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Assessing Rational Basis

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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16 Responses

  1. Joe says:

    That’s an extreme example for effect. VRA amendments treated states differently for a rational reason unless “rational” is being applied here with more teeth than some ordinary economic legislation or something. Roberts is not big on “tests.” He said as much when Paul Clement worried about using strict scrutiny in Heller. The result is um flexibility.

  2. Brett Bellmore says:

    This is hypothetical? Anyone remember the Cornhusker Compromise, of ACA notoriety?

  3. Joe says:

    Scalia might not have known about it, but it was not in the final law. There are actual laws where certain states or localities get special treatment in some fashion. The argument there was that Nebraska was particularly likely to be hit with costs. A factual question influenced by politics likely found in laws all over the place.

  4. Brett Bellmore says:

    Generally, when a specific local or company is intended to benefit (or be harmed) by a law, rather than just naming it, the law will be written with such specific language that only that local or person will qualify, though others might theoretically make the cut if they were situated exactly the same. The “Cornhusker compromise” was unusual in that it actually named Nebraska. Section 4 followed the normal trend of simply ‘reverse engineering’ a set of criteria which would hit only the intended states, while seemingly being general.

    From an equal treatment of the states, this makes it more plausibly constitutional. I think the real issue was simply that the 14th amendment DOES say the legislation must be “appropriate”, and at some point the basis for singling out particular states can become dated enough to no longer qualify as such. Basing it on 40 year old circumstances qualified in the majority’s view.

    I would say the notion that particular states can not be singled out for different treatment is probably one of those things that was so blindingly obvious to the founders that it didn’t occur to them they had to state it. But that’s just speculation. We should fix their omission, and put it in by amendment.

  5. anonprof06 says:

    So, one question from someone who has forgotten whatever he learned in con law a long time ago. The Constitution has at least a few provisions where it mandates the Federal government treat states equally — for instance the tax uniformity clause, which mandates uniform treatment with tax and which Story described as intended to prevent big states from ganging up on small ones (thank you Wikipedia!). So, why doesn’t that imply that the Federal government can treat states differently in other respects? If “equal sovereignty” was a bedrock principle of the Constitution, why have specific clauses requiring uniformity in certain respects?

  6. Shag from Brookline says:

    Brett (#4) refers to the 14th Amendment, whereas Shelby County involved the 15th Amendment.

    Here’s the text of Sections 1 and 2 of the 15th Amendment:

    “Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

    ” Section 2. The Congress shall have power to enforce this article by appropriate legislation.”

    The VRA addresses the denial or abridgment “by any State…” pursuant to Congress’ enforcement power in Section 2. Section 1′s text does not suggest a need for uniformity of Section 2′s enforcement power for all of the states, although the VRA does apply to all of the states broadly.

    Brett’s attempt to shuck us off course with Cornhusker discloses ears that can’t hear and without a kernel of relevancy.

  7. Gerard Magliocca says:

    The Cornhusker provision, of course, was not enacted.

  8. Brett Bellmore says:

    Shag’s attempt to ignore the ‘appropriate’ discloses something else, I guess.

  9. Joe says:

    What does Shag “ignore”? The meaning of “appropriate” is debatable. Looking to history, the 14A was ratified in a time when specific states were being treated differently. Northern states did not have the best record on civil rights, but this didn’t lead the specific treatment of the special situation of certain states unconstitutional.

    “particular states can not be singled out for different treatment”

    What is “obvious” about this? Different states are different in various ways. It is far from “obvious” that the result could not be that the application of federal power could be state specific at least if there is some rational basis, largely determining by the political process with its own checks and balances.

    Treating different areas of a state differently was something done by the framers too. The speculation seems dubious and since differential treatment — when appropriate — is okay — an amendment would be particularly unsound. Particularly given the political process already provides checks here.

  10. Shag from Brookline says:

    Over at a recent thread at Balkinization I referenced a 2010 draft article by Jack Balkin, “The Reconstruction Power” available at SSRN:

    http://ssrn.com/abstract=1558749

    that extensively discusses the enforcement clauses of the 13th, 14th and 15th Amendment. The 13th’s Section 2 provides: “Congress shall have power to enforce this article by appropriate legislation.” The 15th’s Section 2 is the same except that it begins with “The ….” The 14th’s Section 5 provides: “The Congress shall have power to enforce by appropriate legislation the provisions of this article.”

    I don’t ignore the key words “appropriate legislation” in each of these Amendments. As Joe notes the meaning of “appropriate” can be debatable, often on a 5-4 basis either way.

    Perhaps if Brett read Jack’s article he might get more of an in depth understanding of these Amendments and their enforcement clauses with historical and case analyses in 60 pages rather than on his obvious biases demonstrated by his proposal for what he refers to as “equal treatment of the states.” Perhaps Brett would prefer to shuck and dry cornsilk with his papers.

  11. Edward Cantu says:

    While the meaning of any word is debatable, we’re not reading “appropriate” in a vacuum. City of Boerne read it to mean “proportional and congruent” for the 14th, and I don’t see why the same standard should not apply to the 15th’s enforcement provision given the same wording is involved (even though, yes, Katzenbach suggested that a different standard does indeed apply). In fact, if I remember correctly, the original proposed version of the 14th included the phrase “necessary and proper” but that was amended to include “enforce/appropriate.” This should tell us something (though I realize not everything) about the drafters’ decision to use the same language in the 15A.

    “Looking to history, the 14A was ratified in a time when specific states were being treated differently.” And when racial segregation was deemed consistent with the 14A. And “proportionate and congruent” (which I think the Court tacitly applied in Shelby) could mean that vastly changed circumstances from the 19th century makes this unequal treatment no longer justified. As an abstract matter anyway, how can it not mean this?

    But, yes, there’s always interpretive wiggle room here due to indeterminacy, so nothing is truly “obvious” about what section 2 means . . . but it seems so many against the Court’s decision are using the same type of obviousness arguments.

  12. Shag from Brookline says:

    Paying attention to both Sections 1 and 2 of the 15th Amendment, it seems clear that the enforcement power in Section 2 may address ” … any state ….” that denies/abridges the right of a citizen of that state to vote under Section 1. While there are commonalities in the 13th, 14th and 15th Amendments, each addresses different matters.

    By the way, does textualism provide for “wiggle room”? Originalism and living constitutionalism may.

  13. Joe says:

    Justice Ginsburg joined Boerne and cited it in her dissent (cf. the majority), so that doesn’t really take us that far, even if “tacitly” the majority (cf. the dissent openly citing it) followed it in some fashion.

    We can play games selectively citing history as much as we want. History is a tool in determining the meaning of the Constitution, and Boerne appealed to it too. Over time, segregation was found to be a violation. Treating states differently, not so much. Even here, the Court accepts it, if there is a good enough reason. The dissent provides one.

    Whatever nameless “many” think, the critics of Shelby here admit to some reasonable debate.

  14. Edward Cantu says:

    Joe, I wasn’t referring to anyone here.

  15. Joe says:

    Duly noted. Thanks.

  16. Shag from Brookline says:

    David Gans’ “In Recent Rulings, Supreme Court Views Constitution’s Promises in Vastly Different Ways” focuses on Windsor and Shelby County, available at:

    http://theusconstitution.org/news/recent-rulings-supreme-court-views-constitutions-promises-vastly-different-ways

    Gans points out that CJ Roberts’ “”equal sovereignty of states” in Shelby is not specified in the Constitution: “But no such principle exists. No matter how many times one reads our Constitution, the simple fact is that there is no ‘Equality of States Clause’ in it.”

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