Con Law II Hansford
Spring 2016
Theme to keep in mind: Ongoing discourse between protecting rights of individual (minority) and balancing with core value of democracy (will of majority).
TERMS TO USE ON EXAM:
SMOKESCREENS
SLIPPERY SLOPE
LEVEL UP/DOWN
Introduction
Constitutional Convention 1787.
Could the Framers have changed the course of history and racism in the U.S. by abolishing slavery (Geneva time travel)?
If you could go back to the framing of the Constitution would you ask the Framers to abolish slavery?
Not mentioned “slavery” in Const.
3/5ths clause
Prohibition on outlawing importation of persons
Fugitive slave clause
Pragmatic arguments for slavery (why not abolished in Constitution?):
For the good of the Union (necessary to get southern states to agree.
Economics (cotton and value of slave labor) (slaves were most valuable asset/property)
Articles of Confederation failed already.
Why not go in other direction and allow slavery in Constitution?
Irreversible
State v. Post
Past act that every child born after certain date would be free after turning a certain age.
Constitutional interpretation
Language of the text (textualism)
Originalism (intention of the Framers)
Not clearly stated in constitution
Constitution is living document
Values
Liberty
Evolving
Role of the judge
“Cause Judging”
What do you do when you are a judge w/your own principles and have to go against a binding document that contradicts these principles?
Activist Judging
Judge inserts themselves into a political question
Opposite of Cause Judging
Outcome oriented.
Dred Scott v. Stanford
The court ruled he wasn’t a citizen of MO
Therefore, they had no jurisdiction and should have stopped the case there.
Moving towards activist judge
Trying to produce an outcome he thinks will be best
Was his ruling accurate for that time?
Intent of framers (Originalism)
Accurate under framers intent
Contents of text (Textualism)
Accurate under textual content.
Rejected the “living Constitution”
Would have allowed Scott (and all African Americans) to be seen as humans.
Was there a sunset clause that he could have found?
Different senses of “property”
3/5 was a status afforded to slaves that weren’t afforded to any other property (animals, etc.)
Still ultimate ownership, however.
Overturned the Missouri Compromise
Violated 5th Amendment due process clause-property.
One of worst decisions in history
Anti-Canon cases (Cases we do not want to repeat, duplicate, etc.)
Civil War
13th Amendment
14th Amendment only applied to state actions, not to individual actions against another (a freed slave)
private vs. state action
Federalism
State Action
Jim Crow
Plessy v. Ferguson (another anti-canon)
Louisiana statute
Separate railroad accommodations for white and black people
Plessy prosecuted when failed to leave white railroad car
7/8 white (Plessy was)
Plessy argues Jim Crow should be overturned
Slippery slope argument
Where does it end? Force people to segregate based on hair color, paint houses different color, etc.
Court did not think statute was unreasonable.
Customs of Louisiana were enough to satisfy the reasonableness st
Board of Education of Topeka (Brown II)
“All deliberate speed”
Court doesn’t have the ability to force southern schools to integrate immediately.
“Try to be quick about implementing it, but if you need time that’s fine”
“Least dangerous branch” (The Court is)
Methods of southern resistance
Closing schools
Pupil placement laws
Freedom of choice
Green v. County School Board
After Civil Rights Act enacted
Freedom of Choice plan to avoid losing federal funds
One all black and one all white school
Children had to choose what school to attend upon entering 1st and 8th grade. If couldn’t choose, then would attend whichever went to last.
Moved to “unitary” non-segregated school system.
Affirmative Duty
Equal in both “root and branch”
Swann v. Charlotte-Mecklenburg Board of Education
Started bussing black students into other schools to become more integrated.
Huge emotional issue
Supreme Court affirmed the bussing order.
Green, Key, Milliken (local control)
Rational Basis (legitimate interest and rationally related)
Least strict scrutiny
Three elements to consider
Classification (Means)
Are groups behaving in a certain way by choice or is it immutable (unavoidable and cannot be “corrected”)
Goal (Ends) (Permissible end or Legitimate end)
Nexus (Fit)
Connection between Means and End.
