Equality, Social Welfare and Equal Protection

As my contribution to this forum, I thought I would try to make a few tentative distinctions concerning the various tasks judges and commentators seek to assign to the Equal Protection Clause. Approaching it from this perspective spares me the necessity of getting into what one of the earlier speakers described as the more Byzantine details of current equal protection doctrine. Such a discussion would inevitably lead to criticisms of the Judiciary and certain commentators, to comparisons between what some might call the liberal and conservative approaches, and to discussion concerning the needs of a changing and dynamic society. Each of these topics would be an interesting subject in its own right, but I do not think that extended discussion of any or all of them will get us any closer to a clear understanding of what it is that the Equal Protection Clause is supposed to do

ABA and AALS Accreditation: What’s ‘Religious Diversity’ Got To Do With It?

The subject of this essay is whether, and under what circumstances, the religious commitment of an institution should become an issue in the law school accreditation process. Originally presented at the March 1994, Marquette University Conference on Religiously Affiliated Law Schools, this essay begins with the commonly shared assumption that some tensions do exist between religiously affiliated law schools and their accrediting agencies, the American Bar Association (ABA), and the Association of American Law Schools (AALS). For present purposes, the task will be to differentiate those tensions that arise from the accreditation process itself, and those that arise from the religious identity or mission of the institution

Foreword: The ‘Right to Marry’ in the Decisions of the United States Supreme Court

Given the importance of Loving in American constitutional law, we were somewhat surprised to learn that no commemorative conferences or symposia had been planned to mark the thirtieth anniversary of the decision. We designed our conference, Law and the Politics of Marriage: Loving v. Virginia After 30 Years, to fill that gap. The conference was held at The Catholic University of America\u27s Columbus School of Law, 19-21 November 1997, and was co-sponsored by three institutions, each having a unique and abiding interest in the subject matter: The Catholic University of America, the Howard University School of Law, and the J. Reuben Clark School of Law at Brigham Young University. The goal of the conference, and of the papers it encouraged, was to explore the implications of the Loving decision for Mr. and Mrs. Loving, for the United States in the late 1960s, and for American family and constitutional law today and in the future. This issue of the Catholic University Law Review contains some of the papers presented at that conference. Others are printed in Volume 12 of the Brigham Young University Journal of Public Law, and Volume 41 of the Howard University Law Journal. Read together, they shed considerable light on the history, significance, and contemporary understanding of the Court\u27s decision in Loving

Federalism, Human Rights, and the Realpolitik of Footnote Four

The burden of this Essay is to argue that the conventional wisdom about the Court\u27s resolution of the crisis of 1937 both begs the question of the Court\u27s jurisdiction to prescribe substantive rules governing our rights,\u27 and misses the point that history proves the Court unfit to be the sole repository of such a sweeping power. Part I will argue that the Founders\u27 vision of a compound American republic was lost when the Supreme Court of the United States used the New Deal controversy over the limits of judicial review to accomplish one of the most far-reaching power grabs in the history of the Republic. Part II will discuss how erroneous assumptions about the prescriptive jurisdiction of the Court lead lawyers, judges, academics, and politicians to forget that the crisis of 1937 was about neither values nor political participation. It was about power. They therefore miss Madison\u27s point: No branch of government can be trusted with preemptive power to define our rights and duties. Parts III and IV argue that the Supreme Court\u27s post-New Deal vision of the role of the political branches in the struggle for human dignity and equal rights is too weak, and that it has done great harm to the body politic each time it has attempted to settle a difficult political and moral issue by striking what appears, at the time, to be a balance between otherwise irreconcilable world-views. From this perspective, the Rehnquist Court serves the cause of civil rights each time it reaffirms the compound nature of our republic by forcing a political solution. The Essay concludes by making three points about the Realpolitik of footnote four. The first is that it should come as no surprise that politicians are sometimes either unable or unwilling to protect the liberty, security, and equal rights of each person. The Court does not do so either. Footnote four and the text it accompanies hold that the type and degree of protection owed by the Justices themselves to the litigants who appear before them varies in inverse proportion to the Court\u27s perception of their social status or need. The second is that when politicians and judges take the oath of office prescribed by Article VI, each of them undertakes the same sacred duty to the whole person embodied in each individual subject to their political jurisdiction. The oath-like the Constitution they are sworn to support and defend -is neither selective nor abstract. Its stated goal is the equal protection of the whole person and citizen, not disembodied values, abstract liberties, or factional interests. The third point follows from the first two. Like the framers of the Fourteenth Amendment, FDR attacked the Court because he believed that it had taken sides in what he called the unending struggle between those who would preserve this original broad understanding of the Constitution as a layman\u27s instrument of government and those who would shrivel the Constitution into a lawyer\u27s contract. Until the Court accepts the proposition that a judiciary perceived for any reason to be biased or otherwise activist contributes to the destruction of the fabric of republican self-government envisioned in Federalist 51, it is pointless to decry the increasingly vitriolic tenor of the rhetoric surrounding judicial decisions and nominations. In the compound republic of America, it is the threat that different governments will control each other that provides the guarantee that at the same time... each will be controlled by itself