Toward one America: A vision in law

New York University Law Review

Volumn 83, Issue 2, 2008, Pages 323-336

  Wilkinson III, J Harvie ^a  

^a United States Court of Appeals for the Fourth Circuit ^*

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EID: 45949099601     PISSN: 00287881     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (27)

1. 531 U.S. 98 (2000).
2. Id. at 128-29 (Stevens, J., dissenting).
3. See, e.g., Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824); McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819); Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).
4. 198 U.S. 45, 53 (1905).
5. 410 U.S. 113, 153-54 (1973).
6. See, e.g., Lawrence v. Texas, 539 U.S. 558 (2003); Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992).
7. E.g., United States v. Morrison, 529 U.S. 598 (2000) (striking down civil damages provision of Violence Against Women Act); United States v. Lopez, 514 U.S. 549 (1995) (striking down federal statute regulating gun use).
8. E.g., City of Boerne v. Flores, 521 U.S. 507 (1997) (holding that Religious Freedom Restoration Act exceeds Congress's power under Section 5).
9. See Harper v. Va. Bd. of Elections, 383 U.S. 663 (1966) (holding that poll tax imposes unconstitutional restriction on franchise).
10. See, e.g., Connor v. Finch, 431 U.S. 407, 431 (1977) (Powell, J., dissenting) ("[L]egislative plans are likely to reflect a State's political policy and the will of its people more accurately than a decision by unelected federal judges.").
11. See, e.g., Kevin Simpson, Marriage, Gay Rights: Amend. 43 Supporters Revel in Double Victory, DENVER POST, Nov. 9, 2006, at B06 (noting that seven states passed constitutional amendments banning same-sex marriages in 2006). While the proposed Federal Marriage Amendment has not passed, the fact that it has been so vigorously debated as a constitutional option was bound to deepen social division.
12. See Alan Cooperman, Gay Marriage as 'the New Abortion': Debate Becomes Polarizing as Both Sides Become Better Organized, Spend Millions, WASH. POST, July 26, 2004, at A03 (describing debate).
13. U.S. CONST. pmbl.
14. U.S. CONST. art. I, § 8, cl. 1.
15. The Rehnquist Court invalidated the civil damages provision of the Violence Against Women Act and the entire Gun-Free School Zones Act as exceeding Congress's Commerce Clause powers. United States v. Morrison, 529 U.S. 598 (2000); United States v. Lopez, 514 U.S. 549 (1995). But see Gonzales v. Raich, 545 U.S. 1 (2005) (holding that federal Controlled Substances Act does not exceed Commerce Clause).
16. U.S. CONST. amend. V.
17. See, e.g., Okla. Tax Comm'n v. Jefferson Lines, Inc., 514 U.S. 175, 200 (1995) (Scalia, J., concurring) ("[T]he 'negative Commerce Clause' . . . is 'negative' not only because it negates state regulation of commerce, but also because it does not appear in the Constitution.").
18. See Cooley v. Bd. of Wardens, 53 U.S. (12 How.) 299, 319 (1851) (recognizing dormant aspect of Commerce Clause).
19. See Gen. Motors Corp. v. Tracy, 519 U.S. 278, 287 (1997) ("The negative or dormant implication of the Commerce Clause prohibits state taxation or regulation that discriminates against or unduly burdens interstate commerce and thereby impedes free private trade in the national marketplace." (internal citations and quotations omitted)).
20. See Gade v. Nat'l Solid Wastes Mgmt. Ass'n, 505 U.S. 88, 108 (1992) ("[U]nder the Supremacy Clause, from which our pre-emption doctrine is derived, 'any state law, however clearly within a State's acknowledged power, which interferes with or is contrary to federal law, must yield.'" (quoting Felder v. Casey, 487 U.S. 131, 138 (1988))).
21. See supra Part II.
22. "[A]sk not what your country can do for you - ask what you can do for your country." John F. Kennedy, Presidential Inaugural Address (Jan. 20, 1961) (transcript available at http://www.yale.edu/lawweb/avalon/presiden/ inaug/kennedy.htm).
23. Gratz v. Bollinger, 539 U.S. 244, 268-71 (2003); Grutter v. Bollinger, 539 U.S. 306, 332 (2003).
24. Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738, 2755 (2007).
25. For example, Justice Breyer predicated much of his dissent in Parents Involved on the idea that affirmative action would produce "one America." Id. at 2824 (Breyer, J., dissenting).
26. See Grutter, 539 U.S. at 343 ("We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today."); Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 403 (1978) (Blackmun, J., concurring) ("At some time, however, beyond any period of what some would claim is only transitional inequality, the United States must and will reach a stage of maturity where action along this line is no longer necessary.").
27. U.S. CONST. amend. XIV, § 1.