Fourteenth Amendment 1868
What we have today is not an inevitable feature of the Framers' vision. It is in reality quite remote from anything the Framers could have imagined. ... exclusive ... overlapping
Most recently incorporated right: the Second Amendment in 2010
States relative underprotection of individual rights
The US Supreme Court recognized many of the rights it did between the 1940s and 1960s BECAUSE many state courts (and state legislatures and governors) resisted protecting individual rights, most notably in the South but hardly there alone. One can forgive lawyers from this era for hesitating to add state constitutional claims to their newly minted federal clamis. Why seek relief from institutions that created the individual rights vacuum in the first place?
It's no small matter that the federal claims kept succeeding. Even the most progressive state courts in this era would have had trouble keeping up with the rights innovations of the US Supreme Court ... constitutional reordering ... transformative decisions
more fluid than fixed
taking two shots rather than one whenever the opportunity presented itself
Nothing compels the state courts to imitate federal interpretations ... own constitutions ... As a matter of power ... different conclusions about the meaning
defining ... crafting
The more innovative a constitutional claim, the more hesitant the US Superme Court may be about entering the thicket ... no risk for other States
New constitutional rights not only require the articulation of a new constitutional theory. The also require the management of a new constituional right. Most judges worry about the next case when they think about identifying a new constitutional right ... breadth ... “always raining somewhere” ... on the whole country at once ... “federalism discount”
allowing local conditions and traditions to affect ... State constitutional law respects and honors the differences ... differences in culture, geography, and history
many American constitutional issues do not lend themselves to winner-take-all solutions. ... open-ended ... intensely difficult interpretive debates ... insist ... are no right answers to some of the questions or ... policy preferences underlie ... answers
vexing ... their own interpretations of similarly worded constitutional guarantees found in their constitutions? (jj same person can have 2 interpretations for samely-worded guarantee)
impose on the members
burden of treating it as the only supreme court ... capable of offering an insightful solution to a difficult problem?
indeterminate ... it may be more appropriate to tolerate 51 imperfect solutions rather than to impose one perfect solution ... particularly when imperfection may be something we have to live with in a given area.
discretionary
source of rights ... its revitilization ... may be the best thing that could happen for federal constitutional law. For too long, we have lived in a top-down constitutional world
state courts are the vanguard ... whether to embrace or reject innovative legal claims ... the market ... identifies winners and losers ... profit from the contest of ideas
Recall that individual rights guarantees of the BoR were based on preexisting state constitutional guarantees, not the other way around
EDUCATION
“education is perhaps the most important funciton of state and local governments” (in Brown v Board
an education to their students ‘on equal terms’ relative to the education offered by wealthier school districts ... equalizing funding
premised on the notion that education is a fundamental right ... premised on the notion that wealth is a ‘suspect class’ ... unforgiving demands of strict scrutiny.
$356 per pupil
greatest educational needs
about the standard of review ... tests for assessing the validity of legislatino ... lax or rigorous ... rational basis ... can envision an explanation, any plausible explanation at all, for the law and the classifications it draws
a powerful reason ... show that there was no other way to advance that interest
(jj neighbor tax (gift form decided by giver - local tax exemption to employ 1 individual from neighbor community)
done everything within its power to eliminate them
governmental benefit simply because it is important, even indispensible
ide jure segregation by race ... de facto segregation by wealth ... uncontestable connection between education and other constitutional guarantees ... “powerless class”
schools at all, they were privately run or haphazardly organized at the local level
Education then, beyond all other devices of human origin, is a great equalizer
agrarian society
a foundation program ... guaranteeing a minimum amount of combined state and local funding regardless of how little money a school district contributed
guidance ... replace
gap ... limited
premised their lawsuits on equal protection clauses and other guarantees ... identify realistic remedies
Invoking the education clauses that appear in all state constitutions in one form or another
increased funding and closed equity gaps
bave substantially equal access
the still poorer Edgwood school district spent more per pupil than the still wealthier Alamo Heights (jj cost of ed down? books, buildings, transport, teachers)
of a piece ... faulted ... over-reliance of local property taxes
‘parity aid’ program
inferior
based on some agreed-upon requirements to remedy lingering
special commissioner ... vacate ... overhaul ... remand ... Janus-faced ... Not everyone is satisfied with the changes, but no one has challenged
account for the possibility that the state guarantees may be the most promising sources of rights, the state courts the most promising venue for vindicating them. The goal is to win at least once.
a citizen troubled by state action
Rodriquez and the many state court experiments launched in its aftermath. Judges of all stripes appreciate the piont.
while the Supreme Court has tolerated continuity in this area, the democratic processes have demanded change
blight on state separation of powers ... coda
a prominent narrative
appreciated in his anguished dissent
positive rights ({})
obligations on government
They had to convince the Court to break new ground in embracing untested theories of constitutional law ... to define a right and create a remedy that it could apply uniformly to fifty sets of state laws
required “expertise and ... familiarity with local problems” ... the very complexity ... suggests that there will be more than one constitutionally permissible method of solving them ... inflexible constitutional restraints ... circumscribe or handicap the continued research and experimentation so vital to finding even partial solutions
come with the vice
discount
The more a litigant asks ... in a complex setting ... the less it may be able to expect if the court has nationwide jurisdiction
diluted ... institutional constraints ... prevented accountability over educational funding ... political pressures at the state level increased
Had Rodriguez applied strict scrutiny ... spawned a host of unintended consequences ... too blunt an instrument ... calibrated policy choices
drawn lines between categories ... diluted strict scrutiny ... tangled web of line-drawing and difficult-to-apply hybrid levels of review
state courts interpretations of their constitutions' education clauses
utter indeterminancy ... underlying ... Education policy does not naturally lend itself to one-and-only-one-way solutions
while preserving long-held customs of local control over a community's schools ... incontrovertible ... remains hidden ... Some imperfection, I fear, is something we have to live iwth in this area ... grounded in constitutional guarantees the States have chosen for themselves
a heavy lift
outputs
no comprehensive answer, and if you ask three teachers you get at least three answers
turn on difficult questions on which reasonale minds can disagree (jj comm)
positiive correlation ... connection ... One suspects that most students would learn more in the long run if they were the product of a supportive, two-parent, educated family ... The literature at any rate is all over the map.
better ... just similar
Neither is the value of a nationwide solution to a nationwide problem lost on me ... uniform ... susceptible to a uniform solution ... curbing effective local innovation ... remedy-limiting constraints
unknowable whether the Rodriguez plaintiffs gained more int he long run by losing their case than they stood to gain by winning it
the US Supreme Court said the States could stick with the status quo, yet they did not
(jj Why is this a ‘right’ and not a ‘state guarantee’? detracts/dilutes from strict importance of ‘rights’)
SEARCH AND SEIZURE: THE EXCLUSIONARY RULE
consequences of a violation ... The guarantees thus do not command exclusion, and, as is often true of silence, they do not bar suppression as a remedy either
As a matter of history, neither the English nor the early American common law required exclusion of illegally obtained evidence
history emphatically rejects any idea of exclusion (of evidence)
a replevin action
private trespasser
tort actions for damages
guarantee ... a real, and not an empty, blessing
Search and Seizure Act of 1966
the principal remedy to deter Fourth Amendment violations
tax law that required taxpayers to produce such invoices or accept the allegations in the government's complaint as true
the trial court's order to produce the invoice, the federal law that required the production of the invoice, and the introduction of the invoice into evidence all violated the Federal Constitution ... all members joined ... the government violated the Fifth Amendment's self-incrimination clause ... a federal law that put the individual to the push-me-pull-me “choice” of producing a document or conceding the government's allegations.
a palpable abuse of judicial process
that some cases provide “seeming support” for the illegality/suppression dichotomy
acting without color of authority
compelled-speech
these early cases stand as a valuable monument
the States have a duty to construe their consitutions independently
Weeks 1914
the innovation of exclusion
provided a remedy ... a right to ensure that property wrongfully taken could be rightfully returned and a right to obtain damages for the trespass
not take notice of the manner in
To do otherwise, the Court explained, would permit ‘collateral issues’ to enter into ‘the source of competent testimony’
He sought repossession relief in the criminal case, indeed before the criminal case, which was not how the remedy traditionally had been deployed.
request for return ... if denied, a ground for appeal ... that the conviction be vacated ... for the prejudicial failure
appellation
Weeks involves only a right with respect to private property, as opposed to contraband or stolen property
that would not preclude the government from later issuing a subpoena to obtain the property, from testifying about what they saw, or, for that matter, from holding onto contraband
Silverthorne ... 1920
Yet the Court suppressed the evidence and for the first time adopted a deterrence rationale for doing so
Holmes
circumvent the exclusionary rule so easily, that would ‘reduce the Fourth Amendment to a form of words’
battle ... over form and substance
thirty States rejected
Prohibition ... Eighteenth Amendment ... all manner of Americans became lawbreakers, which sensitized state court judges to the consequences of illegal searches in ways that might not have affected them if the law enforcement investigations had led to other criminal charges (failure of means)
the security of one's privacy against arbitrary intrusion by the police ... core ... basic to a free society ... ‘concept of ordered liberty’ (?)
In holding that the Fourth Amendment would apply to the States ... incorporation, one in which the Court acted more as a follower than as a leader ... 1949 ... McDonald ... theory of incorporation
instead “a matter of judicial implication” that “most of the English-speaking world does not regard” ... privacy ... declined to incorporate ... use the traditional "remedies ... such protection (reaction to failuer of means jj)
1961 ... law grew from
The state exclusionary rules thus did not emerge alike ... as a judicially declared rule of evidence
Mapp ... nationalized ... 1961 ... Don King ... not a picture of rectitude ... pornography
sterilizing the state guarantee ... no longer be a judicial stamp of approval on the use of unlawful means to justify an end result
turned ... “other remedies have completely failed to secure ompliance with the constitutional provisions” ... “other remedies have been worthless and futile” (failure of means)
the criminal should be set free than that the Court should fail to heed the wisdom that the government “teaches the whole people by its example ... If the government becomes a lawbreaker, it breeds contempt for law”
could not consistently ... forced to ... To hold otherwise is to grant the right but in reality to withhold its privelege and enjoyment ... to deter--to compel respect ... removing the incentive to disregard it
movement towards the rule of exclusion has been halting but seemingly inexorable
Good Faith Exception (and exceptions to the exception)
Leon
but ultimately found to be unsupported by probably cause
failed to establish the reliability and credibility of the informant ... stale
White ... on the one hand, deterring official misconduct and removing inducements to unreasonable invations of privay, and, on the other, establishing procedures under which criminal defendents are ‘acquitted or convicted on the basis of all the evidence which exposes the truth’
withstood critical analysis or the test of time
Penalizing the officer for the magistrate's error
substantial costs of exclusion
dilute
three decades ... disputes ... overwhelmingly rejected ... for good faith reliance on a defective warrant
Guzman ... informant's credibility ... without probably cause
1992
Justice Bistline ... rejected Leon's claim that deterrence was the key function of the exclusionary rule. The rule, he insisted, also protects the integrity of the warrant process ... preventing a second constitutional violation through the admission of illegally obtained evidence
a thief ... institutional benefits
serves as the indispensible mechanism for vindicating the constitutional right to be free from unreasonable searches
interactive ... Hegelian ... as the state and federal courts respond to strengths and weaknesses of their own decisions and to those of other sovereigns ... change
difficult to justify on originalist grounds
evolving consitutionalism and common law pragmatism
Discretion carried the day. At the same time that the Court made the Fourth Amendment applicable to the States, it declined to require the States to adopt an exclusionary rule. The Court gave the States more time to decide for themselves ... What looked like delay to some ... counted as informed patience ... assess their work product.
By 1961, the extra period of experimentation had proved useful to the US Supreme Court. The 12 years provided more empirical information about the pros and cons of exclusion. Recall that one of the explanations for Mapp was the California experience, in which the California courts had found that other methods of deterrence--private rights of action against police officers and internal disciplinary proceedings--had done little to decrease illegal encounters between the police and citizens. The additional time also diminished the extent of the assumption of power that invariably occurs when the Court nationalizes a right, as it allowed mroe States to develop exclusionary rules on their own under their own constitutions. Percieved respect for coequal sovereigns goes up when the High Court's decision affects fewer States.
Perhaps most importantly, the delay had the potential to incrase the legitimacy of the eventual decision. Even accepted on its own terms, evolving constitutionalism amounts to a warrantless seizure of power--deserving its own rule of exclusion--if it turns only on changing norms subjectively held by a majority of Justices, as opposed to changing norms objectively provable beyond 1 First Street. Time allowed the Mapp majority to rely on the experiences of roughly half of the States to show that a new norm of exlusions was not one of their own making. Whether that number, that percentage, is the right one is open to debate. What matters is that the Court paid attention to the best evidence of shifting norms, the epxeriences in the States.
If the Court wishes to naitonalize a right in an area of core state sovereignty
methodological ... In its eagerness to overrule ... offered a grab bag of explanations
left the primary basis of the exclusionary rule in doubt
accomplished by fiat ... not only rule but persuade
restless trigger finger
it became its own accross-the-board limiting principle
If deterrence of police misconduct was the point, why should the rule apply when the police acted in good faith?
1984
a feredalism discount
A pragmatic, evolving-norm approach to constitutional interpretation is not a rachet. By its nature, it can lead to increases and decreases in
Calandra
Janis
If one thinks judges are influenced by the consequences of their decisions, a school of legal philosophy (legal realism) with a wide following, the linkage of exclusion to the definition of an unreasonable search presents a risk to the underlying Fourth Amendment standard, especially in cases involving technical violations of the standard or egregious crimes
? Would Terry have come out differerntly before Mapp? Who can know?
beyond the Fourth
retrospectively
retroactively
Equal Justice Under Law
the equal protection of the laws
all people in jail who are unfortunate enough to have had their unconstitutional convictions affirmed before June 19, 1961
potential administrative complications ... release of thousands
The purpose of Mapp, Linkletter explained, was to deter the lawless action of the police ... not at this late date be served
the Court found other ‘exigencies’ that limited the retroactive application
Had the Court waited for roughtly three-quarters of the States to adopt ... that delay or patience ... have limited these consequences?
lockstepping ... after the Warren Court
Linkage between the federal ... risk. It created the risk that the US Supreme Court would dilute the unreasonable-search-and-seizure test and the risk that the state courts would march in unison.
sidelined when it comes to addressing the meaning of ‘unreasonable searches and seizures’ independently
worth asking more frequently when parties or interest groups seek one-perfect-solution victories at the US Supreme Court. Maximizing liberty does not invariably follow from a national rule.
How many of the States would have embraced one on their own within the next decade? Within the next two decades? By today?
ambivalent
If we place too much reliance on federal precedent we will render the State rules a mere vow of shadows; if we place too little, we will render State practice incoherent.
to think of the courts as the only protectors ... the best protectors
deterrence ... made a mistake? ... should the people suffer for that individual officers mistake? ... Does a good faith execption swallow the exclusionary rule?
susceptible to empirical answers
cost-benefit ... Who ... courts or legislatures? ... With one imperfect solution? With many imperfect solutions?
money damages actions against state and federal officials ... rejected every other Bivens claim since 1980 ... a remedy for just a few rights ... Judicial solutions sometimes sap the zeal to develop legislative solutions.
Olmstead ... 1928 ... wiretapping ... amount ot a ‘search and seizure’ ... stirring dissent, one later vindicated in Katz
when Cardozo, Holmes, Taft, and Brandeis all see the same essential problem differently
place an unduly literal ... secure conditions favorable ... the right to be let alone--the most comprehensive of rights and the right most valued by civilized men
Decency, security, and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously.
do not forbid ... meeting modern conditions ... which a century ago .. probably would have been rejected as arbitrary and oppressive
pitch
Clauses guaranteeing to the individual protection against specific abuses of power, must have a simliar capacity of adaptation to a changing world
a changeable Constitution ... meet a changing world ... non-originalist ... read his Olmstead dissent and answer
the deep sensitivity to individual freedom and skepticism of governmental power conveyed ... should want to know that the Mapp approach would work and has worked. That is not clear.
a sign of a healthy system of judicial federalism when federal judges engage the reasoning of their sister courts ... distinguish or engage with, the many state court decisions going the other way ... refer to the reasoning
respect the ... status ... provide a two-way dialogue about the meaning of generally worded guarantees
that elected judges can't be trusted to resolve such disputes in an even-handed fashion
whether disclosure of business records ... to third parties eliminates a reasonable expectation of privacy with respect to information
COMPELLED STERILIZATION
ill, immoral, criminally inclined
1860s ... Mendel
Galton
This undistuised idea ...
"Nearly all the happiness and nearly all the misery of the world are due, not to environement, but to heredity"
eugenicists before long would ‘ascribe almost every symptom of social disorganization to heredity’ ... genetic steering ... linked intelligence to morals, virtue, and social adequacy ... mentally ill, the insane, epileptics, criminals, prostitutes, alcoholics
leading figures of the day--Theodore Roosevelt, John D Rockefellers, Mrs Mary Harriman, David Starr Jordan
a natural outgrowth of what passed for the enlightened social and scientific thinking of the day; Darwin's ... natural selection
limit procreation ... segregate ... Victorian England
expensive
the one medically available procedure available for men through 1900 ... bringing with it other pysical and psychological consequences, too many ...
vasectomy ... salpingectomy
creating more so-termed degenerates ... seemingly compassionate ... and cost-effective
Indian passed the first sterilization law
human tool for eugenic control
concerns about the increasing number of criminals and increasing number of individuals who could not care for themselves
‘In 1850 there were 6737 criminals in the US, or one to each 3,442 of the population, while in 1890 the penal population was shown to be 83,329 or one to each 957 of the population. This is of the criminal alone. If all dependents ...
proportion of the population with these ‘traits’
1907
compulsory for each and every institution in the state entrusted with the care of confirmed criminals
staff
examine
procreation is inadvisable ... no probability of improvement
Laughlin .. American Breeder's Association ... full time for the Eugenics Research Office, a private body founded in 1910 ... less a ‘popular crusade’ and more a movement spearheaded by medical, scientific, and social ‘specialists’
fifteen states ... 1907 and 1918 ... legistlatures alone ... governors of each State vetoed the measures
discharge them if they agreed to be sterilized first
if the parents or guardian consented
California legislation thus did not permit involuntary
3233
California ... Several of the States ... performed no surgeries during ... Mason-Dixon ... 1919 ... western and midwestern states ... males (1853) and females (1380)
executive branch reticence ... superintendents ... skeptical of sterilization
1912 to 1921 ... filed constitutional challenges ... eight States ... won seven of them ... state court ... three theores: due process, equal protection, and cruel and unusual punishment ... litigants generally favored reliance on the federal guarantees found in Sec 1 of the Fourteenth “deprive of life, liberty or property” ... It would not be until 1962 that the US Sup Court would make the Eighth Am prohibition against ‘cruel and unusual punishment’ originally applicable only to the federal goverment, applicable to the States as well
Feilen ... a man of family, and respected in his community ... stat rape of a girl under 10 ... ‘habitual criminal’ ... ‘cruel’ punishment ... Washington Sup Court rejected ... estab a vic for the eugenicists in the first reported case ... The crime was ‘brutal, heinous, and revolting’ ... ‘death would not be held a cruel punishment’ ... making vasectomy a ‘common operation’ ... a measure of social economy. The court did not mention any opposing views on the topic ... unanimous 4-0
... Feilen ... did not fit the eugenics profile ... no criminal record, no relatives who were criminals, no indication of any ‘degeneracy’ in his family ... may not have convicted the right man. The governor pardoned Feilen in 1916 due to ‘grave doubt as to Feilen’s guilt"
would lose most of the cases over then next 15 years
another rape conviction
‘accorded considerable weight’ to the fact that Mickle was an epileptic
Many judges are opposed to such ‘mutilation’ ... leaves the convict ‘physically capable of committing the offense’ again
Alice Smith ... ‘procreation by her is inadvisable’ ... a known innocent ...States, unlike the national government, have inherent rather than enumerated legislative powers
far-reaching consequences ... pulmonary consumption or communicable syphilis
might well have stopped the eugenics movement in its tracks. The classification problem
Justice Garrison
generative human qualities from which the race must purge itself, if it is to endure
7-0 ... the law violated the ‘constitutional prohibition against class legislation’
1923 ... likely to have mentally defective children and those likely to burden the State with their children because of an inability to support them ... ‘feeble-minded’ ... whose father ... filed ...applied only to those who could not afford to provide for their offspring
4-4 deadlock, permitting the lower court order to sterilize Agnes Salloum to stand
medical evidence supported it
Most of the other experts ... ... testified against
found a federal due process violation: ‘The prisoner has no opportunity to cross-examine the experts
the premises of eugenics were far from proven ... Vague scientific-sounding generalities about potential and probable
equal protection
her welfare and that of society will be promoted by her sterilization
best citizens ... those ... lesser sacrifices ... It is better for all the world if ...
was depriving Carrie of her life by sterilizing her
limit ... the State of Oregon it had no right to require parents to send their children to public schools
judicial restraint ... judicial-modesty opinions ... takes sides on the policy debates of the day or even to save the citizenry from foolish legislation
The case is decided upon a ... theory which a large part of the country does not entertain. If it were a question whether I agreed with that theory, I should desire to study it further and long before making up my mind. But I do not conceive that to be my duty, because I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law. It is settled by various decisions of this court that state consittutions and state laws may regulat life in many ways which we as legislators might think as injudicious, or if you like as tyrannical ... The 14th Am does not enact Mr Herbert Spencer's Social Statics.
Perhaps the difference between the two opinoins reflects the difference between a young Justice who knows he has not seen it all and a muture Justice who thinks he has. “Sooner or later” Holmes wrote Larold Laski after the decision came out “one gets a chance to say what one thinks.” That occurred later in this instance. (jj Drama)
gave me pleasure
approval
Eugenics must be a good idea, one could forgive a citizen for thinking, because 8 members of the Sup Court had just said so
will be looked upon by the American people as a reasonable and conservative matter
most of the state courts fell in line after Buck
disadvantages, the race
in the interest of the higher general welfare
exception ... the movement never caught on below the Mason-Dixon line
(progressivism) held little sway in the South
science ... the shaky premises and promises of
Immigration Act ... southern and eastern Europe ... Racial Integrity Act
1935
'in view of the state of scientific authorities respecting inheritability of criminal traits
the defendant is given no opportunity to be heard
cruel and unusual punishment
Buck v. Bell 'where the condition had persisted through three generations and afforded grounds for the belief that it was transmissible and would continue to manifest itself
Holmse was its author
known and in some instances idolized Holmes
The Skinner Court may habe been unwilling to overrule Buck, but it was not unwilling to invoke the state court (and lower federal court) decisions ignored in Buck and inconsistent with it.
undermined
1960s ... States repeal ... 1972 ... upheld ... 1976 ... relied on Buck to show that the right to procreate contained limits and that the law did not violate the equal protection guarantee
Oregon in 1981 ... 1983, the Georgia SupCou rejected ... analogous to an irreversible end to parental rights and required greater evidence to support it. (jj avoid truth in law: Falce justices persist long)
did not fare well in the courts in the first decade and a half after they were passed. When the US SupC enthusiastically gave the States the green light ...
state courts fell in line ... If any branches of state government would write the last chapter of the eugenics movement, it would have to be the executive and legislative ...
hesitated ... blocked ... States varied so widely ... it only partially led to the movement's demise
ruthlessly reformist zeal of Buck ... feature of democracy ... the death of the eugenics movement came slowly
the States across-the-board enactment of legislation that protected the disabled from discrimination in general
antidiscrimination mandate ... accomodation mandate
eugenics law ... antidiscrimination laws made their enforcement a near legal impossibility
75 years ... 60,000 forced sterilizations
when courts place their stamp of approval ... before the evidence is in
Even very good judges can have very bad ideas
when the National Court resolves a complicated national debate
FREE SPEECH, FREE EXERCISE of RELIGION, and FREEDOM from MANDATORY FLAG SALUTES
pledge of allegiance ... Jehovah's Witnesses ... insufficiently patriotic and expelled dissenting children
Barnette ... Gobitis
The district court ... granted the Gobitas family relief, invoking the free exercise guarantee of the First (and Fourteenth) Amendment
SupC ... All nine justices voted to reject
caused problems for the Gobitas family ... Jehovah's Witnesses across the country ... boycott of the Gobitas grocery store ... the willingness of a police officer to guard the store ...After several months, business for the most part returned to normal.
sought exemptions ... proselytising ... conscientious objectors ... (exempted them only) from combat
deter Witnesses from proselytizing? ... seemed to invigorate them
They're traitors--the Supreme Court says so. Ain't you heard?
the intolerant temper of the moment
Refusal to salute the Flag ... would ‘be regarded as an Act of insubordination’
federal court against enforcement of the law ... Notwithstanding the 8-1 Gobitis decision, the 3-judge court granted the injunction in favor of the parents in a 3-0 decision
1943 ... compelled flag salutes could not be reconciled with the free speech requirements of the First Amendment
compelled speech cannot be reconciled with ‘free speech’
The war also may explain things. ... sensitizing the COurt to the need for the kind of patriotism ... Wartime circumstances, Frankfurter wrote, required the Court to make the delicate 'adjustemet between ...
Holmes wrote: many things that might be said in time of peace are such a hindrance to its effort that thier utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right
sometimes said that the law sleeps during war
If forced to generalize, I would propose that, in a close federal constitutional case, one in which the language and history of the provision do not answer the question, the National Court should err on the side of deference to the elected branches, on the side of judicial restraint. More often than not, the Court poses a greater risk to the country by invalidating laws than by letting the policial processes oversee them. And the American people are more likely to accept the resolution of difficult social and economic issues when they have a say in the matter.
While democracy is designed to adjust to new circumstance, judicial review generally is not (DEMOCRACY)
The decision took a bad situation (needless persecution of Jehovah's Witnesses) and made it worse through inaction (by prompting greater violence against Witnesses) ... do not make a bad situation worse. ... Every now and then, there can be real harm in inaction ...
like-minded justices ... remained unified ... Commerce ... economic ... But when it came to civil liberties, unanimity disappeared.
contract ... limits on congressional power
Frankfurter's critics ... how it could be that the country's best-known liberal became its leading judicial conservative. But the source of the change was not Frankfurter, whose constitutional philosophy remained remarkably consistent ... rest of liberalism that abandoned him and moved on once judicial restraint was no longer a useful tool
doctrinal dispute ... Was Barnette (and cases like it) a case about religious liberties or a case about free speech?
Jackson found it difficult to udnerstand why anyone should be required to salute the flag
Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs. (?)
does not relieve the citizen from the discharge of political responsibilities (?)
the path from Gobitis to Barnette is a story ... Jackson's triumph ... Frankfurter's loss ... judicial restraint. The winners indeed write the history.
democracy ... more time .. The Justice Department, it is true, was not helpful in responding to the widespread vigilantism (JD keeps peace for time for Leg. to reassess)
soften ... Witnesses were willing to live with
question: Would citizens rather live in a country in which a majority of a nine-member SupC protects the rights of dissenters or a country in which a majority of its citizens do so?
* There is something to Frankfurter's insight that civil liberties are best protected when they become part of our policial culture and part of what we as Americans do for each other, not part of what the Court does for us.
capacity to steel us against the next ill-conceived policy urge
the death ‘of a much-needed social experiment’ or the perceived death ‘of intollerance’. The ‘real battles of liberalism are not won in the SupC’. Only a persistent, positive translation of the liberal faith into the thoughts and acts of the community is the real reliance against the unabated temptation to straightjacket the human mind.' Frankfurter
Yet, as he appreciated, no judicial philosophy is worth its salt if it does not sting from time to time, if it does not force the judge to rule against the cause he would prefer to side with
blue-robed judges and red-robed judges
criticism ... being insensitive to the plight of Witnesses
spent his formative years ... criticizing ... justices for imposing their economic and political views on the country, he was not about to do the same ...
atttempt at principled consistency
apocryphal ... how he handled matters that involved patrons
political friends ... if it is a 50-50 call, I will side with my friends ... a lot of 55
Judges are not known for admitting their mistakes ... rates of error ... in groups, a form of decision-making that diminishes the risk of error. But does not eliminate that risk.
remain rigidly opposed
federal statutes, how was there ... state constitutions ... Supremacy Clause
there was no conflict. The federal laws were not mandatory
religious ... patriotic ... public expense
acknowledgement ... promise ... recognition ... antipolygamy ... laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices
there is another strength which is necessary to preserve the government besides military force, and that is the moral strength, or public opinion of its citizens.
at her time of life
patriotism AND liberty
Nor would the flag saluse lose andy 'dignity or worth if she were permitted to refrain from joining in it. On the contrary, that would be ...
unreasonable and arbitrary
1940 ... every state ... compulsory salutes constitutional ... flurry of expulsions that followed Gobitis ... some of their state courts refuse
sincerely ... the tenets of many religious sects or denominations would be called reasonable, or unreasonable, depending upon who is speaking
Bolling 1943
honor and respect
A phrase, or the making of a gesture, which to most people may seem either right or possibly unimportant, may to others appear to be of great significance
imagination
The movement any court takes to itself the right to hold a religious view unreasonable, that moment the American courts begin to deny the right of religious freedom
human sacrifice or polygamy merely becase we are told religeon requires either
why just two (courts)
could also mroe easily rule on other grounds, avoiding a clash with the US SupC
created a floor of federal rights that no State could ignore
the denial of the Witnesses free exercise rights was more likely to undermine that promote the patriotics goals of flag-salute ceremonies
fail to create and foster respect for the compelling authority, but will engender a sentiment of rebellion against it
were entitled .. but ... the claims required new thinking about constitutional rights in a time of intense patriotic fervor ... stumbling toward a correct answer
second-guessed whether the individuals' faith required their action ... idiosyncrasies ... doubted
dangerous to place too much reliance on any of our courts
citizens ... best and only protectors
two sets of protecions may fail us from time to time, as they largely did during the years leading up to 1940
the state courts' sensitivity to these rights grew after Gobitis, after the US SupC overwhelmingly rejected the federal claims
‘inferior’ courts are not necessarily populated by ‘inferior’ judges
so long as the plaintiff brings a claim under state law as well as federal law
LOOKING FORWARD: WHAT the STATE COURTS CAN DO
prioritize national civil rights ... the best approach is often complicated---and sometimes unknowable
proper balance
lockstepping ... diminish (in reflexive imitation to federal courts)?
No state supreme court by contrast has any reason to apply a ‘federalism discount' to any of its decisions
State courts cannot rest when they have afforded their citizens the full protections of the federal Constitution but should grant relief under their own constitutions instead.
a time, place, and person for everything
the bolder a new idea, the better it is for just one State (or a few States) to test it before
Why live in a 'top-down ... informed ... whether to federalize the issue
State courts decisions that imitate federal ... not only seem to be prioritizing the wrong decisions in determining the meaning of their own constitutions ... inverting the right sequence
honors the original design
the States as the first bulwarks of freedom (why has this not happened?)
Fourteenth Am ... ‘property’ ... the States still define what counts as property and what makes a contract
nor shall any state (prohibitive, deterrant)
By deciding the federal claim that first, state courts do ... aggrandize federal law at the expense of state law
i. All that's at issue as a practical matter is this: Does the state court start with the state law claim or the federal claim? And all that's at issue as a policy matter is this: Is the state constitutional daim the first or second line of defense in individual rights cases? Is it the bulwark? Or the backstop?
interstitial/secondary sequencing of decision-making
the stakes would not be high, and I would have lost in this subject long ago. But that is not what has happened."To this day, most state courts adopt federal constitutional law as their own. Bowing
Once a state court establishes the interre-lation between the two guarantees, it has established that no state con-stitutional inquiry is needed,
'Ihe state courts thus should explain the interrelation between the two sets of charters in both directions, ... Anything less reinforces a ratchet approach to state constitutionalism,
has become so much more developed
groundwork
Most American lawyers (and jud8es) are considerably more familiar with the Federal Constitution than they are with their State's constitution. Fewlawyers know anything about their State's founders, their purposes in creating the State's consti-tution, the events that may have shaped their thinking, or "how the var-ious provisions of the document fit together into a coherent whole.
Presurnptions become destiny.
The secondary approach permits state court judges, particularly elected state court judges, to convey the impression that federal law prompted the decision-that the U.S.iprerne Court made them do it. Accountability considerations firmly support the state-first model because it ensures that state courts take transparent responsibility
But even universal truths have local dialects. The U.S. Constitution and a state constitution may equally value free speech while having difFerent understandings of commercial speech. So too of regional understandings of privacy, education, speech, and family structures that stem from sources different from the text of the Federal Constitution,
"shift the debate
risks of relying too heavily on the U.S. Supreme Court as the guardian of our rights, to show that the state supreme courts at times have been committed defenders of our rights,
LOOKING FORWARD: WHAT the REST of the LEGAL COMMUNITY CAN DO
Still have this one chapter to read and then scan
TOUGH CASES edited by CANAN, MIZE and WEISBERG
TERRY'S JUDGE, by Greer
How a government without checks and balances and separation of powers starts to feel like anarchy
deliberative process of democracy
plenary guardian (unqualified, absolute: plenary indulgence; a role that authorized him to exercise all legal rights and proceedings on behalf of Terry and to make decisions on her behalf
Money overshadowed the whole case
appointing and subsequently discharging the guardian ad litem ('for the suit', appointed by a court of one party to act in a lawsuit on behalf of another party such as a child)
because of his competing interest as sole heir, could not alone recommend withdrawing life-support
what would she want done?
(making decisions for others -- book)
still go through sleep-wake cycles
medecine and medical technologies keep evolving ... shifts in cultural norms ... How do we make decisions? What counts as life support and what counts as getting in the way of a peaceful death? ... the right of personal autonomy is not taken away if someone is incompetent to make the decision him or herself.
advance directive
demeanor, hear inflections, and note pregnant pauses
* I listen to hear if what I am hearing adds up. And if it does not add up, I try and find out why.
convincing and credible
Roe v. Wade
Bush filed a federal court brief ... executive order ... US House and Senate passed S686 ... included an extraordinary provision that would allow a federal court review of a state court's final decision.
congressmen cannot be sued for voting for an unconstitutional law, which means they can act with impunity ... Every federal court that was asked to review the matter, all ... refused to hear the case on grounds of jurisdiction.
The courts are established to break ties. They are there so that we all don't throw down at high noon.
it is not the loudest people who control how we govern ourselves.
ROUGH JUSTICE, Canan
chaired a conviction studying wrongful convictions
judicial trainings ... firmly
the judge was lawless and violated his oath of office
the defense basically has to do its own investigation
a judge's role in plea bargaining
The prosecutor generally appears before the judge every day, and, in order to keep good relations
had just testified under oath that the gun was not his ... How was now going to have to state that, again under oath, that it was in fact his gun
(everyone in the room knew that) the promise was implied
It had been difficult, but we all got the right result
Perhaps I should explain to them in detail all the circumstances, but I rejected that idea since it would be hard to communicate all the dynamics without communicating to them that I thought they were about to make a tragic mistake.
I had orchestrated a turn of events
A JUDGE'S HIDDEN STRUGGLE, Bohr
Taken into account the ‘whole’ person who stood before me
resolve disputes and make their own decisions regarding custody and parenting time. ... that when parents agree, friction and conflict are decreased
property of the father ... economic means ... Mothers were presumed ... because they were the ones who cared for babies and children of a tender age
--
a problem verdict
her family ... In recalling her parents, she began to examine her own parenting strengths and shortcomings
As I write this epilogue, the ghost of Mary Q seems a lot further away. Her beautiful daughter Jenny has replaced hauntings with deep feelings of thanksgiving
a different holding
When we did being to deliberate and go over hundreds of exhibits that were admitted during the seven weeks of testimony, it was quite a shock to me. The 12 of us had listened to the same testimony and looked at the same exhibits, but we all had different views on what the evidence proved or did not prove. I felt that the process of discussing and debating with the other jurors was essential in weeding through all the evidence to come to the right verdict.
I have learned from my mistakes of what works and does not work
UNITED STATES v. I Lewis Scooter Libby, Walton
lay the foundation ... any false statements ... were the mistaken result of mental overload and were not made with the intent to deceive.
a subject that a layperson could presumably appreciate withotu an expert's assistance
only if the subject of the testimony is beyond the ability of a layperson to understand
many people have a misunderstanding about the capacity of human memory
Classified Information Procedures Act CIPA ... 1980 ... criminal defendants desired to present classified information ... created a dilemma for the government ... allow disclosure of the classified information or dismiss the case
centered on
the ostensible predicate (for going to war against Iraq, that Hussein may have acquired uranium from Niger) [found or base something on]
raised serious questions about what Libby actually said to Cooper
President Bush totally eliminated Libby's prison sentense by commuting it
Trump ... As a basis for his pardon, President Trump stated that for years he had ‘heard that Libby has been treated unfairly’
sometimes the facts and the law ultimately do not matter
CAN AN ELECTED JUDGE OVERRULE NEARLY A MILLION VOTERS AND SURVIVE, Alsdorf
Citizens were angered ... lack of constructive legislative response
weren't powerless to address
Drawing on their wisdom, I learned to transform the dread of the next election into a heightened motivation to engage in throughtful and transparent adjudication
justice can more easily be achieved if we focus not on what most people consider to be the right result but instead on resolving underlying issues fairly and letting the end results take care of themselves
wanted to join their fight against the Revolution ... consider such a person a traitor and to kill him on the spot ... the defendant's simple statement of intent .. accompanied by no affirmative action
neutral rules ... instead to process, to a careful consideration of all arguments, represent a fundamental step toward achieving the rule of law
The most important person in the courtroom is the loser
speaking from the perspective of the law, we have also decided that the loser deserved to lose
accurately identifying the winner is not, by itself, sufficient to constitute justice ... attention we pay to the losing party ... the respect for judicial process that such attention may engender
what the party who then seems likely to lose considers to be the heart of the case
rulings less unpalatable
I have reached my final ruling. I try to explicitly note for the losing party how laudable or understandable its motivation or key legal argument is, and then give a straighforward explanation of why that factor nonetheless cannot be used by the court to justify a ruling in its favor
would know that I had indeed heard and seriously considered what they had to say
is dishonest or unreasonably litigious ... deserves to be hammered rather than praised
truly pleasureable duty of research and analysis
hearing directly from the parties and their advocates, and learning something new every day
Make the parties part of the process of identifying and framing the central legal questions
The task for the court and counsel at oral argument is to articulate the legal norms, standards, and inquiries that owuld ultimately provide the answers to each of the identified issues ... helps ... not by the judge's personal. ... "It appears that X may indeed be the central question here. What I want from you is either a direct answer to that question or an explanation by you of what alternative question you believe is or ought to be key to the court's deliberations
to be derived from principled decision ... jumping directly to a preferred result
address who may answer whatever question is key. Who gets to, or who has to, decide what?
legislative ‘log-rolling’
started my draft of the ruling not by ignoring public will, but by showing respoect for the vote in favor of the initiative and
have a government of laws and not of men ... cherished principle
we may and frequently do disagree on specific policies. Nonetheless, our agreement as citizens on a single point of reference, the Constitution
Before announcing what you intend to be your final ruling in any hotly contested case, double and triple check for emotion, bias, pressure, or other extraneous factors
Simply identify and then flip whatever might have been a hot button in the litigation
if the facts applied to the mother were ... would you change your ruling and shift primary responsibility?
describing the decision as a civics lesson
if I am doing my job right, I'm not the voice of one man. When I do a case like this, I study the Constitution. I study a hundred years of decisions by our ...
p 182 where I left off reading
AN INTRODUCTION TO CONSTITUTIONAL LAW, by Barnett and Blackman
PART I: FOUNDATIONAL CASES
whether a state could be sued in federal court by a citizen of another state
The term ‘sovereign’ is totally unknown ... the individual free man is an original sovereign. The states were mere aggregations of individuals: a collection of individual sovereigns. Laws derived from the pure source of equity and justice must be founded on the CONSENT of those whose obedience they require. (Justice Wilson) ... We the people
Did Justice Wilson articulate an individual or collective conception of “We the people”?
where a specific duty is assigned by law, and individual rights depend upon the performance of that duty ... the individual who considers himself injured, has a right to resort to the laws of his country for a remedy (Marbury)
* To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine ... ( monopoly )
that the legislature may alter the constitution by an ordinary act
to follow the higher law (of the Constitution)
the discretion to exercise a ‘power’
must perform a ‘duty’
Clause 18 (Article I Sec 8), the necessary and proper clause
definition of necessary: “needful, requisite, incidental, useful, or conducive” (Hamilton's)
means-ends scrutiny (test: “The relation between the measure and the end; between the nature of the mean employed toward the execution of a power, and the object of that power must be the criterion of constitutionality.”
first bank of the US ... two decades ... second bank .... proper to defer ... several Congresses ... became very unpopular ... the Court had to decide if Congress had the power
McCullough v. Maryland ... reading of NECESSARY ... “convenient” ... “Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.”
Does Marchall's interpretation of the NaPC give Congress a blank check? If not, what are the limits of Congress's implied powers?
power to tax involves the power to destroy
Is Congress carrying into execution an enumerated power in good faith? Or is Congress's justification instead a mere pretext for exercising a power that has not been entrusted to the national government?
1832 ... Pres Jackson vetoed ... bank
monopoly ... preempted ... Commerce Clause ... “restrict a general term," that is COMMERCE, which is “applicable to many objects, to one of its significations” ... that “enumeration presupposes something NOT enumerated”
Is there anything Congress cannot regulate?
Takings Clause (Fifth) ... profitable wharf ... could have amended their own state constitutions ... Fourteenth ... in part, to reverse Barron ... Today, almost all of the provisions of the BoR have now been extended to the states by incorporating them into the Due Process Clause of the 14th.
Fugitive Slave Act ... “substantial effects” test ... identified limits on the growth of federal power
travel accross state lines and arrest runaway slaves ... superseded, or preempted, any state laws to the contrary ... captured Morgan ... kidnapping ... doubted that the Union could have even been formed if the Fugitive Slave Clause had not been added to the Contitution ... Necessary and Proper Clause ... Story's broad interpretation ... gave Congress far more authority ... most expansive readings ... states cannot be “compelled to enforce" ... “anti-commandeering doctrine” ... Therefore, the Act was “supreme” and preempted the Pennsylvania personal liberty law ... Congress would pass an even more draconian Fugitive Slave Act in 1850.
What provision of the Constitution gave Congress the power to enact the Fugitive Slave Act?
oil ... “virtual denial [to Congress] of any power to interfere with the internal trade and business of the separate states”
when it is “necessary and proper means for carrying into execution some other power expressly granted or vested”
this “consequence is too remote and too uncertain
Spanish Dollar coin
Legal Tender Act 1862
not incidental to (the power to “regulate commerce”
made “necessary” by the shortage of gold ... infer from them ... “the power of self-preservation” .... capricious ... practically absolute and unlimited
Progressive Movement ... reforms ... Sugar ... would monopolize .. Harlan's dissent ... Lottery Cases ... turned on the meaning of the words “commerce” and “regulate” ... adopt a limiting principle ... Tenth ... would abandon ... would “defeat the operation of the Tenth Amendment” ... Holmes dissented ... Congress's aims or motives, he contended, were irrelevant.
business and unions could adopt “Codes of Fair Competition”
Poultry Code ... The Court unanimously concluded that Congress lacked the power to enact the NRA (National Industrial Recovery Act Roosevelt after 1932) ... too much power ... regulate ... affecting ... suggests that Congress's enumerated powers under the Commerce Clause are being supplemented by Congress's implied powers ... too remote ... would be virtually no limit ... for all practical purposes, we should have a completely centralized government ... as to destroy the distinction, which the commerce clause itself establishes, between commerce among the several States and the internal concerns of a State ... Starting in 1937, the Supreme Court began to consistently uphold federal and state Progressive laws. ... By and large, their decisions did not expand the scope of Congress's enumerated powers under the Commerce Clause. Rather, these cases expanded the scope of Congress's implied powers under the Necessary and Proper Clause.
direct effects ... only regulate local activity ... affecting commerce ... effectively obliterate the distinction between what is national and what is local and create a completely centralized government ... Congress could now regulate local activities -- even if those activities were not commerce ... wheat ... law restricted the supply of wheat as a means to increase prices ... would have abandoned all scrutiny concerning the scope of Congress's commerce power. It other words, the Court would uphold any economic regulation that Congress deemed reasonable. ... not prepared to take such a momentous step ... expanded the substantial effects test ... aggregation ... effected national wheat prices ... substantial effect on the interstate price of wheat
African Americans ... The elected branches, and not the courts, were the primary drivers in this revolution ... Civil Rights Act of 1964 ... enforcement by the executive ...
refused to rent rooms to African-American ... only protect people from “that action” -- meaning actions by state governments ... private ...
to base a Civil Rights law on the 14th A than on the Commerce Clause?
the Taxing Power ... the Spending Clause ... Are there any limits on what Congress can spend money on? ... raise their drinking age ... withhold a percentage of federal highway funds ... Because Congress could not force the state legislature to raise its drinking age, SDakota argued that Congress could not accomplish that same objective by taking away federal funds ... rejected ... in pursuit of ‘the general welfare’ ... what they are getting into when they accept federal money ... safe ... limitations ... A condition becomes unconstitutional when "the financial inducement offered by Congress might be so coercive as to pass the point at which ‘pressure turns into compulsion’ ... would, in effect, commandeer the state legislature to comply with the condition. ... solely to induce the SD legislature to regulate its people in the way Congress desired ... accomplish that same goal by
direct effects ... substantial effects ... a law that exceeded Congress's powers ... Commerce ... Necessary and Proper Clause ... Gun-Free School Zones Act ... unable to articulate what limits existed on the scope of Congress's powers ... The solicitor General was unable to identify a limiting principle for the scope of congressional powers ... “We start with first principles” “The Constitution creates a FedGov of enumerated powers.” ... the use of the channels ... instrumentalities ... persons or things ... even though the threat may come only from intrastate activities ... substantial effects test ... added something new: an outer limit of the substantial effects test ... activity is ECONOMIC in nature ... nothing to do with commerce ... Nor is the federal law "an essential part of a larger regulation of economic activity [We might expect future laws to be based on ‘economic basis’]
This distinction between economic and non-economic activity allows the Court to separate “what is national and what is local” ... political responsibility would become illusory ... would abolish ... Congress enacted a new version ... this bright line between economic and non-economic activity. ... Congress had become complacent. The statute lacked factual findings
Violence Against Women Act ... has economic effects ... not sufficient to support the constitutionality of VAWA's federal cause of action ... raped ... Congress lacked the power to create VAWA's federal cause of action. ... economic ... findings ... not relevant ... The Court would limit the further ... Because of this first principle, the Court would reject any proposed expansion of congressional power that lacked a judicially administrable limiting principle. ... identify a categorical distinction that judges are capable of applying to particular facts.
marijuana ... because home-grown m substituted for m that could have been purchased on the interstate marketplace ... market substitute theory: An activity is “economic” when it substitutes for a market activity. ... “economic” as “the production, distribution, and consumption of commodities.”
“Congress has the power to regulate purely local activities” when doing so is necessary to implement a comprehensive national regulatory program. ... Congress could regulate some local non-economic activity if those laws are “essential” to a broader regulatory scheme. ... thought that the courts must defer to Congress's ... sweep all of productive human activity into federal regulatory reach." ... objected to the Court's use of a dictionary definition of economics that skirt the real problem of drawing a meaningful line between what is national and what is local. ... Raich modified that doctrine. Now, Congress can regulate even non-economic activity ... the most far-reaching example of Commerce Clause authority.
Obamacare ... required ... States that refused to expand their Medicaid programs would lose all the funding ... “compels individuals to become active in commerce by purchasing a product ... their failure to do so affects ... unprecedented ... a power to compel people to do business with a private company ... ”would give Congress the same license to regulate what we do not do, fundamentally changing the relation between the citizen and the Federal Government." ... was not authorized by the taxing power. ... He rejected the government's argument that Congress could impose a purchase mandate under ... “economic dragooning (mounted and foot soldiers) that leaves the States with no real option but to acquiesce in the Medicaid expansion.” This extreme penalty violated the fifth limit on the spending power that was identified in SD v. Dole. ... Renquist ... brakes ... economic ... substantial effect ... non-economic ... reulatory scheme ... could not ... regulating inactivity ... followed the Renquist Court's approach: this far, and no farther.
FEDERALISM LIMITS ON CONGRESSIONAL POWER
radioactive waste ... by private parties in the state ... force the state to take ownership ... “Congress may not simply ‘commandeer’” ... complelling them to enact and enforce a federal regulatory program ... other means ... could provide money to the states with strings attached ... impose a uniform federal standard nationwide ...
extended the anti-commandeering ... state executive-branch officials ... Brady Handgun Violence Prevention Act ... database ... sheriffs .. Montana ... This ‘usurpation’ violates the principle of state sovereignty
sue the state ... could a citizen of one state sue another state? ... no ... sue his own state? ... text does not address ... Louisiana failed to pay interest on certain bonds ... Contracts Clause
Congress has the power to override, or abrogate, a state's sovereign immunity ... Indian Gaming ...
unless the government shows that it has a compelling interest to impose that burden. ... a state can substantially burden the free exercise of religeon ... so long as the law was “neutral” towards religion. ... state must show a complelling interest that justifies the burden.
THE EXECUTIVE POWER
without receiving a single electoral vote from a Southern State (Lincoln) ... seven Southern states seceded ... he would not disturb their institutionalized slavery ... Sumter ... Congress never formally noted on a declaration of war. Rather, President Lincoln prosecuted the military campaign thruogh broad and largely unprecedented assertions of executive powers. ... address an issue on which the text of the Constitution was silent ... unilaterally suspended the write of habeus corpus and imposed martial law ... unconstitutional ... Taney ... writ of habeas corpus ... General Caldwater declined to produce Merryman ... that his written opinion should “be laid before the president ... treason ... bail ... special session of Congress. Lincoln sought approval for actions he had taken in Congress's absense ... Congress agreed ... a statute ”approving, legalizing, and making valid all the acts"
separation of powers ... Korean War ... did not declare war on Korea. Instead, the UN ... a treaty ... conflict ... Steelworkers ... take control of steel mills nationwide ... plant managers were ordered to “continue their functions” ... mill's owner challenged ... district court halted the seizure ... such ... violated the separation of powers ... cannot be defined solely by the text ... meaning of “the executive power” should be understood based on past presidential practice. ... (?) long pursued to the knowledge of Congress and never before questioned ... approved of these long-standing practices ... disturbing that settlement ... However, the President has no power to raise revenues ... seizure was a taking, and the Constitution entrusted this quintessentially legislative act to the Congress ... three zones of presidential authority ... authority is unknown? likely to depend ... rely on practical considerations ... emergency?
curfew ... military's detention of Japanese-Americans in detention camps .. exlusion ... protecting national security ... no reliable evidence ... Fifth Amendment's Due Process Clause ... anti-canon
THE SEPARATION OF POWERS
Watergate ... Committee for the Re-election of President Nixon ... enter the Democratic National Headquarters ... searching for ... Nixon had no role in, or even knowledge of, the break-in. ... discussed raising money to pay the burglars in return for their silence ... landslide victory ... impeachment ... Treason, Bribery, or other High Crimes and Misdemeanors ... resigned ... Nixon ordered Richardson to dismiss Cox. Richardson refused ... instead resigned ... Nixon then ordered Ruckelshaus to fire Cox. ... he refused to fire ... resigned ... Bork ... followed Nixon's order ... Jaworski ... Nixon refused to produce the tapes ... Congress enacted the Ethics in Government Act ... not subordinate ... the potential of the asserted principle to effect important change in the equilibrium of power is not immmediately evident ... Scalia's ... both sides came to see the wisdom and forsight of his analysis ... Ken Starr ... “sunset” provision
Labor Relations Board ... five members ... filibustered ... Republican-controlled House relied on another provision ... to prevent the Democratic-controlled Senate ... taken literally ... relying on the function, or purpose, of the Clause ... functionalist ...
SLAVERY AND THE RECONSTRUCTION AMENDMENTS
(basis for owning slave? (person) ... What invalidated this basis?)
Dred Scott v. Sandford (1857) ... African ... could never be citizens ... Following the Constitution's ratification ... became more bitterly divided. each side feared ... when new states were admitted ... Missouri Compromise ... to preserve ... equipoise ... For every new slave state that was admitted into the Union, a new free state would also be admitted ... to declare that his family was emancipated ... Missouri Supreme Court reversed ... sued his owner, John Sanford ... If Scott was not a citizen ... even if they were emancipated under state law and were considered ‘citiens’ by their state ... If the Court lacked jurisdiction, the case should have been dismissed. ... second part ... Fifth Amendment ... “property” ... ruled that the Missiouri Compromise was unconstitutional. ... protect the rights of Southerners to transport their slaves through free states. Northerners feared ... settle permanently ... galvanized popular opinion ... Republican party. Abraham Lincoln ... provoded the South to secede ... Civil War ... 13th, 14th and 15th
citizens from other states ... Mason ... natural rights ... invoked this language to hold that slavery was unconstitutional ... free black sailors ... imprisoned while their ships docked ... distinction between state citizenship ... (? power to enforce this article by appropriate legislation ?) ... Congress relied on its new power in Section 2 to enact the Civil Rights Act of 1866 ... “all persons born” ... Congress tried to use a statue to overrule Dred Scott ... Congress enacted the Freedman's Bureau Act ... advance the interests of the newly freed slaves ... Johnson vetoed ... claimed that the laws were unconstitutional ... these measure exeeded Congress's “Section 2” powers ... overrode the vetoes ... to ensure that Congress had the power to enact the Civil Rights Act ... Now, the state's ... trust the states ... enforcement provision ... Congress could now enact new “appropriate legislation” to protect a person's rights ... such a great departure from the original constitutional design ... narrowly construed ... Jim Crow
narrow subset of federally created rights. A state retained the power to violate the great bulk of its citizens' fundamental civil rights ... These rights, and all other unenumerated natural or civil rights, could only be protected by the states
attempt to provide facts that justified different treatment of men and women ... natural and proper timidity and delicacy
claimed to have won the office of jduge and sheriff in Grant Parish, Louisiana ... Colfax Massacre ... found that the states were still not bound by the first 8 amendments, even after the 14th Amendment's ratification ... It is now too late to question the correctness of this construction ... effectively eliminated the Priveleges or Immunities Clause ... ( * ) To compensate for the deleted Privileges or Immunities Clause, the Supreme Court would gradually expand the scopes of the Due Process and Equal Protection Clauses, far beyond their original meaning.
states began to enact so-called “black codes” .. KKK ... terrorist ... killed the freedmen ... Enforcement Acts ... empowered the executive branch, as well as the federal judiciary, to protect the civil rights of the freedmen ... state courts could not be trusted to protect the rights of the freedment ... to transfer, or remove his case
murdering his wife. Both were African Americans ... jury service to white males ... the removal law
cited Congress's enforcement powers ... segregated businesses across the country ... declare unconstitutional the Civil Rights Act ... could not be used to regulate private businesses ... “civil rights ... cannot be impaired by the wrongful acts of individuals, unsupported by State authority” ... only restrict “state” action ... states now had an affirmative duty to ENFORCE the rights of all people .. had to protect everyone ... and private ... the failure to provide some people with ‘protection’ ... too radical for the Supreme Court ... ( * ) obligated to accept all paying customers from the general public. Because these businesses each had a monopoly, they had a common-law duty not to discriminate against potential customers. ... theaters required a public licence to operate. ... slavery itself ... all badges and incidents of slavery ... subjects that person to any form of servitude, or tends to fasten upon him any badge of slavery ( * slavery test ) ... Civil Rights Act of 1964
health, safety, welfare, and public morals ... An ordinance that “acknowledges neither guidance nor restraint” ... “purely arbitrary” ... therefore, was beyond the state's police power to enact. ... City can deny rights without establishing a proper justification for doing so ... 14th ... deprived the business owners of their ‘property’--that is, their business and livlihood -- ‘without due process of law’ ... ‘a naked and arbitrary power to give or withhold consent’ ... so arbitrary an exercise of power is not truly a ‘law’ ... purely arbitrary ... not a proper exercise of government power ... ( * not only the process that is due but the process that is due according to a valid law ) ... make unjust and illegal discriminations between persons in similar circumstances ... facts shown establish ... If a law is not enforced equally, some people are being denied the protection of the law that others enjoy ... looked to both the substance of the ordinance, which was arbitrary, and the discriminatory manner in which the ordinance was enforced
vacant seat ... ejected ... a reasonable exercise ... in light of ‘the established usages, customs, and tradtiions ... with a view to the promotion of their comfort, and the preservation of the public peace and good order.' ... prevented people of different races from CHOOSING to commingle.
EXPANDING THE SCOPE OF THE DUE PROCESS CLAUSE
bakeries ... sanitation ... never designed for commercial ... In contrast, large commercial bakeries ... corporate-owned, unionized bakeries ... “freedom of contract” ... unreasonable, unnecessary and arbitrary interference ... enacted for ‘other motives’ ... class legislation aimed at helping unions and harming non-unionized bakeshops and their employees ... The challenger had the burden to show that a restriction on liberty was arbitrary and irrational
the Fifth Amendment gives employers and employees ‘an equal right to obtain from each other the best terms they can as the result of private bargaining.’
English ... public safety was imperiled ... interfere with the calling of modern language teachers, with the opportunities of pupils to acquire knowledge and, with the power of parents to control the education of their own. ... goals, or ends, were permissible .. a legitimate interest to improve the quality of its citizens, physically, mentally and morally ... the MEANS were prohibited. ... could not interfere with liberty ‘under the guise of protecting the public interest’ unless the law had a ‘reasonable relation to some purpose within the competency of the State to effect.’ Here, speaking a foreign language is not ‘so clearly harmful as to justify this deprivation of rights ... ’unreasonably infringed on the liberty guaranteed' ... the Constitution does not ‘prevent the experiment being tried’ by the state ... public schools ... The government can only violate constitutional rights when the law has a reasonable relation to some purpose with the competency of the state. ... McReynolds ... incorporated ... corporations ‘cannot claim for themselves the liberty’ ... however, the 14th protects the PROPERTY owned by the corporations ... deprives the corporations of their property rights
Sterilizatin Act and the Racial Integrity Act ... interracial marriage ... scientific eugenics ... widespread support throughout the US ... hereditary ... courts rely on the science of the day ... Supreme Court upheld Virginia's law ... wholeheartedly accepted Virginia's account of the Buck family ... In light of Virginia'a law, the state did not have to wait to execute degenerate offspring for crime or let them starve for their imbecility. ... why could the government 'not call upon those who already sap the strength of the State for these lesser sacrifices" ... draft ... the principle upheld in Buck v. Bell is considered good law, the case itself is condemned for its reliance on quack science and shoddy fact-finding
25% ... 20% ... insurance premium .... commission ... unreasonable and could not be paid ... deprived the company of PROPERTY ... without the due process of law ... exception ... Legislatures could set prices for a business ‘affected with a public interest’ ... monopoly ... any business the state wanted to regulate
milk ... free loaf of Italian bread ... New York charged Nebbia with violating the price-control law ... states can regulate businesses ‘affected with a public interest’ ... to fix ‘the prices to be charged' ... law was arbitrary because the means adopted did not fit the purported ends ... law seemed to be designed to protect large milk distributors from competition
liberty of contract ... questioned the presumption of scontitutionality ... a judge has an independent ‘duty to make up his own mind and adjudge accordingly’ whether a law is constitutional. A deferential judge who ‘automatically accepts the views of others has surrendered his deliberate judgement.' ... The meaning of the Constitution does not change with the ebb and flow of economic events ... the essential element which continues it in force ... government cannot distinguish between men and women without prividing a legitimate basis ... constitutional revolution of 1937 ... sea change
rebut the presumption of liberty ... qualified the presumption ... made the presumption of constitutionality nearly impossible to rebut.
Dairy farmers ... competition .. Milnut ... injurious ... generally injurious ... facilitates fraud ... fourth footnote ... most famous footnote ... first ten Amendments ... strict scrutiny ... restricts those political processes which can ordinarily be expected to bring about repeal of undesireable legislation ... information ... minorities ... prejudice ... tends seriously to curtail the operation of those political processes ... relied upon to protect minorities ... restrict individual liberties that are not expressly enumerated ... “liberty interests”
unreasonableness ... law was not a good faith effort to promote the public health. Instead, the law was designed to eliminate competition ... Douglas ... did not matter what the legislature actually intended. It was enough to speculate what the legislature might have intended. ... enough ... evil at hand for correction ... might be thought that the particular legislative measure was a rational was to correct it ... conveivable basis review ... because they may be unwise, improvident, or out of harmony with a particular school of thought ... the people must resort to the polls ... Holmes would have upheld the maximum-hours law because a reasonable man might think it a proper measure on the score of health. Taken literally, such a presumption of constitutionality is nearly impossible to rebut.
EQUAL PROTECTION OF THE LAW: DISCRIMINATION ON THE BASIS OF RACE
government could segregate public accomodations ... ‘equal’ ...
NAACP ... school segregation laws ... Justices could not reach a decision ... violated the Equal Protection ... could not determine whether those who wrote or ratified the 14th A expected that it would make segregated schools unconstitutional ... Because history did not provide a clear answer ... foundation of good citizenship ... social science ... ( new style ) segregation of white and colored children in public schools has a detrimental effect upon the colored children. In short, when it came to education, ‘separate’ was inherently ‘unequal’.
state school segregation ... 14th ... restrict the state's police powers--not the federal government's powers. 5th Due Process ... life, liberty, or property, without due process of law ... Why? In view of our decision in Brown that the Constitution prohibits the states from maintaining racially segregated public schools it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government. ( ? ) ... Because the Equal Protection Clause does not restrict federal power, the Court instead reasoned that racial discrimination may be so unjustifyable as to be violative of due process. ( ? ) ... liberty ... thus it imposes on Negro children of the DC a burden that constitutes an arbitrary deprivation of their liberty in violation of the due Due Process Clause ( ? ) ... was Brown really based on the Equal Protection Clause? ... the debates that lead to the ... public schools was a ‘privelege’ of citizenship ... All contribute to the taxes ... are benefited by the education given to the rising generation ... entitled to equal PRIVELEGES in the public schools. ... creates rights of equal citizenship that apply against all governments, state and federal ( ? ) ... the Priveleges or Immunities Clause, not the Equal Protection Clause ... Congress, too, is barred from abridging ... did not order ... ordered re-arguments on how to implement the decision ... Board of Education II ... not be heeded
unanimous ... violated the 14th ... Little Rock ... gradual integration. However, the so-called ‘Massive Resistence’ spread to Arkanas. Citizens approved an amendment to the state constitution that opposed Brown and desegregation ( * ) .... injunction ...
Arkansas Nation Guard to prevent black students from entering ... Little Rock Nine ... A federal court enjoined the National Guard from blocking ... In response, the Little Rock PD replaced the National Guard ... Eisenhower dispatched the 101st Airborne ... “Mob rule cannot be allowed to override the decisions of our courts.” ... opposition to the desegregation plan did not subside ... district court granted the school board a 30-month entension. .. The school board simply needed more time to deal with the unexpected circumstances ... ruled that the delay was not permissible ... not to be sacrificed or yielded to the violence ... supreme Law of the Land ... the people of that state until it is really resolved have a doubt in their mind and a right to have a doubt ... The ‘interpretation of the 14th enunciated by this Court in the Brown case is the supreme law of the land.’ ... immediate aftermath ... bleak ... Governor leased all the public schools in Little Rock to a private corporation ... courts halted on this new ... government simply closed public schools ... schools in many states shut down rather ... Court would wait nearly 5 years before hearing another ... schools in Little Rock would not be fully integrated for more than a decade.
Sterilization Act and the Racial Integrity Act (again) ... the Supreme Court upheld the constitutionality ... unconstitutional ... state law ... illegal for interacial couples to get married ... travelled to DC to get married there. police knocked down their door in the dark of night. They were dragged out of bed and jailed. ... pleaded guilty ... Virginia trial judge proudly endorsed the miscegenation ban ... one year ... condidtion that the Lovings leave Virginia ... 14th ... state court upheld ... 14th's Equal Protection Clause ... the law ‘applied’ equally ... historical argument ... The Supreme Court ... rejected the notion that the mere ‘equal application of a statute containing racial classificaitons is enough to remove the classifications ... ’ ‘strict scrutiny’. Such a racial classification is valid only if it is ‘shown to be necessary to accomplishment of some permissible state objective. ... preventing the sociological, psychological evils which attend interracial marriages ... detrimental to the individual, to the family, and to society ... especially harmful to the mental health of biracial children ... than parents have a right to bequeath ... good-faith ... to protect the public health ... Court concluded ... did not pursue any permissible state objective. Rather, the law was ‘designed to maintain White Supremacy.’ ... Equal Protection Clause ... 14th's Due Protection Clause ... denied ‘liberty’ ... Court held ... state did not have a legitimate interest to discriminate. Likewise ... restrict ... marry ... Virginia's aim of promiting white supremacy was not within the competency of the state legislature. ... the freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. Marriage is one of the ‘basic ciil rights of man,’ fundamental to our very existence and survival ( B.C. ) ... was considered a fundatmental right because at the time it was the only legal means of having children. ... denied certain rights as ‘illegitimate’ children ... offspring ... in light of ‘the principle of quality’ underlying the 14th ... to deprive all the State's citizens of liberty without due process of law. ... Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State. ... state's police power to regulate marriage
did not simply prohibit discrimination. It also ... take affirmative action ... without regard to their race ... beyond race-neutral hiring practices
U of C ... denied admission ... a white man ... 16 seats were set aside ... violated the Equal Protection Clause of the 14th ... violated Title VI of the Civil Rights Act of 1964 ... sharply divided ... to obtain educational diversity (jj state decision states should compete for citizens) ... a factor to achieve educational diversity ... strict scrutiny only if it was necessary to ‘further a compelling state interest’ ... ‘redress’ racial imbalance ... rejected ... no evidence that the imbalance was traceable to the university's own discriminatory practices. ... one compelling interest ... could support... ‘obtaining the educational benefits that flow from an ethnically diverse student body.’ ... This policy was not necessary to obtain reasonable educational diversity ... Harvard ... race was merely one factor weighed competitively against a number of other factors deemed relevant. ... race may be considered as a relevant factor.
race ... single largest factor ... a ‘miscellaneous’ category ... 20 points ... Equal Protection Clause
The law school did not assign a numerical value ... race ... considered race as a ‘plus’ factor, among many other factors ... all the ways besides race that an applicant might contribute to a diverse educational environment ... ‘highly individualized ... pursuit of a critical mass of underrepresented minorities did not operate as a quota or a 2-track admission system.’ ... Racial classifications designed to hurt ... no different than ‘benign’ racial classifications designed to help ... contrast, progressive Justices ...only ‘invidious’ or harmful, uses of race are prohibited ... I believe blacks can achieve in every avenue of American life without the meddling of university administrators ... demeans
2003 ... 2009 ... newly constituted Roberts Court would revisit the issue of affirmative action ... white, sued ... contended ... consideration of race ... violated the Equal ... Supreme Court ruled for Fisher by a 7-1 vote ... strict scrutiny ... goal .. must be a further judicial determination .. strict scrutiny in its implementation ... narrowly tailored to that goal. ... that it is ‘necessary’ for a universityto use race to achieve the educational benefits of diversity. ... affirmative action did not pursue a ‘compelling’ interest ... pressing ... necessary ... 5th Circuit Court of Appeals ... upheld
Scale ... instead of a 4-4 ... Court upheld the U of T's policy by a 4-3 vote ... Something strange has happened ... ‘simply wrong’
What is the precedential weight of a 4-3 decision by the Supreme Court?
EQUAL PROTECTION OF THE LAW: SEX DISCRIMINATION AND OTHER TYPES
14th ... a state ... equal protection ... legislative majorities ... presumption ... Footnote 4 ... Carolene ... exceptions ... strict scrutiny ... the fit ... ends, means ... narrowly tailored ... standard is difficult to satisfy ... the government is acting with an improper purpose ... did not give the real reason why it enacted the law. ... pretext ... smoke out ... rational basis ... the challenger ... reasonably related to accomplish any legitimate ... does not require a close fit ... if ... had a ‘conceivable’ basis ... the challenger always loses ... plurality opinion ... controlling, though it has less precedential value than a majority opinion ... alienage ... Why would it matter that a characteristic is ‘immutable’ (debate) ... did not agree ... 'inherently suspect ... adopting a middle approach ...
The state argued that young women were less likely to drive drunk and get into traffic accidents ... ‘invidious discrimination’ ... adopted a standard that was more rigorous than rational basis scrutiny, though not quite as demanding as strict scrutiny ... intermediate ... will be upheld if the government can show that its law is substantially related to an important interest ... puprose of the highest order ... still weighty
adversative method ... 14th ... by establishing a parallel program for women ... ‘can constitutionally deny to women who have the will and capacity, the training and attendant opportunity VMI uniquely affords.’ ... Court answered no ... are ‘inherent differences’ ... However ... such classifications bay not be used ... Ginsburg described the test slightly differently ... exceedingly persuasive justification ... under intermediate scrutiny? ...
EPILOGUE
Why would
Renewing trust in state courts. By telling the stories of landmark rights disputes from the perspective of the federal and state constitutions as well as the federal and state courts,this bookillustrates the role the States can play, and have played, in protecting individual rights.
When told in full, these stories provide a healthy counterweight to received wisdom. They show the risk of relying too heavily on the U.S.Supreme Court as the sole guardian of ourliberties as well as the farsighted role the state courts have played before in dealing with threats to liberty.
Those who plaoe complete faith in just one branch of American govern-ment to protect their rights will eventually be disappointed.
Kelo v. City of New Londor
4 Seven States have limited the public purposes for which eminent domain is acceprable." Roughly ten States have enacted laws limiting the States' power to exercise eminent do-nain r, Five others have add variations on these ideas.7 Some States have sought to reduce the potential abuse of eminent domain by de-veloping procedural changes, requiring state agencies to make stronger showings of public use, requiring agencies to create redevelopment plans, and setting notice and offer requirements to prevent “stealth”Only a handful of States have not enacted legislation in the wake Of Kel0,
Kelo unleashed a wave of state responses that filled many, even if not aW, of the gaps lelFt by_the U,S, Supreme Court's decision,
Since rgg7, when City of Boerne was decided, the federal and state legislatures have continued to respond to Smith. So too have the state courts.
The more difficult it is to find a single answer to a problem, the more likely state-by-state variation is an appropriate way to handle the issue
to pace change at different speeds.
changjng social norms, the most impor-tant question is not whether but when, not whether but by whom.
dis-trust in the capacity of state court judges to construe their constitutions independently.
a country of our size and diversity
the federal judicial interpretations of the U.S. Constitution have migrated further from its terms than have
what berter source of evidence of the fluidity of social norms and mores than new interpretations of state constitutions by state court judges?
. Time has a way of showing which indi-vidual rights have centrifugal tendencies and which have centripetal ones.
. A core feature of American government-federalism--works best if we encourage both halves of the equation to take seriously their responsibilities under it
and made each of those changes nearly unalterable.'Ihe problem with modifying the U.S. Constitution by interpretation rather than amendment is that each change increases the gap between our foundarional charter and its meaning. And each change makes it more plausible to make still further changes.
state constitutions were, and remain, easy to amend.
Federalism has no consntuency, and it never will.
.'Ihe constant for political parties, interest groups,and most Americans is opportunism, pursuing a near-term inrerest in a favored policy at the distant expense of empowering nationallegislative and judicial decision makers to make still more policy decisions.
is ample room for constitutional and statutory rights.Statutory guarantees may be the proletariat of rights,
Americans seem to like judicially created rights, making us one of the most rights-conscious countries in history.
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