Con Law 2 Exam 3

Major Developments of New Deal Equality

• Race conscious measures required to meet strict scrutiny standard

• school segregation declared unconstiutional

• Indian Bill of rights

Equality Before the Law New Deal

• Supreme court abandoned class legislation ideology

Railway Express Agency v. People of State of New York(1949)

• drawing distinctions in legislation to limit its scope to those impacted is not of constitutional concern

  • the only time the distinction is of concern is if the distinction is discriminatory

Democrat Party shift Under New Deal

1932-

• no mention of race from the party platform

1940-

• longer and strong commitments to racial equality

1960-

committed to Brown and federal attack on Jim Crow

Republican Party Shift under New Deal

1932-

• brief mention of vindication of black right

1940-

• longer and strong commitments to racial equality

1960

• committed to brown and frontal federal attack on Jim Crow

Backlash Thesis

• Micheal Klarman

• suggested Brown initially empowered the worst racists in the south

• Violent efforts to suppress civil rights movements turned northern public opinion in favor of the court

President Truman, Special Message to Congress (1948)

• declared federal duty to equal protection

• urged congress to enact comprehensive civil rights legislation

Academically suggested reasoning for reform during NEW Deal

• recognition of immorality of racism

  • fueled by modern social science findings

  • reaction to racial practices of nazi germany

• Derrick Bell

  • maintains the interests of black people in acheiving equality will only be addressed when those interests converge with white interests

• American elites had self-interested reasons for supporting of end of Jim Crow

  • U.S. during Cold War needed 3rd world support

    • many of these nations were repelled by ongoing racism

  • as black people moved north, northern politicians had greater incentive to push for the end of jim crow

Strict Scrutiny

• racial distinctions fall under this scrutiny

• the law must be a necessary means to achieve a compelling government interest

Korematsu v United States (1944)

• only case testing racial classifications that passed strict scrutiny standards

• 6-3 opinion

• Opinion written by Justice Black

• held that racial classifications are immediate suspects

• military necessities justified removing Japanese Americans from the west Coast

• eventuall overrule by Trump v Hawaii

Journal of N**ro Education

• 1935

• ran an edition on the court and segregated schools

• analyzed and critqued efforts to eradication jim crow education through litigation

Does the N^gro Need Separate Schools (1935)

• written by DuBois

• black people cannot receive proper education in white institutions

  • due to existing prejudice

• Mentions racism and prejudice that will target black children in white education spaces

• “he woll have schools or he will not be educated”

  • black children will not be recognized for achievements in white spaces

• Suggests there are times where one must withstand discomfort for the sake of principle

  • argues education and education of children in particular is far too fragile to impose discomfort on

Court Action the Only Reasonable Alternative to Remedy Immediate Abuses of. theN^gro Separate school (1935)

• written by Chas H Thompson

• to segregate is to stigmatized

• segregated schools impose inferiority on black youth

• separate schools are economically burdensome

• segregation results in the miseducation of both races

Brown v Board of Education of Topeka (Brown 1)(1954)

• Linda Brown was a young girl at an all black school in Topeka, where she attempted to enroll in an all white summer school

• NAACP filed suit after her denial, claiming segregation violated equal protection

• President Truman Submitted Amicus Brief

• Unanimously declared schools segregation unconstnl

• Opinion written by Chief Justice Warren

• shift from separate but equal heavily based on modern fact finding

Boiling v Sharpe

• unanimously ordered schools in D.C. to desegregate

• Chief Justice Warren wrote opinion

• asstrted due process guaranteed in the 5th amendment contains an equal protection component

• classifications based solely on race must be scrutinized with particular care

Brown v Board of Education of Topeka (Brown 2) (1955)

• issued remedy

• NAACP called for immediate end to al de jure segregation

• Affected states argued that the courts and plaintiffs were asking the impossible

• Eisenhower submitted amicus brief, insisted on an “immediate and substantial start towards desegregation”

• Supreme Court unanimously adopted the position of Eisenhower

  • SCHOOLS MUST BE DESEG WITH ALL DELIBERATE SPEED

• Chief Justice Warren wrote opinion

• Racial discrimination in public education is unconstitutional

Southern Manifesto

• issued in 1956

• signed by most southern congressmen

• Opposition to Brown decisions

• Mentions encroachment of individual and state rights

• claimed brown decisions worked to destroy race relations

Judge J Skelley Wright

• largely responsible for desegregation in Louisiana

• issued injunction against state legislature which threatened prison time should they interfere with desegregation efforts in New Orleans

Judge Frank Hooper

• on bench at a Federal District court in Georgia

• informed the Atlanta School Board he would approve desegregation plans that allowed token integration

Judge T Whitefield Davison

• Judge in Dallas TX

• rejected a plan that would desegregated first grade then add a grade every year

• resisted desegregation entirely

• "Mixing six year olds would lead..to an amalgamation of the races..”

Cooper v Aaron (1958)

• reprimanded governor of Arkansas for failing to obey court orders mandating few children of color be allowed to attend white schools in Little Rock

Goss v Board of Education (1963)

• declared a tennessee law that permitted all children to transfer into a school in which a majority of students were of their race unconstitutional

Griffin v County School board of Prince Edward County (1964)

• Struck down effort to evade Brown by closing down public schools and giving state funds to segregated private schools

Civil Rights Act of 1964

• Cut of all federal funds to school districts not in compliance with brown

• congress authorized the DOJ to bring lawsuits that would desegregate public schools

Green v County School board of New Kent County (1968)*

• Unanimous decision

• declared a school board freedom of choice plan unconstitutional

  • all white children chose the school they already attended

  • most black kids’ parents chose the school reserved for black children

• Justice brennan wrote opinion

  • shift toward integration rather than desegregation

• racial discrimination in public schools must be eliminated “branch and root”

Goesaert v Cleary (1948) /Hoyt v Florida (1961)

• both cases held that gender distinctions merited no special protection

Hoyt v Florida (1961)*

• Upheld exclusion of women from juries

• Justice Harlan wrote majority opinion

Indian Civil Rights Act (1968)

• imposes many limits  on tribal governments’ power that are similar, but not identical, to the limits that the const imposes on federal and state governments

1968 presidential candidates

• Hubert Humphrey

  • championed racial liberty

  • promised to maintain and expand legacy of the 60s

  • senator

• George Wallace

  • former governor of AL

  • segregationist

  • promised to roll back most major constitutional decisions of the 60s

• Richard Nixon

  • favored some great society polices

  • Barely won over humphrey

1970s

• characterized by an increasingly divided government

• ambivalence was prominent within government

Roe v Wade (1973) *

• Held abortion as a fundamental constitutional right, under right to privacy

• struck down abortion bans in 46 states

• est trimester system

• Held first trimester restriction on abortion was entirely unconstnl

• second trimester restrictions on abortion were legitimate if they promoted maternal health

• third trimester restrictions on abortion are always allowed so long as exceptions were made for the sake of maternal health

• Justice Blackmun wrote the majority

• argued modern medical technology has largely eradicated health concerns related to abortion

• argued that for constitutional purposed, unborn persons are not considered “persons”

San Antonio Independent School District v Rodriguez (1973)*

• ruled education was not a fundamental constitutional right

• opinion authored by Justice Powell

Craig v Boren (1976)*

• announced a strict constitutional standard for gender distinctions

• intermediate scrutiny

• Ruled government could make gender distinctions when those distinctions were an important means to a substantial government interest

Gregg v Georgia (1976)

• permitted states to impose capital punishment

Democrats (Liberalism Divided Era)

• Typically promised to maintain and expand the legacy of the 1960s

  • Mostly in regards to the racial legacy

  • Emphasis on equality and civil rights

  • Party platform of  1968 emphasized commitment to the Civil Rights Act of 1964, and Voting Rights Act of 1965

• On average, more liberal than republicans

Republican Party of the Liberalism Divided Era

• endorsed some constitutional developments of great society

• rejected some constitutional developments of great society

Nixon

• critical of court decisions on school prayer and criminal suspect rights

• otherwise mostly in support of other liberal warren court decisions

Relevant Liberal Interest Groups of Liberalism Divided Era

• ACLU

• African American/Jewish Alliance

Both groups became relatively constitutionally irrelevant for a period of time

Dandridge v Williams (1970)*

• rejected the concept of a constitutional right to welfare

• 6-3

• Justice Steward Wrote opinion

• insisted courts had no business scrutinizing welfare laws

• social welfare policy is a matter of legislative discretion

Wainright v Skyed (1977)

• curtailed access to federal habeas corpus

John Rawls

• Wrote A Theory of Justice

• largely influential to liberal thought throughout the 70s

• looked to moral philosophy as the source of rights and liberties

• believed constitutional government should be committed to two things..

  • equal right to the most extensive basic liberty

  • social and economic inequalities should be reasonable to everybpdys advantage and attached to positions and offices that aare open to all

Liberal thought of the 70s

• emphasis on autonomy rights

• influenced heavily by Rawls

• people of color and women should be merited special constitutional protection

Rober Bork

• largely influential to conservative thought of the 70s

• wrote Neutral Principles and Some First Amendment Problems

• critcized many Warren court decisions as inconsistent with original intent

• originalist

Alexander Bickel

• influential to conservative thought of the 70s

• wrote the morality of consent

• urged justice to pay greater heed to conservative thinkers such as Edmund Burker

  • alternative to Locke

Richard Posner

• influential to conservative thought of the 70s

• called for greater judicial protection of property rights

Major Foundational Developments of the liberalism Divided Era

• Failure to ratify the ERA

• More emphasis on substantive rights than democratic rights

• State action doctrine narrowed

Sources of Rights during the Liberalism Divided Era

• 26th amdt

  • ratified in 1971

  • changed legal voting age to 18

• Voting Rights Act of 1965

  • including provision enfranchising persons 18 and older

• Oregon v Mitchell (1971)

  • declared congress had power to determine voter qualifications for federal elections only

  • led to constitutional amendment which made the voting age uniform in all elections

ERA

• amendment proposed to grant women similar protections found in the equal protection clase

• approved by congress

• never approved by the required amount of states

  • 35/38

Frank Michelman

• urged constitutional decision makers to incorporate Rawls’ idea of “justice as fairness”

• claimed persons have a constitutional right to protection from “economic hazard”

  • entailed

    • food

    • shelter

    • healthcare

    • education

Ronald Dworkin

• called for a fusion of constitutional law and moral theory

• argued A Theory of Justice was critical to constitutional law

Moose Lodge No 107 v Irvis (1972) *

• considered whether a private club with a state liquor license could refuse to serve african americans

• narrowed “State action” doctrine

• Justice Rehnquist wrote majority opinion

• Found no active state support in the discrimination

• Plaintiff party claimed that because the liquor license was state-issued, there was state action involved

  • likely would have succeeded under a more liberal court

• Affirmed right to discriminate

• 6-3 decision

• held that liquor license were available to almost all citizens, and therefore there was little state connection and therefore no state action

Jackson v Metropolitan Edison Co (1974)

• Illustrated changes in state action doctrine

• litigated whether a privately owned utility company that was granted a monopoly could terminate service without notice and a hearing

• Justice Rehnquist wrote the majority opinion

  • concluded that although the utility performed a public function, state action was not present because states had no obligation to provide citizens with electricity

Moose Lodge Dissent

• written by Justice Douglas and Brennan

• argued that the discrimination enacted by a liquor counter refusing to serve black patrons involved state action

• found state action due to their classification of liquor licenses as a “scarce commodity”

  • if only a particular number of establishments can acquire a license, and the state issues these licenses to openly discriminatory private entities, this means state endorsement of such action

Individual Rights Developments of the Liberalism Divided Era

• Supreme courts protect abortion rights

• Struggles between more liberal and more conservative religious groups replace traditional struggles between protestants and catholics

• Little or no protection for gun or property rights

Charles Reich

• reflective of liberal attitudes during the liberalism divided era, that we have a constitutional right to basic necessities

• wrote The New Property

• argued government was constitutionally obligated to provide the supplies people need to survive

Legal Services Organization & Center on Social Welfared Policy

• placed the rights of poor people on the agenda of the supreme court

Lindsey. vNormet (1972)

• Justice White wrote the majority opinion

• asserted the assurance of housing was a legislative prerogative, not a judicial one

Goldberg v Kelly (1970)

• protected procedural rights of welfare recipients

• Justice Brennan wrote majority opinion

• ruled government officials could not stop welfare payments without giving recipients formal opportunity to demonstrate they had statutory rights to those benefits

Wisconsin v Yoder (1972)*

• 6-1

• ruled yoder had a right to have his children exempted from enrollment in a public school beyond 8th grade education

• Yoder was a part of the amish community is Wisconsin

• Chief Justice Burger wrote majority opinion

• State argued compulsory education had sufficient government interest for the sake of civic and economic duty

  • court responded that the Amish have persistently proven themselves economically efficient, and therefore the compelling interest stated is null

New Mexico in City of Las Vegas v Moberg (1971)

• declared unconstitutional a local ordinance that forbade persons from carrying “deadly weapons, concealed or otherwise

• bans on concealed weapons “do not deprive citizens of the right to bear arms,”

• a unanimous tribunal insisted that a complete prohibition “den[ied] the people the constitutionally guaranteed right to bear arms.

Doe v Bolton (1973)

• companion case to Roe

• deemed GA restrictions on abortion unconstitutional

  • restrictions were imposed on women who needed abortions for the sake of their healthh

  • mandated three doctors to certify the life threatening circumstance

  • required abortions be performed in hospitals

• Justice blackmun wrote majority opinion

• 7-2 vote

• declared woman’s right to receive medical care according to her physician’s best judgement

• argued the state statute limited the physician’s right to administer care

Harris v McRae (1980)

• Justice Stewart wrote the majority opinion

• funding restrictions on abortion considered constitutional

Carey v Population Serviced International (1975)

• most restrictions outside of funding on birth control and abortion were deemed unconstitutional

• Justice Brennan wrote majority opinion

• declared law prohibiting persons from giving teens contraception unconstitutional

Human Life Amendment

• effort to propose amendment overturning Roe

• proposed by Senator Jesse Helms

Populist Party

• emerged during the republican era

• concerned with farmer interests

• focus on business regulation

Progressive party

• emerged during republican era

• called for labor regulations

American Bar Association

• est in 1878

• initially comprised of elite lawyers

• concerned with creating a strong federal judiciary, mostly in the interest of property rights

• into the 1906s, organization was known as a conservative advocate

American Federation of Labor

• est in 1886

• relevant during the republican era

• use of collective bargaining among employee and employer

• discriminated against black workers

• opposed women’s employment

• supported chinese exclusion

• advocated for regulated wages and work week

• mostly concerned with white worker rights

NWSA/ National Women’s Suffrage Association

• concerned with women’s equality

• after the enfranchisement of women, they changed into the League of Women Voters

NAACP

• founded in 1909

• concerned with the civili liberties of black people

• critical advocates for racial equality

Anti Saloon League

• arose during republican era

• advocated for prohibition

Civil Rights Cases *

• ruled civil rights legislation outlawing racial discrimination in public accommodations unconstitutional

Plessy v Ferguson

Holden v Hardy* (1898)

• ruled states could regulate working hours of coal miners

Lochner v New York *1905

• struck down law regulating baker hours

  • differentiated from Hardy due to the “less dangerous nature” of baking

• claimed law violated contracts clause and due process

• Homes dissent

  • right of congress to make decisions on public welfare without interference from courts

  • emphasis on legislative deference

• Justice Harlan Dissent

  • questioned whether the occupation distinction was a meaningful difference for the case

Near v Minnesota*

• opinion written by Justice Charles Hughes

• legislatures must have compelling state interests to enforce prior restrains

• otherwise, prior restraints are unconstitutional

Individual Rights Concerns of Republican Era

• freedom of contract

• “Christian Nation” debate

• due process expansion

• regulation of individual behavior

Adair v U.S. (1906)

• right to sell labor upon terms he deems proper

• employe has the right to accept or reject hours as he sees fit

• right between employer and employee, they have equality in negotiating hours/wage

  • any legislation that disturbs this equality is unconstitutional

Bunting v Oregon * (1917)

• upheld limitations on working hours for women

Mueller v Oregon (1908)

• upheld the regulation on women’s working hours

• Brandeis Brief

Penn Coal Co v Mahon (1922)

• Justice Holmes

  • emphasis on takings clause

• state did not take physically, but enacted regulation that reduced or destroyed the value of the proprety

• came to be known as regulatory taking

Munn v Illinoise (1877)*

• dealt with law that regulated grain elevator prices

• Justice Waite wrote decisions

• upheld price regulation

• if property is “clothed with a public interest” then it is subject to such public regulation

Justice Holmes

• introduced the clear and present danger standard for regulating speech

Brandeis

• introduced the concept of U.S. as a constitutional democracy rather than a republic in Whitney v California

Schenck v U.S. (1919)

• initial intro of the clear and present danger standard

Debs v. United States (1919)

• Holmes wrote opinion

• unanimous decision

• had to do with the incarceration of Debs, a socialist party leader

• uses the “bad tendency test”

  • whether or not speech has a “tendency” to cause harm

• argued the words Debs used had the potential to obstruct the recruiting process, and therefore his detention was constitutional

Abrams v U.S. (1919)

• 7-2 vote

• upheld Abrams prison sentence

  • called working class to opposed involvement in Russia’s civil war by going on strike

• Holmes & Brandeis dissent

  • “free trade of ideas”

  • “market of speech”

  • present, immediate, and imminent danger standard

Whitney v. California (1927)

contains brandeis breif

• concurring opinion'

• rjects idea that state can regulate speech with the same deference from the court as property

• speech can only be limited if it is inciting imminent danger

• refines clear and present danger standard

Buck v Bell * (1927)

• Holmes wrote opinion

• equal protection clause is the usual last resort of constitutional arguments

• sustained a state sterilization law

  • “3 generations of imbeciles are enough”

• argues that the logic which justifies compulsory vaccination justifies compulsory sterilization

Yick wo v Hopkins (1886)

• established that laws facially neutral can be in violation of equal protection if they are enforced in a discriminatory manner

Williams v Mississippi (1898)

• refused to recognize racial motivations of many laws and state constitutional provisions

• so long as a law does not have a blatant racial discrimination, it is a constitutional voting regulation

  • even if such distinction is being applied unequally

  • due to states broad discretion in election regulation

Strauder v West Virginia (1879)

• court declared law prohibiting black people and poc from serving on juries unconstitutional

• laws should not contain distinctions based on race

Buchanan v Warley (1917)

• court held law compelling segregation in housing violated due process and equal protection

• larger focus on property rights than discriminatory action