Commercial Paper Outline

CONSTITUTIONAL LAW II: BROWN TO BAKKE OUTLINE
Prof. Lino Graglia – Fall 1998

This outline is e-mailware! While there is no cost for using the outline, you must drop me a line at dfalgoust@mail.utexas.edu to tell me what you think, if it helped you, etc.; it’d also be nice if you dropped by my web page at http://www.geocities.com/NapaValley/3578/ and signed my guest book.

Feel free to redistribute this outline unmodified to anyone who may find it useful. This outline is provided “as is” and I make no promises as to its accuracy (it worked for me, your mileage may vary). Good Luck on exams!
Damien Falgoust
University of Texas School of Law

I. Introduction
A. Explanatory notes about this outline
1. The text for this course is Lino Graglia, Disaster By Decree: The Supreme Court Decisions on Race and the Schools (1976). The publisher is Cornell Press. All references to chapters refer to this book. It is currently out of print (Texas students purchase a cheap photocopied version), but it may be available used from various online booksellers. I highly recommend reading it.
2. Abbreviations
a) LG – Lino Graglia
b) EP – Equal Protection; DP – Due Process; P&I – Privileges and Immunities
c) CRA – Civil Rights Act (presume 1964 CRA unless otherwise indicated)
d) PPP – Pupil Placement Plans
e) CRC – Civil Rights Commission; HEW – Dept. of Health, Education, and Welfare; DOJ – Dept. of Justice.
B. Constitutional Interpretation and Judicial Review
1. Constitutional law is a fraud. It has nothing to do with the Constitution but rather misrepresentation built upon misrepresentation.
a) Constitutional law is simply a guise for intellectual elites to enact their policy preferences while avoiding the political process.
b) This is perfectly illustrated by the school race cases, in which the same constitution first permitted racial discrimination, then forbade racial discrimination, and finally required racial discrimination.
2. Judicial review is unique to America. However, it is not provided for in the Constitution and was not contemplated at the Constitutional Convention.
a) This is odd, since surely if the framers had intended to give such a broad grant of power to the courts they would have explicitly done so (in much the same way as they gave the President the veto power).
b) Judicial review was established by Marbury v. Madison (1803).
(1) The case is itself a sham: the Court did not have jurisdiction, but Marshall worked backwards in his opinion in order to establish judicial review.
(2) Marshall’s opinion reads as though a law can only be struck if it clearly violates a constitutional provision (ex: law requiring quartering of soldiers). He ignored his own test in later cases, though.
(a) The Constitution forbids very little on its face; almost no laws are passed that would violate it (also, see Home Building Co. v. Blaisdell, where a clearly unconstitutional state law impairing contracts is upheld anyway).
(b) Thus, if there are no clear violations, the Court should leave the matter to Congress because the essence of democracy is majority rule.
(c) This isn’t the case, however; the test has moved from clearly wrong, to “natural law,” to unreasonableness.
c) More significantly, the first significant use post-Marbury of judicial review was in the infamous Dredd Scott decision.
(1) It would seem that at least here judicial review worked badly.
(2) The Taney court disallowed the Missouri Compromise; this was a significant interference with the political process. The upshot was that the Court said the Congress couldn’t prevent slavery in the new territories.
(3) This made the Civil war inevitable, and humiliated the Court; the Court was at its least influential after Dredd Scott.
(a) The Civil War eventually led to vast federal power since states no longer had the option to secede if they disagreed with federal policy.
d) Judicial review’s next significant use was to strike down the 1883 Civil Rights Act, preventing discrimination in public accommodations (this created the State Action doctrine, saying Congress could prohibit discrimination by the states but not by individuals).
e) Judicial review from Reconstruction to the New Deal
(1) The Court acted conservatively to disallow radical social change and to kill socialistic programs.
(2) Generally, judicial review used to protect the Jeffersonian ideal – that is, to protect property and contract rights.
(a) This dates back to Marshall – in Fletcher v. Peck (Yazoo land scandal), he held unconstitutional an act to rescind a sale even though bribery was involved (“Contractual laws will bind the deity himself”)
(3) Perhaps most significantly, the Court now has the 14th amendment to play with, so it needn’t relay on vague natural law language.
(a) The idea of substantive due process arose; essentially, this means that the 14th amendment requires all laws be reasonable.
(b) This is terribly flawed reasoning: the last word in due process is “process.” That is, DP necessarily means that normal legal procedures be followed in every case. It doesn’t provide a limit on the law itself, it only provides that the law be followed in all cases.
(c) Murray v. Hoboken – DP defined essentially as a natural law limitation on laws, on the ground that all laws are necessarily deprivations of liberty under the 14th amendment.
(d) The infamous Lochner v. New York – Court strikes down state limit on baker’s hours on substantive DP grounds.
(i) Holmes’ dissent may be the most famous in all of law: general principles don’t control specific cases. LG says he’s right. Substantive DP is dumb.
f) Judicial review during the New Deal and beyond
(1) McLaughlin, West Coast seemed to be the end of substantive DP; court quits getting in Congress’ way, lets New Deal acts stand (good b/c even though it’s bad policy it isn’t unconstitutional)
(2) Merely applying the law isn’t any fun nor does it build a reputation as a “wise and noble Justice”; thus substantive DP (and activism) makes a comeback in Brown.
(3) This decision gave the court unprecedented accolades and prestige – which gave them license to go further.
(a) Today, virtually every major social change has come from the Court, not the legislature.
(b) This is directly related to the prestige of Brown – the public sees the Court as all-wise and is thus far more accepting of its decisions. “Power corrupts, and absolute power…”
(c) The Court is now the engine of change instead of the brake. It promotes egalitarianism (socialism) at the expense of meritocracy (capitalism). They enact the ACLU platform virtually verbatim.
3. What hath judicial review wrought?
a) The 14th amendment is 98% of constitutional law, since most cases deal with state laws. All of it stems from the EP and DP clauses. Four doctrines are most important:
(1) Incorporation of Bill of Rights to the states (this is selective: the 1st amendment and criminal procedure protections only; even Black was too embarrassed to extend the 7th amendment).
(2) “New” EP – “old” EP (Railway Express, infra) permitted only limited review; “new” EP gives the court a lot more to work with.
(3) Procedural DP – this is tautological (“process” is the second word in DP, so “procedural” is redundant). Basically, the government must give people notice and the right to be heard.
(4) Substantive DP – all laws must be reasonable.
C. Constitutionalism vs. Activism
1. Constitutionalism = rule of the living by the dead
2. Activism = rule by nine unelected, unaccountable judges who call things unconstitutional that aren’t.
3. Why have a constitution? Why should the dead control the living?
a) To establish rules of governance? (Why is this necessary? Parliament’s rules are set by statute…)
b) To establish rights? (Not historically; a common market was the principle thrust of the Constitution)
c) To in times of calm prevent irrationality in times of passion? (Hamilton’s theory) (Unpersuasive – when is a “time of calm”? Isn’t a post-revolutionary time one of passion?)
d) Every voluntary transaction is necessarily wealth-maximizing; why take such coercive measures?
(1) Free rider problem; also, tragedy of the commons.
(2) This is the best answer: there are some defects in democracy. Ex: The Prisoner’s Dilemma, e.g., PAC’s (i.e., policy has high value to one group but low individual cost to everyone else).
4. The problem isn’t constitutionalism, it’s activism.
a) The 5th and 14th amendment have come to stand for the notion that all laws must be reasonable.
(1) Problem: reasonableness is a subjective judgment (opinions are like assholes…)
(2) Implicit assumptions are either that judges are more reasonable than everyone else or natural law is objective, and democracy is dangerous.
(3) This is silly. If anyone’s opinion should count, shouldn’t it be the majority? Their decision will, by definition, make the most number of people the least unhappy.
(4) Reasonableness is always a matter of weighing costs against benefits. Those costs and benefits are frequently unquantifiable, however; they vary from person to person.
(a) Ex: leafleting (free speech) vs. clean streets. We can compromise with time/place restrictions and by placing trash cans, but this does not perfectly resolve the conflict – the streets will still be dirtier than they would be with a leafleting ban.
(b) Thus it’s all a value judgment: how important are clean streets to you relative to free speech?
D. Constitutional Interpretation
1. LG: The only proper way to interpret a document is by original intent
2. Why? Because that’s what it means to