VAWA

[Spillenger, Clyde]

My problem with the Civil Rights Cases is that it confines so narrowly the
scope of permissible Congressional power to implement the norm of equality.
In my view, the Fourteenth Amendment is not solely about the wrongful acts
of states; it establishes a norm of equal citizenship.  There are many
conceivable Acts of Congress regulating private parties that could without
much argument be seen as promoting and helping to implement this norm of
equal citizenship, including the private discrimination provisions in the
Civil Rights Acts of 1875 and 1964.  This "norm" approach obviously has the
vice of being less administrable than an approach that focuses solely on
state action, but I think that it is in keeping with the spirit of what the
Fourteenth Amendment was fundamentally about.

Clyde Spillenger
UCLA School of Law
(310) 825-7470
spilleng at mail.law.ucla.edu


> -----Original Message-----
> From: DAVID E. BERNSTEIN [SMTP:DBERNSTE at WPGATE.GMU.EDU]
> Sent: Wednesday, September 29, 1999 2:52 PM
> To:   CONLAWPROF at listserv.ucla.edu
> Subject:      Re: VAWA
>
> I re-read the Civil Rights Cases recently, and putting "racial aggage"
> aside, let's say the case had involved, say, Italian-Americans, or
> Scottish Americans.  I don't recall seeing any obvious flaws in the
> Supreme Court's reasoning, and I didn't find Justice Harlan's opinion
> particularly persuasive.  So: What exactly is the flaw in the Civil
> Rights Cases, other than dislike of the result (which would then be the
> Reconstruction Congress' fault, not the Court's).
>
> > But in order to affirm, the Court will have to find power
> > lacking under the 14th Amendment. The Fourth Circuit relied on
> > the 1883 Civil Rights Cases, holding that Congress could not
> > regulate private conduct under section 5. Is the Court willing to
> > reaffirm the Civil Rights Cases, with all the racial baggage that
> > such a move would entail?  Or can they find a way to finesse it by
> > saying that the problem isn't private action but gender
> > discrimination? I think it will be a really hard case to affirm--and
> > I think there are at least 3 and maybe as many as 5 Justices who
> > would dearly love to do so.
> >
> > Suzanna Sherry
> > University of Minnesota Law School
> > sherry at maroon.tc.umn.edu
> > 612-625-2339
> >
> > http://www.law.umn.edu/FacultyProfiles/SSherry.htm
>
> David E. Bernstein
> Associate Professor
> George Mason University
> School of Law
> 3401 N. Fairfax Drive
> Arlington, VA 22201
> (703) 993-8089
> dbernste at wpgate.gmu.edu
> <http://members.aol.com/deliotb/home.html>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.ucla.edu/cgi-bin/mailman/private/conlawprof/attachments/19990929/4ee197da/attachment.htm