An Equal Protection Clause for the States

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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18 Responses

  1. Hi Gerard, I answer this question “Is there a reason to distinguish Congress’s power pursuant to the Commerce Clause from its powers under the Reconstruction Amendments? ” in these posts addressing a similar issue under the 13th Amendment, which presents a slightly different issue

    http://joshblackman.com/blog/2013/08/05/federalism-enumerated-powers-and-limitations-on-congresss-article-i-powers-and-reconstruction-powers/
    http://joshblackman.com/blog/2013/08/05/did-shelby-county-impact-congresss-authority-under-section-2-of-the-13th-amendment-federalism-individual-liberty-and-the-hates-crime-prevention-act/

    Good luck with the article!

  2. Brett Bellmore says:

    “Why was that evidence inadequate?”

    Well, if we’re to take the decision seriously, because the evidence was dated, stale. It wasn’t evidence the jurisdictions were still discriminating, just that they had a long time ago.

  3. Gerard Magliocca says:

    Well, but stale evidence is ordinarily perfectly OK for rational basis review.

  4. Brett Bellmore says:

    That’s because ‘rational’ basis review would be better termed, “not gibbering insanity” review.

    Anyway, that’s the rationale they expressed. Perhaps a better question would be the level of review, perhaps they’ve rejected “rational basis” for laws which discriminate between states.

  5. John says:

    Equal treatment of states is not a new concept. When admitting new states, even after the Reconstruction Amendments, Congress expressly says in the state’s act of admission that State X is “admitted into the Union on an equal footing with the original states in all respects whatever” (see, e.g., California 1850) or
    “admitted into the Union on an equal footing with the other States in all respects whatever” (see,e.g., Hawaii 1959). Does Shelby County really do anything more than require Congress to do what it promised to do when admitting the state, that is treat states equally when it wants to interfere with traditional state functions like elections?

  6. Shag from Brookline says:

    Equal footing means that the Reconstruction Amendments apply but not that ” … traditional state functions like elections?” will trump them, especially their enforcement clauses.

  7. Joe says:

    The evidence was not “stale” or nonsense, as shown by Congress, the court and the dissent. The opt out procedure particularly underlined this.

    The level of scrutiny question is interesting, but like in Heller, opaqueness seems the name of the game. They didn’t even apply the congruent and proportionality test, which precedent would seem to logically require, least precedent since the 1990s. OTOH, Boerne explained the voting rights measure was legitimate.

    Alabama was entered on equal footing. This doesn’t mean that states in each case can not be treated to be different for valid reasons. Even sex sometimes is deemed a legitimate classification. Is states now a suspect classification?

  8. Brett Bellmore says:

    Fancy that, the losing side and the dissenters disagreed with the decision… Who could have seen that coming?

  9. Shag from Brookline says:

    Of course the Shelby decision was 5-4, in contrast to Brown v. Bd. of Educ.’s unanimous decision that Brett in his fancy way most likely disagreed with, especially today with the changing demographics that Brett dreads. Instead of breeding anger, Brett should perhaps counter the changing demographics by means of breeding more successful than he has in the past.

  10. Joe says:

    I don’t know what the point of #8 is.

  11. Brett Bellmore says:

    Just noting that it’s scarcely unusual that the losing side, and the dissenting side on the Court, disagree with a decision. They did not “show” the evidence wasn’t stale, the disagreed about it being stale.

    Guess what: The majority and the winning side thought it was.

  12. Joe says:

    As compared to the supermajority of Congress, the lower court and 4/9 of the Supreme Court, the five justices here was “thought” wrong. The former “showed” the right path. Saying the Shelby majority disagreed is noted, if redundant.

  13. Brett Bellmore says:

    Strange, isn’t it? A supermajority that a few years later can’t muster even a majority to fix the legislation? Why, it’s almost like they passed something in a hurry without looking too closely, instead of giving it careful consideration!

    Anyway,Gerald asked why the evidence was inadequate, and I pointed out the reason the Court gave. You don’t have to agree with it for that to be the reason they gave.

  14. Shag from Brookline says:

    Jeffrey M. Schnitt has an interest draft paper “Constitutional Limitations on Extraterritorial State Power: State Regulation, Choice of Law, and Slavery” that touches somewhat on the subject of this post. [The URL is not on the copy I downloaded. I probably got to this paper via a link either Legal History Blog or Legal Theory Blog.]

    Most of the article focuses upon antebellum times, quite excellently done even though Prof. Schmitt doesn’t reference the Somerset Case decided by Lord Mansfield. The paper is less successful as it relates to current times. Early on in the Introduction, reference is made (twice) to Shelby County; footnote 12 cites Shelby and this quote from the decision: “Not only do States retain sovereignty under the Constitution, there is also a ‘fundamental principle of equal sovereignty’ among the States.” Footnote 14. references Joseph Fishkin’s “The Dignity of the South” that was referenced by Fishkin in a recent post of his at Balkinization on Shelby, critical of such a fundamental principle.

    The thrust of Prof. Schmitt’s paper is the antebellum choice of law particularly with slavery and the apparent dissatisfaction on the part of legal scholars with the current choice of law rules exercised by states. (Consider SSM, marijuana, legal in some states.)

  15. Joe says:

    “Strange, isn’t it? A supermajority that a few years later can’t muster even a majority to fix the legislation?”

    They didn’t think it needed the same fixing you and five justices via a poorly reasoned opinion did.

    “Why, it’s almost like they passed something in a hurry without looking too closely, instead of giving it careful consideration!”

    “Hurry” and not “careful consideration” here means over time with lots of findings etc.

    “Anyway, Gerald asked why the evidence was inadequate, and I pointed out the reason the Court gave.”

    And, they were wrong, as noted. The dissent etc. explains why.

  16. Brett Bellmore says:

    Joe, what happened is that they were simply trying to avoid having to discuss the details, and get into a big fight about it, so they kicked the can down the road, despite the Court having already warned them not to. The reason the supermajority has evaporated is that there never actually was supermajority support for the details, just for avoiding the topic.

    The dissent explains why they disagree. Dissents usually do that.

  17. Joe says:

    “the Court having already warned them not to”

    NAMUNDO was decided after they re-authorized the provision. It is unclear what exactly it requires though yes at that point, a few years after the re-authorization, they were put on some sort of notice. It’s particularly hard these days to legislate, so it is not too surprising they took a conservative path.

    “The reason the supermajority has evaporated is that there never actually was supermajority support for the details, just for avoiding the topic.”

    The supermajority also voted for the “details.” Whatever the reason they did so. Voting is motivated for various reasons. It’s part of the system.

    “The dissent explains why they disagree.”

    Yes, we disagree on the details, and I pointed out where to find an imho better discussion of the matter.

  18. cong ty luat says:

    I think losing side and the dissidents always disagreed this. Thanks for the post very useful for me.