Constitutional Law I Outline

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