From Wikipedia: Equal Protection Clause

For our look at civil rights policy

- Click here for the entry. 

The Equal Protection Clause is part of the first section of the Fourteenth Amendment to the United States Constitution. The clause, which took effect in 1868, provides "nor shall any State ... deny to any person within its jurisdiction the equal protection of the laws". It mandates that individuals in similar situations be treated equally by the law.

A primary motivation for this clause was to validate the equality provisions contained in the Civil Rights Act of 1866, which guaranteed that all citizens would have the guaranteed right to equal protection by law. As a whole, the Fourteenth Amendment marked a large shift in American constitutionalism, by applying substantially more constitutional restrictions against the states than had applied before the Civil War.

The meaning of the Equal Protection Clause has been the subject of much debate, and inspired the well-known phrase "Equal Justice Under Law". This clause was the basis for Brown v. Board of Education (1954), the Supreme Court decision that helped to dismantle racial segregation. The clause has also been the basis for Obergefell v. Hodges which legalized same-sex marriages, along with many other decisions rejecting discrimination against, and bigotry towards, people belonging to various groups.

While the Equal Protection Clause itself applies only to state and local governments, the Supreme Court held in Bolling v. Sharpe (1954) that the Due Process Clause of the Fifth Amendment nonetheless imposes various equal protection requirements on the federal government via reverse incorporation.

Reed v. Reed

The case that made Ginsburg, Ginsburg.

It involves the use of the equal protection clause to override a section of Idaho's Probate Code.

- From Wikipedia: 

Sally and Cecil Reed were a married couple who had separated because they were in conflict over which of them would be designated as administrator of the estate of their deceased son. Each filed a petition with the Probate Court of Ada County, Idaho, asking to be named. Idaho Code specified that "males must be preferred to females" in appointing administrators of estates and the court appointed Cecil as administrator of the estate, valued at less than $1,000. Sally Reed was represented at the Supreme Court by Idaho lawyer, Allen Derr, who argued that the Fourteenth Amendment forbids discrimination based on sex.

After a series of appeals by both Sally and Cecil Reed, the Supreme Court considered the case and delivered a unanimous decision that held the Idaho Code's preference in favor of males was arbitrary and unconstitutional.

The Supreme Court ruled for the first time in Reed v. Reed that the Equal Protection Clause of the Fourteenth Amendment prohibited differential treatment based on sex.

Because the Idaho Code made a distinction based on sex, the court reasoned that "it thus establishes a classification subject to scrutiny under the Equal Protection Clause" and using the generic standard of scrutiny—ordinary or rational basis review—asked "whether a difference in the sex of competing applicants for letters of administration bears a rational relationship to a state objective."

Chief Justice Burger's opinion said:

To give a mandatory preference to members of either sex over members of the other, merely to accomplish the elimination of hearings on the merits, is to make the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause of the Fourteenth Amendment; and whatever may be said as to the positive values of avoiding intrafamily controversy, the choice in this context may not lawfully be mandated solely on the basis of sex.

What is probate law? 

- Click here.

Civil rights cases at the Supreme Court

Some things for 2305 students to chew on for this week's look at civil rights. The Supreme Court - as always - is looking at a handful of cases that force it to consider how the equal protection clause of the constitution applies to current disputes. Here's a rundown of recent cases, the links almost always will take you to SCOTUS blog. I'll post related news items separately.

United States v Windsor.

Issue: (1) Whether Section 3 of the Defense of Marriage Act (DOMA) violates the Fifth Amendment's guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their State; (2) whether the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case; and (3) whether the Bipartisan Legal Advisory Group of the United States House of Representatives has Article III standing in this case.

Hollingsworth v. Perry.

Issue: (1) Whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman; and (2) whether petitioners have standing under Article III, § 2 of the Constitution in this case.

Fisher v. University of Texas at Austin.

Issue: Whether this Court’s decisions interpreting the Equal Protection Clause of the Fourteenth Amendment, including Grutter v. Bollinger, permit the University of Texas at Austin’s use of race in undergraduate admissions decisions. (Kagan, J., recused)

What Is The Basis For Corporate Personhood?

An interview from NPR on how corporations came to be considered "persons" under the law.

A snippet - note that the idea comes from the equal protection clause of the 14th Amendment:

WITT: Well, the law has treated corporations as what some lawyers call metaphysical persons. That is, they're persons for some purposes and they're not persons for others.

BLOCK: What sorts of purposes then would apply here?

WITT: Well, for example, a corporation can be prosecuted for a crime, which is something that usually only persons can be prosecuted for. But on the other hand, corporations get rights. They get rights to contract. They can't marry or run for office or vote, but they can speak. Things like that.

BLOCK: The legal doctrine, as I understand, it goes back to a Supreme Court case. It's in the late 19th century, Santa Clara County v. Southern Pacific Railroad. What was that case about essentially?

WITT: So, this is a case where the Occupy Wall Street protestors have distorted the details, but they really have it right in spirit. That was a case in which the Southern Pacific Railroad was protesting taxes that had been placed on it by California and by counties in California. And in that case, the chief justice of the United States Supreme Court, Morrison Waite, stood up in January of 1886 and said what pretty much everybody in the courthouse thought, which was that corporations were persons for the purposes of the 14th Amendment.

BLOCK: The 14th Amendment dating from right after the Civil War, the Equal Protection Clause is what we're talking about.

WITT: Yeah, the Equal Protection Clause applies to all persons. It provides that all persons have a right to equal protection under the laws. And that question wasn't controversial at the time. What mattered, really, was what happened later.
- More about the case in question: Santa Clara County v. Southern Pacific Railroad.
- Corporate personhood.

Espinoza v. Montana Department of Revenue

From Oyez: 

Question:

Does a state law that allows for funding for education generally while prohibiting funding for religious schools violate the Religion Clauses or the Equal Protection Clause of the federal Constitution?

Conclusion:

The application of the Montana Constitution’s “no-aid” provision to a state program providing tuition assistance to parents who send their children to private schools discriminated against religious schools and the families whose children attend or hope to attend them in violation of the Free Exercise Clause. Chief Justice John Roberts authored the opinion on behalf of the 5-4 majority.

The Court first noted that the Free Exercise Clause “protects religious observers against unequal treatment” and against “laws that impose special disabilities on the basis of religious status.” In this case, Montana’s no-aid provision excluded religious schools from public benefits solely because of religious status. As such, the law must be subject to strict scrutiny review; that is, the government must show that its action advances “‘interests of the highest order” and that the action is “narrowly tailored in pursuit of those interests.” Montana’s interest in this case—which the Court described as creating greater separation of church and state than the federal Constitution requires—does not satisfy strict scrutiny given its infringement of free exercise. Because the Free Exercise Clause barred the application of Montana’s no-aid provision, the Montana Supreme Court lacked the authority to invalidate the program on the basis of that provision.

Justice Clarence Thomas authored a concurring opinion in which Justice Neil Gorsuch joined, opining that the Court’s Court’s interpretation of the Establishment Clause (not at issue in this case) hampers free exercise rights.

Justice Samuel Alito and Justice Gorsuch each filed their own separate concurrences. Justice Alito argued, as he did in dissenting from the Court’s decision earlier this term in Ramos v. Louisiana, that original motivation should have no bearing on the present constitutionality of a provision of law, yet even without that consideration, the majority reached the correct conclusion in this case. Justice Gorsuch argued that the Court’s characterization of the Montana Constitution as discriminating based on “religious status” and not “religious use,” is dubious at best.

Justice Ruth Bader Ginsburg filed a dissenting opinion in which Justice Elena Kagan joined, arguing that the Montana Supreme Court’s decision does not place a burden on petitioners’ religious exercise and thus does not violate the Free Exercise Clause. The Court’s precedents establish that neutral government action is not unconstitutional solely because it fails to benefit religious exercise.

Justice Stephen Breyer filed a dissenting opinion, in which Justice Elena Kagan joined in part. Justice Breyer argued that the majority’s approach and conclusion risk the kind of entanglement and conflict that the Religion Clauses are intended to prevent. Instead, Justice Breyer opined that the Court’s decision in Locke—upholding the application of a no-aid provision in Washington State based on the conclusion that the Free Exercise Clause permitted Washington to forbid state-scholarship funds for students pursuing devotional theology degrees—controlled the outcome in this case, in which the no-aid provision was “materially similar.”

Justice Sonia Sotomayor filed a separate dissenting opinion, arguing that the Court in this case resolved a constitutional question not presented, thereby violating “Article III principles older than the Religion Clause” itself. Moreover, Justice Sotomayor continued, the Court answered incorrectly that question it should not have addressed in the first place.
Key terms:

- religious clauses
- equal protection clause
- Montana Constitution
- discrimination
- free exercise clause
- Chief Justice
- majority opinion
- strict scrutiny
- Montana Supreme Court
- Establishment Clause
- Ramos v Louisiana
- burden
- neutral government action
- entanglement
- precedent
- concurring opinion
- dissenting opinion
- Article III

Podcast - 9/2/22

In the news again: Guns. The carrying of weapons.

Federal judge says Texas can’t ban 18- to 20-year-olds from carrying handguns.

Abbott says raising the age to buy an assault-style rifle is “unconstitutional” based on recent court rulings.

- Federalism
- Civil Law
- Checks and Balances /Judicial Review
- Constitutional Law
- Statutory Law
- Second Amendment
- 14th Amendment: Equal Protection Clause
- Firearms restrictions
- Age limits
- Federalism
- Federal District Judge
- Elections
- Agenda Setting / Uvalde Shooting
- Advocacy Groups

Texas State Law Library: Gun Laws.

- Texas Penal Code. 

Penal Code: TITLE 10. OFFENSES AGAINST PUBLIC HEALTH, SAFETY, AND MORALS 
CHAPTER 46. WEAPONS.

- Sec. 46.02. UNLAWFUL CARRYING WEAPONS.

TEX. GOV’T CODE §§ 411.172(a)(2), (g), (h), (i). Simply stated, although Texans over the age of 21 can carry a handgun (either openly or concealed) outside the home (with or without a license), law-abiding 18-to-20-year-olds Texans are prohibited from carrying a handgun for self-defense outside the home.

Second Amendment: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

For comparison: Texas Bill of Rights, Sec. 23. RIGHT TO KEEP AND BEAR ARMS. Every citizen shall have the right to keep and bear arms in the lawful defence of himself or the State; but the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime.

- Proposed amendment: remove last clause. 

- District of Columbia v. Heller.

- McDonald v Chicago.

Fourteenth Amendment: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Equal Protection: 

ScotusBlog: National Rifle Association of America v. McCraw (2014).

Issue: (1) Whether the Second Amendment right to bear arms for self-defense in case of confrontation includes the right to bear arms in public; (2) Whether that right to bear arms extends to responsible, law-abiding eighteen- to twenty-year-old adults; and (3) whether Texas’s ban on responsible, lawabiding eighteen- to twenty-year-old adults bearing handguns in public for self-defense violates the Second Amendment and the Equal Protection Clause.

Firearms Policy Coalition v Steven McGraw, Director of DPS.

- Firearms Policy Coalition.

- Steven McCraw.

- Texas Department of Public Safety.

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS FORT WORTH DIVISION

- Website.

- U.S. District Judge Mark Pittman.(Wikipedia)

Texas Tribune: Families of the Uvalde shooting victims denounce Gov. Greg Abbott’s inaction on gun reform.

Wall Street Journal: Uvalde Massacre Prompts New Debate on Guns Among Residents.

Politico: What election night in Texas looked like after the mass shooting.

Bloomberg: Texas Governor’s Race Narrows After Uvalde Shooting, Poll Shows.

Texas Tribune: Confronted with mass shootings, Texas Republicans have repeatedly loosened gun laws.

Ken Paxton: Second Amendment.

_____________________

For future podcasts regarding local issues: 

- Harris County commissioners approve $750M flood mitigation grant.
- Harris County budget director proposes $2.24B budget.
- Harris County commission presents school safety recommendations.
- Clifford Tatum approved as Harris County’s next elections administrator.

- Alvin ISD offers variety of free parent workshops for raising children.
- Clear Creek ISD focuses on safety in coming year.
- Record percentage of Texas teachers considering quitting, survey shows.
- Officials from Pearland, Friendswood, Alvin ISDs react to TEA accountability ratings.

- Pearland to create webpage showing council members' business deals, finance reports.

- METRO makes weekend use of high-occupancy vehicle, toll lanes permanent.

 

Wrapping up week 5 - 2305

We covered two subjects this week and ignored - maybe just postponed - a third.

The first looked at public policy and included an observation of the public policy process and - in my view more importantly - the concept of a sub-government, or issue network, or advocacy coalition. These are terms that refer to the networks of interested parties - stakeholders - that develop around a specific policy impacted by government.

I suggested that despite the constitutional arrangements we discussed in previous lectures, these might best describe the actual workings of government, and its relationship with private organizations which benefit from those policies. We discussed the iron triangle since that provides the clearest picture of what these networks might actually look like. I mentioned that this is a simplistic picture - and other institutions can play a role in preserving certain policies - but the relationship between legislative committees, bureaucratic agencies and interest groups might be the best way to visualize these networks.

I also mentioned that a revolving door exists between these institutions, and it describes the tendency of people to move from a job in one institution to another. Each step of the way the knowledge and connections built up in one institution tie into those in another. The interests of the committee and the agency become intertwined. Interest groups - the strong ones especially - can drive the connection between them. Members of Congress can often cash in when they retire by joining one of the interest groups focusing on the policy the member focused on when in office.

The major point I tried to drive home was that network matter, and we can best understand what governments actually do less in terms of the constitutional principles we discussed in the two previous weeks - though they still matters - but in terms of these networks. Critics argue they compromise democracy and ought to enter into our assessment of whether the people either rule, or our understanding of consent.

We then looked at civil rights and the equal protection clause of the 14th Amendment. I encouraged you to consider it as being a fifth principle - equality before the law - added to the Constitution following the Civil War. It - along with the 13th and 15th Amendment.

A couple points to keep in mind as we go further:

- A lot of the ongoing conflict between the state and national governments - especially states like Texas - are based on the equal protection clause. Definitions of what it takes to be equally protected by the law can vary, and have varied over history.

- Its up to the Supreme Court to define which groups are covered under the equal protection clause and how much protection they are provided. Legislatures - local, state, national - pass laws related to these groups, which are generally challenged by opponents, which begins a process which can lead to the case being heard in the Supreme Court.

Finally a word about the section we did not cover: Ideology - What is Government for anyway?

I'm still developing this section and its not quite ready to go live. It'll provide a little more in-depth analysis of the history of ideological movement in American history and how they tie into broader movements throughout western political history. This should help us know how different political movements rose and fell over American history, and how we got to where we are now ideologically. There's an outside possibility it will be included later in the year. I'll let you know if that happens.

Keep reading - and I hope this review helps.

Next week we begin looking at the US legislature.

I mentioned in class that the week after that will be devoted to the assigned book in order to help you more clearly build on your proposed topic for the 1000 word essay.

I hope the class is going well so far - let me know otherwise.

Class of One

The Supreme Court has issued a ruling scaling back the meaning of the equal protection clause. The case is Engquist v. Oregon Department of Agriculture.

From the Washington Post:

The Supreme Court decided yesterday that public employees may not bring their discrimination complaints to federal court when they are alleging that adverse job actions resulted from arbitrary or malicious reasons unique to their situation.

"Such a 'class of one' theory of equal protection has no place in the public employment context," Chief Justice John G. Roberts Jr. wrote for the majority in a 6 to 3 decision involving Anup Engquist, an Oregon public employee whose job was eliminated after what she said were repeated problems with her boss.

"Public employees typically have a variety of protections from just the sort of personnel actions about which Engquist complains," Roberts wrote, "but the Equal Protection Clause is not one of them."

This seemingly makes discrimination against a single person OK, as long as it has nothing to do with their race, gender or national origin. The Post points out that this is a different decision than it had made in a case involving a landowner who claimed arbitrary treatment by city officials.

Roberts acknowledged that the court had decided in a 2000 case that an individual property owner had the right to sue the government over arbitrary treatment by city officials. But there is a difference between government's legislative and regulatory actions and its employment practices, Roberts said.

Employment decisions "are quite often subjective and individualized, resting on a wide array of factors that are difficult to articulate and quantify," Roberts wrote.

"The practical problem with allowing class-of-one claims to go forward in this context is not that it will be too easy for plaintiffs to prevail, but that governments will be forced to defend a multitude of such claims in the first place, and courts will be obliged to sort through them in a search for the proverbial needle in a haystack," he said.

The dissenters, well, dissent.

Justice John Paul Stevens, in a dissent joined by Justices David H. Souter and Ginsburg, said that the hypothetical needle is clearly identified in Engquist's complaint and that it should not be necessary to prohibit all such suits in order for the courts to decide which ones have merit.

"Even if some surgery were truly necessary to prevent government from being forced to defend a multitude of equal protection 'class of one' claims," Stevens wrote, "the Court should use a scalpel rather than a meat-axe."

In class we covered the idea that a republican system of government, with rules determining how citizens were to be treated, was intended to avoid the arbitrary and capricious treatment common in autocracies.

Perhaps I was wrong.

Links to further commentary are available from scotusblog.

Regarding US v Windsor

Click here for the written transcript of yesterday's oral argument, and here for the audio file.

Here are the issues presented in the case:

(1) Whether Section 3 of the Defense of Marriage Act (DOMA) violates the Fifth Amendment's guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their State; (2) whether the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case; and (3) whether the Bipartisan Legal Advisory Group of the United States House of Representatives has Article III standing in this case.

The NYT provides an overview. They note - as do many - that the likely decisive Justice Kennedy focused on federalism question, not equal protection questions. Does the federal government have the power to decide what marriage is? The states clearly do because this falls under the reserved powers, especially the police powers. Has the federal government intruded on this power?

Some analysts suggest this means the case is likely to be decided on federalism grounds, not equal protection, which means it might not be quite the victory gay and lesbian groups were hoping for. The equal protection clause will not be made applicable to sexual orientation - as it is to race, gender, age and the rest.

Here's the Wall Street Journal's Live Blog of the DOMA arguments.

Here's Andrew Sullivan's analysis of the oral arguments.

And here's commentary from people smarter than me:

Tom Goldstein points out that a federalism ruling in Windsor makes the case for the plaintiffs in Hollingsworth stronger. California can decide for itself whether marriage can be same sex or not, and Proposition 8 said it couldn't. Presumably that means that the equal protection argument would not work. Unless the court argues the plaintiffs lack standing.

Jeffrey Toobin argues that the Supreme Court is not central to the direction same - sex marriage is heading, and the justices know it. He highlights the following: Toward the end of the argument, Roberts asked Roberta Kaplan, the lawyer for Windsor, “You don’t doubt that the lobby supporting the enactment of same sex-marriage laws in different states is politically powerful, do you?” Kaplan—somewhat improbably —denied it. Roberts fought back: “As far as I can tell, political figures are falling over themselves to endorse your side of the case.”

Andrew Cohen is concerned that not enough was said in the oral arguments about the history of anti-gay discrimination in the US. Thsi will not bode well for this court's reputation: "I think history will judge the Supreme Court, and by extension the rest of us, by what was not argued this week. The Court did not confront and condemn the discrimination at the core of these laws. It did not signal a willingness by the judiciary to stand up to the tyranny of the majority. And it did not even minimally force the laws' defenders to justify with facts their disparate treatment of same-sex couples. It was instead a court openly looking for a way out, which, in the end, makes you wonder what kind of court it is at all."

Suffrage

Definitions: 

- Britannica: 

suffrage, in representative government, the right to vote in electing public officials and adopting or rejecting proposed legislation. The history of the suffrage, or franchise, is one of gradual extension from limited, privileged groups in society to the entire adult population. Nearly all modern governments have provided for universal adult suffrage. It is regarded as more than a privilege extended by the state to its citizenry, and it is rather thought of as an inalienable right that inheres to every adult citizen by virtue of citizenship.

- Wikipedia: 

Suffrage, political franchise, or simply franchise is the right to vote in public, political elections and referendums (although the term is sometimes used for any right to vote). In some languages, and occasionally in English, the right to vote is called active suffrage, as distinct from passive suffrage, which is the right to stand for election. The combination of active and passive suffrage is sometimes called full suffrage.

In most democracies, eligible voters can vote in elections for representatives. Voting on issues by referendum may also be available.

The Right to Vote.

- Voting in Early America. 

Is there an explicit  right to vote in the U.S. Constitution? No

Enfranchisement / Disenfranchisement.

- Religious Tests for Office and Voting in the States – Revolution to Constitution.

- Property ownership.

Constitutional Rules: 

- Article 1, Section 2, Clause 2, U.S. Constitution
- Article 7 Texas Constitution
- 14th Amendment
- equal protection clause
- 15th Amendment
- 19th Amendment
- 22nd Amendment
- 24th Amendment
- 26th Amendment

Access to the Polls

- Vote Suppression.

The Voting Rights Act of 1965.

U.S. Code: TITLE 52—VOTING AND ELECTIONS - Subtitle I—Voting Rights

Shelby County v Holder.

Who does vote? 

Voter turnout

Terms: 

suffrage
right to vote
limits on suffrage
Article 1, Section 2, Clause 2, U.S. Constitution
Article 7 Texas Constitution
who decides who votes?
Jacksonian Democracy
property requirements
democratization
14th Amendment
equal protection clause
15th Amendment
19th Amendment
22nd Amendment
24th Amendment
26th Amendment
grandfather clause
literacy test
poll tax
white primary
Voting Rights Act

Court Cases

Crawford v Marion County Board of Election
Shelby County v Holder
Carrington v Rash 

In the Supreme Court today: Hollingsworth vs. Perry

As we discussed previously, this case is about the constitutionality of California's Proposition 8, which was an initiative passed by the California electorate in November 2008 that stated that "only marriage between a man and a woman is valid or recognized in California."

This was overturned in August 2010 by a U.S. District Judge that found the proposition to violate the 14th Amendment's guarantee of equal protection. The case went through the 9th Circuit Court for a couple years before it was determined that the District Court decision should be upheld, but the decision was not unanimous.

- Click here for a brief description of the process the case went through on its way to the Supreme Court.
- And click here for the process thus far in the Supreme Court.

According to ScotusBlog, these are the two questions the Supreme Court is charged with considering: (1) Whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman; and (2) whether petitioners have standing under Article III, § 2 of the Constitution in this case.

A quick word on "Hollingsworth" and "Perry."

Dennis Hollingsworth is the named petitioner. He, along with a few others, is the person who lost the previous cases and asked for the Supreme Court to review the case by requesting the court file a writ of certiorari. He and the others were affiliated with the groups that helped organize the original inititiatve. The question of standing resulted because the state of California has decided to not argue in favor of the law in court, so it is not clear that the petitioners have suffered a harm that allows them to take a case to the court.

This helps solve some confusion regarding the court case because two others - Perry v. Schwarzenegger and Perry v. Brown - were batted around for a while. Each refers to one of California's recent governors, but since neither decided to pursue the case, they were each dropped, but Holingsworth and Company were allowed to pick it up.

Kristen Perry is the named defendant who was married to her partner in 2004 when San Francisco briefly recognized them prior to the 2008 ballot inititiative. Aftee they received their license they were informed that the marriage had been voided. After passage of Proposition 8 they joined a challenge to it organized by the American Foundation for Equal Rights.

- Click here for a look at these and other players in the case.
In 2305, we've mentioned several times that the equal protection clause has yet to be used, by the Supreme Court, to resolve disputes over unequal treatment due to sexual orientation. They've done their best to avoid it, but no longer. This could easily turn into one the courts more important decisions, depending on what they rule and how expansively they make their decision. Will it only affect California? Or only the states that have ruled in favor of same sex marriage? Or possibly all the states?

Stay tuned.

Do durational residency requirements violate the Equal Protection Clause of the Fourteenth Amendment?

 According to the U.S. Supreme Court in Dunn v Blumstein, yes.

- What is a durational residency requirement? 

It includes an acknowledgement of a right to interstate travel.

From Oyez: 

Facts of the case: 

A Tennessee law required a one-year residence in the state and a three-month residence in the county as a precondition for voting. James Blumstein, a university professor who had recently moved to Tennessee, challenged the law by filing suit against Governor Winfield Dunn and other local officials in federal district court.

Question: 

Did Tennessee's durational residency requirements violate the Equal Protection Clause of the Fourteenth Amendment?

Conclusion: 

In a 6-to-1 decision, the Court held that the law was an unconstitutional infringement upon the right to vote and the right to travel. Applying a strict equal protection test, the Court found that the law did not necessarily promote a compelling state interest. Justice Marshall argued in the majority opinion that the durational residency requirements were neither the least restrictive means available to prevent electoral fraud nor an appropriate method of guaranteeing the existence of "knowledgeable voters" within the state.

One person one vote rule upheld

Here is the issue according to ScotusBlog.

Whether the three-judge district court correctly held that the “one-person, one-vote” principle under the Equal Protection Clause allows States to use total population, and does not require States to use voter population, when apportioning state legislative districts.

The justices unanimously said it did, which ruled against an argument from Texas that legislative districts must be drawn with maps that only took into consideration eligible voters. They can, but they don't have to.

- Click here for the decision.

Here's commentary:

- One Person, One Vote, Eight Justices: The constitutional maxim does not require states to use eligible voters when drawing legislative districts, the U.S. Supreme Court ruled Monday.

The U.S. Supreme Court unanimously turned back a legal effort to reinterpret the “one person, one vote” constitutional rule Monday, ruling that states may rely on total population when drawing their legislative districts.

The case, Evenwel v. Abbott, was brought by two Texas voters, Sue Evenwel and Edward Pfenninger, who challenged the apportionment of Texas Senate districts. With the exception of the U.S. Senate, every American legislative body is apportioned by total population under the “one person, one vote” rule first outlined by the Court in the 1960s.

Evenwel and Pfenninger argued that counting non-voters—children, the mentally disabled, disenfranchised prisoners, and non-citizens—broke that rule and diluted their political power in violation of the Fourteenth Amendment’s Equal Protection Cause. Many observers, including my colleague Garrett Epps, notedthat Evenwel’s interpretation would redraw the American political map in favor of a whiter, older, and more conservative electorate.

“In agreement with Texas and the United States, we reject appellants’ attempt to locate a voter-equality mandate in the Equal Protection Clause,” Justice Ruth Bader Ginsburg wrote for the majority. “As history, precedent, and practice demonstrate, it is plainly permissible for jurisdictions to measure equalization by the total population of state and local legislative districts.”

2301 TBA Quiz Four

1 – What are the similarities and differences between the concepts of civil liberties and civil rights?

2 – How does the Bill of Rights condition the relationship between the individual and the national government?

3 – How did the 14th Amendment alter, and/or complicate, the relationship that existed between the individual and the state and national governments?

4 – By what process were the states eventually made to comply with the national Bill of Rights, that is to provide to their citizens the privileges and immunities of citizens of the United States?

5 – How was the trend towards nationalizing rights altered by the Rehnquist Court?

6 – Outline the shift in the interpretation of the equal protection clause from Plessy to Brown.

7 – What problems occurred when the results of the Brown decision were implemented—or the attempt was made to implement them?

8 – What is the politics of rights and how has it led to the expansion of equal protection to gender discrimination?

9 – What issues arise when other groups attempt to redress grievances based on the equal protection clause?

10 – Outline the development of, and backlash against, affirmative action.

2301: The Last Written Question: Flores-Villar v United States

I'm putting together the final written question for 2301, and I'd like to share it -- or the topic -- prior to posting it.

We're covering civil rights and the equal protection clause. Quite often the nature of civil rights policy comes down to whatever the Supreme Court (or more precisely its members at a given moment in time) interprets the phrase "equal protection of the laws" to mean. In what context can equal protection be mandated, and  what criteria can government (the executive branch generally though not exclusively) use to treat people differently.

In that context, the Supreme Court heard arguments last week in a case which highlighted the different ways that Congress has mandated how citizen mothers as opposed to citizen fathers can transfer citizenship to any child of theirs born out of wedlock and out of the country. The bar is lower for citizen mothers than citizen fathers. The case involves a citizen father who, due to the language of the law, could never have transferred citizenship to his child. The question presented to the court was whether this violated his right to the equal protection of the laws.

I want my 2301s to read through the links below and address how the Supreme Court treats cases involving claims of unequal protection due to gender (sex/gender discrimination). What issues are raised in this case and what is the likely outcome (a decision is unlikely to be reached until next year).

- ScotusBlog: Flores-Villar v. United States.
- Immigration Prof Blog.
- NYT Story.
- Oral Argument Audio.
- Oral Argument Transcript.

Is there a right to die?

The previous post touched on that question, and since 2305 and 2306 students should be looking at the respective Bills of Rights in the U.S. and Texas Constitutions, it's worth linking to a few items focused on whether such a right exists. It's certainly not listed in the Bill of Rights, but neither is the right to privacy, contract, and work among many other things people believe they have a right to do.

The U.S. Supreme Court has dealt with this issue before though largely because medical science has developed ways to keep people alive seemingly indefinitely in vegetative states. The question is whether people can let it be known that they do not wish to be kept alive artificially - or to not be resuscitated.

Here's a look at some of these cases (text is from Oyez):

- Cruzan v. Director, Missouri Department of Health.

Question: Did the Due Process Clause of the Fourteenth Amendment permit Cruzan's parents to refuse life-sustaining treatment on their daughter's behalf?

Decision: In a 5-to-4 decision, the Court held that while individuals enjoyed the right to refuse medical treatment under the Due Process Clause, incompetent persons were not able to exercise such rights. Absent "clear and convincing" evidence that Cruzan desired treatment to be withdrawn, the Court found the State of Missouri's actions designed to preserve human life to be constitutional. Because there was no guarantee family members would always act in the best interests of incompetent patients, and because erroneous decisions to withdraw treatment were irreversible, the Court upheld the state's heightened evidentiary requirements.

- Vacco v. Quill.

Question: Did New York's ban on physician-assisted suicide violate the Fourteenth Amendment's Equal Protection Clause by allowing competent terminally ill adults to withdraw their own lifesaving treatment, but denying the same right to patients who could not withdraw their own treatment and could only hope that a physician would do so for them?

Decision: Employing a rationality test to examine the guarantees of the Equal Protection Clause, the Court held that New York's ban [on physician assisted suicide] was rationally related to the state's legitimate interest in protecting medical ethics, preventing euthanasia, shielding the disabled and terminally ill from prejudice which might encourage them to end their lives, and, above all, the preservation of human life. Moreover, while acknowledging the difficulty of its task, the Court distinguished between the refusal of lifesaving treatment and assisted suicide, by noting that the latter involves the criminal elements of causation and intent. No matter how noble a physician's motives may be, he may not deliberately cause, hasten, or aid a patient's death.

- Gonzales v. Oregon.

Question: Did the Controlled Substances Act authorize the attorney general to ban the use of controlled substances for physician-assisted suicide in Oregon?

Decision: No. In a 6-3 opinion delivered by Justice Anthony Kennedy, the Court held that Congress intended the CSA to prevent doctors only from engaging in illicit drug dealing, not to define general standards of state medical practice. Moreover, the CSA did not authorize Attorney General John Ashcroft to declare a medical practice authorized under state law to be illegitimate.

So it seems that the principle of federalism plays the key role here. It's up to each state to determine whether their citizens have a right to die. The national government has no authority to limit that right. The court has never ruled on whether the national government can force states to recognize such a right largely because no federal court has tried to do so. It might be a interesting exercise to determine whether such an argument could be sustained.

The Supreme Court rules that Alabama drew legislative districts in order to restrict black representation.

This was the result in two related cases:

- ScotusBlog: Alabama Legislative Black Caucus v. Alabama.
- ScotusBlog: Alabama Democratic Conference v. Alabama.
- Oyez Project: Alabama Legislative Black Caucus v. Alabama.

The court ruled - by a 5-4 vote - that the state was guilty of racial gerrymandering - more specifically a tactic known as packing. By successfully packing members of a group in a small number of districts, then the voting strength of that group is minimized. If that group happens to be a racial group - especially a racial minority - that violates both the 14th and 15th Amendments as well as the Voting Rights Act. The problem is that proving racial gerrymandering can be difficult to do. The court's majority ruled that racial gerrymandering should be considered on a district by district method - taking each individually - rather than statewide, which is what a lower court had ruled.

For analysis from smarter people than me:

- Supreme Court sends Alabama redistricting plan back to lower court.
- Opinion analysis: A small victory for minority voters, or a case with “profound” constitutional implications?

For students who are focusing on this case, you may wish to consider the following topics, even if you aren't writing about this case, you should be familiar with the following as they arise in different contexts in both 2305 and 2306.

- Gerrymandering: An attempt to draw an electoral district for political advantage.

- Racial Gerrymandering: An attempt to draw electoral districts to impact - favorably or negatively - the strength of a racial group. This is unconstitutional since race is a suspect classification under the equal protection clause. Since parties are not a protected classification, partisan gerrymandering is not illegal, but since party identification increasingly varies based on race, it can be difficult to distinguish between the two.

- Packing and Cracking: These are the names of two gerrymandering techniques. Packing refers to when members of a group are packed into a small number of districts so that their competitiveness elsewhere is minimized. Cracking refers to when the members are spread out to a number of districts so that the group is not a majority in any district.

- 14th Amendment's Equal Protection Clause: Added to the Constitution after the Civil War, clause prevented states from treating persons in their jurisdiction unequally, though it does not define "equality." 

- 15th Amendment: For the first time - again just after the Civil War - the Constitution negated the ability of states to deny the right to vote to people on the basis of race, among other things.

- Reynolds v Sims: The 1964 Supreme Court case that mandated that state legislative districts had to be roughly equal in population.  

- Voting Rights Act: An act Congress passed in 1965 to strengthen the voting rights of minority groups primarily in the South by outlawing tactics that had minimized their ability to vote, as well as the impact of their votes. It also established agencies that could enforce the law. It also mandated that states with a history of racial discrimination had to have changes in their elections, as well as districts, pre-cleared by a panel of federal judges or the Justice Department. 

- Shelby County v Holder: A 2013 Supreme Court case which limited the Voting Rights Act by arguing that throwing out the map that had been used  to determine which states were subject to pre-clearance.

Review material for the 2305 final

Think broadly about the following specific items. I might add a few things over the next week - so don't limit yourself to these items - but this list should help you perform at least adequately if you fully understand the concepts and terms below:

Current events – 10 to 15 questions pulled from the blog
The subject matter of each of the articles of the Constitution – especially the first 3
The delegated, reserved, implied, and denied powers
The police powers
The denied powers
The elastic clauses and their consequences
The purpose and content of the Bill of Rights
The basic principles within the Constitution
The impact of the 13th, 14th, and 15th Amendments
The equal protection clause
The privilege and immunities clause
The history of the equal protection clause, including Plessy v Ferguson and Brown v Board of Education
The expressed and inherent powers of the president
The commander in chief powers
Judicial review
Gerrymandering
The mechanisms which separate - and maintain the separation - of powers
The origin and purposes of political parties
The party eras
The winner take all system and its consequences
The factions within the major parties
The marketplace of ideas
The role of free speech in a free society
The rationale behind public education
The self-evident truths
The substantive liberties
The procedural liberties
Agency capture
The definition of democracy
The checks and balances
Ideology
What are the respective bases of liberalism and conservatism?
Strict scrutiny, intermediate review, rational basis review
The argument contained in the Declaration of Independence
Key phrases in the Federalist Papers
Voter turnout – rates
The debate over interpreting the Constitution
Judicial Review
What is public policy?
The nature of religious liberty
The basic purpose and goals of social welfare, foreign, and economic policy
The nature of apportionment and the drawing of districts
The pros and cons of political parties
The role of state and local governments
The basic design of elections and appointments to national office
The development of judicial review
Rulemaking
Lobbying
Iron Triangles
The revolving door
Constitutional governments
Winner take all elections
The two party system
Debates over interpreting key phrases in the Constitution
The debate over the powers of the president
Unified and divided government
The basic principles in the Magna Carta
The basic principles in the British Bill of Rights
Baker v Carr
The unitary executive

From ScotusBlog: Espinoza v. Montana Department of Revenue

Oral arguments were heard today in a case that involves both civil liberties and civil rights, the establishment clause and the equal protection clause.

- Click here for the article.

Issue: Whether it violates the religion clauses or the equal protection clause of the United States Constitution to invalidate a generally available and religiously neutral student-aid program simply because the program affords students the choice of attending religious schools.

What is Federalism?

What is Federalism?

Competing definitions: 

- Wikipedia: Federalism is a combined and compound mode of government that combines a general government (the central or "federal" government) with regional governments (provincial, state, cantonal, territorial, or other sub-unit governments) in a single political system, dividing the powers between the two.

- Cornell: Federalism is a system of government in which the same territory is controlled by two levels of government. Generally, an overarching national government is responsible for broader governance of larger territorial areas, while the smaller subdivisions, states, and cities govern the issues of local concern. Both the national government and the smaller political subdivisions have the power to make laws and both have a certain level of autonomy from each other.

- Britannica: mode of political organization that unites separate states or other polities within an overarching political system in a way that allows each to maintain its own integrity. Federal systems do this by requiring that basic policies be made and implemented through negotiation in some form, so that all the members can share in making and executing decisions. The political principles that animate federal systems emphasize the primacy of bargaining and negotiated coordination among several power centres; they stress the virtues of dispersed power centres as a means for safeguarding individual and local liberties.

- Congress.gov: the division and sharing of power between the national and state governments.1 By allocating power among state and federal governments, the Framers sought to establish a unified national government of limited powers while maintaining a distinct sphere of autonomy in which state governments could exercise a general police power.2 Although the Framers’ sought to preserve liberty by diffusing power,3 Justices and scholars have noted that federalism has other advantages,4 including that it allows individual states to experiment with novel government programs as laboratories of democracy5 and increases the accountability of elected government officials to citizens.6

The three levels in American government: 

- National
- State
- Local

What authorizes each level?

- National: The People of the U.S. (The Preamble to the U.S. Constitution)
- State: The People of Texas (The Preamble to the Texas Constitution)
- Local: The State of Texas. (Articles 9 and 11 of the Texas Constitution)

What does each level do? 

- National
- - limited to what is allowed, directly or indirectly, in the U.S. Constitution.
- - internal and external security
- - promote and develop interstate and international commerce
- - coordinating state activities
- - enhance equal protection of the law and secure voting rights
- - delegated powers
- - implied powers
- - inherent powers
- - concurrent powers
- - prohibited powers

- State
- - Elections - the one power clearly delegated to the states 
- - anything that is not forbidden by the U.S. Constitution
- - police powers: the power to secure the health, safety, welfare, and morals of the community.
- - promote commerce within the state 
- - the creation of local governments
- - reserved powers
- - concurrent powers
- - prohibited powers

- Local
- - powers defined by the state
- - Dillon's Rule
- - actual enforcement of most state laws
- - basic infrastructure
- - resolve local disputes

Where can we see the specific powers laid out in legal documents?

- National:
- - U.S. Constitution: Article 1, Section 8.
- - U.S. Constitution: Article 2, Section 2.
- - U.S. Constitution: Article 3, Section 2.
- - U.S. Amendments 1 - 10 (limitations)
- - U.S. Amendments 11 - 27.
- - U.S. Code.
- - Code of Federal Regulations.
- - Case Law: Supreme Court Cases By Topic.
- - U.S. Executive Agencies
- - House Committees
- - Senate Committees

- State Powers:
- - U.S. Constitution: Article 1, Sections 2, 3, and 4.
- - U.S. Constitution: Article 1, Section 10. (prohibited powers)
- - Texas Constitution
- - Texas Statutory Code
- - Texas Fiscal Size-Up
- - Texas Sunset Review Commission
- - Texas House Committees
- - Texas Senate Committees

- Local Powers:
- - Texas Constitution Articles 9 and 11
- - Texas Local Government Code
- - Texas Constitution Article 3, Section 56 (limits on states)
- - Codes of Ordinances

- - City Departments


Terminology: 

federalism
nationalism
three levels of government
- national
- state
- local
concurrent powers
inherent powers
reserved powers
granted powers
enumerated powers
expressed powers
prohibited powers
implied powers
- examples of each
democracy
- direct
- indirect
unitary
confederal
federal 
Civil War
civil war amendments
- 13
- 14
- 15
progressive movement
Great Depression
matching grants
categorical grants
block grants
civic voluntarism
necessary and proper clause
full faith and credit clause
supremacy clause
- preemption
commerce clause
equal protection clause
dual federalism
cooperative federalism
- the New Deal / Great Society
- fiscal federalism
new federalism
- devolution
- privatization
- diffusion
- - regulatory policies
grants-in-aid
- categorical
- block
state republican government
expansion of the executive
judicial interpretation