American Constitutionalism in Historical Perspective (packet)

Prob w/ One Way Ratchet: What if Congress did fact-finding and found that life begins at conception and not at the point of viability? Can it pass a law against abortion? This violates the one-way ratchet b/c then infringes on const rt of privacy but expands rts of the fetus

May be a contraction here b/c not giving rts to other minority groups.

Harlan dissent:

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   Overstepping Marbury Power: concerned that this expanded cong power will undercut judiciary’s Marbury powers. For Congress to take this power, it must engage in fact finding, which it h/n done here. D/n believe congress should be empowered to restrike the balance. Just engage in fact finding, leave the normative value det of unreasonable burden on a fund rt to the judiciary who uses principled decisions. Congress c/n have substantive powers, at most can have remedial powers on facts of SC v. Katzenbach). P. 954
   
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   Unprincipled decision: why limit to PRs, what about other non-English literate minorities! No principled arg for preferring one group over another. Placing an undue burden on other minority groups, allowing Congress to engage in interest group politics.
   

Rome v. US, 1980: affirmed DOJ decision to deny pre-clearance to a town that wanted to move from district to at large elections due to its potentially discrim impact, in accord w/ VRA. If no Voting Rights Act in play may have had a more difficult time arguing that the change violated equal protection – w’ve had to show disprop impact and racist purpose (de jure seg) – but here, Congress has been allowed to make findings that make it easier to find a constitutional violation. Note that in light of Adarand, the ct struck down portions of the Voting Rights Act in Reno v. Shaw.

1. 
   Mobile: reasonable justification for at large elections. But then Congress found something the judiciary d/n. Disparate impact i/n enough at const level but is enough at statutory level. Congress found long history of racist disenfranchisement of blacks in the South. In this context, disparate impact means invidious purpose.
   

VRA of 1970: 1^st provision: 18 is now rt to vote, impetus is mandatory conscription during Vietnam, 2^nd provision: struck down literacy tests nationwide. Justices was unanimous in finding this suspension constitutional. 3^rd provision: upheld eradication of residency req to vote.

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   Oregon v. Mitchell: strikes down uniform 18 year old age req in the VRA of 1970 as applied to state elections, can still be used for fed elections. (Black). Conflict in how age is defined, is it a qualification or a manner regulation? If it is a qualification reg, Art. I, sec. 2 says that states set the qualifications for state and fed elections. If it is a manner reg, Art. I, sec. 4 says these are set by the state but may be altered by Congress in w/in national interest. TPM can include qualifications (abuse of text!) so Congress can change age in fed not state elections. No one else agrees w/ this reasoning, sees it only as a qualification reg so Congress can only change timing of elections.
   
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      Result: 26^th A. was passed w/in yr b/c decision was hard to implement given that state and fed elections are administered together. Ramirez: ex-felons and age 21 mentioned in sec. 2, but ct takes different view on the test w/ regard to voting age then felons’ ability to vote. Age is like gender b/c allows expansion of rts although sec. 2 only says male and age 21.
      
   2.