Showing papers in "Constitutional commentary in 2004"

Racial Integration as a Compelling Interest

Abstract: Part of the "Symposium from Brown to Bakke to Grutter: Constitutionalizing and defining racial equality"

Resolving Political Questions Into Judicial Questions: Tocqueville's Thesis Revisited

Abstract: Americans throughout the Jacksonian era bitterly disputed the proper use of the President's veto power.Whigs insisted that Democratic Presidents were abusing an authority to reject legislation originally intended to be confined largely to unconstitutional measures." The powers of Congress are paralyzed," Henry Clay complained, "by frequent and an extraordinary exercise of the executive veto, not anticipated by the founders of the constitution, and not practiced by any of the predecessors" of Andrew Jackson. 1 Democrats insisted Jacksonian Presidents were acting well within their Article II powers when preventing from becoming law bills incorporating a new national bank and funding internal improvements. The veto power, future president James Buchanan informed Congress, "is a mere power to arrest hasty and inconsiderate changes, until the voice of the people, who are alike the masters of Senators, Representatives and President, shall be heard." President Jackson was censured and President John Tyler nearly impeached in part over controversies arising out of their exercise of the veto. The federal judiciary was the only branch of the national government whose members refrained from expressing official opinions on the proper constitutional use of the veto power. Many Supreme Court justices had strong personal opinions on that issue. Chief Justice Taney while Attorney General helped

"Reynolds v. United States": The Historical Construction of Constitutional Reality

Abstract: In the Supreme Court's first case interpreting the Constitution's free exercise clause, Chief Justice Morrison Waite endowed the next two centuries of religion clause jurisprudence with a generous legacy of constitutional history. In that 1879 case, Reynolds v. United States, the Chief Justice called upon the founding fathers to decide whether polygamous Mormons in the Territory of Utah were immunized by their faith from prosecution under a federal statute outlawing bigamy. The Court's ruling offered Mr. Reynolds, a minor Mormon official, no hope of sanctuary within the First Amendment. More important than this specific decision, however, was the historical approach to interpreting the religion clauses adopted by the Chief Justice, which has had the effect of essentially writing Thomas Jefferson and James Madison directly into the First Amendment. Not just any aspects of these two influential framers were incorporated into constitutional doctrine, but their writings that have come to stand for the principle of a strict separation of church and state: Two documents from colonial Virginia-Madison's Memorial and Remonstrance against Religious Assessments and Jefferson's Bill for Establishing Religious Freedom-together with Jefferson's now-famous letter to a group of Danbury, Connecticut, Baptists, declaring that the First Amendment erected a \"wall of separation between church and state.\" The opinion's expansive language about \"the true distinction between what properly belongs to the church and what to the State,\" and its striking assertion that Jefferson's 1802 letter

Grutter or Otherwise: Racial Preferences and Higher Education

Abstract: Part of the "Symposium from Brown to Bakke to Grutter: Constitutionalizing and defining racial equality"

Secrecy and Dishonesty: The Supreme Court, Racial Preferences, and Higher Education

Abstract: Part of the "Symposium from Brown to Bakke to Grutter: Constitutionalizing and defining racial equality"

Jim Crow's Long Goodbye

Abstract: Part of the "Symposium from Brown to Bakke to Grutter: Constitutionalizing and defining racial equality"

Tacking Left: A Radical Critique of Grutter

Abstract: Part of the "Symposium from Brown to Bakke to Grutter: Constitutionalizing and defining racial equality"

Constitutional Law as "Normal Science"

Abstract: The United States Supreme Court has been vigorously attacked in recent years on the grounds of judicial activism. The accusations often center on its work in the hot button areas of substantive due process and equal protection. This essay argues that the claims of activism are greatly exaggerated. It takes the 2002 term - which included the higher education affirmative action cases and Lawrence v. Texas - as a template, and demonstrates that the decisions followed a pattern of conservative interpretation in routine matters and cautious dynamism on the margins of doctrinal categories. The paper also argues that the vast range of issues that reach the Court under the umbrellas of equal protection and due process defy efforts to capture in one formula the meaning of irrational government action. Consequently, the Court has prudently and wisely coined doctrine that balances our shared interest in policing irrational governmental activity with our interest in allowing democratic processes to unfold without undue judicial interference. It has resisted legal petrification in important respects, but in most cases it simply and unanimously upholds government regulation. That is, the democratic skies are not falling - and the angels of liberty have not landed in America - despite the fears or hopes of many Americans.

The Last Twenty Five Years of Affirmative Action

Abstract: Part of the "Symposium from Brown to Bakke to Grutter: Constitutionalizing and defining racial equality"

The Dark Side of Grutter

Abstract: Part of the "Symposium from Brown to Bakke to Grutter: Constitutionalizing and defining racial equality"

International Human Rights Law Perspective on Grutter and Gratz

Abstract: Part of the "Symposium from Brown to Bakke to Grutter: Constitutionalizing and defining racial equality"

Fixing the Constitutional Absurdity of the Apportionment of Direct Tax

Abstract: * Professor Law, University of Texas. A table of short form citations to frequently cited documentary sources is found in the Appendix. 1. The Constitution of the United States provides: Representatives and direct Taxes shall be apportioned among the several States ... according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, (but including] threefifths of all other Persons. U.S. CONST. art. I, § 2, cl. 3. The three-fifths of "all other Persons" referred to slaves, but the Thirteenth Amendment abolished slavery. See also U.S. CONST. art. 1, § 9, cl. 4 (providing that "[n]o Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken"). Recent contributions to the literature in favor of application of apportionment include OWEN M. FISS, TROUBLED BEGINNINGS OF THE MODERN STATE, 1888-1910 49, 92-93 (1993) (praising the application of apportionment to render taxation impossible except possibly in time of war); Erik M. Jensen, The Apportionment of "Direct Taxes": Are Consumption Taxes Constitutional?, 97 COLUM. L. REV. 2334 (1997) (arguing that consumption taxes, except sales tax, would need to be apportioned); Erik M. Jensen, The Taxing Power, the Sixteenth Amendment, and the Meaning of "Incomes," 33 ARIZ. ST. L.J. 1057 (2001) reprinted as shortened, 97 TAX NOTES 99 (2002) (arguing that apportionment should not be avoided by judicial construction of word "income"); Erik M. Jensen, The Constitwion Matters in Tax, 100 TAX NOTES 821 (2003) (urging that we take the apportionment clause seriously and claiming that all taxes except income taxes and taxes resembling sales taxes must be apportioned). Recent contributions that seek to avoid apportionment include Bruce Ackerman, Taxation and the Constitution, 99 COLUM. L. REV. 1 (1999) (arguing that the Sixteenth Amendment enables Congress and not the courts to decide what to tax); Marjorie Kornhauser, The Constitwional Meaning of Income and the Taxation of Gifts, 25 CONN. L. REV. 1 (1992) (arguing that "income" within the meaning of the Sixteenth Amendment is inherently malleable); Lawrence Zelenak, Radical Reform, the Constitution, and the Conscientious Legislator, 99 COLUM. L. REV. 833 (1999) (arguing that current proposals for federal consumption tax can be considered either as income taxes or as not direct taxes).