Archive for the ‘Constitutional Law’ Category
posted by Gerard Magliocca
There was a story yesterday on Slate about a movement among the Tea Party to get the states to call for a constitutional convention and propose a variety of states’-rights amendments. I wrote about this option in a short piece a few years ago and pointed out that both parties would eventually realize that a call for a constitutional convention about a specific issue could be a great tool for mobilizing voters in state legislative elections. Maybe we have reached that point.
Stanford Law Review Online: Schuette v. Coalition to Defend Affirmative Action and the Forgotten Oath
posted by Stanford Law Review
The Stanford Law Review Online has just published an Note by David R. Friedman entitled Schuette v. Coalition to Defend Affirmative Action and the Forgotten Oath. Mr. Friedman argues that:
[M]any of the Justices, especially Justices Sotomayor and Ginsburg, seemed troubled by the implications of Michigan’s amendment for traditionally disadvantaged minorities. At the same time, several Justices seemed perplexed by the potentially wide scope of a doctrine that, in its most expansive form, subjects every law that moves a decision from one level of government to another to strict scrutiny. For instance, if Michigan’s constitutional amendment is subject to strict scrutiny, is Title VII subject to strict scrutiny? Is the Fair Housing Act? Is 42 U.S.C. § 1983? All three of these laws similarly move a decision involving race—the decision of how much governmental protection to provide against racial discrimination—from one level of government (the states) to another (the federal government). These types of potential consequences led to a great deal of time being consumed by questions looking to answer that classic legal question: where do we draw the line?!
The Michigan electorate should be required to pay now or pay later to prove that the laws of its state do not violate the Constitution. If it chooses to pursue a state constitutional amendment through direct initiative, it will trade the scrutiny of the legislative process, mediated by those who have taken an Article VI oath to uphold the Federal Constitution, for the burden of affirmatively proving that its measure is constitutional.!footnote_21 If it chooses instead to lobby its state legislature to propose a state constitutional amendment, it will face no such burden later in the process. Only by requiring this choice can we really be sure that “equal treatment” is actually the same as “equal protection” in this case.
Read the full article, Schuette v. Coalition to Defend Affirmative Action and the Forgotten Oath at the Stanford Law Review Online.
posted by UCLA Law Review
Volume 61, Issue 1 (August 2013)
|Against Endowment Theory: Experimental Economics and Legal Scholarship||Gregory Klass & Kathryn Zeiler||2|
|Why Broccoli? Limiting Principles and Popular Constitutionalism in the Health Care Case||Mark D. Rosen & Christopher W. Schmidt||66|
December 6, 2013 at 6:59 pm Tags: 4th amendment, article iii, broccoli, Constitutional Law, critical race theory, Current Events, endowment effect, endowment theory, Fourth Amendment, health care, portable electronic devices, search, united states v. cotterman Posted in: Civil Rights, Constitutional Law, Economic Analysis of Law, Health Law, Law Rev (UCLA), Legal Theory, Race, Supreme Court Print This Post No Comments
posted by Gerard Magliocca
Recently I read a draft paper by Adrian Vermuele on “Conventions in Court” that was helpful for the research that I’ve been doing for my next article. He points out that in the British constitutional tradition there is a concept called “legal but unconstitutional.” In other words, Parliament is sovereign and can do what it wants, but some acts would violate customs of the realm that are so fundamental that they would create a constitutional crisis. (For example, repealing the Bill of Rights of 1689 or the Magna Carta).
This is the same as the concept of the “Unwritten Unwritten Constitution” that I have discussed in a number of posts. People weren’t crazy about that formulation because it was so clunky. (I agree.) ”Legal but unconstitutional” captures the idea much better. An obvious example would be a runaway Electoral College that decided to pick its own President. That would be legal–presidential electors can vote for whomever they want, but that act would create a constitutional crisis of the highest magnitude.
Vermuele also observes that in Commonwealth countries (such as Canada) the rule is that courts may not enforce these constitutional conventions themselves, but they must acknowledge the convention in reaching their decision. In other words, pretending that no convention exists when it does would be a kind of silly formalism, but taking that to the next level and saying that customs can displace the text is not appropriate. I’ll have more to say on that later.
posted by Gerard Magliocca
I have posted a revised version of my paper on the Bill of Rights here.
posted by Gerard Magliocca
After finishing Garrett Epps’ new book, I thought I’d mention a couple of goodies that you might find interesting:
1. The Framers did not refer to the presidential selection system as the Electoral College. The voters were “electors,” but the Electoral College did not come into use until the nineteenth century.
2. Treason is still a crime in many states. The Constitution explicitly refers to state treason in Article Four, but I did not realize that this was still (at least in theory) an offense. The last person convicted of state treason appears to be John Brown (executed by Virginia in 1859).
3. There is no constitutional requirement that the capital be in a federal enclave like the District of Columbia. Article I, Section 8, only permits Congress to do that. In other words, Congress could make DC a state tomorrow.
posted by Gerard Magliocca
This year it’s by Reva Siegel and it’s terrific. I want to quote the closing paragraph, which is a wonderful piece of rhetoric no matter how you come out on her overall argument about the Court’s equal protection doctrine:
“Imagine. Imagine if an appointment to the Supreme Court produced a majority of Justices who reasoned about stop and frisk and other practices of suspect apprehension that differentiate by race in the ways the majority reasoned in Windsor — or even Fisher. Put aside standards of review. Imagine a Court enforcing equal protection by asking whether a law’s enforcement “tells” minorities they are “unworthy,” or by asking whether a law’s enforcement “demeans” and “humil- iates” them. Imagine a case on suspect apprehension that explained that when government classifies by race, even for benign purposes, judicial oversight is required to ensure that government employs means that respect people’s dignity and treat them fairly, as individuals, in order to avoid racially divisive messages. Imagine a Court even suggesting that the constitutionality of a law might require attention to these matters. Imagine a Court at least prepared to get out of the way when minorities secure protection through the political processes. Or, imagine a Court prepared to intervene in politics to guard against laws that violate expectations of fair dealing and engender social division, for minority as well as majority groups. The resources are in our equal protection tradition. Imagine. ”
posted by Gerard Magliocca
As I mentioned the other day, I’m reading Garrett Epps’ fun book called American Epic: Reading the U.S. Constitution. His discussion of the Twenty-Fifth Amendment got me thinking about two things.
First, the Senate’s exercise of the nuclear option last week presumably applies to presidential nominations of a vice-president when that office is vacant. The text of Section Two of the 25th Amendment says:
“Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.”
Since the text specifically refers to a majority vote, one could argue that a filibuster of a vice-presidential nominee would be unconstitutional. (The advice-and-consent provision in Article Two, by contrast, only implies that a majority vote rule applies.) In any event, I highly doubt that the Senate will interpret its precedents to say that a vice-presidential nominee is subject to the sixty-vote threshold.
Second, far too little attention is paid to the constitutional crisis created by Spiro Agnew’s resignation in 1973. At that time, Democrats controlled both Houses of Congress and Richard Nixon was in deep trouble. If Nixon had resigned or been impeached and convicted before the VP vacancy was filled, the White House would have passed to Carl Albert, the Speaker of the House. Or Democrats in Congress could have insisted on a Democratic Vice-President.
Consider for a moment how awkward this was. Carl Albert: (1) could dictate how and when the House would vote on impeachment; (2) could dictate how and when the House would vote on the Vice-President; and (3) was next in line for the presidency. Part of the problem here is that the Succession Act of 1947 puts the Speaker of the House third in line, which is probably unconstitutional and is certainly a bad idea.
More broadly, vice-presidential vacancies fall within what I’m calling the “anti partisan principle.” If Democrats in 1973 (or in 1974, when Nelson Rockefeller was confirmed as Vice-President) had insisted on a Democratic Vice-President, that would have been seen as violating a basic norm that the VP and President should come from the same party. Or that the White House should not change parties without an election; a result also supported by the failed Johnson impeachment at a time when the vice-presidency was also vacant.
posted by Richard Storrow
The loosening of restrictions on same-sex marriage over the last decade has been accompanied by the refusal of persons opposed to such unions to participate in them in any way. Naturally, the law requires no one to show up and cheer at a same-sex wedding or commitment ceremony, but what if a county clerk did not want to issue marriage licenses to same-sex couples or a health care worker refused to perform the necessary blood tests? Obviously, some objections to marriage will intrude on a couple’s ability to marry more than others.
The key to understanding which objections are legal and which are not does not only lie in guarantees of religious freedom. Everyone is free to harbor religious or philosophical opposition to same-gender couples and to shout that message from the rooftops, as long as they do not create a nuisance in doing so. It is in jurisdictions that have enacted prohibitions on sexual orientation discrimination in public accommodations where those who peddle their wares in the public marketplace are not allowed to reject customers for being gay. In such jurisdictions, religious opponents to same-sex unions have every right to voice their objections in church and to teach their children that it is wrong to be gay. If these opponents open up shop in the local marketplace, however, they are required to leave their biases at home.
New Mexico has such a law. Elaine Huguenin is a talented photographer who makes a good living recording important moments in the lives of the people of Albuquerque. In 2006 she decided to refuse the request of a lesbian couple that she be the photographer at their commitment ceremony. When sued, Huguenin, obviously aware that her religious freedom argument would have no traction under decades-old Supreme Court precedent, came up with the novel argument that if she were required to photograph the ceremony, she would be forced to celebrate it and to express that she is accepting of same-sex marriage. This is a story that Huguenin did not want to tell.
Huguenin’s argument sounds as if it was lifted from the Supreme Court’s Boy Scouts of America v. Dale decision. But since her “expressive policy” is merely to make money with her camera, she gave the argument a twist. She insisted that artists, since they create protected speech, must be free to choose what customers they will serve and will not.
While I have no reason to doubt that Huguenin is an artist of the highest caliber with a special flair for photographic storytelling, I fail to see how her status elevates her above someone who merely hires herself out to record an event. I am certain there have been many occasions when the contract between Huguenin and her customers has constrained her to adhere to provisions about how and when, to what degree and in what format they want their stories told. But the question here is not whether Huguenin can refuse to sign a contract whose provisions offend her artistic sensibilities. The question is whether she can refuse her services because the customers are gay. In Huguenin’s case, at least, an argument for carving out an exception in the law for artists is not likely to carry the day.
Furthermore, the law in this case simply does not force Huguenin to make art in a way not of her choosing or to utter a statement that is against her religion. First, it is a given that Huguenin will tell the story of an event in her own way. She is, after all, the one behind the camera. Second, as someone hired to take pictures at the event, she participates primarily as an observer who has some interaction with the major players when she stages certain photographs. More important than the fact that she is not truly there to celebrate is the fact that her hired presence in no way implies an expression that she believes in the goodness of the proceedings.
If Huguenin wants to turn a profit in the economic environment the State of New Mexico provides her, the citizens of that state have declared that there are certain business decisions she may not make. The good news for those who want to discriminate nonetheless is that relatively few jurisdictions in this country have public accommodations laws that forbid sexual orientation discrimination. Right next door to New Mexico, Arizona has such laws only at the local level in Tucson and Phoenix. There is also a paucity of public accommodations protections in neighboring Texas and Oklahoma. It should thus be relatively easy for Huguenin to find her way to a place where she is truly free to marry her business practices with her religious convictions.
November 21, 2013 at 3:44 pm Tags: First Amendment, Public Accommodations, Sexual Orientation Discrimination Posted in: Civil Rights, Constitutional Law, First Amendment, LGBT, Religion Print This Post 21 Comments
posted by Gerard Magliocca
I was in Washington on Thursday and had a quick look at Justice Sutherland’s opinions. I found quite a bit of interest, though I’m still in my researching and “do-I-want-to-write-this-book” phase.
One thing worth mentioning now. Senator Sutherland voted for the statute that banned the interstate transport of goods made with child labor that was later struck down by the Court in Hammer v. Dagenhart. He explained that while there were doubts about the validity of such a prohibition, he thought that he should swallow those doubts unless they were strong and given that child labor was so evil. I don’t know what he thought about the Court’s subsequent cases, as he was not a Justice in either Hammer or the Child Labor Tax Cases.
posted by Gerard Magliocca
My next project will be on the relationship between political partisanship and constitutional legitimacy, which builds on ideas that I’ve discussed in prior posts. I’ll talk about this more in future posts, but let me throw out one nugget now.
The Civil Rights Act of 1875, which was the most sweeping civil rights statute passed until 1964, was struck down by the Supreme Court in 1883. One fact about the law I’ve just started to focus on was that it was passed by a lame-duck Congress after an election where Democrats won control of the next House of Representatives. The enactment of a major statute under like circumstances today would be extremely controversial. (Imagine if Democrats had passed the Affordable Care Act in December 2010). One wonders whether the Court’s determination on constitutionality was influence by the hurried passage of the law before a partisan turnover.
posted by Marc Poirier
This past July, the New Jersey Supreme Court handed down Borough of Harvey Cedars v. Karan, 70 A.3d 524 (2013). In one sense this is a technical case about the rules of just compensation for a partial taking. The New Jersey Supreme Court clarified the distinction between “special benefits,” which can be offset against the compensation owed for a partial taking, and “general benefits,” which cannot. Where a dune restoration project would provide protection to a home in immediate proximity to the shore, if the value of that protection can be determined, it should be deducted from the compensation owed, even though the dune provides flood protection of the same kind—but in significantly less degree–to rows of houses further back from the ocean. The New Jersey Supreme Court determined that an evidentiary ruling excluding evidence of the benefit was erroneous as a matter of law, and remanded for a new trial. All five Justices participating in the opinion agreed.
The case is of more general interest because the public project involved concerned construction of a dune barrier on private property along New Jersey’s barrier islands. It’s a disaster law and climate change case. Dune projects have been underway here for some time–this one began in 2008–with the United States Corps of Engineers doing the heavy lifting, state and municipalities cooperating and chipping in a smallish part of the cost. All of Long Beach Island is part of a big old beach and dune project. And dune projects have gained special salience after Superstorm Sandy.
In the Borough of Harvey Cedars, on Long Beach Island, dune construction required the cooperation of all 82 beachfront property owners. Sixteen of them declined, forcing the municipality to begin condemnation proceedings for a strip of each recalcitrant property owner’s land. In this particular case, the Karans refuse to grant a dune easement over about a quarter of their property; the easement included a dune 22 feet high, replacing one 16 feet high. A right of public access came along with the new dune as well. So the Karans wound up with a view of other folks’ beach recreation activities on the higher dune, not the water view they had previously enjoyed. Evidence supporting the argument that the Karans’ $1.9 million home would benefit from the flood protection afforded by the dune to the tune of several hundred thousand dollars was excluded from a jury by the trial court, on the theory that the entire community also benefitted, and that therefore the flood protection was a “general benefit” which could not legally be offset against the compensation owed the Karans. The Karan’s expert had testified that they should receive $500,000 from Harvey Cedars. The Harvey Cedars expert (from the Corps of Engineers) testified that the proper amount of compensation was $300. But he couldn’t point to evidence of benefit from flood protection because it had been excluded. The jury returned a compensation award of $375,000, principally for loss of view. You can do the math and see what this does to the possibility of any dune project. Holdouts galore. No project. Read the rest of this post »
October 31, 2013 at 11:02 pm Tags: beach restoration, dunes, easements, eminent domain, floods, Harvey Cedars, just compensation, partial taking, risk perception, Sandy, view Posted in: Constitutional Law, Environmental Law, Property Law Print This Post One Comment
posted by Dave Hoffman
Where were we? I know: throwing stink-bombs at a civil procedure panel!
At the crack of dawn saturday I stumbled into the Contracts II panel. Up first was Ian Ayres, presenting Remedies for the No Read Problem in Consumer Contracting, co-authored with Alan Schwartz. Florencia Marotta-Wurgler provided comments. The gist of Ayres’ paper is that consumers are optimistic about only a few hidden terms in standard-form contracts. For most terms, they guess the content right. Ayres argued that should be concerned only when consumers believe that terms are better than they actually are. The paper proposes that firms make such terms more salient with a disclosure box, after requiring firms to learn about consumer’s knowledge on a regular basis. Basically: Schumer’s box, psychologically-calibrated, for everyone. Florencia M-W commented that since standard-form contracts evolve rapidly, such a calibrated disclosure duty might be much more administratively complex than Ayres/Schwartz would’ve thought. A commentator in the crowd pointed out that since the proposal relies on individuals’ perceptions of what terms are standard, in effect it creates a one-way ratchet. The more people learn about terms through the Ayres/Schwartz box, the weaker the need for disclosure. I liked this point, though it appears to assume that contract terms react fairly predictably to market forces. Is that true? Here are some reasons to doubt it.
Zev Eigen then presented An Experimental Test of the Effectiveness of Terms & Conditions. Ridiculously fun experiment — the subjects were recruited to do a presidential poll. The setup technically permitted them to take the poll multiple times, getting paid each time. Some subjects were exhorted not to cheat in this way; others told that the experimenters trusted them not to cheat; others were given terms and conditions forbidding cheating. Subjects exhorted not to cheat and trusted not to cheat both took the opportunity to game the system significantly less often than those presented with terms and conditions. Assuming external validity, this raises a bit of a puzzle: why do firms attempt to control user behavior through T&Cs? Maybe T&Cs aren’t actually intended to control behavior at all! I wondered, but didn’t ask, if T&Cs that wrapped up with different formalities (a scan of your fingerprint; a blank box requiring you to actually try to sign with your mouse) would get to a different result. Maybe T&Cs now signal “bad terms that I don’t care to read” instead of “contract-promise.” That is, is it possible to turn online T&Cs back into real contracts?
Next, I went to Law and Psych to see “It All Happened So Slow!”: The Impact of Action Speed on Assessments of Intentionality by Zachary C. Burns and Eugene M. Caruso. Bottom line: prosecutors should use slow motion if they want to prove intent. Second bottom line: I need to find a way to do cultural cognition experiments that involving filming friends jousting on a bike. I then hopped on over to International Law, where Adam Chilton presented an experimental paper on the effect of international law rules on public opinion. He used a mTurk sample. I was a concern troll, and said something like “Dan Kahan would be very sad were he here.” Adam had a good set of responses, which boiled down to “mTurk is a good value proposition!” Which it is.
After lunch it was off to a blockbuster session on Legal Education. There was a small little paper on the value of law degrees. And then, Ghazala Azmat and Rosa Ferrer presented Gender Gaps in Performance: Evidence from Young Lawyers. They found that holding all else equal, young women lawyers tend to bill somewhat fewer hours than men, a difference attributable to being less likely to report being highly interested in becoming partners while spending more time on child care. What was noteworthy was the way they were able to mine the After the JD dataset. What seemed somewhat more troubling was the use of hours billed as a measure of performance, since completely controlling for selection in assignments appeared to me to be impossible given the IVs available. Next, Dan Ho and Mark Kelman presented Does Class Size Reduce the Gender Gap? A Natural Experiment in Law. Ho and Kelman found that switching to small classes significantly increases the GPA of female law students (eliminating the gap between men and women). This is a powerful finding – obviously,it would be worth it to see if it is replicable at other schools.
The papers I regret having missed include How to Lie with Rape Statistics by Corey Yung (cities are lying with rape statistics); Employment Conditions and Judge Performance: Evidence from State Supreme Courts by Elliott Ash and W. Bentley MacLeod (judges respond to job incentives); and Judging the Goring Ox: Retribution Directed Towards Animals by Geoffrey Goodwin and Adam Benforado. I also feel terrible having missed Bill James, who I hear was inspirational, in his own way.
Overall, it was a tightly organized conference – kudos to Dave Abrams, Ted Ruger, and Tess Wilkinson-Ryan. There could’ve been more law & psych, but that seems to be an evergreen complaint. Basically, it was a great two days. I just wish there were more Twiqbal papers.
October 29, 2013 at 8:37 pm Posted in: Capital Punishment, Civil Procedure, Civil Rights, Conferences, Constitutional Law, Contract Law & Beyond, Courts, Economic Analysis of Law, Empirical Analysis of Law Print This Post No Comments
posted by Marc Poirier
United States v. Windsor, – U.S. –, 133 S.Ct. 2675 (2013), invalidated the federal Defense of Marriage Act (DOMA) on somewhat murky constitutional grounds. It also provided the catalyst for this month’s move to marriage equality under state constitutional law in New Jersey. But it did so in a most curious way.
In Lewis v. Harris, 908 A.2d 196 (N.J. 2006), a unanimous New Jersey Supreme Court had held that same-sex couples could not be denied the equal rights and benefits guaranteed by the New Jersey constitution. However, a four-person majority in Lewis demurred as to whether the state had to allow same-sex couples to marry, allowing the legislature instead to choose to create a new status that would provide the same rights and benefits as marriage, but with a different name. In short order the legislature enacted a Civil Union Act, which became effective in 2007.
From the outset, it was clear to marriage equality advocates that that civil union would not and could not convey the equal rights and benefits that Lewis v. Harris mandated. The New Jersey Civil Union Review Commission held hearings and made extensive findings to that effect, unanimously. But how to persuade either the courts or the legislature to make the move all the way to marriage equality? Both legislative and judicial mechanisms were deployed. As to litigation, there was an initial attempt in 2010 to return the matter directly to the New Jersey Supreme Court, by way of a motion in aid of litigant’s rights filed in Lewis v. Harris. It failed because the court determined, on a 3-3 vote, that an evidentiary record was necessary. 202 N.J. 340 (2010). It is this evidentiary trial process that Windsor short-circuited. Read the rest of this post »
October 29, 2013 at 12:08 pm Tags: civil union, domestic partnership, equal protection, fundamental right, liberty, marriage equality, Windsor v. United States Posted in: Civil Rights, Constitutional Law, Family Law, LGBT, Uncategorized Print This Post 3 Comments
posted by Marc Poirier
Same-sex marriage became legal in New Jersey at 12:01 am on Monday, October 21. Wedding ceremonies are everywhere. The process may not be over, however; there are tactical decisions yet to be made as to how best to solidify and clarify the win.
It was a roundabout victory, achieved via a Superior Court decision last month, in which Judge Mary Jacobson held that civil union did not satisfy a state constitutional mandate of equal protection established in Lewis v. Harris (N.J. 2006). There followed, on Friday, October 18, a unanimous state Supreme Court ruling denying a motion for stay of Judge Jacobson’s order. So it’s legal for same-sex couples to marry here, but there is no a ruling on the merits by the state Supreme Court. That’s the problem. Read the rest of this post »
October 23, 2013 at 3:17 pm Tags: civil union, equal protection, fundamental right, LGBT, marriage equality, New Jersey, same sex marriage Posted in: Civil Rights, Constitutional Law, Family Law, First Amendment, LGBT, Uncategorized Print This Post No Comments
posted by Gerard Magliocca
The Supreme Court will soon hear Noel Canning, and there is a great new paper from David Arkush analyzing the issues in the case. He and I are alone (I think) in arguing that the Court should defer to the Senate’s understanding of when it is in recess rather than creating a constitutional definition of the recess. Where we disagree is on the conclusion follows from this approach. I contend that the pro-forma sessions held by the Senate around the time President Obama made his nominations to the NLRB mean that the Senate was not in recess. Arkush argues the opposite, in part by looking at why the Senate decided to hold these sessions. Take a look and see what you think.
posted by Gerard Magliocca
For a review of American Founding Son in Law and Politics Review, Professor John Vile raises the following point that I had not considered. In 1859, Bingham gave a speech attacking the proposed Oregon Constitution because it discriminated against African-Americans. His claim in that speech that Oregon would deny fundamental rights to those “born with tawny skins” could have been a pun on Chief Justice Roger Taney (whose name is often pronounced as “Taw-Nee”) I don’t know if this is true, but it’s a clever idea.
posted by Gerard Magliocca
One of the not-so-thrilling decisions of the Supreme Court was Hoyt v. Florida, a 1961 case that upheld a statute statute that women could only serve on a petit jury if they affirmatively registered with the clerk of the court. (Men were automatically registered.) I was curious to look at the briefs in the case, and here is a passage from the one urging the Court to uphold the law:
“Ever since the dawn of time conception has been the same. Though many eons may have passed, the gestation period in the human female has likewise remained unchanged. Save and except for a number of beneficial precautions presently available, parturition is as it well may have been in the Garden of Eden. The rearing of children, even if it be conceded that the socio-psychologists have made inroads thereon, nevertheless remains a prime responsibility of the matriarch. The home, though it no longer be the log cabin in the wilderness, must nevertheless be maintained. The advent of “T.V.” dinners does not remove the burden of providing palatable food for the members of the family, the husband is still, in the main, the breadwinner, child’s hurts are almost without exception, bound and treated by the mother.”
posted by Gerard Magliocca
One of the most interesting aspects of my research into Justice Sutherland is the way in which the Court treated statutes that discriminated on the basis of sex in the 1920s and 1930s. Though I’m not an expert on the history of sex discrimination, my sense is that the standard account says that the Court did not take that issue seriously until the 1970s. I’m getting a different picture from reading the cases.
Consider Radice v. New York, which was written by Sutherland for a unanimous Court in 1924. Radice concerned a New York statute that barred women from working in most restaurants from 10PM to 6AM. This was basically an anti-crime measure, though it was also described as a public health measure. The Court upheld the statute and said the following:
“Where the constitutional validity of a statute depends upon the existence of facts, courts must be cautious about reaching a conclusion respecting them contrary to that reached by the Legislature; and if the question of what the facts establish be a fairly debatable one, it is not permissible for the judge to set up his opinion in respect of it against the opinion of the lawmaker. The state Legislature here determined that night employment of the character specified was sufficiently detrimental to the health and welfare of women engaging in it to justify its suppression, and, since we are unable to say that the finding is clearly unfounded, we are precluded from reviewing the legislative determination.”
Now this may sound surprising. After all, we are told that the Court in this era did not care about facts (only Brandeis did), and that they did not defer to legislative judgments about economic legislation (only Holmes and Brandeis did). But what about the Court’s holding a year earlier in Adkins (also written by Sutherland) holding that minimum wage laws for women were unconstitutional?
“The statute in the Adkins Case was a wage-fixing law, pure and simple. It had nothing to do with the hours or conditions of labor. We held that it exacted from the employer ‘an arbitrary payment for a purpose and upon a basis having no causal connection with the business, or the contract or the work’ of the employee; but, referring to the Muller Case we said that ‘the physical differences [between men and women] must be recognized in appropriate cases, and legislation fixing hours or conditions of work may properly take them into account.’”
One way to think about this distinction is that the Court was applying a form of intermediate scrutiny. In a case like Muller v. Oregon or Radice where there was (in the Court’s view) an ample factual record to support discrimination and where the regulation was related to physical differences between the sexes, then the statutes were upheld. With respect to wage laws, though, such a record was (in the Court’s view) was lacking or there was no sense that physical differences mattered. Anyway, it’s just a hypothesis.
posted by Frank Pasquale
If you asked Ted Cruz or Jim DeMint who was the guiding spirit of their government shutdown, they’d probably mention Friedrich von Hayek. The Nobel Prize winning economist warned the world that “socialism” would put citizens on a “road to serfdom.” For the Tea Party, PPACA is a horror, perhaps even a new form of slavery, a threat to liberty even darker than the feudal past Hayek evoked.
But there is another figure just as important to current neoliberal thought as Hayek. Carl Schmitt provided jurisprudential theories of “the emergency” and “the exception” that highlighted the best opportunities for rapid redistribution of wealth upwards. In Never Let a Serious Crisis Go to Waste, Philip Mirowski explains how neoliberal thought, far from advocating a shrinking of the state, in fact sparks a redirection and intensification of its energies. As he puts it, “A primary function of the neoliberal project is to redefine the shape and the function of the state, not to destroy it” (56). Moreover, the “strong state was necessary to neutralize what [Hayek] considered to be the pathologies of democracy” (84). Even a temporary dictatorship can work in a pinch.
A shutdown is a state of exception when the government gets to do things it normally can’t do, like close the Environmental Protection Agency, de-fund WIC, close the national parks, send a lot of government employees home [in what is in many ways a lock-out], and all sorts of other stuff. A shutdown is a moment in which a choice gets made about which laws to obey and which laws to ignore, when the government gets to decide that some people are essential and some people aren’t.