Randy E. Barnett
- Published in print:
- 2013
- Published Online:
- October 2017
- ISBN:
- 9780691159737
- eISBN:
- 9781400848133
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691159737.003.0010
- Subject:
- Law, Constitutional and Administrative Law
This chapter examines the revival of the presumption of constitutionality and its almost immediate qualification in the form of Footnote Four, which it argues is inconsistent with the Ninth ...
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This chapter examines the revival of the presumption of constitutionality and its almost immediate qualification in the form of Footnote Four, which it argues is inconsistent with the Ninth Amendment. The era in which the Supreme Court attempted to scrutinize the necessity and propriety of state and federal restrictions on liberty came to a close as the perceived legitimacy of legislative activism continued to grow. The doctrinal vehicle used by the New Deal Court to overturn the Progressive Era precedents was the adoption of a presumption of constitutionality. The chapter first provides an overview of Footnote Four before discussing the Ninth Amendment, which mandates that unenumerated rights be treated the same as those that are listed. It shows that Footnote Four runs afoul of the text of the Constitution, and more specifically the Ninth Amendment.Less
This chapter examines the revival of the presumption of constitutionality and its almost immediate qualification in the form of Footnote Four, which it argues is inconsistent with the Ninth Amendment. The era in which the Supreme Court attempted to scrutinize the necessity and propriety of state and federal restrictions on liberty came to a close as the perceived legitimacy of legislative activism continued to grow. The doctrinal vehicle used by the New Deal Court to overturn the Progressive Era precedents was the adoption of a presumption of constitutionality. The chapter first provides an overview of Footnote Four before discussing the Ninth Amendment, which mandates that unenumerated rights be treated the same as those that are listed. It shows that Footnote Four runs afoul of the text of the Constitution, and more specifically the Ninth Amendment.
Robert A. Burt
Frank Iacobucci (ed.)
- Published in print:
- 2017
- Published Online:
- May 2018
- ISBN:
- 9780300224269
- eISBN:
- 9780300231854
- Item type:
- chapter
- Publisher:
- Yale University Press
- DOI:
- 10.12987/yale/9780300224269.003.0010
- Subject:
- Law, Constitutional and Administrative Law
This chapter discusses race relations as the paradigmatic judicial effort to protect vulnerable groups under the commitment made in Footnote Four. After the Supreme Court correctly held in Brown I ...
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This chapter discusses race relations as the paradigmatic judicial effort to protect vulnerable groups under the commitment made in Footnote Four. After the Supreme Court correctly held in Brown I that racial segregation in schools was unconstitutional, and in Brown II wisely paused to enlist the assistance of district courts, the federal Congress, the executive, and others, the Court then failed to continue this approach after the passing of the Civil Rights Act of 1964, the Voting Rights Act of 1965, and the Fair Housing law in 1968 by requiring past intentionally imposed race discrimination in public schools to obtain judicial relief. The chapter then offers suggestions on what the Court could have done—an approach of less intervention by the Court imposing its views of equality on the parties and more promotion of deliberation among the parties to achieve democratic equality.Less
This chapter discusses race relations as the paradigmatic judicial effort to protect vulnerable groups under the commitment made in Footnote Four. After the Supreme Court correctly held in Brown I that racial segregation in schools was unconstitutional, and in Brown II wisely paused to enlist the assistance of district courts, the federal Congress, the executive, and others, the Court then failed to continue this approach after the passing of the Civil Rights Act of 1964, the Voting Rights Act of 1965, and the Fair Housing law in 1968 by requiring past intentionally imposed race discrimination in public schools to obtain judicial relief. The chapter then offers suggestions on what the Court could have done—an approach of less intervention by the Court imposing its views of equality on the parties and more promotion of deliberation among the parties to achieve democratic equality.
