Constitutional Law Commons^™

Understanding Affirmative Action, David Benjamin Oppenheimer

UC Law Constitutional Quarterly

This Article describes the law and practice of affirmative action under the United States Supreme Court's new restrictive rules, and presents the details of over one hundred studies demonstrating the prevalence of discrimination against women and minorities in the areas of education, employment, housing, health care, economic growth, wealth and poverty, and in the operation of the criminal justice system. Following a discussion of the law and practice of affirmative action and the psychology of discrimination, this Article presents results of studies demonstrating that public education throughout America is largely segregated, with minority children attending vastly inferior schools. It reports …

Equal Protection, Unequal Political Burdens, And The Ccri, Vikram D. Amar, Evan H. Caminker

UC Law Constitutional Quarterly

States certainly have the right to repeal previously enacted race-based affirmative action programs. As Professors Amar and Caminker point out, however, a rarely discussed line of Supreme Court authority identifies some federal constitutional limitations on the ways in which states may effect repeal. The most coherent and sophisticated reading of this line of cases suggests the following: When a state law not only repeals programs that specially benefit racial minorities, but also entrenches that repeal by making reenactment of those programs in the future particularly difficult, such a law runs contrary to the Equal Protection Clause. Taking these cases as …

And To The Republic For Which It Stands: Guaranteeing A Republican Form Of Government, Catherine A. Rogers, David L. Faigman

UC Law Constitutional Quarterly

Article IV, Section 4 of the Constitution was intended to safeguard against instability and oppression of voting minorities and to provide a check on factious majorities through a system of representative democracy. The state initiative process directly undermines these principles by allowing measures such as the CCRI to be enacted via direct vote of a largely uninformed population. This "direct democracy" violates the guarantee of a republican form of government in its lack of formal deliberation and debate, absence of opportunity to compromise, polarization of views, deception, and ultimate voter confusion.

This Essay also addresses the arguments in favor of …

Merit-Teaching, Yxta Maya Murray

UC Law Constitutional Quarterly

Professor Yxta Maya Murray explores the notion of Merit-Teaching - the expansion of our current ideas of merit through the inclusion of the virtues and values of "Outsiders." Using insights developed by Aristotelian moral philosophers, critical race theorists, and feminist legal theorists as her guide, Professor Murray investigates Outsiders' particular virtues, and thus merits, that are forged from the experiences of oppression. Professor Murray brings these lessons into relief through the use of storytelling - her rendition of the life stories of her grandmother, her mother, and herself - which demonstrate Outsider virtue in action.

Failure Of The Color-Blind Vision: Race, Ethnicity, And The California Civil Rights Initiative, Neil Gotanda

UC Law Constitutional Quarterly

Advocates for the California Civil Rights Initiative have argued that they seek racial justice in a color-blind society. In this Article, Professor Gotanda first analyzes race color blindness to show that the color-blind vision is far from a truly open and just vision, but instead undermines efforts to achieve genuine social justice. The second section examines Hopwood v. Texas, a recent Fifth Circuit decision, and concludes that the majority opinion pursues an extremist color-blind vision which would deny any validity to the history and culture of women or racial and ethnic minorities. The third section examines the textual language of …

Supreme Court Voting Behavior: 1995 Term, Richard G. Wilkins, Matthew K. Richards, Scott Worthington

UC Law Constitutional Quarterly

This Article, the eleventh in a series, attempts through statistical analysis to determine whether individual Justices on the United States Supreme Court (as well as the Court as a whole) voted more "conservatively," more "liberally," or about the same in the 1995 Terms as compared with past terms. The 1995 figures reveal a Court in ideological tension. Although some statistical measures suggest conservatism on the High Bench, there are notable contrary liberal indicators as well (principally in the areas of state criminal cases, federal jurisdiction, and First Amendment claims). Indeed, regression analysis demonstrates that the 1995 "liberal" movement in state …

Protective Orders In The Bankruptcy Court: The Congressional Mandate Of Bankruptcy Code Section 107 And Its Constitutional Implications, William T. Bodoh, Michelle M. Morgan

UC Law Constitutional Quarterly

It is a well-established principle of First Amendment and common law jurisprudence that a proceeding before and all papers filed with a court, particularly in the criminal context, are open to the public. Subsection 107(a) of the Bankruptcy Code codifies this public access doctrine by creating a presumption in favor of public access to all papers filed in a bankruptcy case. The subsection 107(a) presumption is, however, rebuttable. As a result, if a party in interest shows that the material sought to be protected contains a trade secret or confidential information, or is scandalous or defamatory, the bankruptcy court must …

The Allure And Danger Of Community Values: A Criticism Of Liberal Republican Constitutional Theory, Kenneth Ward

UC Law Constitutional Quarterly

This Article contends that liberal republican efforts to legitimate political authority are weakened by a tension between two benefits that liberal republicans claim arise from rights of political participation: the definition of community values, and the facilitation of individuals' deliberations about private interests. It argues that a government cannot define community values without impeding citizens' deliberations about private interests.

The Article employs Alexander Bickel's approach to judicial review. Bickel believes that we must explain how the Court can contribute to a legitimate government without undermining the majoritarian processes that ensure legitimacy by representing private interests. The liberal republicans fail to …

Constitutionality Of English-Only Provisions In The Public Employee Speech Arena: An Examination Of Yniguez V. Arizonans For Official English, Michael Albert Thomas Pagni

UC Law Constitutional Quarterly

This Note addresses a significant but rarely examined issue concerning whether a state may constitutionally require the exclusive use of the English language by its employees while performing official acts on behalf of the State. The Note focuses on the approach employed by the Ninth Circuit in determining the constitutionality of Article XXVIII of Arizona's Constitution, arguably the most restrictive of the state provisions regulating language rights, in the recent decision of Yniguez v. Arizonans for Official English. The Note concludes that not only did the majority misapply the overbreadth and public employee speech doctrines, it subsequently failed to identify …

After Midnight: The Constitutional Status Of Juvenile Curfew Ordinances In California, Susan L. Freitas

UC Law Constitutional Quarterly

Youth is not a crime. Every person, regardless of age, is entitled to the protections of the United States Constitution. This seemingly apparent fact is not a reality for America's children, who are often treated as less than "full citizens" solely because of their age. The explosive proliferation of juvenile curfew ordinances in municipalities across California is one example of such treatment. Curfews have traditionally been used as a method of social control, often imposed in times of great upheaval and emergency, but have recently become the easy solution for communities exasperated by rising juvenile crime and violence. Although curfews …

A Pro-Death, Self-Fulfilling Constitutional Contruct: The Supreme Court's Evolving Standard Of Decency For The Death Penalty, Susan Raeker-Jordan

UC Law Constitutional Quarterly

In recent Eight Amendment decisions applying the Cruel and Unusual Punishment Clause to substantive challenges to the death penalty, a plurality of the United States Supreme Court has favored employing only the "evolving standards of decency" test of constitutionality, purportedly because it is an objective measurement of cruelty and unusualness. The Article will show, however, that contrary to the assertions of some Court members, the indicia for ascertaining the evolving standard of decency are far from objective. Rather, the evidence gleaned from he "objective indicia" of legislative enactments and jury sentencing behavior can be and has been rigged to favor …

Preaching The Constitution, William E. Wiethoff

UC Law Constitutional Quarterly

No abstract provided.

Viewpoint Discrimination, Marjorie Heins

UC Law Constitutional Quarterly

Government action that disfavors speech because of its ideas or views is, as the Supreme Court recently said, "an egregious form of content discrimination," and is usually unconstitutional. However, it is not always clear precisely what makes discrimination viewpoint-based. Although the Court has recognized that disfavoring religious perspectives amounts to viewpoint discrimination, it has not yet applied this insight to government actions that target speech because it is deemed to be "political," "controversial," or "offensive." This Article addresses these questions in light of the history and basis of the viewpoint discrimination doctrine and underlying First Amendment values.

Specifically, this Article …

Reverse Racism: Affirmative Action, The Family, And The Dream That Is America, Robert S. Chang

UC Law Constitutional Quarterly

In this Essay, Professor Chang explores the interaction of race and family in the affirmative action debate. Although discrimination against women remains rampant in our society, and despite the fact that white women have been the primary beneficiaries of affirmative action, white women are being told that affirmative action hurts them because it hurts their husbands, brothers, and sons. Familial loyalty is being invoked to do the work of an explicit call for white racial solidarity. This strategy may be successful because as late as 1987, even with the increasing rate of interracial marriage, 99% of white Americans were married …

Of Kirpans, Schools, And The Free Exercise Clause: Cheema V. Thompson Cuts Through Rfra's Inadequacies, Dipanwita Deb

UC Law Constitutional Quarterly

In Cheema v. Thompson, a group of Sikh students suspended by the Livingston Union School District for carrying knives to school as dictated by their religion sued the district under the Religious Freedom Restoration Act (RFRA). The students are now back in school awaiting trial on the merits of their RFRA claim. This Note examines the Cheema case and uses it to argue that the language of RFRA as it now exists is inadequate to serve the broad religion-protective purposes for which the statute was enacted. The Note then proposes new amendments to RFRA, and tests the workability of these …

On The Rhetorical Criticism Of Judge Posner, James Arnt Aune

UC Law Constitutional Quarterly

No abstract provided.

Aggressive Panhandling Legislation And The Constitution: Evisceration Of Fundamental Rights--Or Valid Restrictions Upon Offensive Conduct, Darryl C. Delmonico

UC Law Constitutional Quarterly

The phrase "Brother, can you spare a dime?" was spawned during the Great Depression and originally evoked sympathy and compassion from all but the most hardened listeners. Fifty years later, while economic realities persist, public perceptions and legislative responses have changed. With the middle class slowly becoming extinct, a widening chasm is developing between the 'haves' and the 'have-nots.' The prevalence of panhandlers in communities across the United States is a testament to this phenomenon. With this surge in panhandling has come increased public dissatisfaction. Legislators have reacted to this dissatisfaction by enacting legislation designed to criminalize intimidating or threatening …

Rhetorical Criticism Of Legal Texts: Four Rhetoricians On Lochner V. New York, Hastings Constitutional Law Quarterly

UC Law Constitutional Quarterly

This Forum consists of four Essays which explore and analyze the rhetoric used in the Lochner opinions authored by Justices Peckham, Harlan, and Holmes. These Essays were inspired in part by Judge Richard Posner's Law and Literature: A Misunderstood Relation, and are offered to facilitate interdisciplinary dialogue between legal and rhetoric scholars on the ways legal rhetoric shapes our political and legal institutions.

Presence And Absence In Lochner: Making Rights Real, Eileen A. Scallen

UC Law Constitutional Quarterly

No abstract provided.

Does The Constitution Follow The Flag Into United States Territories Or Can It Be Separately Purchased And Sold, Marybeth Herald

UC Law Constitutional Quarterly

A 1992 Ninth Circuit decision, Wabol v. Villacnisis, revisited the issue of to what extent constitutional protections apply to United States territories. This long-troublesome question has been made more difficult by the infrequency of decisions and the varying relationships the territories have with the United States government. The Northern Mariana Islands became a Commonwealth in 1976, and were then joined with the United States in a consensual and unique relationship that is defined by a Covenant. The Covenant explicitly exempted the Northern Marianas from the application of certain constitutional provisions, including the Equal Protection Clause as applied to racial restrictions …

Supreme Court Voting Behavior: 1993 Term, Richard G. Wilkins, James L. Kimball Iii, Scott M. Peterson

UC Law Constitutional Quarterly

This Article attempts, through statistical analysis, to identify the ideological learnings of the United States Supreme Court during the October 1993 Term. The Court adopted a more liberal approach to civil litigation involving state and federal governments, but it remained relatively conservative in its approach to criminal cases and statutory civil rights issues. Justice Kennedy emerged as the Term's most influential member in cases that were decided by a one-Justice majority; he was a member of the majority in all but one of the cases so decided. Justice Souter continued his gravitation to the liberal pole of the Court, and …

Exercising The Amendment Power To Disapprove Of Supreme Court Decisions: A Proposal For A Republican Veto, Thomas E. Baker

UC Law Constitutional Quarterly

Supreme Court Justices, in their role as interpreters of the Constitution, have often determined public policy. Professor Baker, however, suggests that Congress should have a "veto" over Supreme Court decisions where the Court sets public policy contrary to congressional intent.

By using the process to amend the Constitution delineated in Article V, Congress and the state legislatures can overrule Supreme Court decisions. Through the use of a veto, Congress, and not the Supreme Court, would have the final say in the interpretation of a statute and ultimately in setting public policy.

Safeguards are already in place to ensure that this …

Reinterrogation, Marcy Strauss

UC Law Constitutional Quarterly

There is no clear delineation under Miranda and Edwards of when the police may reinterrogate a suspect after ordinarily invoking the right to counsel. Logically, the prohibition cannot be indefinite. This would violate the public policy of enabling law enforcement personnel to control crime. The goals of Miranda, Edwards, and related cases establish several factors to be weighed in determining when the prohibition against reinterrogation should end. These include the length of time since the right to counsel was invoked, whether the new crime is related to the one for which the right to counsel was invoked, whether the suspect …

License To Sell: Constitutional Protection Against State Or Local Government Regulation Of Liquor Licensing, Shelley Ross Saxer

UC Law Constitutional Quarterly

A liquor license is a valuable asset to the license holder, whether it be considered a privilege or a property interest. Liquor licenses are subject to extensive state and local regulation because they trade in a product which has historically been deemed harmful to the public health, safety, welfare, and morals. Constitutional protection against regulation is available to licensees, but the extent of this protection will depend on whether or not the liquor license is considered to be a property interest. This Article examines attributes, such as the right to obtain and the right to alienate, that are attached to …

Crisis In California: Constitutional Challenges To Inadequate Trial Court Funding, Gabrielle Tracey Letteau

UC Law Constitutional Quarterly

Inadequate funding of government is neither a unique, nor a new problem. Recent and severe cuts made to court budgets, however, threaten to destroy one of the three sacred branches of government. In California and elsewhere, these budgetary pressures bring into question several constitutional issues, such as whether the legislative branch may withhold funding to the detriment of a co-equal branch of government, and whether individual rights to access the courts are guaranteed under state and federal constitutions. This Note attempts to address these issues by examining the nature of the current financial crisis in California and offering suggestions for …

Exposing Human Rights Abuses--A Help Or Hindrance To Reconciliation, Richard Goldstone

UC Law Constitutional Quarterly

Despite the advent of the "new world order," international human rights violations remain a widespread problem. The propensities for such abuses are seen most recently through the widespread violence and genocide encountered in Yugoslavia and Rwanda. In an effort to address such abuses, the United Nations established the International War Crimes Tribunal for the Balkan States and Rwanda. The chief goals of the Tribunal are to collect data and try those accused of war crimes. Justice Richard Goldstone, the Tobriner lecturer, is the Prosecutor of the Tribunal.

In his lecture, Justice Goldstone describes how "truth commissions" have been used to …

Dangerous Misperceptions: Protecting Police Officers, Society, And The Fourth Amendment Right To Personal Security, Kathryn R. Urbonya

UC Law Constitutional Quarterly

Under the Fourth Amendment, when police officers use force, they must adhere to a "reasonableness" standard. This abstract standard, however, has left much room for interpretation, creating a common misperception of Fourth Amendment protections of personal security. Specifically, many courts use the concept of danger to decide whether force is reasonable-that is, force is justifiable so long as danger is posed to the police officers.

This Article argues that other factors-other than danger-should guide whether force is reasonable. Moreover, this Article provides specific guidelines to ascertain when the Fourth Amendment is violated.

Access To Eagles And Eagle Parts: Environmental Protection V. Native American Free Exercise Of Religion, Antonia M. De Meo

UC Law Constitutional Quarterly

The use of eagles and eagle parts, such as feathers and bones, are essential to Native American religious practices. The federal government has sought to protect American eagles through various mechanisms due to their endangered status. Under one such mechanism, Native Americans must undergo a lengthy and intricate permit process to receive eagles and eagle parts for use in religious ceremonies. Oftentimes, eagles and eagle parts are only released after periods and long as five years. Furthermore, when the needed eagles and eagle parts do arrive, they are often unfit for ceremonial use.

This Article addresses current problems with the …

State Immigration Laws And Federal Supremacy, Karl Manheim

UC Law Constitutional Quarterly

The current debate over the meaning of American federalism bears a striking resemblance to our founding struggle over states' rights. One stage where federalism continues to play out is the regulation of aliens and immigration. For most of our first century, immigration control was a state prerogative. But by the late nineteenth century, the Supreme Court equated immigration with foreign policy, thereby recognizing plenary and exclusive federal authority. This exclusivity operates to negate state power by both standard preemption doctrine and constitutional preclusion. In particular, preclusion forecloses state immigration laws even where Congress is silent since states have never possessed …

Supreme Court Voting Behavior: 1994 Term, Richard G. Wilkins, Scott M. Petersen, Matthew K. Richards, Ronald J. Tocchini

UC Law Constitutional Quarterly

This Article attempts, through statistical analysis, to identify the ideological leanings of the United States Supreme Court during the October 1994 Term. Although generally perceived as a conservative institution, the Court this Term adopted a more liberal stance in its approach to First Amendment, statutory civil rights, jurisdictional and federalism issues, and in litigation involving the federal government. Furthermore, in close cases that were decided by a one-Justice majority, the Court overwhelmingly adopted a more liberal result. Justice Kennedy remained the most influential Justice, his vote determining the outcome in over 80% of these close cases. While some of this …