Themes of the American Civil War
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| Justice, and Civil Rights, 1866–1876 (New York, 1985), develops the theme. Early interpretation of the Thirteenth Amendment gets interesting coverage in HM. Hyman, The Reconstruction Justice of Salmon P. Chase (Lawrence, KS, 1997). E. Foner, Rights and the Constitution in Black Life during the Civil War and Reconstruction J.A.H. (1987), offers a welcome perspective which gets away from courts and into the life and politics of black life. In the Slaughterhouse Cases, 16 Wall. (83 US) 36 (1873), Justice Miller distinguished between the privileges and immunities of US. citizenship and state citizenship, interpreting the former very narrowly and the latter broadly. In effect it killed the clause. In the Civil Rights Cases US. 3 (1883), Justice Bradley found that Congress had no power to reach private discrimination in access to public facilities under the Fourteenth Amendment, which reaches state but not private action, and no power under the Thirteenth, which does reach private action but only in respect of badges and incidents of slavery, of which this was not one. In Plessy v. Ferguson, 163 US. 537 (1896), Justice Brown’s opinion held that separate but equal facilities for white and colored railway passengers was not a violation of equal protection. As the state action doctrine took hold, the fact that the 1866 Civil Rights Act was parented by the Thirteenth rather than the Fourteenth Amendment was overlooked. E. Malz, The Constitution and Nonracial Discrimination Alienage, Sex, and the Framers’ Ideal of Equality 7 Const. Commentary (1990), puts this down to the restriction of Republican vision—a concept of limited absolute equality all round. A thesis ably extended by M. Benedict, Preserving Federalism Reconstruction and the Waite Court,” Supreme Court Rev. (1978), to reject the view that the Court was out of line with the Framers. 42. Lochner v. New York, 198 US. 45 (1905). The Supreme Court held a New York statute forbidding employment in a bakery for more than sixty hours a week or ten hours a day to be unconstitutional on the grounds that the liberty clause of the Fourteenth Amendment protected the right to contract against deprivation without due process. In practice the Court substituted its judgment for that of the legislature, striking downstate laws that regulated the labor market and working conditions. In the s the Court adopted a position of restraint in reviewing legislative regulation of the economy, but in a famous footnote to its opinion in U.S. v. Carolene Products, 304 US. 144 (1938), Justice Stone said, There be a narrower scope for operation of the presumption of constitutionality when the legislation appears on its face to be within a specific prohibition of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth.” 43. A woman’s right to choose an abortion in Roe v. Wade, 410 US. 113 (1973), was the most controversial case to raise the issue of unenumerated rights attaching to the liberty clause. Critics compared the Court’s methodology to that of the Court that earned so much opprobrium in Locher v. New York for reading its own values into the text. The debate did go to the heart of the matter of who decides, and how, as well as what is liberty. See Thomas Grey, Do we Have an Unwritten Constitution 27 Stanford Law Rev. 703 (1975), J. H. Ely, Democracy and Distrust (Cambridge, MA, 1980), Ronald Dworkin, “Unenumerated Rights: Whether and how Roe should be Overruled 59 Univ. Chic. Law Rev. 381 (1992), and Richard Posner, Legal Reasoning from the Bottom up The Question of Unenumerated Constitutional Rights,” 59 Univ. Chic. Law Rev. 433 (1992). 44. Brown v. Board of Education, 349 US. 294 (1954), was short and lacking in specific constitutional undergirding. Richard Kluger, Simple Justice The History of Brown v. Board of Education and the Struggle for Black Equality (New York, 1987), tells the story of the academics who worked hard to produce usable original intentions. The Civil Rights Cases, 109 US. 3 (1883), affirmed as recently as United States v. Morrison, 529 US. 598 (2000), when the Rehnquist Court invalidated a provision of the Violence against Women Act, which provided a private cause of action to victims of gender-based violence. In practice many private actions are reached either circuitously by finding some state presence, e.g., licensing, or public function, or through the Civil Rights Act of 1964, based on the commerce clause rather than the Fourteenth Amendment. An interesting defense of the state action doctrine is M. Schwarzschild, Value Pluralism and the Constitution In Defense of the State Action Doctrine 1988 Supreme Court Rev. 129. MA. Glendon, Rights Talk The Impoverishment of Political Discourse (New York, 1991); M. Sandel, Liberalism and the Limits of Justice (Cambridge, MA, 1987). 346 • Pat Lucie Douglas L. Colbert, Liberating the Thirteenth Amendment 30 Harvard Civ. Rights Civ. Libs Law Rev. (1995), AR. Amar, Remember the Thirteenth 10 Const. Commentary 403 (LS. Landervelde, The Labor Vision of the Thirteenth Amendment 138 Univ. Penn. Law Rev. 437 (1989), W. Carter, A Thirteenth Amendment Framework for Combating Racial Profiling,” 39 Harvard Civ. Rights Civ. Libs Law Rev. (winter 2004). W. J. Brennan, State Constitutions and the Protection of Individual Rights 90 Harvard Law Rev. 489 (1977). E. Malz, False Prophet-Justice Brennan and the Theory of State Constitutional Law 15 Hastings Const. Quarterly 1988, and J. A. Gardner, The Failed Discourse of State Constitutionalism,” 90 Michigan Law Rev. (1992). Compare Geoffrey R. Stone, War and Liberty An American Dilemma, 1790 to the Present (New York, 2007), and Richard Posner, Not a Suicide Pact The Constitution in Time of National Emergency (Oxford, 2006). 51. Rasul v. Bush, 542 US. 466 (2004). On the same day the Court found a violation of the due process rights of an American citizen who had been taken to a military brig in South Carolina without charge or access to his lawyer, or limit of time, in Hamdi v. Rumsfeld, 542 US. 507 (2004). 52. Hamdan v. Rumsfeld, 548 US. 557 (2006). 53. Boumediene v. Bush, 553 US. — (2008). The Court sidestepped its decision in Johnson v. Eisentragger, 339 US. 763 (1950), which denied alien enemy prisoners held outside American sovereign territory had aright to Habeas in a federal court. The Boumediene Court accepted federal court jurisdiction in the case of Guantanamo prisoners. The base had been under de facto American jurisdiction for over a hundred years. President Bush condemned the decision, as did John McCain, though Barack Obama did not. About 245 prisoners remain and have been released without charge. About twenty faced trial by military commission. The Pentagon believes that as many as sixty have returned to commit further terrorist acts. The proposition first asserted by Chief Justice John Marshall in Marbury v. Madison, 1 Cranch (5 US) 137, 177 (1803). 55. www.whitehouse.gov/blog/inaugural-address. 56. Lawyers on all sides agree that this will not be a simple matter. Of the remaining 245 prisoners, only twenty-one currently face charges. The rest will either be repatriated, where this is possible, or sent to countries willing to accept them. About 100 are from Yemen. So far European countries have shown no enthusiasm. For those who proceed to trial it is not yet known where the trial will take place (there is widespread opposition to having them on American soil) and whether it will be in civilian or military courts. Successful convictions have been jeopardized by interrogation methods. Constitutional Powers • Download 2.25 Mb. Share with your friends:
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