Commerce Power Champion v. Ames (1903) Shreveport Rate Case (1914) Hammer v. Dagenhart (1918) Stafford v. Wallace (1922) NLRB v. Jones & Laughlin Steel.

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Presentation transcript:

Commerce Power Champion v. Ames (1903) Shreveport Rate Case (1914) Hammer v. Dagenhart (1918) Stafford v. Wallace (1922) NLRB v. Jones & Laughlin Steel Corp. (1937) Edwards v. California (1941) Wickard v. Filburn (1942) Heart of Atlanta Motel v. United States (1964) Katzenbach v. McClung (1964) City of Philadelphia v. New Jersey (1978) Kassel v. Consolidated Freightways Corp. (1981) International Relations Missouri v. Holland (1920) U.S. v. Curtiss ‑ Wright Export Corp. (1936) U.S. v. Belmont (1937) Korematsu v. U.S. (1944) Youngstown Sheet & Tube Co. v. Sawyer (1952)

The Burger Court

Membership, 1969 & 1986 Burger (1969) R-MN Black (1937) D-AL Douglas (1939) D-WA Harlan (1955) R-NY Brennan (1956) D-NJ Stewart (1958) R-OH White (1962) D-CO Fortas (1965) D-TN Marshall (1967) D-NY Burger (1969) R-MN Powell (1972) R-VA Stevens (1976) R-IL Rehnquist (1972) R-AZ Brennan (1956) D-NJ O’Connor (1982) R-AZ White (1962) D-CO Blackmun (1970) R-MN Marshall (1967) D-NY

Generalizations A preference for government over the individual? A preference for executive over legislative power? An enhanced concern for property rights? A diminished concern for political rights?

14th Amendment, ¶§ 1 [1868] All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Three Tiers of Equal Protection Rational Basis – applicable to most governmental classification, including economic. The burden of proof is on the challenging party to demonstrate that the government could have no rational basis for its discrimination–that it is arbitrary, capricious, and patently discriminatory. Strict Scrutiny – applicable to suspect classifications, like race. [ See Korematsu.] The burden of proof is on the government to demonstrate that its regulation is essential to a compelling governmental interest. As a practical matter, the burden is never met. Scalia has said the only circumstances he could imagine would be a race riot in a prison, where government might find it necessary on a temporary basis to separate inmates by race. Intermediate Scrutiny – applicable to semi-suspect classifications, like sex. Here the burden of proof is on the government to demonstrate that its regulation is substantially related to an important governmental interest, but “separate, but equal” is permissible.

The Rehnquist Court 1986-present

Membership, 1986 & present Burger (1969) R-MN Powell (1972) R-VA Stevens (1976) R-IL Rehnquist (1972) R-AZ Brennan (1956) D-NJ O’Connor (1982) R-AZ White (1962) D-CO Blackmun (1970) R-MN Marshall (1967) D-NY Rehnquist (1969/86) R-AZ Kennedy (1988) R-CA Stevens (1976) R-IL Scalia (1986) R-DC Souter (1990) R-NH O’Connor (1982) R-AZ Ginsburg (1993) D-DC Breyer (1994) D-MA Thomas (1992) R-MO

Comparative Liberalism,

Generalizations A preference for government over the individual? A preference for executive over legislative power? An enhanced concern for property rights? A diminished concern for political rights?