Constitutional Law
Prof. Dimino – Fall 2010
I. History of the Court and Justices
a. Three stages of Constitutional Law
i. Original Constitution – purpose was to constitute a new government and give direction how to do it
ii. Bill of Rights Constitution– trying to restrict the central government. The anti-federalists wanted specific protections
iii. Post-Civil War Constitution – extends protections from the central government to protections from the states
b. Constitutional Power
i. Only gives federal government enumerated powers, must be here to be allowed
ii. Prohibits only state conduct specifically enumerated
II. Equal Protection
a. Segregation and Equality
i. Types
1. Social Equality – everyone accepted by everyone else
2. Political Equality – everyone having the same rights
ii. Rational Basis Test
1. Classification vs. government goal: does the classification achieve the goal; and
2. Is the goal worth the classification
iii. Types of interpretation
1. Formalist Legal Reasoning
a. The court can’t read prejudice into an Act. They can only go by the Act language
2. Functionalist Approach
a. If it is plain for everyone to see the purpose of the Act then that is the purpose of the Act, regardless of what it says
iv. Types of Arguments
1. Color-Blindness: race is irrelevant in all government action
2. Anti-Subordination: No government action should support racial superiority
a. What message is being sent, good or bad
v. Plessy v. Ferguson- Early Equal Protection, Established Separate but Equal
1. Kicked off a white railroad car because of Louisiana’s segregation laws-was 7/8 white
2. Test of Constitutional Equality of the Separate Railroad Act
a. Formalism- The court looks at the form of the law. The law does not say anything about making black unequal (establishing a racial hierarchy), therefore it is not unequal
i. Harlan doesn’t agree with this idea that it needs to be explicit (Functionalism)
b. Upheld the act based on a reasonableness test
i. Must be reasonable or unreasonable relative to some kind of objective of the state
1. Court says there must be a lot of discretion for the legislature. It’s not the court’s job to tell the legislature what to do unless their judgment is in no way reasonable.
3. Court dismissed his claim of being deprived of his whiteness (property) without due process of law.
4. Harlan dissented saying that blacks should be treated as well as whites
vi. Missouri ex rel, Gaines v. Canada
1. Missouri will pay for blacks to go to law school outside of Missouri
2. Separate, but not equal because blacks cannot go to law school in their state like whites-(Formalism)- On it’s face the state was providing a benefit to whites that it does not provide to blacks
3. Missouri establish a black law school
vii. Sweatt v. Painter
1. University of Texas des not admit black students, so they create Prairie View Law School
2. The court finds this is not equal because of the reputation, teachers, library, alumni network, etc. These intangibles differences make it unequal (More functionalist view of equal protection-Not just looking at statutes)
viii. McLaurin v. Oklahoma State Regents
1. Admitting a graduate student, but segregating him within the school inhibits his ability to learn and it not separate but equal
ix. Brown v. Board of Education
1. Rational: Separation of public schools based solely on race, even though the facilities and other intangible factors may be the same, deprive children of the minority group of educational opportunities.
2. Decided on today’s society, not at the time of the 14th Amendment, and it’s difficult to know the original intent of the 14th Amendment
3. Stare Decisis as it relates to Brown
a. Originalism: Pros v. Cons
i. Text provides a neutral source of law v. difficult to assess original meaning
ii. Intersubjectivity (objectivity) can be obtained v. Cognitive dissonance (judges tailor decisions to meet their personal views)
iii. Stability v. Unable to adapt the constitution to modern society (stuck in the past)
iv. Lets majority of today decide v. dead hand of the past controls today
x. Bolling v. Sharpe
1. Addresses school segregation in the District of Columbia
2. 14th Amendment’s Equal Protection clause prevent segregation by the states, but it does not apply to DC because it is not a state
3. Court claims the 5th Amendment’s Due Process clause prevents segregation in DC because it violates Due Process by limiting liberty
4. Unthinkable the federal government could allow segregation, but the states could not- This was the holding
xi. Swann v. Charlotte-Mecklenburg Board of Education
1. Argued that forced busing is based on race so it violates Brown
2. The idea wa
of the constitution
i. Example: since 3 branches of government have their own clauses they must have intended separation of powers
4. Legal-Process Theory
a. Representation-Reinforcement: Congress is better at making choices
i. The legislature makes the calls unless the legislative process is not working properly and then the courts decide
1. Example: the court would have to step in if redistricting was for political reasons
ii. Problems
1. Congress can make bad calls because they are subject to public way
2. Hard to know how big of a failure is needed to trigger this
b. Passive Virtue: sometimes it is best to wait to take action because doing too much at one time could cause a lack of legitimacy
i. Don’t want to irritate the public with too much at once
ii. Answer as little as possible in each case
iii. Example: You don’t desegregate schools and allow interracial marriage at the same time
iv. Ways to accomplish this
1. Decline certiorari
2. Dismiss on other grounds (like standing)
3. Decide on narrow grounds like statutory interpretation
v. The argument against this is that it is not passive or virtuous, it is manipulation and if you deny cert you may allow an unconstitutional law to continue
c. Common Law: Constitutional meaning should evolve but not with a specific policy goal
i. It should evolve slowly and pay attention to tradition
ii. Doesn’t lock the constitution in stone but doesn’t change it all at once
iii. We should stop mob rule change
d. Pragmatic Theorist: We will not stick with tradition for traditions sake.
i. You can break with tradition but must do it slowly
ii. Very close to common law theory
e. Evolving Constitution Theory: The constitution was written in an era that is dead and gone and should be interpreted in a way that makes sense now to achieve certain goals.
Different goals are what separates different
