Territorial Discrimination, Equal Protection, and Self-Determination
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I. Constitutional Structure
I. CONSTITUTIONAL STRUCTURE - Article III does not give the federal courts the right to judicial review A. Judicial Review Marbury v. Madison (1803) - pg. 2 - Est. judicial review - fed executive subject to judicial orders, fed judic can strike down laws of congress B. Congressional Power 1. Introduction - Necessary and Proper Clause - Article I § 8 [18] - congress has all powers necessary and proper to carry into execution the powers const granted McCulloch v. Maryland (1819) - pg. 101 - Federal law is enumerated - 10th Amend does not say just “express”, subject to interpret - Article I § 8 - when enumerated power exercised, federal will always trump state law 2. The Commerce Power Commerce Clause - Article I § 8 [3] “Congress shall have the power to regulate commerce w/foreign nations, and among the several states, and among the Indian tribes” Three main questions in commerce cases: 1. What is commerce? 2. What is “among” the several states? 3. Is there a 10th amendment zone of authority? The Four Eras of Commerce Clause Jurisprudence: 1. Early American History - 1890’s = broadly defined but minimally used 2. 1890’s - 1937 = narrowly defined and used 10th amendment as a limit 3. 1937 - 1990’s = expansive scope and refusal to use 10th amendment to limit 4. 1990’s - current = narrowed scope and 10th amendment as an independent, judicially enforceable limit a. Early American History - 1890’s: Define the Commerce Power Gibbons v. Ogden (1824) - pg. 113 - YES, can use FCP - For commerce to be “among the several states” use “intermingled” approach - concerns more than 1 state - Enumerated presupposes something non-enumerated - completely internal commerce of a state b. -
An Equal Protection Standard for National Origin Subclassifications: the Context That Matters
City University of New York (CUNY) CUNY Academic Works Publications and Research CUNY School of Law 2007 An Equal Protection Standard for National Origin Subclassifications: The Context That Matters Jenny Rivera CUNY School of Law How does access to this work benefit ou?y Let us know! More information about this work at: https://academicworks.cuny.edu/cl_pubs/156 Discover additional works at: https://academicworks.cuny.edu This work is made publicly available by the City University of New York (CUNY). Contact: [email protected] Copyright 0t72007 by Jenny Rivera Readers interested in reprints or copies of this article may contact the Washington Law Review Association which has full license and authority to grant such requests AN EQUAL PROTECTION STANDARD FOR NATIONAL ORIGIN SUBCLASSIFICATIONS: THE CONTEXT THAT MATTERS Jenny Rivera* Abstract: The Supreme Court has stated, "[c]ontext matters when reviewing race-based governmental action under the Equal Protection Clause."' Judicial review of legislative race- based classifications has been dominated by the context of the United States' history of race- based oppression and consideration of the effects of institutional racism. Racial context has also dominated judicial review of legislative classifications based on national origin. This pattern is seen, for example, in challenges to government affirmative action programs that define Latinos according to national origin subclasses. As a matter of law, these national origin-based classifications, like race-based classifications, are subject to strict scrutiny and can only be part of "narrowly tailored measures that further compelling governmental interests., 2 In applying this two-pronged test to national origin classifications, courts have struggled to identify factors that determine whether the remedy is narrowly tailored and whether there is a compelling governmental interest. -
Recent Experience with Intermediate Scrutiny Under the North Carolina Constitution: Blankenship V
MARTIN FINAL 5/20/2011 3:35 PM Recent Experience with Intermediate Scrutiny Under the North Carolina Constitution: Blankenship v. Bartlett and King ex rel. Harvey- Barrow v. Beaufort County Board of Education Mark D. Martin & Daniel F.E. Smith* I. INTRODUCTION In two recent interpretations of the North Carolina Constitution, the Supreme Court of North Carolina adopted and developed a unique form of intermediate scrutiny. Blankenship v. Bartlett1 addressed a challenge to judicial districts under the state equal protection clause.2 King ex rel. Harvey-Barrow v. Beaufort County Board of Education3 decided a state constitutional claim to alternative-education services during a disciplinary suspension.4 By applying intermediate scrutiny, the court resolved these two challenging state constitutional cases. As the name implies—and as the bench and bar know very well— intermediate scrutiny falls somewhere “in between” strict scrutiny and rational basis review.5 Strict scrutiny, the “most exacting scrutiny,” is applied to suspect classifications and those impinging on fundamental * Senior Associate Justice and Research Assistant, Supreme Court of North Carolina. Nothing in this Article should be viewed as an opinion about the merits of pending or future cases that may come before the Supreme Court of North Carolina. The purpose of this Article is to chronicle significant legal developments in North Carolina and place them in the academic literature on state constitutional adjudication. The legal value vel non of these developments and their implications for future cases are left to the academy and other legal commentators. We wish to thank Justice Robert H. Edmunds, Tom Davis, and Jake Parker for their assistance with this Article. -
Romer V. Evans: a Legal and Political Analysis
Minnesota Journal of Law & Inequality Volume 15 Issue 2 Article 1 December 1997 Romer v. Evans: A Legal and Political Analysis Caren G. Dubnoff Follow this and additional works at: https://lawandinequality.org/ Recommended Citation Caren G. Dubnoff, Romer v. Evans: A Legal and Political Analysis, 15(2) LAW & INEQ. 275 (1997). Available at: https://scholarship.law.umn.edu/lawineq/vol15/iss2/1 Minnesota Journal of Law & Inequality is published by the University of Minnesota Libraries Publishing. Romer v. Evans: A Legal and Political Analysis Caren G. Dubnoff* Introduction Despite the Supreme Court's role as final arbiter of the "law of the land," its power to effect social change is limited. For exam- ple, school desegregation, mandated by the Court in 1954, was not actually implemented until years later when Congress and the President finally took action.1 As a result, prayer in public schools, repeatedly deemed illegal by the Court, continues in many parts of the country even today. 2 To some degree, whether the Court's po- * Associate Professor, Department of Political Science, College of the Holy Cross. Ph.D. 1974, Columbia University; A.B. 1964, Bryn Mawr. The author wishes to thank Jill Moeller for her most helpful editorial assistance. 1. Several studies have demonstrated that Brown v. Board of Education, 347 U.S. 483 (1954), produced little school desegregation by itself. One of the earliest of these was J.W. PELTASON, FIFTY-EIGHT LONELY MEN: SOUTHERN FEDERAL JUDGES AND SCHOOL DESEGREGATION (1961) (demonstrating how district court judges evaded the decision, leaving school segregation largely in place). -
Tyrone Garner's Lawrence V. Texas
Michigan Law Review Volume 111 Issue 6 2013 Tyrone Garner's Lawrence v. Texas Marc Spindelman Ohio State University's Moritz College of Law Follow this and additional works at: https://repository.law.umich.edu/mlr Part of the Civil Rights and Discrimination Commons, Law and Gender Commons, Law and Society Commons, Sexuality and the Law Commons, and the Supreme Court of the United States Commons Recommended Citation Marc Spindelman, Tyrone Garner's Lawrence v. Texas, 111 MICH. L. REV. 1111 (2013). Available at: https://repository.law.umich.edu/mlr/vol111/iss6/13 This Review is brought to you for free and open access by the Michigan Law Review at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Law Review by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. TYRONE GARNER'S LAWRENCE v. TEXASt Marc Spindelman* FLAGRANT CONDUCT: THE STORY OF LAWRENCE V TEXAS. By Dale Carpenter.New York and London: W.W. Norton & Co. 2012. Pp. xv, 284. $29.95. Dale Carpenter's Flagrant Conduct: The Story of Lawrence v. Texas has been roundly greeted with well-earned praise. After exploring the book's understandingof Lawrence v. Texas as a great civil rights victory for les- bian and gay rights, this Review offers an alternative perspective on the case. Builtfrom facts about the background of the case that the book sup- plies, and organized in particular around the story that the book tells about Tyrone Garner and his life, this alternative perspective on Lawrence explores and assesses some of what the decision may mean not only for sexual orientation equality but also for equality along the often- intersecting lines of gender class, and race. -
The Free Exercise of Religion After the Fall: the Case for Intermediate Scrutiny
William & Mary Law Review Volume 39 (1997-1998) Issue 3 Article 15 March 1998 The Free Exercise of Religion After the Fall: The Case for Intermediate Scrutiny Rodney A. Smolla Follow this and additional works at: https://scholarship.law.wm.edu/wmlr Part of the Constitutional Law Commons Repository Citation Rodney A. Smolla, The Free Exercise of Religion After the Fall: The Case for Intermediate Scrutiny, 39 Wm. & Mary L. Rev. 925 (1998), https://scholarship.law.wm.edu/wmlr/vol39/iss3/ 15 Copyright c 1998 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmlr THE FREE EXERCISE OF RELIGION AFTER THE FALL: THE CASE FOR INTERMEDIATE SCRUTINY RODNEY A. SMOLLA* I. INTRODUCTION In City of Boerne v. Flores' the Supreme Court struck down the Religious Freedom Restoration Act of 19932 (RFRA or the "Act"), at least insofar as the Act is applied against state and local governments.' For the moment, at least, free exercise cases again are governed largely by the regime of Employment Divi- sion v. Smith,4 under which the Free Exercise Clause is not deemed violated by laws of general applicability that happen to place substantial burdens on religion. Several Justices in Flores, however, again called for the Court to reconsider the principles of Smith.5 Should the Court or Congress take up this challenge? Consid- er three options: (1) After Flores, matters should be left to rest. The law (at least with regard to state and local governments) has now reverted to the rule of Smith. -
The Nondelegation Doctrine: Alive and Well
\\jciprod01\productn\N\NDL\93-2\NDL204.txt unknown Seq: 1 28-DEC-17 10:20 THE NONDELEGATION DOCTRINE: ALIVE AND WELL Jason Iuliano* & Keith E. Whittington** The nondelegation doctrine is dead. It is difficult to think of a more frequently repeated or widely accepted legal conclusion. For generations, scholars have maintained that the doctrine was cast aside by the New Deal Court and is now nothing more than a historical curiosity. In this Article, we argue that the conventional wisdom is mistaken in an important respect. Drawing on an original dataset of more than one thousand nondelegation challenges, we find that, although the doctrine has disappeared at the federal level, it has thrived at the state level. In fact, in the decades since the New Deal, state courts have grown more willing to invoke the nondelegation doctrine. Despite the countless declarations of its demise, the nondelegation doctrine is, in a meaningful sense, alive and well. INTRODUCTION .................................................. 619 R I. THE LIFE AND DEATH OF THE NONDELEGATION DOCTRINE . 621 R A. The Doctrine’s Life ..................................... 621 R B. The Doctrine’s Death ................................... 623 R II. THE STRUCTURE OF A CONSTITUTIONAL REVOLUTION ....... 626 R III. THE PERSISTENCE OF THE NONDELEGATION DOCTRINE ...... 634 R A. Success Rate .......................................... 635 R B. Pre– and Post–New Deal Comparison .................... 639 R C. Representative Cases.................................... 643 R CONCLUSION .................................................... 645 R INTRODUCTION The story of the nondelegation doctrine’s demise is a familiar one. Eighty years ago, the New Deal Court discarded this principle, and since then, this once-powerful check on administrative expansion has had no place in our constitutional canon. -
The Poor As a Suspect Class Under the Equal Protection Clause: an Open Constitutional Question
Loyola University Chicago, School of Law LAW eCommons Faculty Publications & Other Works 2010 The oP or as a Suspect Class under the Equal Protection Clause: An Open Constitutional Question Henry Rose Loyola University Chicago, [email protected] Follow this and additional works at: http://lawecommons.luc.edu/facpubs Part of the Civil Procedure Commons Recommended Citation Rose, Henry, The oorP as a Suspect Class under the Equal Protection Clause: An Open Constitutional Question, 34 Nova Law Review 407 (2010) This Article is brought to you for free and open access by LAW eCommons. It has been accepted for inclusion in Faculty Publications & Other Works by an authorized administrator of LAW eCommons. For more information, please contact [email protected]. THE POOR AS A SUSPECT CLASS UNDER THE EQUAL PROTECTION CLAUSE: AN OPEN CONSTITUTIONAL QUESTION HENRY ROSE* (ABSTRACT) Both judges and legal scholars assert that the United States Supreme Court has held that the poor are neither a quasi-suspect nor a suspect class under the Equal Protection Clause of the Fourteenth Amendment to the Unit- ed States Constitution. They further assert that this issue was decided by the Supreme Court in San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973). It is the thesis of this article that the Supreme Court has not yet decided whether the poor are a quasi-suspect or a suspect class under Equal Protec- tion. In fact, the majority in San Antonio Independent School District v. Ro- driquez found that the case involved no discrete discrimination against the poor. Whether the poor should constitute a quasi-suspect or suspect class under Equal Protection remains an open constitutional question. -
Free Exercise (Dis)Honesty
FREE EXERCISE (DIS)HONESTY JAMES M. OLESKE, JR.* For over half a century, the Supreme Court’s free exercise jurispru- dence has been characterized by a less-than-forthright treatment of prece- dent. The pattern began in the 1960s, when Justice Brennan led the Court to recognize a right to religious exemptions while ignoring language from past cases that had rejected such a right. The trend continued in the 1990s, when Justice Scalia led the Court to disavow the pro-exemption view while ignor- ing language in cases that had embraced it. Today, the Court appears poised to shift its position on religious exemptions yet again, and leading scholars are suggesting it do so by creatively rewriting precedent. This Article urges the Justices to decline that invitation and make clear they are no longer willing to read free exercise precedents saying “up” to mean “mostly down.” Part I tells the full story of foundational pre- varications and subsidiary inconsistencies that have accompanied the Court’s past shifts on exemption rights. Part II details the greatest danger of dishonesty going forward—a danger that was lurking in Masterpiece Cakeshop v. Colorado Civil Rights Commission. Part III calls on the Court to develop an honest free exercise jurisprudence and offers suggestions for what that jurisprudence might look like. Specifically, because the Court has at times incorrectly assumed that recognizing exemption rights will either risk anarchy or require treacherous balancing of religious interests against state interests, this Article offers a concrete proposal for vindicating a lim- ited right to religious exemptions without engaging in case-by-case balanc- ing of such interests. -
Fundamental Personal Rights: Another Approach to Equal Protection
Fundamental Personal Rights: Another Approach to Equal Protection The recent history of the United States Supreme Court is often said to be marked by a decisive turning point in the method and substance of constitutional adjudication.' Between 1934 and 1937 the Court began to abandon most of the reasoning of and the policies embodied in "sub- stantive due process," 2 and by 1941 the old doctrine was explicitly repudiated." The pre-1937 Court's approach to interpreting the vague provisions of the due process clauses may best be characterized as a "balancing" of the burdens imposed on a person's life, liberty or property by governmental regulation against the governmental justi- fications for the burdens. In many of these substantive due process cases, the Court found the regulation in question insufficiently justified and therefore unconstitutional. 4 In many other cases, however, the pre-1937 C6urt found the regulation to be a reasonable exercise of governmental power.5 One of the primary objections to the substantive due process ap- proach was that the Court substituted its judgment of the wisdom of legislation for that of the popularly elected branches of government.6 In response to this criticism, the post-1937 Court developed an approach 1 E.g., McCloskey, Economic Due Process and the Supreme Court: An Exhumation and Reburial, 1962 Sup. Or. Rzv. 34; Stern, The Problems of Yesteryear-Commerce and Due Process,4 VAND. L. REv. 446 (1951). 2 See West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937); Nebbia v. New York, 291 U.S. 502 (1934). -
Constitutional Equal Protection, Strict Scrutiny, and the Politics of Marriage Law
Catholic University Law Review Volume 47 Issue 4 Summer 1998 Article 5 1998 Constitutional Equal Protection, Strict Scrutiny, and the Politics of Marriage Law Anita K. Blair Follow this and additional works at: https://scholarship.law.edu/lawreview Recommended Citation Anita K. Blair, Constitutional Equal Protection, Strict Scrutiny, and the Politics of Marriage Law, 47 Cath. U. L. Rev. 1231 (1998). Available at: https://scholarship.law.edu/lawreview/vol47/iss4/5 This Article is brought to you for free and open access by CUA Law Scholarship Repository. It has been accepted for inclusion in Catholic University Law Review by an authorized editor of CUA Law Scholarship Repository. For more information, please contact [email protected]. ARTICLES CONSTITUTIONAL EQUAL PROTECTION, STRICT SCRUTINY, AND THE POLITICS OF MARRIAGE LAW Anita K. Blair* Many people today are amazed to hear anyone seriously contend that the Constitution guarantees men and women the right to marry persons of their same sex. But a member of Congress visiting here from the late 1860s would be astounded by more than that. When he and his col- leagues passed the Civil Rights Amendments, they intended to make the same constitutional rights then guaranteed to white citizens also apply to newly freed slaves.2 Our visitor would be incredulous to learn that the Fourteenth Amendment adopted in 1868 remains a vital and contentious * Anita K. Blair, J.D., University of Virginia School of Law (1981), practices law in the firm of Welty & Blair, P.C., in Arlington, Virginia. She also serves as Executive Vice President and General Counsel of the Independent Women's Forum, a nonprofit, nonpar- tisan policy organization. -
Obergefell V. Hodges: Same-Sex Marriage Legalized
Obergefell v. Hodges: Same-Sex Marriage Legalized Rodney M. Perry Legislative Attorney August 7, 2015 Congressional Research Service 7-5700 www.crs.gov R44143 Obergefell v. Hodges: Same-Sex Marriage Legalized Summary On June 26, 2015, the Supreme Court issued its decision in Obergefell v. Hodges requiring states to issue marriage licenses to same-sex couples and to recognize same-sex marriages that were legally formed in other states. In doing so, the Court resolved a circuit split regarding the constitutionality of state same-sex marriage bans and legalized same-sex marriage throughout the country. The Court’s decision relied on the Fourteenth Amendment’s equal protection and due process guarantees. Under the Fourteenth Amendment’s Equal Protection Clause, state action that classifies groups of individuals may be subject to heightened levels of judicial scrutiny, depending on the type of classification involved or whether the classification interferes with a fundamental right. Additionally, under the Fourteenth Amendment’s substantive due process guarantees, state action that infringes upon a fundamental right—such as the right to marry—is subject to a high level of judicial scrutiny. In striking down state same-sex marriage bans as unconstitutional in Obergefell, the Court rested its decision upon the fundamental right to marry. The Court acknowledged that its precedents have described the fundamental right to marry in terms of opposite-sex relationships. Even so, the Court determined that the reasons why the right to marry is considered fundamental apply equally to same-sex marriages. The Court thus held that the fundamental right to marry extends to same- sex couples, and that state same-sex marriage bans unconstitutionally interfere with this right.