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Constitutional Law II
Villanova University School of Law
Samahon, Tuan N.

Constitutional Law II – Outline
Professor Samahon – Spring 2011
I. Introduction
1.       Brown v. Board of Education – Case Study & Background Materials (63-90)
a.        Reconstruction Amendments
                                                   i.      In wake of Civil War, reconstruction amendments help give more power for fed gov't (so another civil war doesn’t happen, essentially)
                                                  ii.      13th Amendment
1.       Undoes Dred Scott by prohibiting slavery
2.       Gives Congress authority to enforce this provision against states as well as private actors; no state action requirement (rare in con law to have a provision enforced against private actors!)
3.       §1: Substantive Provibion
4.       §2: enforcement provision
5.       The first of a series of amendments designed to favor nat’l gov’t over states & bring slaves/former slaves under constitutional protection
                                                iii.      14th Amendment
1.       Specifically applies to the STATES
2.       Ratified in 1868 in the wake of the civil war
3.       § 1 has the important clauses:
a.        Citizenship Clause
                                                                                                                           i.      All ppl born/naturalized in the US and subject to its juridiction are citizens of the US & of the state wherein they reside
                                                                                                                          ii.      Undoes Dred Scott which held that blacks ≠ citizens
b.        Privileges or Immunities Clause
                                                                                                                           i.      Has the effect of giving ppl rights that are created by state law
                                                                                                                          ii.      Trying to give minority populations the same privileges/protections as white/majority population
                                                                                                                        iii.      A reaction to Slaughterhouse Cases which said only P or I of national citizenship; once the Court gutted P or I in Slaughterhouse, needed to think of substitutes to P or I → comes in the form of SDP (Lochner) and EPC; alternative avenues!
                                                                                                                        iv.      Slaughterhouse Cases lead to Jim Crow laws.
c.         Due process Clause
                                                                                                                           i.      “Nor shall any state deprive any person of life, liberty, or property, without due process of law”
d.       Equal Protection Clause
                                                                                                                           i.      “Nor shall any state deny any person within its jurisdiction the equal protection of the laws.”
                                                                                                                          ii.      Unclear what exactly was meant by “equal protection”
                                                iv.      Plessy v. Ferguson (1896)        
1.       Challenges LA statute which staid that blacks & whites had to ride separate trains. P, a 7/8 white, refused to leave a railroad car assigned to whites in violation of LA law.
2.       Court upheld law that mandated “separate but equal” facilities
b.       “Badge of Inferiority” argument – the badge is not created by the law; rather, it is in the hearts & minds of people (law cannot do anything to change it!)
c.        Court shows huge deference to state rationale – whether it is “reasonable” means in line w/ “established customs” (even though established customs = racism here)
3.       Dissent: (Harlan) Our Constitution is color-blind and neither knows nor tolerates classes among citizens.  In respect of civil rights, all citizens are equal before the law. Wants more strict scrutiny.
b.       The End of “Separate but Equal”
                                                   i.      NAACP leads the campaign
1.       Dean of Howard says “Okay, you say separate, but show me equal!”
2.       Equality cannot exist without desegregation
3.       Separate is inherently unequal.
                                                  ii.      Important Pre-Brown Cases (1938-1950)
1.       Missouri Ex Rel Gaines v. Canada – Missouri had separate higher education systems; the white system had a law school, the black did not, but the state would pay reasonable tuition at out-of-state law schools for blacks. Holding: violation of equal protection; doesn’t matter if other states offer similar education as the white, Missouri needs to provide the law school. A major civil rights victory bc of addition of “equal” requirement.
2.       Oklahoma Board v. Sipreal – Slowly chipping away at separate but equal; must provide a law school.
3.       Sweatt v. Painter – U of Texas refused to admit a black student on the grounds that there was a public ‘black’ law school available. Holding: violation of equal protection bc the black law school was quantitatively and qualitatively inferior (what is provided for whites must be provided for blacks)
4.       McLaurin v. Oklahoma State Regents – McLaurin was admitted to OK law school but made to sit in black-only section, barred from using certain facilities. Holding: violation of equal protection; impaired from ability to study and engage in discussions/exchange views with other students
5.       Carolene Products – Footnote 4 will become important; “prejudice against discrete and insular minorities may be a special condition, which tends to curtail the operation of those political processes ordinarily to be relied upon to protect minorities and thus may call for a correspondingly more searching judicial inquiry.”
                                               iii.      Brown v. Board of Education (1954)
1.       Separate but Equal = Unconstitutional (Overrules Plessy!)
2.       Segregation is unconstitutional in schooling and all other aspects of society too.
3.       Facts: Challenge to the segregation of KS public schools
4.       Court decided to look not at fact that black/white schools were increasingly equal as far as buildings, curricula, etc. but at fact that segregation had an effect on schools
5.       Holding: State mandated segregation inherently stamps black children as inferior and impairs their educational opportunities
6.       Where the state undertakes to provide a service, it must be made available on equal terms.  Education today is perhaps the most important function/service that the state provides.
7.       Social Science /Psychological Research:
a.        Segregation had psychological impact on black children
                                                                                                                           i.      “Whatever may have been the extent of psychological knowledge at the time of Plessy, our finding is amply supported by modern authority.  Any language in Plessy contrary to our finding” is void.
                                                                                                                         ii.      Separate institutions inherently unequal bc always psychological impact.
                                                                                                                       iii.      Very much like Brandeis brief in Muller v. Oregon.
b.        Footnote 11 (to “amply supported by modern authority”)
                                                                                                                           i.      Said this was response to ridiculous psychology that was used Plessy (that Blacks are inferior)
                                                                                                                         ii.      Lanctot thinks this footnote was designed to knock out state’s argument that “we could make facilities equal and all would be ok” – separate facilities can never be equal bc of psychological impact
8.        Equal Protection Clause of 14th Amendment:
a.        Legislative history of 14th Amendment was inconclusive.
                                                                                                                           i.      We had Plessy – badge of inferiority
                                                                                                                         ii.      And we had Roberts v. City of Boston – around same time as plessy – said that school segregation is constitutional bc the law is not what creates racial inequality but rather, black feelings of inferiority.
b.       Equal Protection + Social Science Research = the basis for the Court’s rationale (EPC was the gun & the social science research was the bullet)
                                                iv.      Bolling v. Sharpe (1954)
1.       Federal school district in Washington, D.C. 14th Amendment did not apply since it only applies to the states.
2.       So we need to look at 5th Amendment (reverse incorporation) → takes everything the 14th Am guarantees and applies it to the fed gov't via the 5th Amendment.
3.       “Reductio” argument → taking the contrary position and showing that it results in unfair results.
a.        What if we only applied desegregation to states & not to the fed gov't? Court says it would be unthinkable that the fed gov't would have lesser duty.
4.       Samahon says this decision is morally correct but rationally unsound!
2.       Supreme Court’s Role in our Political System (90-91, 100-125)
a.        Judicial Review
                                                   i.       Marbury v. Madison → “It is the judiciary that decides what the law (constitution) is.”
                                                  ii.      J

                    i.      J. Scalia subscribes to original public meaning theory.
                                                  ii.      Focus on the people contemporaneously in 1788
1.       What would reasonable person have understood clauses to mean?
2.       With EPC there is a diff year to look at!
                                                iii.      Robert Bork – The Tempting of America: The Political Seduction of the Law
                                                iv.      Problem 2-1: Is Brown consistent w/ Original Meaning of 14th Amendment? (p. 146)
                                                 v.      Pragmatic Arguments for Original Meaning
d.       Original Understanding
                                                   i.      Focus on the state ratification conventions
                                                  ii.      What did they think/understand at the time of ratification?
2.       Legal Process Theory (145-156)
a.        Representation-Reinforcement Theory and Neutral Principles
                                                   i.      John Hart Ely – Democracy & Distrust: A Theory of Judicial Review
                                                  ii.      Notes on Representation Reinforcement and Public Choice Theory
                                                iii.      Problem 2-2: Representation Reinforcement Judicial Review (p. 156)
b.       Institutional Competence and Theories of Judicial Restraint
                                                   i.      Alexander Bickel – The Least Dangerous Branch
                                                  ii.      Note on the Passive Virtues & Other Theories of Judicial Restraint
3.       Common Law Constitutionalism (161-166)
a.        Precedent is huge; all decisions/statutes must be interpreted in light of precedent
b.       Embrace the text but put precedent over text in hierarchy
c.        CLC vs. Originalism
                                                   i.      Induction (informal – CLC) – take many individualized cases and use them to make a generalization
                                                  ii.      Deduction (formal – Originalism) – states @ generality and figues out a way to move down & find a particularity.
d.       Criticisms of this theory
                                                   i.      Gives judges too much power; the only way to overrule the work of the justices is by amendment (which never happens!)
                                                  ii.      We’ve got some pretty bad precedents; what then? (E.g. Plessy!)
e.        Ernest Young – Rediscovering Conservatism: Burkean Political Theory
f.         Richard Posner – The Problems of Jurisprudence
4.       Pragmatism/Critical Theories (166-192)
a.        What effect will this law/decision have? – a pragmatic approach
b.       Known for narrower, case-by-case decisions/analysis
c.        Social Movements as Engines for Civic Republican Engagement
                                                   i.      William Eskridge – Constitutional Effects of Identity-Based Social Movements
                                                  ii.      Robin West – Constitutional Skepticism
d.       Polycentric Constitutionalism
                                                   i.      Bruce Ackerman – Constitutional Politics/Constitutional Law
1.       Idea that there are constitutional “moments” where there is a shift in constitutional interpretation even though no formal amendment – e.g. The New Deal.
                                                  ii.      Civil Rights Movement as a Constitutional Moment
e.        Taking the Constitution Away from the Courts
                                                   i.      James Bradley Thayer – John Marshall
                                                  ii.      Mark Tushnet – Taking the Constitution Away from the Courts
                                                iii.      Problem 2-3: The Constitutionality of Gun Control Laws