Bolling v. Sharpe- 14th Amendmentequal protection federal via 5th Amendment

t 1954. SCt unanimously held school segregation in D.C. unconstitutional.

t Applied similar reasoning of Brown regarding 14^th Amendmentto the federal government, and seemed to incorporate the 14^th Amendment’s equal protection clause into the 5^th Amendment.

t According to Guido Calabresi, this case, not Korematsu, is the decision that caused Justice Blackthe deepest pangs of conscience at the end of his life.

t Bork’s critiqueof Bolling:

n If SCt were guided by USC, it would have had to rule that it had no power to strike down D.C.’s laws.

n Instead, it seized upon due process clause of 5^th Amendment, which does apply to federal government, and announced that this due process clause included the same equal protection of the laws concept as the equal protection clause of the 14^th Amendment.

n This reasoning rested on no precedent or history. In fact, history compels the opposite conclusion. Framers of 14^th Amendmentadopted due process clause of 5^th Amendmentbut though tit necessary to add the equal protection clause, obviously understanding that due process, the requirement of fair procedures, did not include the requirement of equal protection in the substance of state laws.

n Thus, Bolling was a clear rewriting of USC by WarrenCourt. Bolling was a substantive due process decision in same vein as Dred Scott and Lochner.

(1) Only justification offered in opinion was that it would be unthinkable that the states should be forbidden to segregate and the federal government allowed to.

(2) This was indeed unthinkable as matters of morality and politics. Most certainly, Congress would not and could not have permitted that ugly anomaly to persist, and would have had to repeal D.C.’s segregation statutes. But there is no way to justify WarrenCourt’s revision of USC to accomplish its reforms.

t Koppelman’s critiqueof Bork.

n Borkanachronistically uses framers’ intent of 14^th amendment as guide to interpreting 5^th amendment (an objection that can be made against Bolling).

n Borkoffers no evidence to support his speculation that Congress “would have had to repeal D.C.’s segregation statutes.” In fact, after Brown, Senate came within one vote of stripping SCt of jurisdiction over segregation cases.

n Nonetheless, Bork’s basic point is sound. It is hard to justify Bolling on any basis other than substantive due process. Does this mean (as Bork claims) that the case is wrongly decided? Is SCt’s holding defensible? On what basis?

Date: 2015-01-02; view: 712