Introduction and American Constitutionalism in Historical Perspective Introduction



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§1982 bars all racial discrimination, private as well as public, in the sale or rental of property and is a valid exercise of Congressional enforcement power under 13th amendment

  • Griffin v. Breckenridge (1971)

    • §1985(c) can be applied to private conspiracies under 13th amendment and right to interstate travel

  • United Brotherhood of Carpenters (1983)

    • holds that 13th amendment and right to interstate travel irrelevant in union context so must show state action; also, not the kind of animus required for §1985(3)

  • Bray v. Alexandria Women’s Health Clinic (1993)

    • 13th amendment cannot justify §1985(c) because the animus in a case about abortion protestors is not the same as racial animus

    • there are women on both sides of the issue

  • Runyon v. McCrary (1976)

  • Equality trumps liberty with regards to gender discrimination

    • Roberts v. United Jaycees (1984)

      • anti-gender discrimination trumps associational liberty

      • court rejected right of intimate association claim, and while it accepted right of association, said it was trumped by gender equality as a compelling state interest

    • Rotary International v. Rotary Club (1987)

    • NY Club Association v. NY (1988)

    • Boy Scouts of America v. Dale (2000)

      • upheld right of Boy Scouts to exclude an openly gay scoutmaster

      • it is an organization intended to inculcate values; they can’t be required to suggest that they approve of sexuality


    3. Enforcement of Civil Rights and Reconstruction Amendments

    Judicial Enforcement

    Congressional Enforcement

    1. literacy tests ok (Lassiter)

    2. English language requirement ok

    3. age discrimination ok (Murgia)

    4. at-large elections ok (Mobile)

    1. literacy tests not ok

    2. English language requirement not ok

    3. age discrimination not ok (Oregon)

    4. at-large elections not ok (Rome v. United States)






    • Lassiter v. Northampton County Election Board (1959)

      • court refused to strike down literacy tests

    • South Carolina v. Katzenbach (1966)

      • challenge to Voting Rights Act of 1965 which, among other things, got rid of literacy tests

      • ban on literacy tests in covered areas (literacy tests used for discrimination and voting reduced by 12% over average): constitutional because Congress has made substantial fact-finding

      • prior approval: ok because narrowly drawn and has time limit

        • dissenters note that you could not have done this under commerce clause

      • federal examiners: ok because Congress has made a finding that states can’t be trusted

    • Katzenbach v. Morgan (1966)

      • upheld §4(e) of Voting Rights Act of 1965 requiring that people educated in Puerto Rico must be allowed to vote without knowing English language as within §5 enforcement powers

      • could not have had this result from judicial enforcement because it is unprincipled

      • Brennan argues that Congress has both remedial and substantive enforcement authority

        • could have found that this was a necessary remedial measure to correct ethnic discrimination

        • could also have found substantively that it is an unfair burden on a fundamental right

      • says Reconstruction Congress clearly wanted to give legislative branch the same broad powers as in necessary and proper clause

      • Harlan’s dissent: Congress cannot be allowed to undercut the Court’s Marbury powers

        • one-way ratchet is in the eye of the beholder; Congress could use this to dilute rights

        • he also argues that fact-finding can become normative power (regardless, says fact-finding here inadequate)

        • worth noting that there is also a federalism issue here: these are federal statutes invalidating state statutes (Fed. No. 10 argument for greater deference)

    • Oregon v. Mitchell (1970)

      • Voting Rights Act of 1970 extended vote to 18 year-olds in federal and state elections; Court upheld the law for federal elections, struck it down for state

      • Black found that Congress could set time, place and manner for federal elections, but states must be able to set qualifications for their own elections

        • Congress had looked at what were in fact practices and found that they used 18 as age of majority everywhere, and also concluded that being 21 did not have the same relationship to citizenship as it did in an era when citizenship based on military service that began at 21

      • unanimous court upheld the suspending of literacy tests nationwide as clearly remedial

      • upheld the suspension of residency requirements

      • Harlan’s dissent: you’re undercutting Marbury powers and making the Congress the judge in its own cause

      • Note: again, judiciary could not have done this because 18 is not a “principled” choice

    • Rome v. United States (1980)

      • while disparate impact is not sufficient for the court to find a statute unconstitutionally discriminatory, Congress could in the Voting Rights Act allow the Attorney General not to approve voting plans that had a discriminatory effect alone

      • found that could apply Voting Rights Act to Rome, Georgia to prevent them from instituting at-large voting

    • City of Boerne v. Flores (1997)

      • in response to Smith, Congress passed the Religious Freedom Restoration Act of 1993 under its §5 enforcement powers and stated that because of bigotry against religious people the right to free exercise goes back to the law before Smith

        • concern had been that Smith now allows majoritarian values to be imposed on religious group even when the harm caused by them (and the need to apply the law to them was very low)

        • RFRA would say that where there is not a compelling state purpose in applying the law to this particular religious group they should get an exemption

      • adopts the remedial interpretation of §5 enforcement powers: there must be a “congruence and proportionality” between the injury and the remedy

        • RFRA is so out of proportion that it could not be found to be remedial

        • Kennedy clearly sees it as a blatant attempt to overrule the SC in violation of Marbury; only substantive interpretation would allow Congress to say that something the SC had determined did not violate the Constitution actually does

      • Note: originalist history supports a broad understanding of free exercise

    • United States v. Morrison (2000)

      • challenge to VAWA

      • no authority to enact VAWA under either the Commerce Clause or §5

      • §5: SC finds that Congressional power under §5 is subject to state action requirement

      • if racial discrimination is involved, Court is willing to extend power into the private sphere, either through §5 or through the 13th amendment

      • Breyer/Stevens’ dissent: Congress had made finding of state action because states had not acted to protect women

        • they also note it is a remedial case and therefore Congress should be given significant deference

      • Note: contrast this to the broad view of state action in race cases like Guest

    • Kimel v. Florida Board of Regents (2000)

      • Congress exceeded its remedial authority when it allowed citizens to sue states for violation of Age Discrimination in Employment Act

      • it is unconstitutional because age is not a suspect classification and therefore the legislation is not remedial

    • University of Alabama v. Garrett (2001)

      • Congress could not abrogate state immunity from suit under Title I of the ADA because disability is not a suspect classification (Cleburne)

    • Tennessee v. Lane (2004)

      • Congress could abrogate immunity from suit under Title II of ADA in the context of access to courts but not in other contexts

    • Nevada v. Hibbs (2003)

      • Congress could apply the FMLA to the states under §5 because gender is a suspect classification and they could have concluded it was necessary as remedial legislation



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