The Hughes Court and the Beginning of the End of the Separate but Equal Doctrine (original) (raw)
Related papers
New Groups and Old Doctrine: Rethinking Congressional Power to Enforce the Equal Protection Clause
Social Science Research Network, 2009
This Article considers the Supreme Court's current approach to judicial review of federal legislation enforcing the Equal Protection Clause. It starts from the assumption that the Court will not abandon the judicial supremacy principle it expressed in City of Boerne v. Flores; thus, any approach to congressional enforcement power must accommodate that supremacy. The Article begins by critiquing the Court's current understanding of Boerne, and explaining how new and pending enforcement legislation pose major challenges under that doctrine. It then sketches a theory of the enforcement power which requires Congress to abide by judicial statements of constitutional meaning, but where judicial opinions are read more carefully to distinguish between true statements of constitutional law and subconstitutional decision rules. Congressional enforcement power must not conflict with the former. In addition, to the extent those statements are vague or general, they nevertheless channel congressional enforcement discretion by pointing to follow-on inquiries that Congress must satisfactorily answer in order for the Court to uphold its legislation. The Article then applies this new approach to three new pieces of equality legislation that are either currently in force or under consideration: the Employment Non-Discrimination Act, employment protection for transgendered people, and the Genetic Information Nondiscrimination Act. This application illustrates the theory in action. It also allows us to draw more general conclusions about the theory's workability and appropriateness as a tool for reviewing future enforcement legislation, both under the Equal Protection Clause and other components of the Fourteenth Amendment.
Exchange on Equal Rights Amendment
New Politics, 1973
"An Exchange on the Equal Rights Amendment" by Lois Weiner and Phyllis Jacobson, New Politics, Winter 1973, pp. 84-87, explores the consequences of the likely destruction of protective legislation by passage of the ERA. This PDF was created by Ron Unz in his digitization of alternative media. I now think Phyllis Jacobson had the correct position. (Lois Weiner)
The 1954 United States Supreme Court decision in Oliver L. Brown et.al. v. the Board of Education of Topeka (KS) et.al. 1 is perhaps one of the most discussed judgments because of its significant judicial turning points in the development of civil rights movements not only in America but also in other parts of the globe. Brown in fact dismantled the legal basis for racial segregation in schools and other public facilities in the disguise of "separate but equal' doctrine. As well as it laid the foundation for shaping future national and international policies regarding human rights. Brown confronted a vivid sense of social realities, a sense that was entirely missing from the legal culture at that time. Though Brown has always enjoyed a very high and sophisticated profile in the literatures and jurisprudence of constitutional law discussion, this article tends to find out the other side of the story; where courts' decision making was much influenced by other factors and not by merely interpretation of the normative constitutional theories. The significance of Brown decision lies in the fact that it teaches certain important positive constitutional theory. It also shows how government and political institutions influence and interact with each other, and how features of politics and institutional structure influence the creation and development of constitutional doctrine, i.e. how constitutional doctrine works and develops over time.
Equality Dissonance: Jurisprudential Limitations and Legislative Opportunities
2011
4. Id. at 789. 5. "A compelling interest exists in avoiding racial isolation, an interest that a school district, in its discretion and expertise, may choose to pursue." Id. at 797 (Kennedy, J., concurring). 6. Id. at 788. 7. Id. at 789. 8. 1 use the term "voluntarily" to distinguish integration plans that school boards adopted by choice from those plans that school boards adopted pursuant to a court order to eliminate the vestiges of state-mandated segregation. 9. See, e.g., JONATHAN KOZOL, THE SHAME OF THE NATION: THE RESTORATION OF APARTHEID SCHOOLING IN AMERICA 240 (2005) (quoting Professor Roger Wilkins that many Americans feel "morally exhausted" regarding racial integration, although much of this exhaustion may stem from compulsory or court-ordered school integration). 10. 347 U.S. 483 (1954). 93. See., e.g., SCHOOL RESEGREGATION: MUST THE SOUTH TURN BACK? (John Charles Boger & Gary Orfield, eds., 2006); GARY ORFIELD & CHUNGMEI LEE, RACIAL TRANSFORMATION AND THE CHANGING NATURE OF SEGREGATION (2006) available at http://civilrightsproject.ucla.edu/research/k-12-education/integration-and-diversity/racialtransfonrmation-and-the-changing-nature-of-segregation/orfield-racial-transformation-2006.pdf; JONATHAN KozOL, THE SHAME OF THE NATION: THE RESTORATION OF APARTHEID SCHOOLING IN AMERICA, (2005). 94. Id. at 9.
This article reviews two recent United States Supreme Court decisions concerning civil rights: Shelby County v. Holder, and United States v. Windsor. In Shelby County v. Holder, the Court invalidated an important section of the Voting Rights Act, which designated certain jurisdictions as requiring " preclearance " for changes in their election laws. In United States v. Windsor, the Supreme Court found unconstitutional a provision of the Defense of Marriage Act which defined marriage as between a man and a woman for the purpose of federal law. This article identifies two points of commonality between these two decisions: an emphasis on federalism, and on a formal conception of equality. It concludes by suggesting that certain aspects of the decision in United States v. Windsor might point towards a more substantive conception of equality.