Barak Obama, Con Law III, Fall 2000
I. Introduction
A. What is Equality (Thomson)
(1) Lord Bryce declaring that democracy owes nothing to equality, political or economic.
(2) Problem of equality is a current problem. (3) Propositions of equality:
(a) Equal not identical (dull/shiny pennies) (b) Equality implies similarity, not sameness
(c) Equality is not uniformity, º thus uniformity of treatment subject to much disputed moral claims.
(d) Equality is not absolute economic, even under socialism and communism º distant future per Marx.
(e) Equality = common submission to a code of law, type of govt.
(4) Tawney º “not important if completely attained, but rather it must be sincerely sought.”
(5) Haldane º universal sufferage owed to dogma of
man’s equality, but “the progress of biology in the next century will lead to a recognition of the innate inequality of man.”
(6) Equality has roots in Christianity and Greek / Roman rationalism.
(7) Equality product of aristocratic and slaveholding communities º formed in the crucible of contrast: (a) Inequality in a heterogenous society is thorny
problem.
(b) Tolerance product of religious wars
(8) Liberty / Equality nexus º inherent tension, despite ubiquity in governmental preambles.
(9) Tragedy that it now longer has spiritual content. (10) Centralized Gov’t = development and
implementation of egalitarianism.
II. Slavery and the Constitution
A. Three references in Constitution
(1) Art I, § 2, cl 3 º [3/5] “Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of
free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons….”
(2) Art I, § 9, cl 1 º [Importation tax]“The Migration or Importation of Such Person as any of the States now existing shall think proper to admit, shall not
be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty
may be imposed on such Importation, not exceeding ten dollars for each Person.”
(3) Art IV, § 2, cl 3 º [Fugitive Slave clause º Laws of another state can’t trump slavery] “No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.”
(4) Slavery and the Constitution
(a) Constitution is arguably pro-slavery document º 7 of 15 “influentials” were slaveholding planters.
(b) Document seems to put slavery beyond
“national regulation.”
(c) “What precisely is the value of the Constitution and of the concomitant nation that would justify even an extra week’s slavery?”
B. Slavery Cases
(1) State v Post (1845) º Does NJ’s constitution abolish slavery?
(a) HELD: Language pertaining to freedom and independence is modified by understanding of man’s relationship to gov’t. Same
language in US Constitution º didn’t abolish slavery.
(2) NOTE: Prigg v Pennsylvania (1842) º Pre-Civil war courts more often than not overturned limitations on slavery.
(a) SC held that fugitive slave clause prohibits any law which “interrupts, limits, delays, or postpones” rights of owner.
(b) Fugitive Slave Act preempted state law, mandated assistance in reclaiming slaves º yet also legitimized regulation of slavery, and eventually limiting it growth.
(3) Johnson v M’Intosh (1823) º Action to assert valid title, which was acquired in two transactions with Indian chiefs.
(a) HELD: Discovery by Europeans = conquer
= state has power to grant title; Indians only have right to occupancy, which sovereign may extinguish through either purchase or conquest
(b) Reason has nothing to do with natural law;
everything to do with law of nations.
(c) Rights of native Indians to land have necessarily been impaired.
(d) This has been the law of the continent, which all European nations have accepted as sovereigns have changed.
(4) State v Mann (NC 1829) Δ charged with assault and battery on slave, whom he hired from its owner. When she tried to escape, he shot here, impairing her value to her owner.
(a) HELD: Master is not liable for battery committed upon his slave. Δ not criminally liable, but instead subject to laws of bailment.
(b) There is no likeness of master-slave to parent- child, tutor-pupil, etc.
(c) Bond of master over slave = absolute º
though conscience find this repugnant.
(5) Dred Scott v Sandford (1857) º Scott claims to be a citizen of Missouri. Was a slave who traveled with owner to Illinois and Louisiana Territory, thus claimed to now be free. Jurisdiction based on diversity.
(a) HELD (Taney):
1) No jurisdiction: “[Blacks] were not intended to be included, under the word “citizens” in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for an secures to citizens of the United States.”
2) LA Compromise Unconstitutional: Depriving citizen of his property merely because of his travel into another state is hardly due process of law.
(b) Only second to be declared unconstitutional up until that time.
(c) Expedited fight against slavery, galvanized.
C. Reconstruction
(1) Federalist No. 28, Hamilton º Constitution was not designed to protect individual rights from power of state gov’t only federal gov’t.
(2) 13th Amendment º Slavery is illegal and under §
2 “Congress shall have the power to enforce this article by appropriate legislation.
(3) Civil Rights Act of 1866 º gives blacks “full and equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens.”
(4) 14th Amendment º BO stresses that 14th was designed to give Congress legal authority to pass Civil Rights Act of 1866.
(a) “No state shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, nor shall any State deprive any person within its jurisdiction the equal protection of the laws.”
(b) Gave Congress ability to enforce through appropriate legislation.
(c) Alters balance between State and Federal power; and between Congress and Judiciary.
(5) 15th Amendment º The right of citizens of the US to vote shall not be denied or abridged …on account of race, color, or previous condition of servitude.
(6) Judicial Reaction º Federalism, narrow reading:
expansive if black, narrow if white SM
(a) Slaughterhouse Cases (1873) º narrow reading of 13th and 14th amendments º only dealing with negroes, No LA butchers. First case to interpret 14th amd.
(b) US v Cruikshank (1975) º riot following election in LA. 60 freedman killed after they surrendered. Feds charged violation of voting section of Enforcement Act of 1870. No 14th amendment violation because blacks were not exercising right to petition gov’t. 14th Amd “adds nothing to the rights of one citizen as against another.”
(c) Strauder v W Va (1879) OUTLIER º But strong if racially oriented, rev’d conviction of black where no black could serve on jury. Can discriminate on lots of other basis under
14th Amendment.
(d) US v Harris (1882) º Feds lack power to prosecute lynch mob who seized prisoner from state deputy.
(e) The Civil Rights Cases (1882) º Invalidated public accommodation section of 1875 Civil Rights Act. Neither 13th nor 14th amd give Congress power to prohibit private discrimination in public accommodations. Denial of rights by state, not interference by private party.
(f) Ex Yarbrough (1884) º Feds can prosecute obstruction of black voters by KKK in Congressional elections.
D. Post-Reconstruction
(1) Plessy v Ferguson (1896) – Man claiming to be
7/8 Caucasian sued because he was prohibited from being in the white RR car.
(a) HELD: Segregation of the races is a reasonable exerci
ay in elimination of racial barriers.”
(6) Goss v Bd of Educ (1963) º One-way transfers
found unconstitutional.
(7) Griffin v County School Bd (1964) º school closing º Ct found strategy of school closing and gov’t grants and tax credits for private schools unconstitutional. Cf. Palmer v Thompson (1971)
º Okay to close pools since Griffin only had to do with public educ.
(8) Norwood v Harrison (1973) º MS practice of lending textbooks to students attending both public and private schools without reference to whether the private schools were racially segregated unconstitutional.
(9) TEXTBOOK argues that it was formation of political coalition, especially around Civil Rights Act of 1964, that the most galvanizing effect. Title VI assisted with guidelines for remedial orders.
D. Collapse of Southern Segregation
(1) Green v County School Bd (1968) º unanimous SC invalidated freedom of choice plan that would have reinforced historical pattern of deseg
(a) NOTE: south did not have same residential
segregation º neighborhood school would produce integration.
(b) Suggests that unitary status is only possible if system in integrated.
(2) Monroe v Bd of Comm (1968) – Rejected
acceptance of “free transfer” as a method of mitigating white flight.
(3) Swann v Charlotte-Mecklenburg (1971) – Case that gave federal courts authority to implement busing, redistricting, and involuntary student transfer to effectuate integration.
(a) Remedy will end after systems become
unitary.
(b) Books says this is results-oriented view of Brown, which focuses on outcome in district, making removal of racial criteria unconstitutional.
(c) Cf. process oriented, which looks to eliminate racist actions in decision-making process, but doesn’t look at outcome
E. Northern Deseg and Limits on Duty
(1) Keyes v. School District No. 1, Denve (1973) – First case to address school segregation in city where separation was not initially enforced by statute.
(a) Finding of officials’ intent in part of district is sufficient to implicate entire system
(b) Powell’s Dissent / Concurrence:
(2) Milliken v Bradley (1974) (5-4) – Federal cts lack the power to impose interdistrict remedies for school desegregation absent an interdistrict violation or interdistrict effects.
(a) “without interdistrict violation and interdistrict effect, there is no constitutional wrong call for an interdistrict remedy”
(b) DISSENT, Marshall: There is effectively no remedy for this constitutional violation, though the State had participated in violations in Detroit.
(c) Cf. Hills v Gautreaux (1976) – upheld right of district to compel HUD to take action outside of Chicago city limits to remedy discriminatory site selection that occurred only in Chicago.
(3) Milliken II (1977) – Courts have power to order states to expend money and resources to correct past constitutional violations of students.
(4) Missouri v Jenkins (1990) (5-4) – Held that tr ct abused its discretion to raise local taxes and create massive magnet schools that would attract white children to the district.
(5) Jenkins II (1995) (5-4) – restrict tr ct’s authority to order Milliken II-type remedies (e.g. ordering salary [ for staff) since steps were motivated by attracting more whites into district.
