Nahmod Law

Archive for the ‘Teaching’ Category

A Section 1983 Primer (1): History, Purposes and Scope

This post is intended primarily for those lawyers, law students and members of the public who are not very familiar with 42 U.S.C. section 1983. It is the first in an introductory series on section 1983 that I will occasionally post.

History and Purposes

At the outset, observe the very close connection between section 1983 and the Fourteenth Amendment.

Section 1 of the Fourteenth Amendment to the Constitution of the United States, ratified in 1868, declares that states may not abridge the privileges or immunities of citizens of the United States and sets out the protections of due process and equal protection for “any person,” none of which states (and local governments) may deprive or deny.  Section 5 of the Fourteenth Amendment gives Congress the power to enforce section 1 by appropriate legislation.

Section 1983 was enacted in 1871 by the 42nd Congress pursuant to its section 5 power in order to enforce the Fourteenth Amendment. It effectively creates a Fourteenth Amendment action for damages (and for injunctive relief) against “Every person,” acting under color of state or local law, who deprives a person of his or her Fourteenth Amendment rights and thereby causes damage. As it turns out in Supreme Court case law, “Every person” includes state and local government officials as well as local governments themselves (but not states). Read the rest of this entry »

Written by snahmod

October 29, 2009 at 2:01 pm

Brown v. Board of Education


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.


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 »

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October 22, 2009 at 7:38 pm

The Dormant Commerce Clause


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 »

Written by snahmod

October 10, 2009 at 9:08 am

The Commerce Clause

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 »

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September 26, 2009 at 9:05 am

McCulloch v. Maryland: Exegesis and Constitutional Education

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 »

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August 31, 2009 at 10:17 am

Marbury v. Madison: Some Additional Lessons

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 »

Written by snahmod

August 26, 2009 at 1:37 pm