Nahmod Law

Introduction

Litigants who challenge a legislative classification on equal protection grounds prefer, for obvious reasons, to have strict scrutiny apply to that classification. The paradigm suspect classification for which strict scrutiny is used is a classification based on race. However, there is another category of equal protection cases in which a legislative classification has to overcome strict scrutiny, namely, those cases in which a legislative classification burdens a fundamental interest. Unfortunately, this category often causes a great deal of confusion.

The Supreme Court’s Record

It has not helped that the Supreme Court has sometimes misleadingly characterized fundamental interests as “fundamental rights.” At other times, the Court has made clear that fundamental interests are not substantive constitutional rights at all but are “only” fundamental interests. At still other times, the Court has applied strict scrutiny in equal protection cases in which  substantive constitutional rights were indeed implicated.  Ultimately, the development of fundamental interest doctrine came to a halt in San Antonio School Dist. v. Rodriguez, 411 U.S. 1 (1973). Read the rest of this entry »

Background

Affirmative action involving race is a hot button topic  and there may consequently be some student reluctance to engage in meaningful discussion of the issues involved. So I begin class by pointing out the analytical distinction between constitutionality and wisdom. A statute, for example, may be constitutional but still unwise (or immoral). On the other hand, a statute may be unconstitutional but still wise (and moral). The point is that students should feel free either to critique or to agree with the Supreme Court’s current approach to affirmative action as a matter of constitutional interpretation.

Of course, this distinction often breaks down in practice in affirmative action cases inasmuch as strict scrutiny is applied. After all, aren’t the inquiries into whether there is a compelling government interest, and whether the means are narrowly tailored, based in large part on the Court’s view of the wisdom of the particular affirmative action plan in question? Nevertheless, I find the analytical distinction useful pedagogically.

What Affirmative Action Is/Is Not: Getting to “No”

I begin with a series of simple hypotheticals involving claims of racial discrimination arising out of unsuccessful applications for public employment, where various plaintiffs are victorious and the courts order that they be given the jobs they applied for. I ask students whether these are affirmative action cases, to which the short and correct answer is “no.” Rather, these are cases in which constitutional violations are found and judicially remedied. But it takes some time to get to “no.”

In contrast, true equal protection affirmative action cases are those in which a governmental entity voluntarily adopts a plan involving higher education, public employment and the like, under which certain members of a racial minority are given a benefit while certain members of a racial majority are denied that benefit. Read the rest of this entry »

Introduction

Brown v. Board of Education, 347 U.S. 483 (1954), is one of the great constitutional law cases and perhaps the most important Supreme Court decision of the 20th century. I want to describe how I approach the case in class and what I hope students will learn.

History

Brown cannot be understood in isolation from what preceded it: the history of slavery, the Civil War, the 13th, 14th and 15th Amendments and Jim Crow in the South as exemplified by Plessy v. Ferguson, 166 U.S. 537 (1896). In Plessy, the Court, over Justice Harlan’s prescient dissent, had upheld separate but equal for railroad cars, with far-reaching implications for segregation generally.

Similarly, Brown cannot be understood apart from its own specific historical setting: victory over the racist Nazi regime in the Second World War, the rise of the Soviet Union, the integration of the American military, the urgent need for workers after the Second World War and important demographic changes.

Finally, there is an obvious moral dimension to Brown, although the Court did not expressly ground Brown on moral considerations.

In this connection, I raise the question in class whether the Court in Brown was leading the nation, whether it was following the nation or some combination thereof. I also disabuse my students of the notion that the Court as an institution was particularly heroic in Brown, since its own late 19th and 20th century decisions enabled and encouraged the South to continue the segregationist policies that the Court in Brown finally  began to dismantle. Read the rest of this entry »

Background

Dormant Commerce Clause issues arise out of Congressional silence about the particular subject matter being regulated by the state to the possible detriment of interstate commerce.  Since the Commerce Clause confers power only on Congress to regulate interstate commerce, one wonders why there should even be a  so-called “dormant” Commerce Clause enforceable by the judiciary.

There are two extreme positions possible as to the Court’s  role. At one extreme, the Court could stay out of it altogether and leave it to Congress to regulate in the area and possibly preempt. A  disadvantage of this position is that Congress may never get around to many state statutes that adversely affect interstate commerce. At the other extreme, the Court could keep the playing field clear for future Congressional regulation by striking down every state statute this is shown to adversely affect interstate commerce, regardless of its merits, on the theory that Congressional power over interstate commerce is exclusive. A disadvantage of this position is that it may amount to federal judicial interference with a state’s legitimate health and safety concerns as well as undermine state experimentation, an important function of federalism.

As it turns out, the Court has staked out a middle position: it reviews challenged state statutes under the dormant Commerce Clause, upholding some and overturning others. This directly raises the question of the justifications for judicial intervention and the related question of what the standards of dormant Commerce Clause review should be. Thus, the dormant Commerce Clause provides an excellent opportunity for the teacher to review the purposes of the Commerce Clause and related federalism concerns, and to introduce in a preliminary way the Equal Protection Clause and its various levels of scrutiny, ranging from strict scrutiny to rational basis review. Read the rest of this entry »

Teaching the Commerce Clause presents challenges and opportunities. What follows are some of them.

Challenges: The Long and Winding Road

What confronts students immediately are the complicated history and changing doctrines of the Commerce Clause in the Supreme Court. One starts off with Gibbons v. Ogden, the seminal decision in this area, in which John Marshall set out a very broad reading of the commerce power: first, it is defined generously as that commerce that concerns more states than one and, second, it is declared plenary in nature. An important assumption underlying Gibbons was that it is the political process that enforces federalism. After that, however, in the late 19th and early 20th centuries, the Court increasingly began to enforce federalism on its own, on the formalist assumption that there are areas of local concern (such as manufacturing, production, the employment relationship and the like) that are immune from commerce power regulation.

Then came the middle 1930’s, during which the Court switched gears dramatically and adopted what might be called a realist approach to the commerce power. Under this approach, the Court looked at what was actually going on in the economy. The Jones & Laughlin, Wickard and Heart of Atlanta/McClung cases are excellent examples of cases in which the Court upheld the regulation of intrastate activities on the ground that those activities had a significant effect on interstate commerce. In a very real sense, there was a return to Gibbons. Read the rest of this entry »

McCulloch v. Maryland

There are two major parts of McCulloch v. Maryland, 17 U.S. 316 (1819): Part I upholds the constitutionality of the federal legislation creating the National Bank, while Part II strikes down (based on structure and representation reinforcement, but without express textual support) the Maryland tax on the National Bank. In this post I want to say a few things about Part I in particular.

Marshall first sets out the history of the National Bank and then argues that general reasoning (from the nature and structure of government) supports the constitutionality of the federal legislation. He next goes on to argue that the Necessary and Proper Clause further supports this conclusion. Read the rest of this entry »

Teaching Marbury v. Madison

As those of us who teach constitutional law know very well, there are some conventional lessons to be learned from Marbury v. Madison, 5 U.S. 137 (1803). Among them are the following four.

First: the order in which Marshall analyzed the relevant issues so as to declare the Court’s power of judicial review against the President and Congress, while at the same time avoiding a clash with President Jefferson by ultimately holding that the Court did not have subject matter jurisdiction.

Second: the way in which Marshall could have avoided the power of judicial review issue altogether by holding that physical delivery of Marbury’s commission was required for the appointment to have any legal effect. He could have avoided the issue in another way: by plausibly interpreting the Judiciary Act of 1789 as conferring only appellate mandamus jurisdiction on the Supreme Court. He obviously did not want to do either. Read the rest of this entry »