States Rights!

The Washingtonian Magazine refers to “insiders” speculating that the Supremes may uphold Michigan’s preferences on states rights grounds. (Link via Howard Bashman; scroll down to the fifth item)

Under a scenario being talked about at the court, Rehnquist would vote for upholding Michigan

Say What? (4)

  1. Plainsman May 6, 2003 at 3:05 pm | | Reply

    This news item seems very confused. Especially considering it appears in a magazine whose readership must be at least 25% lawyers.

    “Rehnquist then would declare that under his concept of federalism, the state of Michigan has the authority to admit anyone it wishes without federal interference.”

    Huh? What could this mean? The Fourteenth Amendment’s protections against direct state-imposed race discrimination are the absolute, ground zero, uncontroversial core of national power over the states. Nobody, and I mean nobody, disputes this, even though people disagree about the scope of the Amendment.

    Even the Seminole Tribe line of cases that limit federal ability to authorize private suits against the states do not extend to federal race-discrimination statutes enacted under the Fourteenth Amendment. See Fitzpatrick v. Bitzer (1974), a case expressly reaffirmed by Rehnquist and the other members of the Seminole Tribe majority in several opinions.

    So what is Rehnquist supposedly going to hold? That the Fourteenth Amendment is a mass hallucination? That the Supremacy Clause doesn’t exist? That state universities aren’t state actors, contrary to decades of precedent?

    A “federalism” holding would be semi-plausible if we were talking about private universities. But we’re not. Grutter is about the Fourteenth Amendment and state universities. There is no way to frame a “federalism” holding. The University of Michigan is governed by the terms of the Constitution and the federal civil rights statutes. Those provisions either permit Michigan’s practices or they don’t. And if they don’t, that conclusion controls. The Court can’t avoid these issues.

    “Rehnquist

  2. John Rosenberg May 6, 2003 at 5:47 pm | | Reply

    Plainsman: Terrific comment! Of course, I’ve long thought that many preferentialists must regard “the Fourteenth Amendment is a mass hallucination….”

  3. stu May 7, 2003 at 12:59 pm | | Reply

    John, are you certain this story didn’t appear in The Onion? What case would the majority cite as precedent, Plessy v. Ferguson?

  4. flag burning December 9, 2004 at 7:55 pm | | Reply

    I don’t know about you guys, but I’m strongly opposed to flag burning legislation. The day that flag burning is criminalized, I will burn a flag.

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