Bond Repudiation, Tax Codes, the Appropriations Process and Restitution Post-Eminent Domain Reform

This brief comment suggests where the anti-eminent domain movement might be heading next

The New Constitutional Right to Maintenance in the United States

The 2003, United States Supreme Court case of Lawrence v. Texas is not a maintenance case. It abolished laws against sodomy. In doing so, however, it overruled the case which prevented a right to maintenance in the United States. In the 1937 case of West Coast Hotel v. Parrish, the Supreme Court, although sustaining a minimum wage law, nevertheless did so on the sole basis of demoting liberty (supposed by the Court to forbid minimum wage laws) to an unenforceable interest. The notion of an unenforceable interest was part of the scrutiny regime established in West Coast Hotel. The regime said that most facts—including maintenance—were subject to government discretion as long as that discretion was rationally related to a legitimate government interest. This, the Court felt, was necessary in order to rein in liberty. Lawrence v. Texas has ended that regime by finding an individually enforceable right to liberty, elevating it from its previously unenforceable status as an interest. We currently have no idea what standard the United States Government must meet in order to violate the new individually enforceable right to liberty. However, the scrutiny regime has clearly been abolished because its basis—the demotion of liberty to an unenforceable interest—has been overruled. Even as an unenforceable interest, the Supreme Court had prepared the ground for a Constitutional reevaluation of maintenance in a case pursuant to West Coast Hotel. In United States v. Carolene Products, the Court sustained a law banning substitute ingredients in milk, on the basis that maintenance is important to health. Nevertheless, in 1989, the Court, in DeShaney v. Winnebago County, found specifically that maintenance was not an individually enforceable right; it based this decision on the idea that liberty had been demoted to an unenforceable interest. The anomaly—and the larger dispute as to whether liberty ever had anything to do with minimum wage laws or maintenance in the first place—ended with Lawrence v. Texas. We are in the same position with respect to maintenance as we are with respect to liberty. The Court has not yet indicated no idea what standard the United States Government must meet in order to violate the new individually enforceable right to maintenance. However, we do know one thing: maintenance is now an individually enforceable right in the United States. This is a profound change in the Constitutional history of the United States which, given the predominance of the United States in world legal policy, will affect the social policies of every other nation

Finding New Constitutional Rights through the Supreme Court’s Evolving “Government Purpose” Test under Minimum Scrutiny

By now we all are familiar with the litany of cases which refused to find elevated scrutiny for so-called “affirmative” or “social” rights such as education, welfare or housing: Lindsey v. Normet, San Antonio School District v. Rodriguez, Dandridge v. Williams, DeShaney v. Winnebago County. There didn’t seem to be anything in minimum scrutiny which could protect such facts as education or housing, from government action. However, unobtrusively and over the years, the Supreme Court has clarified and articulated one aspect of minimum scrutiny which holds promise for vindicating facts. You will recall that under minimum scrutiny government’s action is sustained if it is rationally related to a legitimate government purpose. That has seemed hopelessly vague. However, through a series of cases the Supreme Court has now made it clear that the three prongs of the test—rationality, relationship and government—are questions of fact for the trier of fact. This opens up the possibility that civil discovery can show, with respect to criteria for these prongs, that government fails to meet minimum scrutiny. Actually, the tendency of the Court’s minimum scrutiny jurisprudence is to severely disfavor discretion, and strongly favor factual showing, in minimum scrutiny adjudication

Did You Happen to Notice that Lawrence v. Texas Overruled West Coast Hotel v. Parrish?

The article points out, for the first time, the way in which Lawrence v. Texas overruled West Coast Hotel v. Parrish. Lawrence\u27s overruling of West Coast is the first step in the demise of the minimum scrutiny regime, which the Court established in West Coast in 1937

Why Guru Nanak Is Another Nail in the Coffin of West Coast Hotel v. Parrish

In Guru Nanak v. Sutter, the Ninth Circuit upheld RLUIPA by accepting its conflation of individualized assessments and substantial burden. Although RLUIPA involved a misreading of Oregon v. Smith, it was a misreading the Ninth Circuit adopted. The question is, why did Sutter counsel allow the misreading of Smith, especially since Smith lost? It is because, in general, the American bar has failed to see that there has been a substantial corrosion of the scrutiny regime established by West Coast Hotel v. Parrish. They are in denial: they can\u27t believe that the scrutiny regime could ever fall. And yet, the Court in Lawrence v. Texas -- which established an individually enforceable right to liberty -- not only implicitly overruled the West Coast rationale that liberty needed to be controlled -- but also, it set up a test which is not even part of the scrutiny regime. Guru Nanak affirms the undermining of the scrutiny regime, and RLUIPA will probably be upheld if Guru Nanak is appealed. Part of the reason it will be upheld, is that those opposing RLUIPA do not know how to argue in our new Constitutional epoch, an epoch in which West Coast Hotel has been left far behind. Together, Guru Nanak and Lawrence argue a revisiting of all health and welfare regulation. The bar should take note

A Complete Property Right Amendment

The trend of the eminent domain reform and Kelo plus initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns

Lawrence v. Texas Overrules San Antonio School District. v. Rodriguez

San Antonio School District v. Rodriguez used the scrutiny regime to decide whether there was an Equal Protection right to housing. However, Lawrence v. Texas abolished the scrutiny regime. So how do we evaluate whether there is an education right under Equal Protection? The right to education in the Texas Constitution shows us that we use the liberty Equal Protection right to determine if state laws are essential to education; this is the meaning of Lawrence\u27s rule that laws are not permitted respecting liberty which do not substantially further a legitimate state interest. Note that this takes substantially from intermediate scrutiny, and legitimate from minimum scrutiny, but it is the test for liberty, not an argument of the scrutiny regime. The essential to education Equal Protection test, overrules San Antonio

Finding the Constitutional Right to Education in San Antonio School District v. Rodriguez

In Lawrence v. Texas, the Supreme Court abolished the scrutiny regime because it impermissibly interfered with an important fact, liberty. And yet, even in earlier cases which ostensibly upheld the scrutiny regime, it is difficult to see that the Court ever did so to the detriment of facts it considered important. In short, the Court often (always?) found itself raising the level of scrutiny for a fact in the same case it upheld the regime, leaving us to wonder if the scrutiny regime ever actually had any effect at all, or even whether the Court felt it was relevant. As we shall see, the precedent in this regard is one of the first cases to uphold the scrutiny regime, United States v. Carolene Products, Inc. Scrutiny cases in which the Court sustains the scrutiny regime, but also elevates scrutiny for a particular fact, show the Court engaging in its alternative and little-known method for evaluating the importance of facts. Carolene Products shows us that the Court asks if maintenance and government are indicia of the fact. If they are, the Court exempts them from the scrutiny regime. Thus, in cases, such as San Antonio School District v. Rodriguez, which seem to threaten a fact (such as education in the case of San Antonio), what we find instead is the vindication of a fact the Court finds important. The scrutiny regime is not decided because it is not reached. This is how the Court laid the groundwork for the elimination of scrutiny regime in Lawrence. Problematizing the scrutiny regime for important facts meant checkmate for the scrutiny regime. The end game was in sight from the moment the scrutiny regime was established because the Court grew a body of alternative jurisprudence within the very cases which sustained the scrutiny regime. Putatively the scrutiny regime had no boundaries; thus, once the Court adjudicated a fact outside the regime, as it did in Lawrence, the reign of the regime had ended. The alternative jurisprudence of the Court came into its own

Every Law Maintains an Important Fact: The Supreme Doctrine of the New Fourth Constitutional Epoch

Every law maintains an important fact: out of the political welter this doctrine has emerged as the supreme doctrine of the new fourth Constitutional epoch. It is widely understood that the scrutiny regime instituted by West Coast Hotel v. Parrish, is but one of three which have determined applications of the Constitution since its ratification. However, what is less widely known is that three recent cases illustrate how the third epoch has ended and the concerns of the new epoch. Currently the cases are litigated in terms of the meaning of, every, maintain and important

Zoning and Eminent Domain under the New Minimum Scrutiny

Recently the Supreme Court has made it clearer that minimum scrutiny is a factual analysis. Whether in any government action there is a rational relation to a legitimate interest is a matter of determining whether there is a policy maintaining important facts. This has come about in the Court’s emerging emphasis on developing fact-based criteria for determining government purpose. Thus, those who want to affect zoning and eminent domain outcomes should look to what the Court sees as important facts, and whether government action is maintaining those facts with its proposed land use or eminent domain action