Talk:United States v. Morrison/Archive1

message: I don't get it? Couldn't the girl simply go to the FBI and have the two guys convicted for violating her civil rights and lock them up for up to 30 years? The FBI is well known to use civil rights violation convictions against criminals who were not punished for violent crimes. Like the KKK's negro activist killings in the early 1960's. 195.70.48.242 14:34, 11 January 2006 (UTC)
replies: text: No.  128.255.8.84 02:12, 29 March 2007 (UTC)

message: Are you disputing those are facts of the case?  Do you have a counter cite as that is what Taylor's articles clearly say? 69.105.0.115 02:20, 22 August 2006 (UTC)
thread_title: Facts of Case

message: This sentence is simply incorrect. "...the Court majority ruled that the theory that states are "sovereign" in the area of law enforcement overrode the commerce clause and the equal protection clause."
The courts real rationale was that,
A. Gender motivated crimes are not economic activity "Gender-motivated crimes of violence are not, in any sense of the phrase, economic activity. While we need not adopt a categorical rule against aggregating the effects of any noneconomic activity in order to decide these cases, thus far in our Nation's history our cases have upheld Commerce Clause regulation of intrastate activity only where that activity is economic in nature. See, e.g., id., at 559-560, and the cases cited therein." (Section 2, Paragraph 15)
B. The law in question gives too much police power to the Feds. "If accepted, petitioners' reasoning would allow Congress to regulate any crime as long as the nationwide, aggregated impact of that crime has substantial effects on employment, production, transit, or consumption. Indeed, if Congress may regulate gender-motivated violence, it would be able to regulate murder or any other type of violence since gender-motivated violence, as a subset of all violent crime, is certain to have lesser economic impacts than the larger class of which it is a part." (Section 2, Paragraph 20)
C. This decision gives police powers to Feds that states have always had but Framers did not give to federal government. "We accordingly reject the argument that Congress may regulate noneconomic, violent criminal conduct based solely on that conduct's aggregate effect on interstate commerce. The Constitution requires a distinction between what is truly national and what is truly local. Lopez, 514 U.S., at 568 (citing Jones & Laughlin Steel, 301 U.S., at 30). In recognizing this fact we preserve one of the few principles that has been consistent since the Clause was adopted. The regulation and punishment of intrastate violence that is not directed at the instrumentalities, channels, or goods involved in interstate commerce has always been the province of the States. See, e.g., Cohens v. Virginia, 6 Wheat. 264, 426, 428 (1821) (Marshall, C. J.) (stating that Congress "has no general right to punish murder committed within any of the States," and that it is "clear ... that congress cannot punish felonies generally"). Indeed, we can think of no better example of the police power, which the Founders denied the National Government and reposed in the States, than the suppression of violent crime and vindication of its victims. [n8] See, e.g., Lopez, 514 U.S., at 566 ("The Constitution ... withhold[s] from Congress a plenary police power"); id., at 584-585 (Thomas, J., concurring) ("[W]e always have rejected readings of the Commerce Clause and the scope of federal power that would permit Congress to exercise a police power"), 596-597, and n. 6 (noting that the first Congresses did not enact nationwide punishments for criminal conduct under the Commerce Clause)." (Section 2, Paragraph 22)
D. Congress may only punish state actions of discrimination, not personal ones. "As our cases have established, state-sponsored gender discrimination violates equal protection unless it " 'serves "important governmental objectives and ... the discriminatory means employed" are "substantially related to the achievement of those objectives." ' " United States v. Virginia, 518 U.S. 515, 533 (1996) (quoting Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982), in turn quoting Wengler v. Druggists Mut. Ins. Co., 446 U.S. 142, 150 (1980)). See also Craig v. Boren, 429 U.S. 190, 198-199 (1976). However, the language and purpose of the Fourteenth Amendment place certain limitations on the manner in which Congress may attack discriminatory conduct. These limitations are necessary to prevent the Fourteenth Amendment from obliterating the Framers' carefully crafted balance of power between the States and the National Government. See Flores, supra, at 520-524 (reviewing the history of the Fourteenth Amendment's enactment and discussing the contemporary belief that the Amendment "does not concentrate power in the general government for any purpose of police government within the States") (quoting T. Cooley, Constitutional Limitations 294, n. 1 (2d ed. 1871)). Foremost among these limitations is the time-honored principle that the Fourteenth Amendment, by its very terms, prohibits only state action. "[T]he principle has become firmly embedded in our constitutional law that the action inhibited by the first section of the Fourteenth Amendment is only such action as may fairly be said to be that of the States. That Amendment erects no shield against merely private conduct, however discriminatory or wrongful." Shelley v. Kraemer, 334 U.S. 1, 13, and n. 12 (1948).
Shortly after the Fourteenth Amendment was adopted, we decided two cases interpreting the Amendment's provisions, United States v. Harris, 106 U.S. 629 (1883), and the Civil Rights Cases, 109 U.S. 3 (1883). In Harris, the Court considered a challenge to §2 of the Civil Rights Act of 1871. That section sought to punish "private persons" for "conspiring to deprive any one of the equal protection of the laws enacted by the State." 106 U.S., at 639. We concluded that this law exceeded Congress' §5 power because the law was "directed exclusively against the action of private persons, without reference to the laws of the State, or their administration by her officers." Id., at 640. In so doing, we reemphasized our statement from Virginia v. Rives, 100 U.S. 313, 318 (1880), that " 'these provisions of the fourteenth amendment have reference to State action exclusively, and not to any action of private individuals.' " Harris, supra, at 639 (misquotation in Harris).
We reached a similar conclusion in the Civil Rights Cases. In those consolidated cases, we held that the public accommodation provisions of the Civil Rights Act of 1875, which applied to purely private conduct, were beyond the scope of the §5 enforcement power. 109 U.S., at 11 ("Individual invasion of individual rights is not the subject-matter of the [Fourteenth] [A]mendment"). See also, e.g., Romer v. Evans, 517 U.S. 620, 628 (1996) ("[I]t was settled early that the Fourteenth Amendment did not give Congress a general power to prohibit discrimination in public accommodations"); Lugar v. Edmondson Oil Co., 457 U.S. 922, 936 (1982) ("Careful adherence to the 'state action' requirement preserves an area of individual freedom by limiting the reach of federal law and federal judicial power"); Blum v. Yaretsky, 457 U.S. 991, 1002 (1982); Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 172 (1972); Adickes v. S. H. Kress & Co., 398 U.S. 144, 147 n. 2 (1970); United States v. Cruikshank, 92 U.S. 542, 554 (1876) ("The fourteenth amendment prohibits a state from depriving any person of life, liberty, or property, without due process of law; but this adds nothing to the rights of one citizen as against another. It simply furnishes an additional guaranty against any encroachment by the States upon the fundamental rights which belong to every citizen as a member of society"). (Section 3, Paragraph 4-6)
So they actually ruled that crime in general is not part of interstate commerce and that the federal government has never had a general police power, which the states do, and this law gave them a power that the constitution reserves for the states.  They then ruled that Feds can't through 14th punish private individual actions, only state actions, and she was suing him, not the state for action or inaction.  This is more accurate and nuanced then simply saying "state sovereignty" overruled commerce and 14th amendment. 68.122.9.232 01:15, 23 August 2006 (UTC)
thread_title: Disputed rationale

message: The article was recently reverted here without comment, and I disagree with the reversion.  First, consider this paragraph:
The word "asserted" has a neutral point of view, whereas the word "complained" does not.  Why insist on the word "complained"?  Even if Rehnquist whined and moaned about this issue, still Wikipedia should say "asserted" because this is supposed to be a neutral encyclopedia rather than an editorial.  If a person is correct about something, then it's unusual to say that they are "complaining."  What could possibly be wrong with using the word "asserted"?
The following passage was also reverted without comment, and I disagree with that too:
Justices Breyer and Stevens criticized the states for not providing sufficient (or any) remedies.  As I previously explained in the comments, failure to provide remedies means a failure to enact laws, not a failure to enforce laws already enacted.  This was not a situation where the state had laws on its books and was refusing to enforce those laws to protect a particular class of people.  Is there any serious disagreement?Ferrylodge 15:18, 30 January 2007 (UTC)
replies: text: "Asserted" is fine, but the justices did mention studies indicating that states didn't equally enforce existing laws, which is why Rehnquist mentioned his own rather broad interpretation of Civil Rights Cases (broad in that it went beyond the holding of the case) to indicate that "There were state laws on the books bespeaking equality of treatment, but in the administration of these laws there was discrimination against newly freed slaves."Jimmuldrow 23:57, 30 January 2007 (UTC)
replies: text: You say that "the justices did mention studies indicating that states didn't equally enforce existing laws".  Where did the justices do that?  More importantly, the legislation that Congress passed did not order any state to enforce its existing laws, but rather gave new remedies to private parties.Ferrylodge 00:50, 31 January 2007 (UTC)

text: Material about what Congress was attempting to do, and rephrasing how the two sides in Morrison defined the case, is not "Background on Rehnquist".  That kind of stuff belongs in another section of the article, if it belongs in the article at all.Ferrylodge 04:32, 31 January 2007 (UTC)
thread_title: Complaining and failing to enforce the laws

message: There is no way to cover Katz. v. Morgan and SC v. Katz. in one sentence.  First off, the courts did not do anything substantive (Morgan did not end literacy tests, Congress did that).  Also, the one sentence summaries miss the whole point of these cases.  The literacy tests in Morgan had judicial backing as non-discriminatory, and therefore they did not violate the 14th or 15th amendment per se. The court, using the complex remedial theory (which I hear is a four letter word in this article) upheld the otherwise unconstitutional intrusion into states' rights based on the theory that it would remedy other discrimination, namely inequality of garbage collection in Puerto Rican communities.  It was OK that it disenfranchized Puerto Ricans, because it disenfranchized EVERYBODY who could not read at a certain level regardless of race or other protected class.  I changed this section a little bit but it still needs a lot of work.  Maybe the article can just reference these two cases' pages instead of trying to give an incorrect summary?
I agree that the section on “Background on Rehnquist” should be removed, for the reasons explained by Hydriotaphia.  It should be enough to link to the main article about Rehnquist.  Attributing the Court’s Morrison decision to things like  Rehnquist’s US News piece 50 years earlier is really too much like original research, and gives undue weight.  I’m sure that Morrison is at least as attributable to its prior decision in Lopez, not to mention the framers’ design that we have not just a national government but also state governments that are somewhat independent of the national government in certain matters.
I’m also very concerned that Jimmuldrow is on the verge of an edit war here, and is misconstruing the Court’s holding in Morrison.  We need to get this straightened out.  It is not appropriate to delete stuff like the following from the article:
“While justices agreed on this aspect of the state action doctrine, the Rehnquist wing of the Court preferred a much broader interpretation of this doctrine: ‘the language and purpose of the Fourteenth Amendment place certain limitations on THE MANNER in which Congress may attack discriminatory conduct' (emphasis added)."
Thus, the Court was not saying that there was no discrimination by state actors in this case, but rather was saying that Congress was attacking it the wrong MANNER.
Rehnquist was not arguing “that his interpretation of Civil Rights Cases wouldn't allow laws against state actors.”  Rehnquist was saying that the Civil Rights Cases involved discriminatory enforcement of laws on the books (just like in Morrison), and that Congress tried in the Civil Rights Cases to remedy the state action by attacking private parties INSTEAD of by attacking the state actors.
Rehnquist was not purporting to “interprete (sic) states that don't equally enforce their own laws as state inaction.”  He was saying there was state action just like in the Civil Rights cases, but that Congress attacked it in the wrong MANNER.
It is incorrect to say that “As Rehnquist mentioned before, aiming laws at state officials would also be unconstitutional because of the 'Civil Rights Cases' precedent.”  The Civil Rights Cases precedent DID NOT INVOLVE aiming federal laws at state officials, nor did Rehnquist say otherwise.
Thus, it is also incorrect to say: “According to the Rehnquist wing of the Court, the fact that many states don't equally enforce laws protecting women from rape and violence equally with other laws does not allow an equal protection of the laws reason for federal interference.”
 
Additionally, the following material about the Katzenbach case is unnecessary and misleading, because the Morrison decision did not alter or change the precedent from Katzenbach whatsoever (if the Katzenbach precedent had been changed, it was changed in Boerne rather than in Morrison):
“The Rehnquist Court’s congruence and proportionality theory replaced the ratchet theory advanced in Katzenbach v. Morgan (1966). The ratchet theory held that Congress could ratchet up civil rights beyond what the Court had recognized, but that Congress could not ratchet down judicially recognized rights. The Rehnquist Court's congruence and proportionality theory made it easier to revive older precedents for preventing Congress from going too far in enforcing equal protection of the laws.”
As mentioned, this description is also slanted. In Boerne, Justice Kennedy argued that this description of Katzenbach “is not a necessary interpretation, however, or even the best one.”Ferrylodge 16:32, 31 January 2007 (UTC)
thread_title: Big Problems With This Article

message: I find that the recent edits by Jimmuldrow make the article read more like a diatribe against Rehnquist than a balanced summary of the case.  I agree with Hydro that the "Background on Rehnquist" section should go.  Breyer's agreement with the state action doctrine has now been deleted, in order to make the Morrison majority look extreme.  
It is also now stated in the article that the Civil Rights Cases "allowed segregation" when in fact they did not.  The Civil Rights Cases never said that segregation by states was constitutional (quite the opposite), and moreover the dissenters in Morrison agreed with the state action principle of the Civil Rights Cases.  
The article is now sprinkled with "Rehnquist did this" and "Rehnquist did that", as if he had five votes all by himself.  There is no explanation that the Morrison Court acknowledged that there was evidence of state-sponsored gender discrimination, and no explanation that the Morrison Court allowed Congress to remedy that gender discrimination by taking action against the state perpetrators (rather than against private actors).
Additionally, the following statement in the article is egregiously wrong: "Rehnquist mentioned before [that] aiming laws at state officials would also be unconstitutional because of the Civil Rights Cases precedent."  That is completely untrue, and is unsupported by any quote, or any reasonable argument.  The Civil Rights Cases did not involve any federal laws aimed at state officials, but rather involved federal laws aimed at private actors, and so that case created no precedent whatsoever against aiming laws at state officials.  The Morrison majority argued that the Civil Rights Act had been designed to remedy state-sponsored discrimination.  No one in the Morrison case (including the majority, the minority, and the parties) disputed that the congressional remedy in the Civil Rights Cases was directed only at private actors. 
Also, the present article's description of the "ratchet theory" is not balanced.  The article now describes the ratchet theory, while merely mentioning at the end that Justice Kennedy disputes that description.  If Kennedy disputes it (on behalf of a majority of justices), then why is that description being presented as if it were the official Wikipedia view?
Even if the whole section on Equal Protection were accurate (which it is not), the section needs a rewrite for syntax and composition.  I wish that a consensus had been reached before the most recent edits.Ferrylodge 07:12, 1 February 2007 (UTC)
replies: text: I agree with a good deal of this.  The "Equal Protection" section is indeed poorly written – sometimes almost incomprehensible.  I had not seen that the article says the Civil Rights Cases "allowed segregation."  That is both incorrect and remarkably tendentious.  When I have time I will try my hand at a rewrite of the Equal Protection section.  Hydriotaphia 13:46, 1 February 2007 (UTC)

text: And let me again say that I find highly objectionable the article's references to Rehnquist.  It was a majority of the Court that signed on to his opinion.  I have, once again, eliminated the "Background on Rehnquist" section, because I have not heard any justification for its presence.  Hydriotaphia 13:49, 1 February 2007 (UTC)
replies: text: You have omitted the following crucial qualifier in the present article: "by private individuals and organizations, rather than state and local governments."  You also omitted the fact that Breyer and Souter AGREED that Congress cannot use the 14th amdt to remedy private discrimination.Ferrylodge 19:50, 1 February 2007 (UTC)
thread_title: Diatribe Against Rehnquist

message: I've reverted the latest revision because of pretty significant problems in it.  If one wishes to discuss Lopez and Boerne, which I think appropriate and indeed necessary in this article, it should be done in a much more concise way.  And a discussion of Lopez and Boerne should be part of the discussion of the Court's opinion itself.  Also, there was a great deal of original research, lack of citation, weasel words, etc. in the additions.  Just a few examples:
:the Court's Morrison decision was widely interpreted as a continuation of the Court's changing interpretation of the Commerce Clause and the Equal Protection Clause.
"Widely interpreted" is weaselly.  "Changing interpretation" is supportable, I think – I very much agree that the Court's interpretation of the Commerce Clause and Fourteenth Amendment substantially altered under the Rehnquist Court – but unless it is supported by a citation is nothing more than an unsubstantiated expression of opinion, which is inappropriate here.
:Until five years before Morrison the Court interpreted the Commerce Clause as imposing very few restrictions on which laws Congress could pass that would affect the states.  
Again, this is unsupported.
: Lopez represented the most significant restriction on the Commerce Clause powers of Congress in the 53 years between Wickard v. Filburn (1942) and Lopez.
I agree with this statement, but unless it is supported by a citation it is simply an assertion (and therefore OR).
: Boerne specifically limited Congress to the Court's interpretation of this clause, which was more restrictive than the interpretation that prevailed during the 31 years between Katzenbach v. Morgan and Boerne.
The Court in Boerne did not agree with this statement.  Kennedy's majority opinion asserted that it was not departing from Katzenbach.  While I disagree with the majority opinion in this assertion, I also think that saying that Boerne was more restrictive than Katzenbach is utterly inappropriate unless a reputable source can be cited for this proposition.   
: Lopez didn't completely reverse Wickard, but did significantly narrow its scope.
This is an egregious example of POV.  While I agree with it, it is unsupported.
:This congruence requirement replaced the previous theory advanced in Katzenbach v. Morgan that the Equal Protection Clause is "a positive grant of legislative power authorizing Congress to exercise its discretion in determining the need for and nature of legislation to secure Fourteenth Amendment guarantees." Before the 1997 Boerne decision, Katzenbach v. Morgan was widely interpreted as allowing Congress to go beyond, but not fall short of, the Court's interpretation of the Equal Protection Clause.
This is too long, expresses original research, and contains weasel words.  Again, inappropriate here.  The rest of the recent addition is, with due respect to the author, rambling and difficult to understand.
When I have time, I'll try my hand at this article once again and try to incorporate as much as I can of the recent addition.  But in its current form, that addition is highly objectionable under Wikipedia standards.  Respectfully, Hydriotaphia 19:18, 13 February 2007 (UTC)
replies: text: Is the alleged "lack of citation" in comparison to everything else in the article, including the sizable block done by yourself? If so, the entire article should be deleted by your own assumptions, since I cited quite a bit more than you.Jimmuldrow 20:07, 13 February 2007 (UTC)
replies: text: Hydriotaphia raised limited objections about a specific portion of the article.  Those objections cannot be addressed by raising objections about other parts of the article.  Let's please take one thing at a time, and focus on the specific portion of the article.Ferrylodge 20:16, 13 February 2007 (UTC)

text: Ok, I'll assume good faith as far as my previous criticisms go. It sounds like loaded words are part of your objection? All the quoted material is from the Court opinions, and a reference does indicate the opinion (Kennedy's for Boerne) when it's not the one for Morrison directly.  I'll try again, since I think this is important, but I'll try to address your objections as best I can. I'll also try to reduce the length a bit.Jimmuldrow 20:47, 13 February 2007 (UTC)
replies: text: I've tried to include as much of the new material as possible, while eliminating POV problems, reformatting per Wikipedia guidelines, et cetera.  Others may want to make the article more concise, but my goal has been primarily to make the article more neutral and balanced.Ferrylodge 04:37, 14 February 2007 (UTC)
thread_title: Comments on latest revision

message: Before getting too excited, please check the original Court opinions carefully. To be as objective as possible, I tried to mirror closely what the Court opinions say about unequal enforcement of state laws. It is evident that Rehnquist understood the form of logic that includes a major premise, a minor premise, and a conclusion that follows from the premises. The conclusion is implied, but if you accept Rehnquist's premises, you must also accept the conclusion that follows from the premises.
In any event, lets all try to assume good faith and be as objective as possible here. Since what Court opinions say is objective as far as this article is concerned, let' make certain that any revisions more closely approximate what the Court opinion has to say. If a desired change doesn't reflect the Court opinions, let's leave it out.Jimmuldrow 03:30, 18 February 2007 (UTC)
replies: text: I've tried to keep as much of what was there as possible.  I have, however, eliminated the very long discussions of Boerne and Lopez.  Those discussions belong instead on the Boerne and Lopez article pages.  Respectfully,  Hydriotaphia 04:24, 18 February 2007 (UTC)
replies: text: I generally think the article is in good shape.  Although I have qualms about the article, I won't press them at this point.  My primary qualm is that I don't think the Court was intimating in Morrison that unequal enforcement of state laws could never be remedied by Congress, and could never justify a federal statute authorizing suits against the responsible state officials.Ferrylodge 04:52, 18 February 2007 (UTC)
replies: text: Yeah, problems remain.  I too am concerned about what you term your primary qualm.  Because it's so hard to figure out what the Court meant, I think it would be wiser not to mention it at all.  I am more or less content with the present state of the article, however, and hope it will placate all concerned parties.  Hydriotaphia 05:14, 18 February 2007 (UTC)

text: In light of this discussion about your primary qualm, I am troubled by this edit.  What do you think we should do?  Hydriotaphia 07:04, 20 February 2007 (UTC)
replies: text: I've made an edit that should resolve the matter.  If it doesn't, then I guess we just keep on going round and round.Ferrylodge 07:07, 20 February 2007 (UTC)

text: It was not me who objected, it was Ferrylodge.  If I were you, I would take up this subject on the RfC page.  Offhand, though, I think he was referring to these reverts:  first, second, and third.   Hydriotaphia 14:33, 19 February 2007 (UTC)
thread_title: I think this is a lot closer to what the Court opinions say

message: I have just edited the article so that it says:
:"In response to the government's argument that VAWA was intended to correct the states' systemic gender bias in enforcing their own criminal laws dealing with violent criminal actions by private parties, the Court said that such actions resulting from unequal enforcement of the laws would not qualify as state action under the Fourteenth Amendment."
This seems entirely accurate to me, and I hope we won't dwell on this issue much longer.  Let's get it settled.  Thanks.Ferrylodge 21:04, 20 February 2007 (UTC)
thread_title: Unequal Enforcement

message: I renew my earlier and repeated objections to this edit, which replaces the phrase, "[t]he United States v. Morrison decision was seen by the press as part of the Rehnquist Court's series of federalism or states' rights decisions," with an earlier version, "[t]he United States v. Morrison decision was seen by both the Court and the press as part of the Rehnquist Court's series of federalism or states' rights decisions."  As I have said above on this talk page, "seen by the Court" is not supported.  How do we know Morrison was seen by the Court as part of a line of states' rights decisions?  It's not that I don't think it was part of such a line of decisions, it's that I don't see any support given for the proposition.  The justification given in the edit summary for the edit, which seems to argue that the edit lets the Court speak for itself, is, I think, precisely wrong.  For the edit does not cite to the Court in order to support the proposition that the Court itself saw Morrison as part of a larger pattern of decisions.  I note that these concerns have not been addressed at all by the party who has repeatedly added the phrase "by both the Court, etc." to the text.  Because no justification has been given for its presence, I think it should be eliminated.  Before getting into an edit war, can we please discuss this?  Respectfully,  Hydriotaphia 18:15, 21 February 2007 (UTC)
thread_title: "Seen by both the Court and the press"