in achieving diversity via flexible preferences, but you can’t have quotas. - UC Davis is a new medical school at this point. It did not discriminate in the past. Powell seems to say that it is okay to have redress for past discrimination by a body not responsible for that discrimination. Adarand (1995): Court will apply strict scrutiny to all governmental race-based classifications, whether designed by federal or state government. To be constitutional, a racial classification has to be narrowly tailored to a compelling governmental interest. - Overturned Metro Broadcasting, in which the court upheld an FCC policy favoring minority broadcasting licenses on the ground that this preference encouraged programming diversity. - Klarman: What are compelling interests? Diversity? Redressing past discrimination? Underserved communities? Cromartie v. Easley (2001): O’Connor switched and joined the four liberals on a minority voting district issue. Possible she’ll vote to uphold the Michigan plan? Factors that might influence Justice O’Connor: - Level of government (Congress or City Council?) After Adarand Constructors, Inc. v. Peña, formal standard is the same no matter what level of government, but she might still be influenced. - Legislative v. judicial affirmative action plans. One might be more comfortable with a judicial plan, because the legislature could just say it found discrimination because it wanted to pass a program and needed proof to do so. - Who did the discriminating? Does it have to be the same institution that is running the affirmative action plan? Under Bakke, the answer would have to be no. But Wygant (1986-87) suggests the opposite. If the school board is going to run an affirmative action plan it has to be redressing its own discrimination. City of Richmond v. Croson (1989): Court accepts the idea that the Richmond City Council can both redress its own past discrimination in awarding construction contracts, and it can prevent itself from being a “passive participant” of private discrimination. - How specific do the findings of past discrimination have to be? In Croson, court establishes a pretty high standard for proving past discrimination
- How narrowly tailored does the plan have to be? Even if the plan furthers a compelling governmental interest it is still not necessary if it could have been more narrowly tailored. Want to avoid over and undercompensation
Could the same purpose – diversity – have been achieved through a race-neutral program? This is going to be a big issue in the next ten years or so. Alternative action.
Diffuseness v. concentration of the burden Egregiousness of the violation trying to be addressed Grutter v. Michigan (2003) - Only time O’Connor has ever voted for an affirmative action plan - Split decision: Upheld law school’s consideration of race as a factor Rejected undergraduate school’s provision of a 20-point bonus for underrepresented minorities
Is it Constitutional to execute those convicted of capital crimes as juveniles Klarman: - Do we have an originalist or living Constitution? Most of the justices clearly favor a living form Scalia favors an originalist Constitution (8th Amendment argument favoring a living form was flawed) - Trop v. Dulles (1958): 8th Amendment suggests that the Constitution should act as a living document - Doctrine of evolving standards of social decency Look to how many states have the death penalty, and who has it for juveniles
Do you focus on the shift in states during the years (trends)? Theory or practice?
Are international norms relevant? - How much does consensus determine? Line-drawing: If you’re really an originalist, you’d allow juries to execute 10 year-olds - SCOTUS didn’t overturn the Missouri SC decision, it affirmed it Why did the MSC believe it could disregard the prior SCOTUS Stanford v. Kentucky decision allowing the juvenile death penalty?
|
| Schiavo case |
Issues: - Can Congress legislate for a single case? - Does this violate a separation of powers? 5 of the 14th Amendment: her right to life is conceivably being violated BUT, it’s unlikely that a court would find that her right to life is being violated (the state court found that it was her preference to end her life in this condition) Similar case: Cruzan (1990) - Court said it would allow the death if there were clear and convincing evidence that it was that person’s preference (not just 51% – the presumption is against it being the preference) |
| Gender |
Arguments for subjecting gender classifications to heightened scrutiny: - Immutability - History of past discrimination - Immoral, generally sex is irrelevant to legitimate governmental objectives This normative argument may well be the strongest. - Political process argument – women are a minority in legislatures - Discrete classification. Gender is easily observable Arguments against subjecting gender classifications to heightened scrutiny: - Women are a slight majority of the population, and thus distinguished from racial minorities. Certainly not a discrete and insular minority under Carolene Products. But, women are not a majority of elected representatives. All women do not think alike on this issue, so those that do might constitute a minority. False consciousness. People’s perceptions are shaped by the status quo and if the status quo is unconstitutional the judiciary needs to interfere to remedy that. But this is a pretty patronizing view point - Purpose of the 14th amendment was to protect race not sex. It’s tough to make an originalist argument for protecting women under the 14th. The amendment clearly invites disfranchisement of women. It says you can’t withhold the vote from men over age 21. Arguments that 14th amendment does apply to women, still from an originalist standpoint:
- Disfranchisement. Women have not been disfranchised since the passage of the 19th amendment giving them the vote Frontiero v. Richardson (1973): Under federal law, a male member of the uniformed services could automatically claim his wife as a dependent, but a female member only could if she could show her husband depended on her for more that half of his support. Court was divided as to the appropriate standard of review, but 8 justices agreed this was an EP violation. - Brennan argues that since Congress has passed the ERA and has decided to treat gender differently, than it is justified for the court to do so. - But Powell says that if the proponents of equal gender rights can get a constitutional amendment through Congress then they don’t need help navigating the political process. Reed v Reed (1971): The Brown of gender discrimination. This was the first time the court struck down a gender classification. An Idaho statute established a hierarchy of persons entitles to administer the estate of a decedent who died intestate. If two or more people were in the same class, preference should be given to the male. Geduldig (1974): California disability insurance scheme that excludes coverage for pregnancy. Court said this was okay. But, Congress comes back and passes the Pregnancy Discrimination Act, which effectively overturns Geduldig and says that kind of classification is not consistent with the Constitution. Doctrine: After Reed, it takes five years before the justices reach a consensus on level of scrutiny. They decide on intermediate scrutiny, which requires a substantial relationship to an important governmental interest. This is halfway between strict scrutiny – for racial classifications – and minimum rationality – i.e. the opticians.
Social stereotypes - “Product of thinking about traditional conceptions of gender” - Striking down laws that strike down “archaic and overbroad generalizations” - But, there are still some socially-created distinctions that have been made that the court is nonetheless unwilling to change The court doesn’t do a very good job explaining which it will overturn and which it won’t - In the cases from the 1970s, more often than not it was men who were being disadvantaged by these gender classifications, while the stereotypes disadvantaged women. With racial classifications, the disadvantage and the stereotypes all fell with the blacks. It seems the court is reflecting the women’s movement with these cases and catching up with social progress, rather than pushing the social progress of the nation as it did with Brown. Natural differences - Three problems: How do we know what they are?
Even when you identify a natural difference, how do we know if the legislation was actually identified for that reason?
Even when you identify a natural difference, is the state’s response to it appropriate?
Reed (1971): Involved who would receive authority to be an administrator of a decedent’s estate (the law favored men over women) Frontiero (1973): Struck down procedures awarding spousal allowances for wives of male members of the military but not the reverse Craig v. Boren (1976): Law provides that men are not allowed to buy 3.2% beer until age 21, while women can buy it at 18. Stereotype is that young males will be young and reckless and more likely to drive drunk. - First case where the Court applies intermediate scrutiny. Statistics show males 10 times more likely than females to be caught for drunk driving. - Court condemns sex classifications, even if they map onto reality, b/c reality may have been produced by stereotypes and discrimination. - Court isn’t saying it’s irrational, but it’s barring the distinctions nonetheless J.E.B. v. Alabama (1994): The Court held that gender-based peremptory (jury) challenges were unconstitutional. United States v. Virginia (1996): Is the creation of a separate VA Women’s Institute for Leadership enough of a remedy for prohibiting women from attending VMI? - Court says NO 7-1. - VWIL was not created on the same model as VMI – it was not patterned on the adversative method, but on one that the creators thought more appropriate for women. - Standard of review. Ginsburg is trying to sneak in a higher standard here: “exceedingly persuasive justification.” Court has used this terminology before, but has not adopted it as a standard. She used to litigate these cases and had tried to get the court to adopt strict scrutiny for gender cases It sounds like “compelling interest” - Is the standard being used here really intermediate scrutiny? Ginsburg seems to say if there is any woman who would prefer VMI and could satisfy its standards, then she should have the opportunity to try. Sounds like incredibly strict scrutiny (like it requires individualized consideration – strictest form of strict scrutiny) - *** This decision seems to indicate that the majority of justices think they can intuit when a gender classification is based on a traditional exclusionary construct v. one that is intended to be compensatory for past discrimination. - Ginsburg says that diversity is a compelling interest. But, she argues that diversity has to be the real motivating factor behind an affirmative action scheme, not just an after-the-fact justification. - Ginsburg takes the liberal feminist position – we are looking for formal equality. VMI does not have to change its standards. It just has to allow women to compete. What is left standing after VMI? Are any gender classifications still ok? - Sex-based affirmative action is still okay to redress past discrimination. But, it is going to become harder to defend this as the court is clamping down more and more on race-based affirmative action. In the VMI case, the court seems to imply that some sex-separated education is acceptable, but it believes it has to have confidence that it can tell the difference between socially created differences that are beneficial to all involved (both sides) and those that are not Califano v. Webster (1977): women were allowed to exclude more years of lower earning for a higher average. - Even under the ERA, sex-segregated bathrooms would probably never be struck down. This indicates that there are still some classifications that are still ok. But why should we uphold sex classifications that people don’t have a problem with and strike down those that people don’t like when they are both just based on social conventions at base? - Klarman: the SCOTUS likely wouldn’t strike down restrictions barring men from wearing dresses or women from wearing anything but dresses when sitting for a bar exam There are several cases in the 1970s where the court tried to distinguish between an impermissible stereotype and acceptable affirmative action. The key seems to be *actual* purpose behind the law (not conjecture as to what *may* have been discussed). - Orr (1979): Women would presumptively get alimony even if they were not the dependent spouse Argument by some was that it would be anticipatory compensation for job discrimination in the future when the woman would need to get a job The court struck this down as really motivated by legislative belief in female dependency, not in their argument - California v. Goldfarb (1977): Benefits based on the earnings of a deceased wife were paid to her widower only if he received more than half his support from her Argument was that the law provided compensation for anticipatory discrimination faced by older women But court struck this down, saying that was not the real motivation. - Califano v. Webster (1977): women were allowed to exclude more years of lower earning for a subsequent higher lifetime average for the purpose of calculating social security benefits Argument that it was to recompense for past economic discrimination Court found that this was the real legislative purpose and upheld the law as acceptable affirmative action
Michael M. (1981): This law is a straightforward sex classification about statutory rape. The law makes it an offense for a male to have sex with an underage female but not the reverse. Court upheld. - Two possible equal-protection objections: You ought to be punishing both parties. Why not treat the opposite situation – older female, younger male – the same way? This is a stronger argument. - Court says the purpose of the law is to prevent teenage pregnancy - Two justifications: The girl bears the burden of the pregnancy so if the guy goes to jail that is equalizing the burden. If you punished the girl too via a sex blind statute there would be no incentive to report the crime. - How do we know that this law is not just a paternalistic attempt to protect the chastity of young females? Rostker v. Goldberg (1981): Court upheld a statute requiring men, not women, to register for the draft because women were excluded from combat and the purpose of a draft was to summon combat troops. [Today, women are excluded from ground combat only.] - Possible justifications for excluding women from combat: Biological differences – women are not as strong Social convention that we don’t want women dying in war Unit cohesion, morale – risk of sexual relationships among male and female soldiers, fear that men might act differently around women in their unit Fear that women will be raped/sexually abused as POWs - Would the exclusion of women from ground combat hold up on constitutional grounds today? This case was 15 years before VMI Nguyen v. INS (2001): This case shows that there are some gender classifications that the Court will uphold even after VMI. Federal law provided that children born outside of marriage outside the U.S. to a citizen mother and a non-citizen father are automatically U.S. citizens as long as the mother had lived in the U.S. for a year. If the father is the citizen, the father has to prove paternity before the kid is 18 or the kid is not a citizen. Court upholds the law by a 5-4 vote. - Facts: Nguyen committed a crime at 22, and the INS initiated deportation to Vietnam. He came to the U.S. at age 6 and was raised by his father. DNA test was conclusive that his father is an American, but he never had it proven that he was a citizen before he was 18 - Two rationales: Court says there is an important interest in establishing biological parentage. With the mother, it’s obvious, because she is there at birth, and the father is not necessarily.
Congress is interested in real relationships between parents and children. Mother gives birth, has an automatic opportunity for the bond to develop. Father might not be there, might not even know he is a father.
- Klarman: the real issue here likely is that many on the Court are unwilling to automatically overrule Congress to make lots and lots of people citizens who were born to women impregnated unintentionally by GIs in Vietnam But, if this was the concern, it seems unfounded, because the statute could just be rewritten to require that the citizen parent have taken an active role in the life of the progeny So, this was still probably based on a stereotype and called something else |
| Sexual Orientation |
Courts have not argued for this yet. These bases purport to be objective, but ultimately they come down to the subjective question of how we think a particular group should be treated. - History of past discrimination - Political powerlessness But if a group loses in the political process how do you know if it’s just because they were a small group and got outvoted or because they were actually being mistreated or excluded from the political process? - Immutability. A lot of the debate on sexual orientation comes down to whether sexual orientation is immutable or whether it’s a lifestyle choice Even if it *is* immutable, it’s neither sufficient nor necessary for strict scrutiny, so it’s unclear why this is relevant
- Discreteness and insularity: it’s easier to discriminate against groups that can be spotted as different or which live together in groups But see Ackerman: there are political advantages to a group when it is discrete and insular
Colorado cities had passed gay rights resolutions, extending to gays some of the protections that had been reserved to minorities, women, etc. The people of Colorado overturned these by passing Amendment 2: “No Protected Status based on Homosexual, Lesbian, or Bisexual Orientation.” Holding: Court strikes down Amendment 2 as an EP violation - Breadth of the amendment is so discontinuous with the reasons offered for it that it seems inexplicable by anything but animus toward the class it affects. It lacks a rational relationship to legitimate state interests. Fails rational basis review. See Moreno – the hippie commune case. Two ways to read Amendment 2: - Narrow reading: this just trumps the gay rights ordinances and prevents passage of similar ordinances in the future, just denies homosexuals the right to special protection. This is what Scalia argues in his dissent. - Broad reading: amendment is not just a denial of special rights, but confers a special disability and withdraws the right of homosexuals to protection from any discrimination This is probably not what the amendment was intended to do, but it could be read this way. - Both of these readings require you establish a baseline – equal as compared to what? Special as compared to what? Is sexual orientation more like race or more like being an optician? If it is like race, then denying protection from discrimination is denying equal treatment. If it is like being an optician, then denying protection from discrimination is merely denying special treatment. Political process argument by the majority: what the state of Colorado has done is place gays and lesbians in a different position than anyone else looking for protection. Any other group can go to the local legislature. Gays and lesbians have to go to the people of the state for a constitutional amendment overturning or repealing Amendment 2. - But Scalia argues that this happens all the time. Any time the state legislature passes a law that trumps something at the local level, people can no longer just go to their municipality for relief. They have to lobby the state. He’s probably right that this aspect of the decision does not make much sense. Status/conduct distinction - It can’t be a crime to be an addict, but it can be a crime to use drugs After Romer, it’s tough to see how any classifications based on sexual orientation can be left standing.
Only real case involving gay rights prior to Romer, and it wasn’t even acknowledged in Romer Court upholds a Georgia sodomy law that criminalizes homosexual sodomy in the home on a 5-4 vote Technically this is a substantive due process case. The court says there is no fundamental enumerated right to homosexual sodomy. The statute does not differentiate between homosexual or heterosexual sodomy, but the court explicitly does not address heterosexual sodomy.
Overturned Bowers. Court decided that there is not a legitimate government interest in regulating conduct inside a bedroom Questions of precedent (stare decisis) arise here, as 17 years isn’t that long a period Court refused to recognize a fundamental right to choose one’s own sex partner: court just treats it as ordinary liberty (uses minimal rationality review) Majority: - There is a due process privacy right to choose one’s own sexual partners O’Connor’s concurring opinion - Equal protection case: don’t get to distinguish between same sex and opposite sex sodomy - This is not treated as a suspect class: she doesn’t address whether it should be. She doesn’t get to the question because it flunks the main rationality review - She discusses how moral interest is not a sufficient state interest to prohibit sodomy: this is the same question that Kennedy is answering in the majority (she answers in the same way) Scalia: BUT, this isn’t the case. Moral interest sometimes *is* enough for a sufficient state interest (polygamy, etc.)
Decision of the Massachusetts SC authorizing same-sex marriage Court says that none of the arguments restricting marriage satisfy the *minimal-rationality* review - Favorable setting for procreation Court: This is irrational. Additional procreation isn’t going to occur by barring same-sex marriage (gay men aren’t going to have straight marriages to procreate) - Favorable setting for child-rearing - Conservation of resources Main argument really boils down to a moral issue which isn’t sufficient
Hawaii Supreme court was the first to strike down a ban on gay marriage. This was viewed as a sex classification – who you can marry depends on your sex – and was not shown to serve a compelling state interest.
There is an important difference between Brown and Goodridge - All of the resistance in Brown was concentrated in the South, so the legislatures and executives elsewhere in the country could support the decision - Southern politicians had political incentive to stand up to the decision This was also the case in San Francisco with the mayor deciding to issue same-sex marriage certificates against state law When the opinion is segmented, local politicians generally will support the local wishes - In Brown, the Court was suppressing an outlier, a situation not similar to Lawrence and Goodrich Is there going to be some case in the future that’s like Goodrich on a SCOTUS level? - The logic of Brown led to Loving - Could the logic of Lawrence lead to a SCOTUS Goodrich? Did the cases create a backlash? - It’s possible that the backlash from the cases changed the election in 2000 (Carl Rove issue) - Then, this may result in more conservative judges ending up in courts which could damage the cause in the long run - It’s unlikely that judges, now, are oblivious to the backlash that’s occurred. How will this affect their rulings now? What were the judges in Massachusetts thinking when they made the ruling in Goodrich? - One said, first off, that it’s not for judges to answer that question, instead it’s the job to just interpret and apply the law - Then, she pointed to Quock Walker (a case from the 18th century that talked about slavery): so, the judge seems to be looking to how she will be regarded in 100 years |
| Fundamental rights: early applications |
Equal protection claims are based on the nature of the group being protected. Fundamental rights claims are based on the importance of the interest/right. Arguments against natural (unenumerated) rights: - It’s anti-democratic to assume justices know what the Constitution really says. The justices are making up “natural rights” - Value skepticism (Bork). Whether you believe in an unenumerated right or not really just comes down to preferences. Few people believe in natural law any more, though most would probably say there are still right and wrong answers on some level - Possibility of constitutional amendments. We have the capability to enumerate new rights by mobilizing in support of new constitutional amendments. Arguments for natural (unenumerated) rights: - Original intent. The Constitution does not purport to be all inclusive in listing rights that should be protected. See the 9th amendment and privileges and immunities clause. Arguments against the significance of the 9th amendment:
- Natural law. The Constitution is only legitimate if it protects these natural rights, that’s the point of government - Living Constitution. We don’t want to be bound by the dead hand of the past. Framers could not have conceived of the way things are today Commerce clause analogy. Legislative power is expanded to respond to circumstances unforeseen when the clause was written History of the doctrine - First fundamental rights arguments were made under the Privileges and Immunities clause. It must mean some set of rights that the framers did not explicitly spell out. - Rather than relying on this very rational reading, the Court decided instead to gut the P and I clause and make the same arguments through the Due Process Clause 30 years later. There is no textual support for this reading of the DP clause. - Today, Fundamental Rights jurisprudence can be divided into two categories: Due Process Clause Fundamental Rights.
Fundamental Rights Equal Protection.
Facts: One slaughter house basically bribed the Louisiana legislature to pass a statute that all slaughtering in New Orleans had to take place at their slaughterhouse. Court held that the statute is constitutional: The privileges and immunities clause only prevents the states from abridging the rights of federal citizenship, not state citizenship. - Basically all the rights that need protection and that we care about are privileges of state citizenship – speech, religion etc. After Slaughterhouse then, we are in the same place we were before the 14th Amendment, and the clause adds nothing. Federal rights:
State rights:
- Justice Miller says the Court will not read the Amendment to revolutionize federalism unless there is reason to believe that Congress really intended that. Extending the Privileges and Immunities clause to the states would permit federal interference in state legislation that arguably abridged privileges of state citizenship, and this would radically alter the conception of federalism. Basically every state law would raise a constitutional question. Every law is restricting someone’s ability to do what they want to do. - If the P and I clause were read to apply to the privileges of state citizenship Judges would be perpetual censors. 5 of the 14th amendment says Congress can legislate when necessary and proper to protect 1. So this would make Congress all powerful, and liberate it from all federalism restraints. Civil Rights Act of 1866. - Blacks have the same rights as whites to contract, to property, access to court. Congress used the P and I clause to justify the CRA. - But Slaughterhouse indicates that these rights are rights of state citizenship, and not covered by the P and I clause. The CRA would have to be justified under Equal Protection. - The Slaughterhouse court gives a different reading of the P and I clause than the legislature that passed it. This indicates that Slaughterhouse was clearly wrong in terms of original intent of the P and I clause, 14th amendment.
Everyone agrees that the 14th Amendment was intended to legalize the 1866 CRA. The disagreement is over whether it was also supposed to make the Bill of Rights apply to the states The original understanding prior to the 14th Amendment is clear: the Bill of Rights only applied to the federal government. - Madison tried to pass an amendment making the Bill of Rights apply to the states, but it wasn’t approved - Barron v. Baltimore (1833): SCOTUS affirmed that the Bill of Rights didn’t apply to states - But after the 14th amendment? Arguments supporting incorporation: - Bingham (writer of the 14th) and Howard explicitly said the first 8 amendments apply to the states via the 14th - Lots of Republicans implied the same thing Arguments against incorporation: - Bingham and Howard were the only two that explicitly said so. - If the 14th amendment does incorporate the Bill of Rights, it does so in a peculiar way. If that is what is was meant to do, why not say it more clearly? - Inconsistency with state constitutions: incorporation makes some state constitutional provisions unconstitutional. So if the 14th did extend the Bill of Rights to the states, you’d expect some objection from the states on this level, but there wasn’t any. - Incorporation makes 5th amendment Due Process clause superfluous. Slaughterhouse necessarily rejected incorporation under the privileges and immunities clause - Klarman: The Slaughterhouse court pretty much got the original intent of the 14th Amendment wrong 1866 CRA This still leaves open the possibility of incorporation under the 5th and 14th Amendment Due Process clauses – but that’s a much tougher place to find it. - Twining (1908): right of self incrimination. Defendant refuses to take the stand and the prosecutor makes a comment asking the jury to draw adverse inferences from that fact. Court: Right not to self-incriminate does not fall under the fundamental principals of liberty that are incorporated by due process clause, BUT some of the rights in the Bill of Rights are so fundamental that they would apply under it
- Palko v. Connecticut (1937): “Concept of ordered liberty.” Freedom of speech, press, assembly, religion and the right to appointed counsel – rights that are incorporated by the 14th – are higher in the hierarchy of liberties than the double jeopardy clause of the 5th amendment. Court: That is not incorporated
- Adamson v. California (1947): Double jeopardy question and exclusionary rule against improperly seized evidence Court: neither of these are incorporated. Where incorporation stands now: Warren Court in the 1960s piece-by-piece incorporated everything with the exception of the 2nd amendment, the 3rd amendment, the grand jury provision, and the 7th amendment civil jury provision. Why partial incorporation is less controversial today: - Talking about explicitly granted rights that are written into the Bill of Rights: question is just what level of government they apply to So textualists like Scalia who are uncomfortable with courts making things up are more comfortable with courts applying clearly enumerated rights to all levels - Most rights are about criminal procedure Political process argument: argues for a stronger role for judges in these cases. Rights of criminal defendants are not usually well represented in the political process Warren court came up with rules when legislators had just defaulted. With criminal procedure, there was often no legislated rule: the court was just replacing rules set up by police forces. So the court is imposing the Bill of Rights on local police forces, etc. rather than striking down statutes (which would be more controversial) Race issue: Court was strongly committed to racial equality (a major issue in criminal procedure), so it’s not surprising they would rule this way
Procedural due process: - Government must give notice and a hearing - Hamdi case Substantive due process: - Not related to procedure (not that the government hasn’t given notice), but that the Court believes a substantive area of liberty can’t be infringed by the state - E.g. sexual autonomy - Bowers and Lawrence cases - Old fiction: that what was denied was the legislature denying due process Idea: that the legislature wasn’t thinking things through Just a way of people getting their minds around substantive due process at first Discounted today in favor of just accepting substantive due process
SDP: Fundamental right - Strict scrutiny (intentional and necessary relationship) SDP: Ordinary liberty interest - Reasonable relation to legitimate government interest EP: Suspect classifications - Strict scrutiny EP: Minimum rationality review - Reasonable relation to legitimate government interest
Holding: A law that infringes on freedom in the marketplace and freedom of contract is unconstitutional if it does not bear a reasonable relation to a legitimate governmental purpose. - Court found the statue unconstitutional. Why is the right to contract deemed an enumerated right? Isn’t it in the Constitution? - See Article I, Section 10: No state shall pass any bill or law impairing the obligation of contracts. - This is not an enumeration of the right to contract. This is meant to prevent a state from passing a law that retroactively alters the terms or meaning of an existing contract. - The liberty of contract at issue in Lochner is that the state does not have the right to interfere, prospectively or otherwise, with employers and employees and their contractual relationship The Court finds this unenumerated right under the 14th. Justifications for the statute made in court: - Police power – safety, health, welfare. - Labor law – wealth redistribution, equalizing bargaining power between the workers and their employers. Court looks to the means/ends connection between the law and its stated purpose, and requires that that connection be pretty substantial. - It is not just going to accept the legislature’s stated purpose without proof. - The law does not substantially affect and improve health, so it must be driven by another purpose. Does the Constitution really sanction market allocations of wealth and power? Is the free market really something the Constitution protects? - Coppage v. Kansas (1915): Anti-yellow-dog-contract law. State law prevented employment contracts that require employees to agree not to join a union as a condition for getting the job Does this law violate the “right” to contract? Does the constitution enshrine this idea that market distributions of wealth and power are presumptively off limits from government regulation? Court rules that it violates the Constitution: a law’s objective cannot be simply to transfer redistribution from A to B (Holmes is the only dissent) - Majority in Lochner argues that the market is naturally existing and protected from government interference - Criticisms of Lochner: Government’s role in constituting the market, constituting the bargaining relationship. Background common law rules of property, contracts and tort. Labor law rules. Corporate rules. So, if the government played a role in shaping the market, why can’t it then regulate it later? Even if the government did not shape the market, why can’t it correct what it deems to be unjust results? Additional points about the Lochner era: - Ran from 1905-37, but up until 1920 or so, the Court actually sustained more regulations than it struck down. Upheld: Maximum hour laws for women, miners Workers compensation Anti-scrip – paying employees with credit at the company store, not in money Bunting (1917): Court seems to overrule Lochner on its facts, even though it doesn’t admit to doing so. This case was about a general maximum hour regulation. - Later, the Court uses Lochner to strike down a variety of regulations: Minimum wage for women. Adkins (1923). Barriers to entry. Lee Optical would not have been upheld during this period. Price regulation outside very specific areas i.e. those “clothed with a public interest.” - Nebbia v. New York (1934): the critical case. 5-4 decision. Agricultural production is the antithesis of something related to the public interest. New York passed a law regulating prices for milk. Court authorizes price regulation in general. - If you can regulate prices, then what about wages? Most commentators think that after Nebbia in 1934, Adkins is no longer good law. But… Tipaldo (1936): Court still invalidated the NY minimum wage. 5-4 decision. West Coast Hotel (1937) – Court overturned Adkins and upholds the minimum wage. Lee Optical (1955) – Court doesn’t seem to care about this being a barrier-to-entry issue. It conducts only a minimal rationality review - After 1937, it is perfectly fine for the government to interfere with property and contract rights. No more laissez-faire economics. Court moves to a highly deferential form of rational basis review (minimum rationality) for economic SDP challenges. It just can’t violate the takings clause without compensation. Why did the court become so deferential to government regulation? Justices have no problem with interest group pluralism Maybe the justices don’t regard interest group pluralism is a positive thing, but they don’t know how they could interfere without making things worse, and getting it wrong. Note: At the same time the Court is abandoning Lochner, it is also abandoning judicially enforceable federalism restrictions. |
| Exam |
1 or 2 doctrinal questions: here’s a statute, raise the Constitutional issues - Actually raise the doctrine as discussed 1 or 2 theoretical essays - Methodologies - Function of judicial review - Differing interpretations of the Constitution - Can more “make fun” of doctrine in these questions 1 set of compare/contrast questions - 7-9 pairs of cases - Don’t just state the holdings
Go over class notes Glance over the readings, make sure you have a basic idea of them Discuss with friends |
| Fundamental rights: equal protection |
All fundamental rights equal protection cases involve situations where the state is not required to provide a specific right. However, if state opts to provide right, it must provide the right equally. In FREP cases, the legislature can respond by equalizing down and denying the right to everyone. Court doesn’t use this much any more (last case was 1973) - Klarman: It came to favor largely because Lochner and substantive due process had fallen out of favor – they call this equal protection hoping no one will notice that they’re doing the same value-judgment in identifying “fundamental rights” just under a different name These cases involve three difference components: - Important issues/rights – court access, voting, procreation, education - Monopolization/coercion by the state – this is a way of limiting the doctrine - Disparate wealth impact i.e. Griffin Comparisons: - Compared with regular classification-style EP Similarity: Focus is Equality Difference: Focus is on an interest not on a particular group - Compared with SDP Similarity: Unenumerated rights Difference: FREP rights are not absolute entitlements, only relative: legislature could respond by equalizing down and denying the right to everyone
Skinner v. Oklahoma (1942): Oklahoma statute mandating the sterilization of habitual criminals who commit felonies involving moral turpitude. If you are a three-time chicken thief you can be sterilized; if you are a three-time embezzler you can’t. Court focuses on this inequality and strikes down the law. The state is providing the right to procreate unequally. - Buck v. Bell (1927). Sterilization of the mentally retarded. Opinion by Oliver Wendell Holmes: “three generations of imbeciles are enough.” - The reason why Skinner is somewhat confusing is that it’s not clear whether Buck would still be good law in 1942 People became more wary of sterilization given the Nazis. Sterilization of habitual criminals never as popular as sterilization of the mentally disabled. - In Skinner, Douglas indicates that the law would be fine if we just sterilized more people. - Douglas sees a difference between white collar and blue collar criminals. People who embezzle are more likely to be white collar and to be represented in the legislature. There is a Carolene Products concern that this singles out poor people. There could also be a race issue at place here In the statute, the Oklahoma attorney general had wide discretion which could breed racial discrimination - There is not a cruel and unusual punishment argument here because the objective of sterilization is not punishment. The objective is to prohibit passing down criminal propensities through the generations. Punishment has to be the motivation of the legislature or you can’t raise an 8th amendment challenge. This comes up with sex offender laws – Megan’s laws. - In Skinner, the court goes with FREP analysis because that way they are giving the legislature somewhat of a choice – either sterilize more people, or change the law – rather than decreeing a fundamental right under SDP. - Klarman: it seems that the only way to understand the holding is that the Court believes procreating is a fundamental right, but it is not willing to say that, shying away from a substantive due process decision
Involve three things normally: - Important right - Usually, a differential impact on the poor (though not with facial classifications) - Monopolization or state coercion (Harlan) Harlan’s way of limiting the reach of the doctrine: if the cases are not limited to those in which the state dominates the right, the doctrine would cover most anything Klarman: - Doctrine tended to be used to go after outliers Harper (1966): Poll tax - Court was often unwilling to choose between whether these cases are EP or DP issues Harlan tried to convince his colleagues that if this is really EP, then this is opening a huge can of worms Griffin (1956): Illinois was requiring appealing defendants to supply their own criminal trial transcripts at a fee. Court held that indigents, who can’t afford to buy them, must be provided with the transcripts if they are necessary for an effective appeal. - Here, the state could have just taken away the right to appeal from everyone. But if it is going to provide it, it has to do so equally. - Disingenuousness argument. In these cases, the fact is that the legislature is never going to take away the right from everyone, so the other available remedy is to broaden it. Douglas v. California (1963): Court holds that indigent criminal defendants are entitled to counsel on appeal. Although courts do not have to provide right to appeal, if they do, it must be on equal terms Boddie v. Connecticut (1971): Court holds that state cannot charge access fees to enter divorce court. If the state is forcing a certain requirement on you – court decree to get out of marriage – it shouldn’t be able to have a disparate wealth impact. The state can’t make you stay married just because you can’t pay a fee. - This is an example of the monopolization/coercion limitation. After the Warren court ended, the Burger Court turned against FREP doctrine. Stopped naming fundamental rights. - Rodriguez (1973): San Antonio was funding school districts based on property taxes. Does the state have to provide education regardless of wealth? Court said education is not a fundamental right. The Court was worried about compromising its legitimacy by naming too many unenumerated rights. But this came down three weeks after Roe, where the Court named a fundamental right under DP. So the key in this case has got to be something different. The court is wary of mandated government redistribution of wealth. - Kras (1973): Law says if you want to get a discharge in bankruptcy you have to be able to pay a fee to get into court. Sounds like this might be a candidate for invocation of FREP. But in a 5-4 decision, court upheld the law. Burger said Boddie must be kept in bounds. Others suggested limiting it, would not extend Boddie an inch. A right to get divorced and remarried is more important that a right to get a new economic start in life. But is it? - This FREP line of cases is where the Burger Court’s conservatism shines through. The court today is not totally ready to get rid of FREP doctrine all together. - M.L.B. (1996): Court held that the state may not condition appeals from decrees terminating parental rights on the parent’s ability to pay record preparation fees. Six justices are willing to extend Boddie here, but this does not indicate a trend toward further expansion of fundamental rights. Just that the court has not abandoned it. |
Judicial review in this context: anti-entrenchment. Sometimes there is a political arrangement that is so frozen that it will not change without some sort of intervention. - Without judicial review, the system is powerless to fix the problem. - A lot of time the argument is that judicial review frustrates democracy. Anti-entrenchment puts a democratic spin on judicial review. - Thornton (1995): Court ruled term limits unconstitutional. Usually representatives want to reflect their constituency if they want to stay in office. But with this issue, even if constituents want term limits, representatives aren’t going to take that position because they want to stay in office. Legislators will not respond to their constituents because it frustrates their own interests. This is a classic entrenchment problem. Courts ruling cements it. Issues. - Malapportionment: the easiest of these issues. When the court intervenes in apportionment cases, it is recognizing the entrenchment problem. Example: Suppose in 1900 TN has 5 districts and they are all the same population. But by 1960, 60% of the population lives in Nashville and 10% lives in each of the four rural areas. It’s no longer a one person – one vote scenario. Problems with this malapportionment:
Lucas v. Forty-Fourth General Assembly (1964): Colorado approved voter malapportionment by referendum. But the court still said representation had to be equal. Individual’s rights cannot be infringed upon just because a majority wants to do so. Baker v. Carr (1962): Much of population moved from TN’s rural areas to TN’s cities resulting in unfair representation in legislature. Court expresses its willingness to step in and mix malapportionment Reynolds v. Sims (1964): Court takes Baker further and creates a standard by which to judge malapportionment cases When faced with malapportionment in AL, court creates the “one person, one vote” scheme:
- Defining the scope of the political community Harper v. Virginia Board of Elections (1966): Does VA get to adopt a poll tax? $1.50. Majority holds that tax is a “wealth classification” deserving of strict scrutiny. (The law would likely pass minimum rationality because there are valid reasons for it.) But, clearly tax is not a wealth classification. Rather, it is a facially neutral law with disparate impact on poor.
- Vote dilution Mobile v. Bolden: Mobile uses a multi-member district, i.e. at-large voting. Everyone in Mobile gets three votes, and three representatives are picked from all the votes. Alternative would be to use single-member districts – city divided into three districts, each has one rep. Blacks are a third of the population in Mobile, but have never elected a candidate of their own choosing. Through racial bloc voting, the 2/3 white population always outvotes the blacks.
But two years later, Rogers v. Lodge: Here court comes to the same doctrinal conclusion as in Mobile – you have to show bad purpose. But the court relies on a lot of the same evidence to prove bad purpose in this case as it said was not sufficient in Mobile – disparate impact etc. Why the change?
- Political gerrymandering: Two kinds Incumbent/bipartisan gerrymander
Partisan gerrymander (this is the more common one) -
Gerrymandering has classically been a non-justiciable issue. Until… Davis v. Bandemer (1986): Says that gerrymandering is a justiciable issue. But the substantive standard is almost impossible to meet. What do you have to prove to establish a gerrymander?
- Racial Gerrymandering: Drawing district lines trying to benefit or disadvantage a racial minority. Gomillion (1960): Court struck down a race motivated district line, said under 5th this denied the right to vote. In 1982, Congress passes the Voting Rights Act amendment, which is effectively a racial gerrymander after blacks were unsuccessful electing representatives after the 1965 VRA. Are racially gerrymandered districts constitutional? Shaw v. Reno (1993): Court says it is constitutional to strike down a state reapportionment plan that included a majority-minority district – where the majority of people are a minority group – with a dramatically irregular shape.
Miller v. Johnson (1995): Court sees bizarreness of shape as one piece of evidence of racial motivation, but the shape does not have to be weird. Plaintiff needs to show that race was “the predominant factor motivating the legislature’s decision to place a significant number of voters within or without a particular district.” Once the plaintiff has shown that, the court will use strict scrutiny. Cromartie v. Easley (2001): The district at issue here is the same one as in Shaw v. Reno. The court held that the district court erred in finding that race, not politics, drove the legislature’s redistricting plan.
Court struck down the Florida recount on the grounds that it meant arbitrary treatment of voters because there were no set standards for how the recount was to proceed and it varied from district to district. FL supreme court decisions do not satisfy the minimum requirement of non-arbitrary treatment of voters necessary to secure this fundamental right. Unconstitutional. Legal v. political axis. It’s inevitable when there is legal indeterminacy that people will incline towards those arguments that are in keeping with their personal and political preferences. - Klarman thinks this case came out the way it did because conservative justices dominate the Court. Partisan politics. Effect on the Court’s legitimacy. - Some might argue that this is a big step up in the Court’s power – deciding a presidential election. - Only Republicans saw this as a constitutional crisis. The Court’s legitimacy is not going to be enhanced all that much by deciding a crisis that only one side perceives, and siding for that party. If there had been a recount according to what the FL court ordered it would have been a statewide recount of the undervotes – where the chad did not punch through – without specific standards prescribed. - From the newspaper recounts after the SC decision, it looks like Bush would have won. - The irony is that the SC intervened to stop a recount that would likely have ended in the same result. Bush wins. If there is an FREP problem in a standardless recount, then that almost decisively means that there is an FREP problem with different types of voting machines in different counties. - Voters who used the punch cards had 5 times greater a chance of having their votes not count as those people who got to use the optical scan machines. Justification v. explanation. Here the explanation for the decision is likely partisan politics, but that is not a justification. |
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| Modern Substantive due process |
These cases involve fundamental rights upon which the government cannot infringe. The legislature cannot respond by equalizing down and denying the right to everyone. Today’s court: - Where economic or social welfare regulation falls within a state’s police powers (any health, safety, or general welfare goal), minimum rationality review is applied. - Where economic or social welfare regulation impinges on a fundamental right, however, a substantially higher level of scrutiny is applied.
Griswold v. Connecticut (1965): The director of Planned Parenthood is arrested for providing advice to married couples in violation of a CT statute that prohibits the use of contraception. Court strikes down the law. - There is a fundamental right to privacy, which the government cannot invade absent a showing that the legislation is necessary to a compelling state interest. Strict scrutiny. - The Court comes up with a lot of constitutional grounds for finding a right to privacy: Douglas – emanations and penumbras of the Bill of Rights
Goldberg – looks to the Ninth Amendment. Harlan (the most conservative justice on the Warren court) – this law is contrary to Due Process and concepts of “ordered liberty” - Non-interpretivist review. You’ve given up any pretense that you are interpreting the Constitution. The point is protecting something that the Constitution has noting to do with. Almost none of the justices would be willing to admit to using this form of review. They try to find a defense for the right of privacy in there somewhere. - This is the clearest example of the court taking a widely accepted view and reading it into the Constitution. At the time of Griswold, only a couple states had anti-contraception laws like that in Connecticut. Federalism says that CT is perfectly entitled to have a law that is unlike most other states. If there really was a national consensus on right to contraception, why hadn’t Congress tried to pass legislation as such? Limited construction of the commerce power? - Selective enforcement argument. The state is going after doctors and planned parenthood for distributing contraception, not married couples who use it. You could argue that this is a constitutional violation on the grounds that it is being enforced only against selective groups. Ely sees this and likens it to Yick Wo
Types of selective prosecution:
- Narrow to broad readings of Griswold. There are a number of ways you can describe the right that is at issue in this case. (Narrow) Privacy of the marital bedroom. This is Harlan’s view. He’s worried about enforcement. He would have no problem with a law preventing the sale of contraceptives. Right of married couples to use contraceptives. This is the majority view. This is Douglas’ view Eisenstadt (1972). Extends this right to unmarried couples. There the court struck down a Mass. statute that prohibited the distribution of contraceptives to unmarried persons as a violation of EP, because it treated married and unmarried persons differently. Roe. Right to reproductive autonomy. Bowers dissent. Would have a right to sexual autonomy, right to choose your sexual partners Later cases considering medicinal marijuana, motorcycle helmet laws concern a general right to personal autonomy
Perspectives: - Ely: Political process theory. He believes most laws judged on constitutional grounds are justified on political process grounds, but he believes in judicial restraint and says there was no malfunction in the political process here - Grey: Natural rights, “unwritten constitutional rights” argument - Tribe: Abortion laws are unconstitutional because they’ve been voted on based on religious views - Dworkin: Natural rights – just because a majority wants something doesn’t make it right - Regan: Gender/sex discrimination - Ginsburg: Court pre-empted the political process that was gradually liberalizing abortion laws anyway Roe v. Wade (1973): the most important constitutional law decision since Brown. - Holding: The right to privacy encompasses a woman’s right to terminate her pregnancy. However, the state does have compelling interests both in protecting the health of the pregnant woman and in the potentiality of human life. - Doctrinal points: This is a substantive due process inquiry. The right to abortion is fundamental, so apply strict scrutiny. Two government interests:
Trimester distinction:
- Arguments that the case was decided correctly: 9th amendment invites this Decision follows precedent – logical extension of Griswold Natural law arguments Ginsburg’s sex discrimination argument. If men got pregnant, it would be a different story.
- Arguments that the case was decided incorrectly: Anti-democratic Originalist argument is silly – where is the right to abortion in the Constitution? This is not about privacy It’s not about sex discrimination Decision reads like legislation O’Connor: Trimester approach is arbitrary (and it has been somewhat abandoned lately) - Impact: Roe had the effect of striking down abortion regulations in 46 states, even though more than half the country supported the decision. Made abortions legal, and made them cheaper.
Legislation was moving toward abortion rights, just more slowly. See stats. Before Roe, rate of abortions was dramatically increasing. After Roe, the numbers go up but the rate does not. There is an argument that Roe did more harm than good for abortion rights by galvanizing the religious right as a political force in opposition.
Today, the issue is as divisive as it was 30 years ago. Unlike in Brown, the court in Roe did not do a very good job of predicting the future. - When does life begin? The court says it is not taking a position on this question, but implicitly it is saying that life does not begin at conception. This is the implication of not elevating the potential rights of the fetus over the rights of the mother in the first trimester. Funding and Unconstitutional Conditions (funding, etc.) - Most people would not argue that the government has to subsidize your rights (mostly, the Constitution protects negative rights, not positive rights) FREP cases are an exception Gideon case said that the state not only has to provide you a lawyer, but it must pay for the lawyer as well If the government provided no funding for health care for the poor, it would be tough to argue that it should fund abortions.
But the government does fund medical care for poor people, including child birth.
- How do we characterize the abortion right? Is it a right to coercion or to neutrality? Can the government discourage you from exercising your right? Examples of constitutional rights and the neutrality issue:
There is no general right to neutrality. It depends on the right in question.
See Maher v. Roe (1977): Court upheld a state regulation granting Medicaid benefits for childbirth but denying benefits for non-therapeutic abortions. Roe applies no limitation on the authority of the state to make a value judgment favoring child birth over abortion and to implement that judgment by the allocation of public funds. No neutrality requirement for abortion. - How much government pressure is too much? Coercion spectrum: from coercion to neutrality
- How do we differentiate between refusal to subsidize and penalty? Unconstitutional conditions: the government offering a right that it does not have to on the grounds that you give up a constitutional right i.e. requiring people agree to police searches to receive welfare. When can the government do this? Two easy, but unsatisfactory answers:
So where does sometimes fall? This is the hard question. Possibilities from the scholars:
1970s/1980s abortion restrictions (mostly struck down by SCOTUS): - Mandatory waiting periods - Informed consent regulations - Hospitalization requirements Missouri’s Webster case: law said public employees couldn’t conduct an abortion - Spousal notification/consent Court said that a woman’s “vote” counts more than her husband’s
- Parental notification/consent Upheld if there’s a judicial bypass provision Planned Parenthood of Southeastern Pennsylvania v. Casey (1992): Planned Parenthood challenges a PA law imposing abortion restriction – requiring informed consent, notification of spouse, and parental notification for minors, etc. - The court upholds the holding in Roe: A woman has a right to choose to have an abortion before viability and to obtain it without undue interference from the state. The state has the power to restrict abortions after fetal viability IF the law contains exceptions for pregnancies which endanger a woman’s life or health. The state has a legitimate interest from the outset of the pregnancy in protecting the health of the mother and the life of the fetus that may become a child. - The court replaces the trimester framework with an undue burden test: Prior to viability, any restrictions on abortion will receive strict scrutiny if they impose an “undue burden” on woman’s right to abortion Restriction imposes “undue burden” if it has purpose or effect of placing “substantial obstacle” in path of woman seeking abortion of a non-viable fetus.
Substantial obstacle exists when a significant number of women who would have otherwise had an abortion choose not to - Lessons from Casey: Leanings of SCOTUS appointments are unpredictable Political sensitivity (evolving standards are influential) Bias toward the culturally elite (Justices aren’t “average” people)
Backlash by some Justices against Scalia - Discussion of precedent in Casey: Court says that its legitimacy is a product of appearing to be uninfluenced by politics. Overturning criticized decision would appear to be capitulating. The Court says it does not want to overturn Roe because it wants to appear non-political. But this in fundamentally flawed. You can’t say you are uninfluenced by politics and then say you can’t rule a certain way because you need to appear non-political. Either politics matter or they don’t. The point of precedent is that you are going to stick with decisions even if you think they are wrongly decided. Precedent has no bite if you only stick with decisions that you now agree with
Court looks at Lochner/West Coast Hotel and Plessy/Brown. In those cases, it was right for the court to overturn the earlier case in the latter because there had been a significant change in facts/perceptions/values – abandonment of laissez-faire approach and change in belief in racial inferiority. Not so with abortion.
Dickerson (2000): court did not overturn Miranda. It mattered here that Miranda had become part of popular culture and the public has come to believe those rights are something that is guaranteed.
Reliance interest as an argument against overturning. A generation of women has come of age understanding that there is an abortion right. But this isn’t reliance, its just recognition of the importance of the decision. General presumption is that precedent has less binding effect in constitutional area. If you make a decision and can’t overturn it in a later decision, the only other option is constitutional amendment and that is really hard. Only four decisions in history have been overturned by amendment. They give a four-part test for overturning precedent (but this doesn’t get you much of anywhere):
Stenberg v. Carhart (2000): In a 5-4 decision, court strikes down Nebraska’s partial-birth abortion law. - Problems with the statute: No provision for the health of the mother.
Vagueness: “Substantial portion” language. Vagueness here indicates that this might cover D+E (dilation and evacuation) abortions – these make up 90% of second trimester abortions – as well as D+X (dilation and extraction) abortions. The statute arguably tries to target the most common form of second trimester abortions and effectively removes this option
The Court does not uphold a right to die in either of these cases. But, in each, it looks like there are 5 votes for upholding such a right, just not under these facts. - In both of these cases the court is not worried about creating an unenumerated right. It just doesn’t want to get ahead of the curve considering the time and the facts of the cases at hand. Cruzan v. Director, Missouri Department of Health (1990): Nancy Cruzan in a persistent vegetative state after car wreck. The family wants her disconnected, and there is anecdotal evidence from a college roommate that she would not want to live that way. Is there a constitutional right to be disconnected from nutrition and hydration in this circumstance? Can Missouri require clear and convincing evidence of what the patient would want? - Holding: the due process clause protects an interest in life as well as an interest in refusing life-sustaining medical treatment, and a state may legitimately seek to safeguard the personal element of this choice for incompetent persons through the imposition of heightened evidentiary requirements. The state can weight the scales in favor or preserving her life, by requiring clear and convincing evidence of her preference before disconnection. - There are probably five votes in this case for this proposition that Nancy would have a right to die if: She wrote a living will saying she would want to die. She named her mother as a surrogate decision maker. O’Connor says you don’t have to be neutral (like in the abortion issue) – the state can show a preference – but only if there’s been no decision by the individual person (living will, etc.) Washington v. Glucksberg (1997): Is there a constitutional right against the state criminalizing physician assisted suicide? NO. - Only one state – Oregon – has approved a right to physician assisted suicide in a referendum. What the claim is asking here is for the court to take the position of an outlier and apply it to the other 49 states, which is the opposite of what the court usually does. In Roe, the court imposed the position of 4 states on 46. The court learned from Roe and decided to let popular opinion develop on this before they are going to grant a constitutional right in this case (they may have thought that they advanced too quickly on Roe) Washington had also just had a referendum on it and had rejected it 54-46 (unlike Oregon) - In Glucksberg there are not five votes for a broad right to assisted suicide. But there are probably five votes for a more limited right: the proposition that if you are terminally ill and in great pain the state could not constitutionally prohibit a doctor from prescribing medicine that would relieve the pain and very likely will kill you too. The double dose. Scalia believes there should be NO constitutional right at all on this issue, but he’s way outnumbered Is there a place where we think the state shouldn’t be involved because there are no third-party effect (it only affects one person)? - See Griswold, Lawrence, etc. - Klarman: There *are* almost always arguably third-party effects, though this isn’t necessarily a compelling reason to decide here. One person’s choice to engage in physician-assisted suicide can affect how everyone else interacts with their doctors One person choosing to die affects the set of choices for people down the road (if a lot of people do it, down the road, an ill patient could be made to feel selfish for not committing suicide) Kamisar (a liberal): Allowing doctors to offer suicide, they may have an incentive to ignore more complicated problems for poor people - Second circuit had a different reasoning: Equal protection argument New York has drawn a line between physician-assisted suicide and withdrawal of life support, a distinction which doesn’t even pass a minimum rationality review. |