DOCSLIB.ORG

Read the Full PDF

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Read the Full PDF Job Name:2251342 Date:15-05-19 PDF Page:2251342pbc.p1.pdf Color: Cyan Magenta Yellow Black front fold of spine---- The American Enterprise Institute for Public Policy Research, established in 1943, is a publicly supported, nonpartisan, research and educational organization. Its purpose is to assist policy makers, scholars, businessmen, the press, and the public by providing objective analysis of national and international issues. Views expressed in the institute's publications are those of the authors and do not neces­ sarily reflect the views of the staff, advisory panels, officers, or trustees of AEI. Council of Academic Advisers Paul W. McCracken, Chairman, Edmund Ezra Day University Professor of Busi­ ness Administration, University of Michigan Robert H. Bork, Alexander M. Bickel Professor of Public Law, Yale Law School Kenneth W. Dam, Harold J. and Marion F. Green Professor of Law, University of Chicago Law School Donald C. Hellmann, Professor of Political Science and International Studies, University of Washington D. Gale Johnson, Eliakim Hastings Moore Distinguished Service Professor of Economics and Provost, University of Chicago Robert A. Nisbet, Adjunct Scholar, American Enterprise Institute Herbert Stein, A. Willis Robertson Professor of Economics, University of Virginia James Q. Wilson, Henry Lee Shattuck Professor of Government, Harvard University Executive Committee Richard B. Madden, Chairman of the Board Richard J. Farrell William J. Baroody, Jr., President Charles T. Fisher III Herman J. Schmidt Richard D. Wood Edward Styles, Director of Publications Program Directors Periodicals Russell Chapin, Legislative Analyses AEI Economist, Herbert Stein, Editor Robert B. Helms, Health Policy Studies AEI Foreign Policy and Defense Thomas F. Johnson, Economic Policy Studies Review, Lawrence J. Korb and Robert J. Pranger, Co-Editors; Sidney L. Jones, Seminar Programs James W. Abellera, Managing Editor Lawrence J. Korb, Public Opinion, Seymour Martin Defense Policy Studies Lipset, Ben J. Wattenberg, Co­ Marvin H. Kosters/James C. Miller III, Editors i David R. Gergen, Government Regulation Studies Managing Editor Regulation, Antonin Scalia and W. S. Moore, Legal Policy Studies Murray L. Weidenbaum, Co-Editors; Anne Brunsdale, Rudolph G. Penner, Tax Policy Studies Managing Editor Howard R. Penniman!Austin Ranney, Political and Social Processes William J. Baroody, Sr., Counsellor and Chairman, Robert J. Pranger, International Programs Development Committee SIGNIFICANT DECISIONS OF THE SUPREME COURT 1978-1979TERfV\ SIGNIFICANT DECISIONS OF THE SUPREME COUR1 1978-1979TERM Bruce E. Fein American Enterprise Institute for Public Policy Research Washington, D.C. Bruce E. Fein, a graduate of the University of California, Berkeley, and the Harvard Law School, is an attorney with the U.S. Department of Justice. He is a member of the Supreme Court Bar, the bars of several U.S. Courts of Appeals, the California Bar, and the American Bar Association. The views of the author do not necessarily represent those of the U.S. Department of Justice. Distributed to the Trade by National Book Network, 15200 NBN Way, Blue Ridge Summit, PA 17214. To order call toll free 1-800-462-6420 or 1-717-794-3800. For all other inquiries please contact the AEI Press, USO Seventeenth Street, N.W., Washington, D.C. 20036 or call 1-800-862-5801. ISSN 0162-0444 ISBN 0-8447-3387-3 AEI Studies 282 © 1980 by the American Enterprise Institute for Public Policy Research, Washington, D.C. All rights reserved. No part of this publication may be used or reproduced in any manner whatsoever without permission in writing from the American Enterprise Institute except in the case of brief quotations embodied in news articles, critical articles, or reviews. The views expressed in the publications of the American Enterprise Institute are those of the authors and do not necessarily reflect the views of the staff, advisory panels, officers, or trustees of AEI. "American Enterprise Institute" and @ are registered service marks of the American Enterprise Institute for Public Policy Research. Printed in the United States of America CONTENTS 1 OVERVIEW 1 The Jurisprudence of the Burger Court 1 The Burger Court as Policy Maker 1 Failure to Champion Broad Constitutional or Statutory Principles 3 Dominant Themes in the Burger Court's Decisions 4 Conclusion 19 Voting Alignments 19 1978-1979 Statistics 23 2 SUMMARIES OF SIGNIFICANT DECISIONS 24 Criminal Law: Powers of the Police and Prosecutors 24 Criminal Law: Rights of the Accused 47 Employment Discrimination 61 Sex Discrimination 69 Freedom of Speech and Press 81 Voting and Elections 94 Government Immunity 98 Civil Rights and Civil Liberties 105 School Desegregation 130 Abortion 133 Federal Courts and Procedure 138 Labor Law 152 State Taxation and Regulation of Business 155 Federal Regulation: Antitrust, Patents, Securities, Environment, and Freedom of Information 160 INDEX OF CASES, 1978-1979 Term 176 SUBJECT INDEX, 1978-1979 Term 179 INDEX OF CASES, 1971-1978 183 1 Overview The Jurisprudence of the Burger Court Warren E. Burger, appointed chief justice after the close of the 1968-1969 term of the Supreme Court, concluded his first decade at the helm in 1979. An analysis of the Court's pronouncements issued during Burger's stewardship reveals three notable features. First, the Burger Court has moderated, but not disavowed, the leadership role in policy making that was characteristic of its predecessor, the Warren Court.! Second, the Burger Court has generally eschewed decisions that expound broad legal principles and that limit the policy discretion of subordinate federal and state courts when they confront constitutional or statutory questions; consequently, considerable ju­ dicial power has by default devolved upon the lower courts. Third, dominant recurring themes in the Burger Court's jurisprudence gen­ erally parallel sentiments of elected officials and the public, subject to important exceptions apparent in the following description of the Court's role as policy maker. The Burger Court as Policy Maker The Burger Court played a prominent policy-making role in several controversial areas despite vocal opposition by a substantial segment of the public. It endorsed sweeping remedial measures2 to desegregate public schools, including the mandating of extensive busing schemes,3 1 Justice Potter Stewart has observed that during the 1950s and 1960s, under the tutelage of Chief Justice Earl C. Warren, the Supreme Court for the first time in history assumed a leadership role in the evolution of public policy in many areas. Newsweek, July 4, 1976, p. 36. 2 See Milliken v. Bradley, 433 U.S. 267 (1977). 3 See Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971); Evans v. Buchanan, 393 F. Supp. 428 (D. Del.), aff'd, 423 U.S. 963 (1975); Columbus Board of Education v. Penick, 443 U.s. 449 (1979); Dayton Board of Education v. Brinkman, 443 U.S. 526 (1979). 1 OVERVIEW and lightened evidentiary burdens required to justify their imposition throughout an entire school system. 4 In 1973, the Burger Court pro­ claimed the constitutional right to abortion. 5 In a sequel of related cases, the Court steadfastly blocked recurring state efforts to circum­ scribe access to an abortion by regulating the advertising of its avail­ ability,6 the employment of abortion techniques,' access to contra­ ceptives,8 and the participation of spouses and parents of young prospective mothers in the abortion decision. 9 Going contrary to a strong tide in public opinion, the Burger Court sharply curtailed the use of capital punishment.to In the widely noted Weber ll and Bakke 12 decisions, the Court blessed reverse discrimination in order to rectify historic disadvantages of minority groups. And in expounding the establishment clause of the First Amendment, the Burger Court re­ peatedly frustrated attempts by states to aid religiously affiliated elementary and secondary schools. 13 These policy excursions of the Burger Court share the Warren Court's14 activist vision of the judicial role in the governing process. Neither precedent, constitutional language, nor constitutional history offered a convincing foundation for these decisions. And with the possible exception of the abortion cases, these Burger Court rulings generally defied the majority opinion of the public at the time of the decision and frequently contravened the policy preferences of political branches of government. • See Keyes v. School Dist. No.1, Denver, Colorado, 413 U.s. 189 (1973); Columbus Board of Education v. Penick, 443 U.S. 449 (1979); Dayton Board of Education v. Brinkman, 443 U.s. 526 (1979). 5 Roe v. Wade, 410 U.s. 113 (1973); Doe v. Bolton, 410 U.S. 179 (1973). 6 See Bigelow v. Virginia, 421 U.s. 809 (1975); Carey v. Population Services International, 431 U.S. 678 (1977). 7 See Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976). 8 See Carey v. Population Services International, 431 U.S. 678 (1977). 9 See Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976); Bellotti v. Baird, 443 U.S. 622. 10 See Furman v. Georgia, 408 U.S. 238 (1972); Woodson v. North Carolina, 428 U.s. 280 (1976); Colker v. Georgia, 433 U.S. 584 (1977); Gardner v. Florida, 430 U.S. 349 (1977); Lockett v. Ohio, 438 U.S. 586 (1978). 11 443 U.S. 193 (1979). 12 University of California Regents v. Bakke, 438 U.S. 265 (1978). 13 See Lemon v. Kurtzman, 403 U.S. 602 (1971); Levitt v. Committee for Public Education and Religious Liberty, 413 U. S. 472 (1973); Committee for Public Education and Religious Liberty in Nyquist, 413 U.S. 756 (1973); Sloan v. Lemon, 413 U.S. 825 (1973); Meek v. Pittenger, 421 U.S. 349 (1975); Wolman v. Walter, 433 U.S. 229 (1977); New York v. Cathedral Academy, 434 U.s. 125 (1977). "See, e.g., Baker v. Carr, 369 U.S. 189 (1962); Flast v. Cohen, 392 U.S. 83 (1968); Mapp v. Ohio, 367 U.S.
Load more

Recommended publications
  • Not the King's Bench Edward A
    University of Minnesota Law School Scholarship Repository Constitutional Commentary 2003 Not the King's Bench Edward A. Hartnett Follow this and additional works at: https://scholarship.law.umn.edu/concomm Part of the Law Commons Recommended Citation Hartnett, Edward A., "Not the King's Bench" (2003). Constitutional Commentary. 303. https://scholarship.law.umn.edu/concomm/303 This Article is brought to you for free and open access by the University of Minnesota Law School. It has been accepted for inclusion in Constitutional Commentary collection by an authorized administrator of the Scholarship Repository. For more information, please contact [email protected]. NOT THE KING'S BENCH Edward A. Hartnett* Speaking at a public birthday party for an icon, even if the honoree is one or two hundred years old, can be a surprisingly tricky business. Short of turning the party into a roast, it seems rude to criticize the birthday boy too harshly. On the other hand, it is at least as important to avoid unwarranted and exaggerated praise.1 The difficult task, then, is to try to say something re­ motely new or interesting while navigating that strait. The conference organizers did make it easier for me in one respect: My assignment does not involve those ideas for which Marbury is invoked as an icon. It is for others to wrestle in well­ worn trenches with exalted arguments about judicial review and its overgrown descendent judicial supremacy, while trying to avoid unseemly criticism or fawning praise. I, on the other hand, am to address more technical issues involving section 13 of the Judiciary Act of 1789 and its provision granting the Supreme Court the power to issue writs of mandamus.
    [Show full text]
  • Extradition Law at the Crossroads: the Trend Toward Extending Greater Constitutional Procedural Protections to Fugitives Fighting Extradition from the United States
    Michigan Journal of International Law Volume 19 Issue 3 1998 Extradition Law at the Crossroads: The Trend Toward Extending Greater Constitutional Procedural Protections to Fugitives Fighting Extradition from the United States Lis Wiehl University of Washington Follow this and additional works at: https://repository.law.umich.edu/mjil Part of the Constitutional Law Commons, Criminal Law Commons, and the Evidence Commons Recommended Citation Lis Wiehl, Extradition Law at the Crossroads: The Trend Toward Extending Greater Constitutional Procedural Protections to Fugitives Fighting Extradition from the United States, 19 MICH. J. INT'L L. 729 (1998). Available at: https://repository.law.umich.edu/mjil/vol19/iss3/2 This Article is brought to you for free and open access by the Michigan Journal of International Law at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Journal of International Law by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. EXTRADITION LAW AT THE CROSSROADS: THE TREND TOWARD EXTENDING GREATER CONSTITUTIONAL PROCEDURAL PROTECTIONS TO FUGITIVES FIGHTING EXTRADITION FROM THE UNITED STATES Lis Wiehl* PROLOGUE ............................................................................................. 730 INTRODUCrION ................... ....................... 730 I. BACKGROUND: THE LIMITED NATURE OF CONSTITUTIONAL PROCEDURAL PROTECTIONS IN THE U.S. LAW OF INTERNATIONAL EXTRADITION
    [Show full text]
  • Commandeering Under the Treaty Power
    NOTES COMMANDEERING UNDER THE TREATY POWER JANET R. CARTER* In this Note, Janet Carter argues that the anticommandeeringprinciple announced in Printz v. United States should not constrain congressional implementation of treaty obligations. The Printz Court struck the balance between federal goals and states' rights knowing that Congress had alternative means of achieving its ends: the spending power and the threat of conditionalpreemption. Carter argues that those alternative means are largely unavailable,or at least less likely to work, when Congress is seeking to implement a treaty obligation. Therefore, the Printz Court's federal/state compromise will weigh too heavily againstfederal interests if applied to treaty-implementingprograms, suggesting that an absolute prohibitionon federal commandeeringpursuant to the treaty power is inappropriate. INTRODUCTION The powers of Congress, limited to those enumerated in the Con- stitution, are constrained further by the Tenth Amendment' and the general principles of federalism it embodies.2 However, in Missouri v. Holland,3 the Supreme Court held that federalism does not constrain * I would like to thank Professor Christopher Eisgruber for his generous guidance and advice, and Professors Barry Friedman and David Golove for their helpful comments. Thanks also to my wonderful editor Maggie Lemos, and to Paul Hayes, Alex Reid, Sally Kesh, and David Karp. 1 U.S. Const. amend. X ("The powers not delegated to the United States by the Con- stitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."). 2 According to current Supreme Court jurisprudence, that is. See Printz v. United States, 521 U.S. 898 (1997) (holding that federal government may not commandeer state executive); New York v.
    [Show full text]
  • The Constitutional Theory of the Fourth Amendment, 38 Depaul L
    Notre Dame Law School NDLScholarship Journal Articles Publications 1989 The onsC titutional Theory of the Fourth Amendment Gerard V. Bradley Notre Dame Law School, [email protected] Follow this and additional works at: https://scholarship.law.nd.edu/law_faculty_scholarship Part of the Constitutional Law Commons, Fourth Amendment Commons, and the Legal History Commons Recommended Citation Gerard V. Bradley, The Constitutional Theory of the Fourth Amendment, 38 DePaul L. Rev. 817 (1988-1989). Available at: https://scholarship.law.nd.edu/law_faculty_scholarship/773 This Article is brought to you for free and open access by the Publications at NDLScholarship. It has been accepted for inclusion in Journal Articles by an authorized administrator of NDLScholarship. For more information, please contact [email protected]. THE CONSTITUTIONAL THEORY OF THE FOURTH AMENDMENT Gerard V. Bradley* INTRODUCTION We presently inhabit a "judicialized" regime of search and seizure. The "reasonableness clause" of the fourth amendment is universally understood to require a "common law of search and seizure," 1 yet one of constitutional stature. That is, it binds the states and cannot be undone by ordinary legislation. The purpose of this Article is to demonstrate that this near universal interpretation of the fourth amendment is unfounded. Indeed, it will be argued that the current view is contrary to the plain meaning of the fourth amendment, as historically recovered, and is inconsistent with the basic constitutional structure. Instead, the reasonableness clause, properly understood, does not authorize courts to do anything, but exists to affirm legislative supremacy over the law of search and seizure. Accordingly, the only judicially operative portion of the amendment is the "warrant clause." This interpretation can and should be installed as the operative premise of the fourth amendment.
    [Show full text]
  • The Constitution in the Supreme Court: the Protection of Economic Interests, 1889-1910 David P
    The Constitution in the Supreme Court: The Protection of Economic Interests, 1889-1910 David P. Curriet The Supreme Court's first hundred years virtually ended with the death of Chief Justice Morrison R. Waite in March 1888. Five of Waite's brethren-Stanley Matthews, Samuel F. Miller, Joseph P. Bradley, Samuel Blatchford, and Lucius Q.C. Lamar-left the Court within the next five years, and a sixth-Stephen J. Field-hung on after his powers had faded.1 By 1894, Melville W. Fuller2 presided over an essentially new Court consisting of David J. Brewer, Henry B. Brown, George Shiras, Howell E. Jackson, and Edward Douglass White3 in addition to the three holdovers, John M. Harlan, Horace Gray, and Field. Jackson and Field soon gave way to Rufus W. Peckham and Joseph McKenna; Gray and Shiras, after the turn of the century, were replaced by Oliver Wendell Holmes and William R. Day. William H. Moody and Horace R. Lurton served briefly at the end of Fuller's term, and another mas- sive turnover accompanied Fuller's death in 1910. Thus the per- sonnel of Fuller's twenty-one-year tenure is well separated from that of the preceding and following periods. Moreover, although twenty Justices sat during this time, eleven did the lion's share of the work: Harlan, Gray, Fuller, Brewer, Brown, Shiras, White, t Harry N. Wyatt Professor of Law, University of Chicago. I thank Karla Kraus and Richard Levy for valuable research assistance, Mitchell Daffner for taming the computer, Richard Helmholz, Richard Posner, and Cass R. Sunstein for helpful comments, and the Jerome S.
    [Show full text]
  • Trial Memorandum of President Donald J. Trump
    IN PROCEEDINGS BEFORE THE UNITED STATES SENATE TRIAL MEMORANDUM OF PRESIDENT DONALD J. TRUMP Jay Alan Sekulow Pat A. Cipollone Stuart Roth Counsel to the President Andrew Ekonomou Patrick F. Philbin Jordan Sekulow Michael M. Purpura Mark Goldfeder Devin A. DeBacker Benjamin Sisney Trent J. Benishek Eric J. Hamilton Counsel to President Donald J. Trump Office of White House Counsel January 20, 2020 TABLE OF CONTENTS EXECUTIVE SUMMARY ............................................................................................................ 1 STANDARDS............................................................................................................................... 13 A. The Senate Must Decide All Questions of Law and Fact. .................................... 13 B. An Impeachable Offense Requires a Violation of Established Law that Inflicts Sufficiently Egregious Harm on the Government that It Threatens to Subvert the Constitution. .................................................................. 13 1. Text and Drafting History of the Impeachment Clause ............................ 14 2. The President’s Unique Role in Our Constitutional Structure .................. 17 3. Practice Under the Impeachment Clause .................................................. 18 C. The Senate Cannot Convict Unless It Finds that the House Managers Have Proved an Impeachable Offense Beyond a Reasonable Doubt. .................. 20 D. The Senate May Not Consider Allegations Not Charged in the Articles of Impeachment. ..................................................................................................
    [Show full text]
  • Effect of Illegal Abduction Into the Jurisdiction on a Subsequent Conviction
    Indiana Law Journal Volume 27 Issue 2 Article 9 Winter 1952 Effect of Illegal Abduction Into the Jurisdiction on a Subsequent Conviction Follow this and additional works at: https://www.repository.law.indiana.edu/ilj Part of the Jurisdiction Commons Recommended Citation (1952) "Effect of Illegal Abduction Into the Jurisdiction on a Subsequent Conviction," Indiana Law Journal: Vol. 27 : Iss. 2 , Article 9. Available at: https://www.repository.law.indiana.edu/ilj/vol27/iss2/9 This Note is brought to you for free and open access by the Law School Journals at Digital Repository @ Maurer Law. It has been accepted for inclusion in Indiana Law Journal by an authorized editor of Digital Repository @ Maurer Law. For more information, please contact [email protected]. INDIANA LAW JOURNAL right to exact any conditions it sees fit, seems preferable. If the United States were exempt from the rules of contract, considerations in support of or opposition to a claimed concession would become irrelevant. Con- versely, such considerations are determinative of controversies resolved under existing contract law. Blanket endorsement of such an exemption would invite extreme business practices with ramifications affecting a sizeable percentage of commercial transactions. Such a license, mani- festly impinging 'upon the security of government contractors, should be vindicated only upon a showing of positive necessity.' Contractors' familiarity with existing commercial practice and aversion to uncertain change might necessitate a substitute for security in the form of 'increased cost of goods and services to Government. It should not be prematurely assumed that contract doctrine lacks the flexibility to adapt itself to the changing position of Government in our economy.
    [Show full text]
  • An Indigent Accused Does Not Have a Constitutional Right to Appointed Counsel at Extradition Hearings: an Analytical Approach Mark S
    University of Baltimore Law Review Volume 13 Article 5 Issue 1 Fall 1983 1983 Comments: An Indigent Accused Does Not Have a Constitutional Right to Appointed Counsel at Extradition Hearings: An Analytical Approach Mark S. Dachille University of Baltimore School of Law Follow this and additional works at: http://scholarworks.law.ubalt.edu/ublr Part of the Law Commons Recommended Citation Dachille, Mark S. (1983) "Comments: An Indigent Accused Does Not Have a Constitutional Right to Appointed Counsel at Extradition Hearings: An Analytical Approach," University of Baltimore Law Review: Vol. 13: Iss. 1, Article 5. Available at: http://scholarworks.law.ubalt.edu/ublr/vol13/iss1/5 This Article is brought to you for free and open access by ScholarWorks@University of Baltimore School of Law. It has been accepted for inclusion in University of Baltimore Law Review by an authorized administrator of ScholarWorks@University of Baltimore School of Law. For more information, please contact [email protected]. COMMENTS AN INDIGENT ACCUSED DOES NOT HAVE A CONSTITUTIONAL RIGHT TO APPOINTED COUNSEL AT EXTRADITION HEARINGS: AN ANALYTICAL APPROACH While the United States Supreme Court has developed two dis- tinct tests to determine when an indigent has a right to counsel in a judicial proceeding, it has never specfically considered whether an indigent accused enjoys this right in an extradition proceeding. Courts which have addressedthe issue have refused to recognize this right without providing an adequate discussion of the Supreme Court's tests. This comment examines the na- ture of the extradition process, applies the two constitutional tests, and concludes that no right to a pointed counsel exists under either the sixth amendment or the due process clause of the Constitution.
    [Show full text]
  • [CERTIFIED TRANSLATION] 1A in the PUERTO RICO SUPREME
    [CERTIFIED TRANSLATION] 1a IN THE PUERTO RICO SUPREME COURT The People of Puerto Rico Respondent v. Luis M. Sánchez Valle Petitioner _______________________________________ The People of Puerto Rico Respondent v. Jaime Gómez Vázquez Petitioner ______________________________________ The People of Puerto Rico v. René Rivero Betancourt _______________________________________ The People of Puerto Rico v. Rafael A. Delgado Rodriguez _______________________________________ CC-2013-0068 CC-2013-0072 Opinion of the Court issued by Associate Judge Mr. MARTÍNEZ TORRES. In San Juan, Puerto Rico, on March 20, 2015 [CERTIFIED TRANSLATION] 2a To decide these consolidated cases, we must review the rule that we established in Pueblo v. Castro García, 120 P.R. Dec. 740 (1988). For the following reasons, we hereby overrule said precedent and hold that, pursuant to the constitutional protection against double jeopardy, and because Puerto Rico is not a federal state, a person who has been acquitted, convicted or prosecuted in federal court cannot be prosecuted for the same offense in the Puerto Rico courts. I A. CC-2013-0068 On September 28, 2008, the prosecution filed three charges against Mr. Luis M. Sánchez del Valle accusing him of: 1) a violation of Article 5.01 of the Puerto Rico Weapons Act, 25 P.R. Laws Ann. § 458, for selling a firearm without a permit; 2) a second violation of Article 5.01 of the Puerto Rico Weapons Act, supra, for selling ammunition without a permit; and 3) a violation of Article 5.04 of the Puerto Rico Weapons Act, 25 P.R. Laws Ann. § 458c, for illegally carrying a firearm. Under the same facts, a federal grand jury indicted Mr.
    [Show full text]
  • Congress, Article Iv, and Interstate Relations
    CONGRESS, ARTICLE IV, AND INTERSTATE RELATIONS Gillian E. Metzger* Article IV imposes prohibitions on interstate discrimination that are central to our status as a single nation, yet the Constitution also grants Congress broad power over interstate relations. This raises questions with respect to the scope of Congress's power over interstate relations, what is sometimes referred to as the horizontal dimension of federalism. In particular, does Congress have the power to authorize states to engage in conduct that otherwise would violate AHicle IV? These questions are of growing practical relevance, given recently enacted or proposed measures — the Defense of Marriage Act (DOMA) being the most prominent example — in which Congress has sanctioned interstate discrimination and other state measures seemingly at odds with fundamental precepts of horizontal federalism. These questions also are significant on a more conceptual level, as they force clarification of the proper relationship between Congress and the Supreme Court in horizontal federalism disputes. This Article contends that the Constitution grants Congress expansive authority to structure interstate relationships and that in wielding this interstate authority Congress is not limited by judicial interpretations of Article IV. Rather than constituting unalterable demands of union, the antidiscrimination provisions of Article IV are best understood, like the dormant commerce clause, as constitutional default rules. These provisions are judicially enforceable against the states, but their enforceability is contingent on the absence of congressionally authorized discrimination. Congress's power to authorize discrimination has limits; however, those limits derive not from Article IV or principles of federalism, but instead from the Fourteenth Amendment. Constitutional text, precedent, normative and functional concerns, and history all support such congressional primacy in interstate relations.
    [Show full text]
  • Kids' Constitution
    The United States Constitution for Kids The United States Constitution for Kids Introduction Following the War of Independence with Great Britain, the former colonies began to consider the best way to govern their newly created and unified nation. Their initial experiment with self-government, the Articles of Confederation, created a governmental system in which power was distributed amongst the States, leaving the central government with limited powers to solve problems when they occurred between the States. As a result, from 1783-1789, America faced what is now known as the “Critical Period.” Without a strong government, America experienced many di!culties. The Articles government owed a lot of money from fighting the war with Great Britain but could not pay because it had no ability to tax. Additionally, the Articles of Confederation did not provide for a national military, so threats from foreign nations were not handled well. What was the new government to do? Recognizing the need for changes, leaders began discussing revisions to the Articles of Confederation. Soon, however, it became all too clear that revising the Articles was simply not enough. As a result, what came to be known as the Constitutional Convention--which met in Philadelphia during the summer of 1787--was called to write a new plan of government, a document that would become the US Constitution. 1 The United States Constitution for Kids Table of Contents Preamble!..........................................................................................................................7
    [Show full text]
  • March 31, 2008
    The Jawa Report: March 2008 Archives Page 1 of 382 « February 2008 | Main | April 2008 » March 31, 2008 Video: Jihad USA: Homegrown Terror The Fox News documentary hosted by E.D. Hill about the threat of homegrown terrorists. The threat is real and homegrown jihadis nearly always get their start online. The video is in four parts posted below. Watch it all and pass it on. Part I Part II http://mypetjawa.mu.nu/archives/2008_03.php 17.11.2008 The Jawa Report: March 2008 Archives Page 2 of 382 Part III Part IV http://mypetjawa.mu.nu/archives/2008_03.php 17.11.2008 The Jawa Report: March 2008 Archives Page 3 of 382 Thanks to Walid Phares. Posted by Dr. Rusty Shackleford at 10:46 PM | Comments (0) Petition in Support of Geert Wilders Self-explanatory: To: The Dutch Government WHEREAS Geert Wilders has exercised his fundamental human right of freedom of expression and spoken out, with facts and evidence, of the threat posed by radical Islam; WHEREAS certain elements within Islamic communities have threatened a boycott of Dutch goods if Geert Wilders is not punished by the Dutch government for exercising his freedom of expression; and WHEREAS certain elements in Dutch industry and the Dutch government are suggesting that Geert Wilders be prosecuted civilly or criminally, in order to prevent such a boycott; IT IS RESOLVED that, in the event that the Dutch government attempts, in any way, to punish or prosecute Geert Wilders, civilly or criminally, for exercising his freedom of expression, the undersigned will initiate a boycott of any and all Dutch goods.
    [Show full text]