The Laughing Princess

JAMES GLANZ Of Physics, Friendship and Nazi Germany's Atomic Bomb and the Nazi Atomic Bomb Project, A Study in German Culture Werner Heisenberg, a German theoretical physicist, proposed in

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Boerne held that any statute that Congress enacted to enforce the provisions of the Fourteenth Amendment including the Equal Protection Clause had to show "a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end". The Rehnquist Court's congruence and proportionality theory replaced the "ratchet" theory that had arguably been advanced in Katzenbach v. Morgan There is language in our opinion in Katzenbach v. Morgan , U. This is not a necessary interpretation, however, or even the best one If Congress could define its own powers by altering the Fourteenth Amendment's meaning, no longer would the Constitution be "superior paramount law, unchangeable by ordinary means".

The Rehnquist Court's congruence and proportionality standard made it easier to revive older precedents preventing Congress from going too far [73] in enforcing equal protection of the laws. One of the Rehnquist Court's major developments involved reinforcing and extending the doctrine of sovereign immunity , [75] which limits the ability of Congress to subject non-consenting states to lawsuits by individual citizens seeking money damages. In both Kimel v. Garrett , the Court held that Congress had exceeded its power to enforce the Equal Protection Clause.

In both those cases, Rehnquist was in the majority that held discrimination by states based upon age or disability as opposed to race or gender need satisfy only rational basis review as opposed to strict scrutiny. Though the Eleventh Amendment by its terms applies only to suits against a state by citizens of another state, the Rehnquist Court often extended this principle to suits by citizens against their own states. One such case was Alden v. Maine , in which the Court explained that the authority to subject states to private suits does not follow from any of the express enumerated powers in Article One of the Constitution, and therefore the Alden Court looked to the Necessary and Proper Clause to see if that Clause authorized Congress to subject the states to lawsuits by the state's own citizens.

Rehnquist agreed with Justice Kennedy's statement that such lawsuits were not "necessary and proper":. Nor can we conclude that the specific Article I powers delegated to Congress necessarily include, by virtue of the Necessary and Proper Clause or otherwise, the incidental authority to subject the States to private suits as a means of achieving objectives otherwise within the scope of the enumerated powers.

Rehnquist also led the Court toward a more limited view of Congressional power under the Commerce Clause of the U. For example, he wrote for a 5-to-4 majority in United States v. Lopez , U. Lopez was followed by United States v. Morrison , U. Rehnquist's majority opinion in Morrison also rejected an Equal Protection argument on behalf of the Act. All four dissenters disagreed with the Court's interpretation of the Commerce Clause, and two dissenters Stevens and Stephen Breyer also took issue with the Court's Equal Protection analysis.


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Regarding the Commerce Clause, Justice David Souter asserted that the Court was improperly seeking to convert the judiciary into a "shield against the commerce power". Cruikshank , which held that the Fourteenth Amendment applied only to state actions, not private acts of violence. Dissenting Justice Breyer, joined by Justice Stevens, agreed with the majority that it "is certainly so" that Congress may not "use the Fourteenth Amendment as a source of power to remedy the conduct of private persons". However, Breyer and Stevens took issue with another aspect of the Morrison Court's Equal Protection analysis: they argued that cases that the majority had cited including United States v.

Harris and the Civil Rights Cases regarding lynching and segregation respectively did not consider "this kind of claim" in which state actors "failed to provide adequate or any state remedies". In response, the Morrison majority asserted that the Violence Against Women Act was "directed not at any State or state actor, but at individuals who have committed criminal acts motivated by gender bias".

The federalist trend set by Lopez and Morrison was seemingly halted by Gonzales v. Raich , in which the court broadly interpreted the Commerce Clause to allow Congress to prohibit the intrastate cultivation of medicinal cannabis. Rehnquist, along with O'Connor and Thomas, dissented in Raich. Rehnquist authored the majority opinion in South Dakota v. Dole , upholding Congress's reduction of funds to states not complying with the national year-old drinking age. Rehnquist's broad reading of Congress's spending power was also seen as a major limitation on the Rehnquist Court's push towards redistribution of power from the federal government to the states.

Some commentators expected the Rehnquist Court to overrule several controversial decisions broadly interpreting the Bill of Rights. Arizona in its decision in Dickerson v.

The Virtues of Judicial Self-Restraint

United States. Rehnquist believed that federal judges should not impose their personal views on the law or stray beyond the intent of the framers by reading broad meaning into the Constitution; he saw himself as an "apostle of judicial restraint". Rehnquist was a foe of the Court's Roe v. Wade decision. In , that decision survived by a 5—4 vote, in Planned Parenthood v. Casey , which relied heavily on the doctrine of stare decisis. Dissenting in Casey , Rehnquist criticized the Court's "newly minted variation on stare decisis ", and asserted his belief "that Roe was wrongly decided, and that it can and should be overruled consistently with our traditional approach to stare decisis in constitutional cases".

Rehnquist was not reluctant to apply stare decisis in the fashion he believed appropriate. For example, in Dickerson v. United States , Rehnquist voted to reaffirm the Court's famous decision in Miranda v.

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Arizona based not only on the notion of adhering to precedent but also on his belief that "the totality-of-the-circumstances test Carhart Again, a 5—4 decision, and again a dissent from Rehnquist urged that stare decisis should not be the sole consideration: "I did not join the joint opinion in Planned Parenthood of Southeastern Pa. Casey , U. Among the many closely watched decisions during Rehnquist's tenure was Romer v.

Evans Colorado had adopted an amendment to the state constitution "Amendment 2" that the Court majority said would have prevented any city, town, or county in the state from taking any legislative, executive, or judicial action to protect homosexual citizens from discrimination on the basis of their sexual orientation.


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Rehnquist joined the dissent, which argued that the Constitution of the United States says nothing about this subject, so "it is left to be resolved by normal democratic means". The dissent, written by Justice Scalia, argued as follows some punctuation omitted :. General laws and policies that prohibit arbitrary discrimination would continue to prohibit discrimination on the basis of homosexual conduct as well. The amendment prohibits special treatment of homosexuals, and nothing more. It would not affect, for example, a requirement of state law that pensions be paid to all retiring state employees with a certain length of service; homosexual employees, as well as others, would be entitled to that benefit.

The dissent mentioned the Court's then-existing precedent in Bowers v. Hardwick , that "the Constitution does not prohibit what virtually all States had done from the founding of the Republic until very recent years—making homosexual conduct a crime. If it is rational to criminalize the conduct, surely it is rational to deny special favor and protection to those with a self avowed tendency or desire to engage in the conduct. The dissent listed murder, polygamy , and cruelty to animals as behaviors that the federal Constitution allows states to be very hostile toward, and in contrast the dissent stated: "the degree of hostility reflected by Amendment 2 is the smallest conceivable.

I would not myself indulge in But the Court today has done so, not only by inventing a novel and extravagant constitutional doctrine to take the victory away from traditional forces, but even by verbally disparaging as bigotry adherence to traditional attitudes. With the case of Lawrence v. Texas in , the Supreme Court under Rehnquist went on to overrule Bowers. Rehnquist again dissented along with Scalia and Clarence Thomas. The Court's result in Romer had described the struck-down statute as "a status-based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests".

Rehnquist sometimes reached results favorable to homosexuals, for example voting to allow a gay CIA employee to sue on the basis of constitutional law for improper personnel practices although barring suit on the basis of administrative law in deference to a claim of national security reasons , [79] voting to allow same-sex sexual harassment claims to be adjudicated, [80] and voting to allow the University of Wisconsin—Madison to require students to pay a mandatory fee that subsidized gay groups along with all other student organizations. Rehnquist voted with the majority in denying a private right to sue for discrimination based on race or national origin involving a disparate impact under title VI of the Civil Rights Act of , in Alexander v.

Sandoval , which involved the issue of whether a citizen could sue a state for not providing driver's license exams in languages other than English. Sandoval cited Cannon v.

The Court, the Constitution, and the Culture of Freedom | Hoover Institution

University of Chicago as a precedent. The Court voted 5—4 that various facts regarding disparate impact mentioned in a footnote of Cannon were not part of the holding of Cannon. In , Rehnquist joined Lee v. Weisman ' s dissenting opinion that the Free Exercise Clause of the First Amendment to the Constitution only forbids government from preferring one particular religion over another.

Rehnquist also led the way in allowing greater state assistance to religious schools, writing for another 5-to-4 majority in Zelman v. In Zelman , the Court approved a school voucher program that aided church schools along with other private schools. In June , Rehnquist wrote the plurality opinion upholding the constitutionality of a display of the Ten Commandments at the Texas state capitol in Austin. The case was Van Orden v. Rehnquist wrote:.

The Ethics of Liberty (Chapter 3: Natural Law versus Positive Law) by Murray N. Rothbard

Our cases, Janus like, point in two directions in applying the Establishment Clause. One face looks toward the strong role played by religion and religious traditions throughout our Nation's history The other face looks toward the principle that governmental intervention in religious matters can itself endanger religious freedom. University of Chicago Law School Professor Geoffrey Stone explains that Rehnquist was by an impressive margin the member of the Supreme Court least likely to invalidate a law as violating "the freedom of speech, or of the press".

There were only three areas in which Rehnquist showed any interest in enforcing the constitutional guarantee of free expression: in cases involving advertising, religious expression, and campaign finance regulation. However, as he did in Bigelow v. Commonwealth of Virginia , Rehnquist voted against freedom of advertising if an advertisement involved birth control or abortion.

Rehnquist wrote a concurrence agreeing to strike down the male-only admissions policy of the Virginia Military Institute , as violative of the Fourteenth Amendment's Equal Protection Clause. Had Virginia made a genuine effort to devote comparable public resources to a facility for women, and followed through on such a plan, it might well have avoided an equal protection violation. It is not the 'exclusion of women' that violates the Equal Protection Clause, but the maintenance of an all-men school without providing any—much less a comparable—institution for women It would be a sufficient remedy, I think, if the two institutions offered the same quality of education and were of the same overall caliber.

Rehnquist remained skeptical about the Court's Equal Protection Clause jurisprudence; some of his opinions most favorable to equality resulted from statutory rather than constitutional interpretation.

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For example, in Meritor Savings Bank v. Vinson , Rehnquist established a hostile-environment sexual harassment cause of action under Title VII of the Civil Rights Act of , including protection against psychological aspects of harassment in the workplace. Jeffery Rosen has argued that William Rehnquist's "tactical flexibility was more effective than the rigid purity of Scalia and Thomas. In truth, Rehnquist carefully staked out a limbo between the right and the left and showed that it was a very good place to be.

With exceptional efficiency and amiability he led a Court that put the brakes on some of the excesses of the Earl Warren era while keeping pace with the sentiments of a majority of the country—generally siding with economic conservatives and against cultural conservatives.

As for judicial temperament, he was far more devoted to preserving tradition and majority rule than the generation of fire-breathing conservatives who followed him. And his administration of the Court was brilliantly if quietly effective, making him one of the most impressive chief justices of the past hundred years.


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Jenkins was critical of Rehnquist's history with racial discrimination. He noted that, as a private citizen, Rehnquist had protested the Court's decision in Brown v. Board of Education and as a justice, consistently ruled against racial minorities in affirmative action cases. Only when white males began to make reverse discrimination claims, did Rehnquist become sympathetic to equal protection arguments.

source link Charles Fried has described the Rehnquist Court's "project" as being "to reverse not the course of history but the course of constitutional doctrine's abdication to politics". However, in , law professor John Yoo wrote: "It is telling to see how many of Rehnquist's views, considered outside the mainstream at the time by professors and commentators, the court has now adopted.