Reading the Law with Marnie - Inaugural pod.

About Reading the Law with Marnie - Inaugural pod.

"Reading the Law with Marnie" is your go-to Substack for diving deep into the world of legal texts through Marnie's lens. Join me as I explore the books, cases, and documents shaping my understanding of law and governance, sharing insights, reflections, and key takeaways. Whether you're a legal enthusiast or just curious about the foundations of justice, this is a space to read what I’m reading and engage with the ideas that matter. marniekhaw.substack.com (https://marniekhaw.substack.com/s/reading-the-law-with-marnie?utm_medium=podcast)

Publisher

Reading the Law with Marnie

Category

education · government

Language

en

Explicit

No

First episode

24 Apr 2025

Latest episode

17 May 2025

Latest episodes

7 episodes in the feed.

1. 

   17 May 2025

   Episode 5 - Foundations of American Constitutional Law: Cases 31 to 40

   Welcome back to Reading the Law with Marnie. In today’s episode, we cover Cases 31 through 40 — a series that explores the constitutional tensions of the late 20th century, as the Burger and Rehnquist Courts wrestle with questions of equality, federalism, freedom of religion, and the scope of congressional power. If the first thirty cases built the architecture of civil rights and liberties, this next set tests its strength. How far can Congress go to enforce civil rights? How much religious freedom can coexist with general laws? And what happens when a president is subpoenaed? Let’s begin with a turning point in the battle over school desegregation. Before Swann, courts had struggled with how aggressively they could enforce school desegregation orders. This case gave them powerful tools to act. Case 31: Swann v. Charlotte-Mecklenburg Board of Education (1971) Full Case Name: Swann et al. v. Charlotte-Mecklenburg Board of Education et al. Decision Date: April 20, 1971 Court: Supreme Court of the United States Opinion by: Chief Justice Warren E. Burger Decision: Unanimous (9–0) Famous Quotes: • Chief Justice Warren E. Burger: “The Constitution is not violated by the use of race-conscious remedies aimed at dismantling a dual school system.” Background: After Brown v. Board, Southern schools resisted integration. Charlotte’s district had implemented “freedom of choice” plans that maintained segregation. The Court upheld busing and racial quotas as permissible tools to enforce desegregation. Doctrine: Broad Remedial Powers for Courts – Federal courts may use race-conscious remedies, including busing, to enforce desegregation in public schools. Scholarly Commentary: • Gary Orfield (assenting): Civil rights researcher; saw Swann as essential to achieving actual integration. • Antonin Scalia (critical, later): Opposed the use of race as a permanent remedy. • Kimberlé Crenshaw (assenting): CRT scholar; emphasized the need for structural remedies to systemic racism. The next case shifts the focus from integration to equity. After the Court approved race-conscious remedies in Swann, could it also guarantee equal school funding? Rodriguez gave a sobering answer. Case 32: San Antonio Independent School District v. Rodriguez (1973) Decision Date: March 21, 1973 Opinion by: Justice Lewis F. Powell Jr. Decision: 5–4 Famous Quotes: • Justice Powell: “Education, though not formally recognized as a fundamental right, is essential to the preservation of rights and liberties.” Background: Plaintiffs argued that Texas’s reliance on local property taxes for school funding discriminated against poor students. The Court ruled that education is not a fundamental right and wealth is not a suspect classification. Doctrine: No Fundamental Right to Equal School Funding – Inequities in school funding do not violate the Equal Protection Clause. Scholarly Commentary: • John E. Coons (critical): Advocated for school finance equity. • Charles Reich (critical): Called it a retreat from Brown. • Justice Thurgood Marshall (dissent): Warned the ruling denied justice to the children most in need. With Rodriguez closing the door on funding equity, the next case, Milliken, narrowed the scope of school desegregation across district lines. The Court pulled back even further. Case 33: Milliken v. Bradley (1974) Decision Date: July 25, 1974 Opinion by: Chief Justice Warren E. Burger Decision: 5–4 Famous Quotes: • Chief Justice Burger: “Desegregation… does not require any particular racial balance.” Background: The Court struck down a federal desegregation plan that required cross-district busing between Detroit and its suburbs, unless there was proof of de jure segregation in every district involved. Doctrine: No Interdistrict Remedy Without Interdistrict Violation – Courts may not order busing across district lines unless segregation was actively caused by multiple districts. Scholarly Commentary: • Derrick Bell (critical): Saw the decision as sealing the fate of urban segregation. • Richard Epstein (assenting): Supported local autonomy in education. • Genevieve Siegel-Hawley (critical): Described Milliken as a turning point toward resegregation. From desegregation and finance, we move now to student discipline. In Goss, the Court declared that even school suspensions require due process. Case 34: Goss v. Lopez (1975) Decision Date: January 22, 1975 Opinion by: Justice Byron White Decision: 5–4 Famous Quotes: • Justice Byron White: “Students do not shed their constitutional rights at the schoolhouse gate.” Background: Ohio students were suspended from school without hearings. The Court held that public school students have due process rights and must receive notice and some form of hearing before suspension. Doctrine: Due Process for Students – Public education creates a property interest; students are entitled to due process before suspension. Scholarly Commentary: • Charles Alan Wright (assenting): Called it a fair balance between order and rights. • Justice Powell (dissent): Argued it overstated the formality needed in school discipline. • Catherine Ross (assenting): Saw it as foundational to student rights jurisprudence. Now we pivot from schools to states. In National League of Cities, the Court imposed a limit on Congress’s power over state governments — marking the high-water mark of 1970s federalism. Case 35: National League of Cities v. Usery (1976) Decision Date: June 24, 1976 Opinion by: Justice William Rehnquist Decision: 5–4 Famous Quotes: • Justice Rehnquist: “There are attributes of sovereignty attaching to every state government which may not be impaired by Congress.” Background: The Court invalidated federal wage and hour regulations that applied to state employees, holding that they violated state sovereignty under the Tenth Amendment. Doctrine: State Sovereignty Limits on Congress – Congress may not interfere with core functions of state governments. Scholarly Commentary: • Antonin Scalia (assenting): Praised the revival of structural federalism. • Larry Kramer (critical): Argued for cooperative federalism over rigid dualism. • Justice Brennan (dissent): Saw the ruling as a threat to national labor standards. But that limit didn’t last. Garcia would sweep it aside and declare that states should defend their interests in Congress, not the courts. Case 36: Garcia v. San Antonio Metropolitan Transit Authority (1985) Decision Date: February 19, 1985 Opinion by: Justice Harry Blackmun Decision: 5–4 Famous Quotes: • Justice Blackmun: “We now reject, as unsound in principle and unworkable in practice, a rule of state immunity from federal regulation.” Background: The Court overturned Usery, holding that state-run mass transit systems must comply with federal wage laws. Doctrine: Political Safeguards of Federalism – States are protected by their role in the national political process, not judicial doctrines. Scholarly Commentary: • Larry Tribe (assenting): Called it a realistic approach to federalism. • Sandra Day O’Connor (dissent): Warned it erased meaningful limits on federal power. • Ernest Young (critical): Argued courts should protect state autonomy more rigorously. Next, we return to the Free Exercise Clause. In Yoder, the Court carved out an exception to a state education law for a small religious community. Case 37: Wisconsin v. Yoder (1972) Decision Date: May 15, 1972 Opinion by: Chief Justice Warren E. Burger Decision: 7–0 Famous Quotes: • Chief Justice Burger: “A way of life… may not be interfered with… unless it is somehow harmful to the public.” Background: Amish parents challenged Wisconsin’s law requiring children to attend school until age 16. The Court ruled the law violated their Free Exercise rights. Doctrine: Religious Exemptions from General Laws – The Free Exercise Clause can override state laws when sincerely held religious beliefs are substantially burdened. Scholarly Commentary: • Douglas Laycock (assenting): Supported the decision as a high point for religious liberty. • Justice William O. Douglas (partial dissent): Worried about children’s own rights to education. • Marci Hamilton (critical): Warned of letting religious belief trump civil obligations. But just eighteen years later, Smith would drastically shift course — declaring that generally applicable laws don’t have to yield to religious practices. Case 38: Employment Division v. Smith (1990) Decision Date: April 17, 1990 Opinion by: Justice Antonin Scalia Decision: 6–3 Famous Quotes: • Justice Scalia: “To make an individual’s obligation to obey a law contingent upon his religious beliefs… contradicts both constitutional tradition and common sense.” Background: Two Native American men were fired for using peyote in a religious ceremony and were denied unemployment benefits. The Court ruled in favor of the state. Doctrine: Neutral Laws of General Applicability – The Free Exercise Clause does not require exemptions from generally applicable laws. Scholarly Commentary: • Michael McConnell (critical): Called it a narrowing of religious freedom. • Antonin Scalia (defense): Argued the rule was necessary for law and order. • Nadine Strossen (critical): Worried about harm to minority faiths. We now pivot to the limits of presidential power. During the Watergate scandal, Nixon refused to comply with a subpoena — and the Court answered. Case 39: United States v. Nixon (1974) Decision Date: July 24, 1974 Opinion by: Chief Justice Warren E. Burger Decision: Unanimous (8–0) Famous Quotes: • Chief Justice Burger: “The President is not above the law.” Background: Nixon invoked executive privilege to withhold tapes. The Court unanimously ordered him to comply. Doctrine: Limited Executive Privilege – It exists, but cannot shield criminal evidence. Scholarly Commentary: • Raoul Berger (assenting): Called it a triumph for the rule of law. • John Yoo (critical): Claimed it weakened the presidency. • Jeffrey Rosen (assenting): Applauded judicial independence. To close out this set, we look at separation of powers. In Chadha, the Court struck down a tool Congress had used to reverse agency decisions: the legislative veto. Case 40: INS v. Chadha (1983) Decision Date: June 23, 1983 Opinion by: Chief Justice Warren E. Burger Decision: 7–2 Famous Quotes: • Chief Justice Burger: “Explicit and unambiguous provisions of the Constitution… define the respective functions of Congress and the Executive.” Background: Congress had used a one-house veto to overturn a deportation suspension. The Court said that violated bicameralism and presentment. Doctrine: Legislative Veto Unconstitutional – Congress cannot override executive actions without following full legislative procedure. Scholarly Commentary: • Louis Fisher (critical): Argued the veto was a needed oversight tool. • Elena Kagan (assenting): Saw it as a necessary check on legislative overreach. • Peter Strauss (critical): Worried it weakened congressional accountability. That wraps up Cases 31 through 40. In this stretch, we watched the Court define the limits of desegregation remedies, pull back on educational equality, reframe religious liberty, and confront the imperial presidency. The Constitution proved flexible — and contested — as American society evolved. In the next episode, we’ll cover Cases 41 through 50, where debates over free speech, gender equality, gay rights, and campaign finance take center stage. Stay with me — we’re entering the era of culture wars and constitutional complexity. Get full access to Marnie’s Substack at marniekhaw.substack.com/subscribe (https://marniekhaw.substack.com/subscribe?utm_medium=podcast&utm_campaign=CTA_4)

2. 

   10 May 2025

   Episode 4 – Foundations of American Constitutional Law: Cases 21-30

   Welcome to Reading the Law with Marnie, where we dive into the 100 most important constitutional law cases that have shaped American history. In each episode, I’ll walk you through the stories behind the decisions, the doctrines they established, and the debates they continue to spark. Whether you’re a law student, a curious citizen, or just someone who loves good courtroom drama, this podcast will bring the Constitution to life—one case at a time. In this episode, we’re covering Cases 21 through 30, a stretch that spans from 1969 to 1976. These decisions reflect a period of profound social change—marked by protest movements, political scandal, and the expansion of civil rights. The Supreme Court responded by simultaneously affirming core liberties and drawing new limits around the scope of constitutional protections. We’ll see how the Justices addressed free speech in schools, campaign finance, abortion, affirmative action, and more. We begin with a case that emerged not from Congress or the White House—but from the quiet defiance of a group of schoolchildren. In the midst of the Vietnam War, they chose black armbands over silence—and took their message all the way to the Supreme Court. Case 21: Tinker v. Des Moines Independent Community School District (1969) Opinion by: Justice Abe Fortas – 7–2 decision Famous Quote: “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Background: Three teenagers were suspended for wearing black armbands to school in silent protest of the Vietnam War. The Court held that students do not lose their First Amendment rights when they enter school grounds, so long as their speech doesn’t substantially disrupt the educational environment. Doctrines: First Amendment – Symbolic Speech Scholarly Commentary: One of the leading scholars on student rights, Professor Catherine J. Ross of George Washington University Law School, has described Tinker as the “high-water mark of student speech.” Her work explores the tension between school discipline and constitutional freedom, and she has warned that later cases have undermined the dignity Tinker tried to preserve. Her contributions are especially relevant today, as debates over speech in public schools reignite. Freedom of expression continued to evolve, and in Brandenburg v. Ohio, the Court offered one of its strongest protections for inflammatory political rhetoric—even from groups like the Ku Klux Klan. The line between dangerous speech and protected advocacy was about to be redrawn. Case 22: Brandenburg v. Ohio (1969) Per curiam – Unanimous Famous Quote: “The constitutional guarantees of free speech… do not permit a State to forbid or proscribe advocacy of the use of force… except where such advocacy is directed to inciting or producing imminent lawless action.” Background: Clarence Brandenburg was a KKK leader convicted under an Ohio law for giving a fiery speech. The Court ruled that only speech intended—and likely—to incite imminent lawless action could be restricted. Doctrines: First Amendment – Incitement Doctrine Scholarly Commentary: Geoffrey R. Stone, a First Amendment scholar at the University of Chicago, has called Brandenburg “the most speech-protective standard the Court has ever adopted.” Stone served as a law clerk to Justice Brennan and has written extensively on the evolution of free speech from Schenck to Brandenburg, emphasizing how the latter sharply curtailed the state’s ability to criminalize political dissent. But while Brandenburg expanded liberty, the next case sought to set limits—this time on the entanglement of government and religion. The Court would create a framework that would dominate Establishment Clause cases for nearly fifty years. Case 23: Lemon v. Kurtzman (1971) Opinion by: Chief Justice Warren Burger – 8–0 decision Famous Quote: “Every analysis in this area must begin with consideration of the cumulative criteria developed by the Court over many years.” Background: Rhode Island and Pennsylvania laws reimbursed religious schools for secular education services. The Court struck them down and introduced the “Lemon Test,” requiring any law touching religion to (1) serve a secular purpose, (2) neither advance nor inhibit religion, and (3) avoid excessive government entanglement. Doctrines: First Amendment – Establishment Clause Scholarly Commentary: Douglas Laycock, professor at the University of Virginia and one of the nation’s foremost church-state scholars, praised Lemon as a “principled attempt to codify years of case law,” but recognized it became “increasingly unstable.” His careful analysis tracks how Lemon shaped the constitutional boundary between state neutrality and hostility toward religion—until it was dismantled in Kennedy v. Bremerton (2022). Religion and speech rights weren’t the only liberties on the Court’s docket. In Roe v. Wade, the justices confronted the question of bodily autonomy and reproductive privacy—ushering in decades of constitutional and political turmoil. Case 24: Roe v. Wade (1973) Opinion by: Justice Harry Blackmun – 7–2 decision Famous Quote: “This right of privacy… is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” Background: A Texas law criminalizing abortion was struck down by the Court, which grounded the right to choose in the Fourteenth Amendment’s protection of personal liberty. The Court established a trimester framework balancing state interests and individual rights. Doctrines: Fourteenth Amendment – Substantive Due Process (Privacy) Scholarly Commentary: Few cases have been more debated than Roe. John Hart Ely—former Stanford dean and a major figure in constitutional theory—famously wrote that while he agreed with the outcome, the opinion “is not constitutional law and gives almost no sense of an obligation to try to be.” Cass Sunstein, by contrast, has defended Roe as a necessary step in judicial protection of fundamental rights amid political inaction. These two voices represent the ongoing tension between moral urgency and doctrinal discipline. If Roe was an expansion of individual liberty, Rodriguez was a contraction of equality. The Court’s refusal to recognize education as a constitutional right would redefine how public policy is litigated. Case 25: San Antonio Independent School District v. Rodriguez (1973) Opinion by: Justice Lewis Powell – 5–4 decision Famous Quote: “Education… is not among the rights afforded explicit protection under our Federal Constitution.” Background: A class of students from low-income districts sued Texas, arguing that school funding based on local property taxes created unconstitutional wealth-based disparities. The Court disagreed, holding that education is not a fundamental right and that wealth is not a suspect class. Doctrines: Fourteenth Amendment – Equal Protection Socioeconomic Inequality Scholarly Commentary: Goodwin Liu, now a California Supreme Court Justice and former Yale professor, called Rodriguez “a case that slammed the federal courthouse doors shut on educational equity.” Alongside legal scholars like James Ryan, he’s pushed for greater reliance on state constitutions and statutes to achieve what the federal judiciary declined to do. While Rodriguez left inequality intact, the next case struck at the heart of executive privilege. In a moment of historic crisis, the Court made clear that the rule of law applies even to the president. Case 26: United States v. Nixon (1974) Opinion by: Chief Justice Warren Burger – 8–0 decision Famous Quote: “The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.” Background: President Nixon refused to release White House tapes subpoenaed in the Watergate investigation, citing executive privilege. The Court ruled unanimously against him, requiring compliance and reinforcing judicial oversight of the presidency. Doctrines: Separation of Powers – Executive Privilege Scholarly Commentary: Professor Neal Katyal, who served as Acting U.S. Solicitor General and clerked for Justice Breyer, has held up Nixon as “the textbook example of judicial courage.” Legal historian Maeva Marcus agrees, writing that the case showed the strength of an independent judiciary even amid political trauma. These voices remind us that legal precedent can check political power. Just two years later, another controversial form of political power—money—came under constitutional scrutiny. In Buckley v. Valeo, the Court drew a hard line between spending and corruption, giving birth to the “money as speech” doctrine. Case 27: Buckley v. Valeo (1976) Per curiam – divided ruling Famous Quote: “A restriction on the amount of money a person or group can spend on political communication… necessarily reduces the quantity of expression.” Background: The Federal Election Campaign Act imposed strict limits on campaign donations and candidate spending. The Court upheld limits on contributions but invalidated caps on personal expenditures, reasoning that spending money on one’s own campaign is protected speech. Doctrines: First Amendment – Political Speech Campaign Finance Scholarly Commentary: Election law scholar Richard Hasen has called Buckley “the foundation of the modern system of legalized political inequality.” In contrast, Bradley Smith, former FEC chair and law professor, has argued it protects the democratic right to advocate freely. Their opposing commentaries reflect a long-standing division between campaign finance reformers and First Amendment purists. That same year, the Court returned to questions of race and education. In Bakke, it crafted a fractured and enduring compromise on affirmative action—one that would echo through decades of litigation. Case 28: Regents of the University of California v. Bakke (1978) Opinion by: Justice Lewis Powell (plurality) – 5–4 decision Famous Quote: “Race or ethnic background may be deemed a ‘plus’ in a particular applicant’s file, yet it does not insulate the individual from comparison.” Background: Allan Bakke sued after being denied admission to UC Davis Medical School, where a set number of seats were reserved for minority applicants. The Court struck down quotas but allowed race to be considered as one factor in admissions decisions. Doctrines: Fourteenth Amendment – Equal Protection Affirmative Action Scholarly Commentary: Harvard’s Randall Kennedy, a leading scholar of race and law, has noted that Bakke both legitimized and limited affirmative action. It created the legal architecture that would later be refined in Grutter, Fisher, and ultimately Students for Fair Admissions. Kennedy’s work is essential to understanding the moral and legal stakes of racial preferences in education. But equality wasn’t the only constitutional tension surfacing in the 1970s. The Court briefly revived the Tenth Amendment in a case that tried—and failed—to restrain federal power over the states. Case 29: National League of Cities v. Usery (1976) Opinion by: Justice William Rehnquist – 5–4 decision Famous Quote: “There are attributes of sovereignty attaching to every state government which may not be impaired by Congress.” Background: Congress had extended the Fair Labor Standards Act to apply to state employees. The Court struck down the extension, holding that it violated states’ rights under the Tenth Amendment. Doctrines: Tenth Amendment – Federalism Scholarly Commentary: Federalism expert Ernest Young of Duke University has explained that Usery marked “a brief but important attempt to constitutionalize state autonomy.” Though overturned in Garcia v. San Antonio MTA, it set the stage for the Rehnquist Court’s later federalism revival in Lopez and Morrison. Finally, we return to the Eighth Amendment. In the wake of Furman v. Georgia, which halted executions nationwide, the Court faced the question: Could the death penalty be fairly imposed? Case 30: Gregg v. Georgia (1976) Opinion by: Justice Potter Stewart – 7–2 decision Famous Quote: “The punishment of death is not inherently cruel… within the meaning of the Constitution.” Background: Georgia revised its capital sentencing process after Furman, introducing a bifurcated trial system with guided discretion. The Court upheld the new system and reinstated the death penalty. Doctrines: Eighth Amendment – Cruel and Unusual Punishment Death Penalty Procedure Scholarly Commentary: Siblings and co-authors Carol Steiker (Harvard) and Jordan Steiker (Texas) are two of the nation’s foremost death penalty scholars. They have called Gregg “a procedural green light” that promised fairness but delivered persistent racial and geographic disparities. Their empirical work remains central to contemporary critiques of capital punishment in America. That wraps up Cases 21 through 30—ten pivotal decisions that reveal how the Constitution was tested and transformed in an era of protest, reform, and political reckoning. From the schoolhouse to the death chamber, from campaign trails to medical school admissions, these rulings continue to shape the boundaries of our rights and the role of government today. In the next episode, we’ll enter the 1980s and beyond, where debates over gender, religion, sexual privacy, and state power come into sharper focus. As always, we’ll follow not just the opinions, but the voices—judicial and academic—that continue to shape how we read the law. In Episode 5, we’ll explore new constitutional tensions—on gender, sexual privacy, religious liberty, and the limits of state control in the modern era. Get full access to Marnie’s Substack at marniekhaw.substack.com/subscribe (https://marniekhaw.substack.com/subscribe?utm_medium=podcast&utm_campaign=CTA_4)

3. 

   10 May 2025

   Episode 3 – Foundations of American Constitutional Law: Cases 11 - 20

   Welcome back to Reading the Law with Marnie, the podcast and Substack series where we unpack the top 100 most important constitutional law cases in American history — in a way that’s sharp, clear, and built for both deep understanding and long-term recall. Today, we’re covering Cases 11 through 20 — and in this stretch, we’ll see the Supreme Court begin its turn from economic libertarianism toward individual rights, civil liberties, and structural democracy. We’ll also introduce some of the leading constitutional scholars and critics you’ll hear throughout this series. I’ll be noting who they are, what they’ve contributed to the legal conversation, and why their commentary matters. Let’s begin with a quiet revolution — a footnote that changed how courts review laws. Case 11: United States v. Carolene Products Co. (1938) We start with a dispute over federal milk regulation. But what’s revolutionary is what came in Footnote Four — a roadmap for modern constitutional rights. The main case involved whether the federal government could ban “filled milk” (milk mixed with vegetable oils). The Court upheld the law using rational basis review — meaning the law was presumed constitutional as long as it had a reasonable connection to a legitimate government interest. But in a footnote — literally Footnote Four — Justice Harlan Fiske Stone dropped a constitutional bombshell. Stone said that while courts generally defer to legislatures (especially on economic laws), some types of laws should get more scrutiny, such as: * Laws that violate specific rights in the Constitution (e.g., free speech or religion) * Laws that restrict the political process itself (e.g., voting, organizing, petitioning the government) * Laws that target “discrete and insular minorities” — groups that are politically powerless and thus vulnerable to majoritarian abuse Full Case Name: United States v. Carolene Products Company Decision Date: April 25, 1938 Court: Supreme Court of the United States Opinion by: Associate Justice Harlan Fiske Stone Decision: 6–1 Famous Quotes: • Associate Justice Harlan Fiske Stone: “There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution…” • Associate Justice Harlan Fiske Stone: “Discrete and insular minorities may be a special object of protection.” Background: The federal government had banned the interstate shipment of “filled milk” — milk diluted with vegetable oil. Carolene Products was convicted under this law and challenged it as unconstitutional economic regulation. The Court upheld the law under a deferential standard. But in Footnote Four of the opinion, Justice Stone suggested that while courts should defer to legislatures on economic matters, they must scrutinize laws more carefully when they restrict political processes, target minorities, or implicate constitutional rights. Doctrine: This case introduced the logic behind tiers of scrutiny. Economic laws would receive rational basis review, but laws affecting fundamental rights or minorities could trigger heightened judicial scrutiny. Scholarly Commentary: • Bruce Ackerman, a Yale Law professor and constitutional theorist, called Footnote Four the beginning of a “new constitutional regime” that elevated rights and representation. • John Hart Ely, former Stanford and Yale law professor and author of Democracy and Distrust, praised Footnote Four as the principled core of modern judicial review. • Robert Bork, a former D.C. Circuit judge and conservative legal theorist, criticized Footnote Four as an unjustified expansion of judicial power over democratically enacted laws. The scrutiny logic of Carolene Products would be put to the test during America’s darkest wartime moment — a moment when racial fear overtook reason and civil rights. That moment was Korematsu v. United States. Case 12: Korematsu v. United States (1944) This decision stands as a chilling reminder that even fundamental rights can collapse when national security is invoked — and racial prejudice is tolerated. Full Case Name: Fred Toyosaburo Korematsu v. United States Decision Date: December 18, 1944 Court: Supreme Court of the United States Opinion by: Associate Justice Hugo Lafayette Black Dissenting Opinion by: Justices Murphy, Roberts, and Jackson Decision: 6–3 Famous Quotes: • Associate Justice Hugo Lafayette Black: “All legal restrictions which curtail the civil rights of a single racial group are immediately suspect.” • Associate Justice Frank Murphy (dissent): “This exclusion of all persons of Japanese ancestry… falls into the ugly abyss of racism.” Background: During World War II, President Roosevelt ordered the forced relocation and internment of Japanese Americans. Fred Korematsu defied the order and was arrested. The Court upheld the internment policy, even while acknowledging it was based on race — citing national security concerns. Doctrine: This case formally introduced the strict scrutiny standard for race-based classifications — but notoriously failed to apply it in practice. Scholarly Commentary: • Peter Irons, a legal historian and civil rights lawyer, helped overturn Korematsu’s conviction decades later and called the decision one of the Court’s greatest betrayals. • Neal Katyal, former Acting U.S. Solicitor General under President Obama, publicly repudiated Korematsu in legal briefs as a moral and legal failure. • Justice Antonin Scalia, a conservative originalist, famously said, “Korematsu was wrong,” but added, “It could happen again,” warning about judicial capitulation to executive power. In the next case, the Court would redeem itself. A decade after Korematsu, in Brown v. Board of Education, it unanimously struck down segregation in public schools — issuing perhaps the most morally and legally important opinion of the 20th century. Case 13: Brown v. Board of Education (1954) This is the case that shattered the “separate but equal” doctrine and launched the modern civil rights era. Full Case Name: Oliver Brown et al. v. Board of Education of Topeka, Kansas Decision Date: May 17, 1954 Court: Supreme Court of the United States Opinion by: Chief Justice Earl Warren Decision: Unanimous (9–0) Famous Quotes: • Chief Justice Earl Warren: “Separate educational facilities are inherently unequal.” • Chief Justice Earl Warren: “To separate them solely because of their race generates a feeling of inferiority… unlikely ever to be undone.” Background: Black families in multiple states challenged the constitutionality of racially segregated public schools. The Court unanimously held that segregation violated the Equal Protection Clause of the 14th Amendment and overturned Plessy v. Ferguson as it applied to education. Doctrine: Racial segregation in public schools is inherently unequal and therefore unconstitutional under the Equal Protection Clause. Scholarly Commentary: • Derrick Bell, founder of Critical Race Theory and Harvard Law professor, viewed Brown as symbolically powerful but ultimately limited in impact without structural change. • Gerald Rosenberg, a University of Chicago political scientist, argued in The Hollow Hope that Brown had little real effect without political and grassroots pressure. • Jack Greenberg, the NAACP Legal Defense Fund attorney who helped argue Brown, praised the case as a moral and legal watershed. If Brown addressed who gets to learn, Baker v. Carr tackled who gets to vote. In our next case, the Court brought fairness to the drawing of legislative districts and opened the door to the one-person, one-vote revolution. Case 14: Baker v. Carr (1962) This case asked whether malapportioned voting districts were a matter for courts — and the answer changed the balance of political power nationwide. Full Case Name: Charles W. Baker et al. v. Joe C. Carr, Secretary of State of Tennessee Decision Date: March 26, 1962 Court: Supreme Court of the United States Opinion by: Associate Justice William Joseph Brennan Jr. Dissenting Opinion by: Justice Felix Frankfurter Decision: 6–2 Famous Quotes: • Associate Justice William Joseph Brennan Jr.: “A citizen’s right to a vote free of arbitrary impairment… is unassailable.” • Associate Justice Felix Frankfurter (dissent): “The Court’s intrusion here is fundamentally at odds with the principle of separation of powers.” Background: Tennessee hadn’t redrawn its legislative districts in over 60 years, even though population growth had radically changed. The Court held that challenges to unequal representation were justiciable under the Equal Protection Clause — clearing the way for courts to require legislative reapportionment. Doctrine: This case narrowed the political question doctrine and established that unequal districting could violate the Equal Protection Clause, giving rise to the principle of “one person, one vote.” Scholarly Commentary: • Alexander Bickel, a Yale law professor and judicial restraint advocate, worried the Court’s intervention would politicize the judiciary. • Heather Gerken, Dean of Yale Law School and an expert in election law, praised the decision for making democratic institutions more representative. • Richard Pildes, NYU law professor and leading voting rights scholar, called Baker the start of the Court’s modern role in safeguarding electoral fairness. With structural democracy addressed, the Court’s next frontier was criminal justice. Our final case in this set — Gideon v. Wainwright — ensured that the right to a fair trial included the right to a lawyer, no matter your income. Case 15: Gideon v. Wainwright (1963) A handwritten petition from a Florida prison cell turned into a landmark ruling that reshaped the rights of the accused. Full Case Name: Clarence Earl Gideon v. Louie L. Wainwright, Director, Division of Corrections Decision Date: March 18, 1963 Court: Supreme Court of the United States Opinion by: Associate Justice Hugo Lafayette Black Decision: Unanimous (9–0) Famous Quotes: • Associate Justice Hugo Lafayette Black: “Lawyers in criminal courts are necessities, not luxuries.” • Associate Justice Hugo Lafayette Black: “The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours.” Background: Clarence Gideon was charged with felony theft but denied a lawyer under Florida law. He petitioned the Supreme Court from jail. The Court unanimously ruled that the right to counsel is a fundamental right that applies to the states through the 14th Amendment. Doctrine: The Court incorporated the Sixth Amendment right to counsel against the states, requiring public defense for indigent defendants. Scholarly Commentary: • Anthony Lewis, New York Times legal journalist and author of Gideon’s Trumpet, told the story of how one man reshaped American justice. • Bryan Stevenson, founder of the Equal Justice Initiative and author of Just Mercy, saw Gideon as foundational to protecting poor defendants. • Akhil Reed Amar, Yale constitutional law professor, called Gideon a cornerstone in building a national Bill of Rights through incorporation. Let’s move deeper into the 1960s and follow the Warren Court as it accelerates its expansion of individual rights. These five cases deal with religious freedom, the rights of the accused, the boundaries of law enforcement, and the emerging concept of privacy. The themes from our last set — equal justice and due process — continue here, but now we add new dimensions of faith, interrogation, and personal autonomy. Let’s begin with the case that banned school-sponsored prayer in public classrooms. Case 16: Engel v. Vitale (1962) This was the first major case in which the Supreme Court ruled that prayer in public schools, even if nondenominational and voluntary, violates the Constitution. Full Case Name: Steven I. Engel et al. v. William J. Vitale Jr., President of the Board of Education Decision Date: June 25, 1962 Court: Supreme Court of the United States Opinion by: Associate Justice Hugo Lafayette Black Decision: 6–1 Famous Quotes: • Associate Justice Hugo Lafayette Black: "It is no part of the business of government to compose official prayers." Background: The New York State Board of Regents had composed a short, voluntary prayer for public school students to recite each morning. A group of parents challenged the practice as a violation of the Establishment Clause of the First Amendment. The Supreme Court struck down the practice. Doctrine: Establishment Clause – Government cannot sponsor or endorse religious exercises in public schools, even if participation is voluntary. Scholarly Commentary: • Leonard Levy, a Pulitzer Prize-winning constitutional historian, defended the decision as a vital reaffirmation of the wall of separation between church and state. • Michael McConnell, a former federal judge and law professor, criticized the ruling for flattening religious expression in public life. • Kathleen Sullivan, Stanford Law professor and First Amendment expert, saw Engel as a principled stand that protected both religion and government. While Engel protected students from state-imposed prayer, our next case protected suspects from state-compelled confessions. The issue was coercion in the interrogation room — and the solution would become a household name. Case 17: Miranda v. Arizona (1966) Here’s the origin of those words you’ve heard in every police drama: "You have the right to remain silent..." Full Case Name: Ernesto Arturo Miranda v. State of Arizona Decision Date: June 13, 1966 Court: Supreme Court of the United States Opinion by: Chief Justice Earl Warren Decision: 5–4 Famous Quotes: • Chief Justice Earl Warren: "The prosecution may not use statements... stemming from custodial interrogation unless it demonstrates the use of procedural safeguards." Background: Ernesto Miranda confessed to kidnapping and rape after a lengthy police interrogation, without having been informed of his rights. The Supreme Court reversed his conviction, establishing new rules for police to inform suspects of their rights before questioning. Doctrine: Miranda Warnings – Suspects in custody must be informed of their rights to remain silent and to an attorney under the Fifth and Sixth Amendments. Scholarly Commentary: • Yale Kamisar, law professor and “father of Miranda,” defended the decision as essential to protecting dignity and fairness. • Paul Cassell, a federal judge and former prosecutor, has been one of Miranda’s most prominent critics, arguing it hampers law enforcement. • Charles Ogletree, Harvard professor and public defender, praised Miranda for leveling the playing field in criminal justice. Now that the Court had reinforced procedural safeguards during interrogation, it turned to the front lines of enforcement — what happens when the police enter your home without a warrant? Case 18: Mapp v. Ohio (1961) This is the case that applied the exclusionary rule to the states, changing criminal procedure nationwide. Full Case Name: Dollree Mapp v. State of Ohio Decision Date: June 19, 1961 Court: Supreme Court of the United States Opinion by: Justice Tom C. Clark Decision: 6–3 Famous Quotes: • Justice Tom C. Clark: "Nothing can destroy a government more quickly than its failure to observe its own laws." Background: Cleveland police, searching for a fugitive, entered Mapp’s home without a warrant and found obscene materials. She was convicted under state law. The Court reversed, holding that evidence obtained in violation of the Fourth Amendment is inadmissible in state courts. Doctrine: Exclusionary Rule Incorporated – Evidence obtained in violation of the Fourth Amendment cannot be used in state prosecutions. Scholarly Commentary: • Norman Dorsen, former ACLU president and NYU law professor, championed Mapp as a victory for civil liberties. • Akhil Reed Amar, Yale constitutional scholar, questioned the exclusionary rule’s costs and advocated alternative remedies. • William Stuntz, Harvard criminal procedure expert, argued that Mapp overemphasized technical rules at the expense of substantive justice. With criminal protections in place, the Court now turned toward a new frontier: the constitutional right to privacy. The case wasn’t about crime or schools — it was about birth control. Case 19: Griswold v. Connecticut (1965) This case introduced the right to privacy into American constitutional law. Full Case Name: Estelle T. Griswold and Dr. C. Lee Buxton v. State of Connecticut Decision Date: June 7, 1965 Court: Supreme Court of the United States Opinion by: Justice William O. Douglas Decision: 7–2 Famous Quotes: • Justice William O. Douglas: "Specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees, that help give them life and substance." Background: A Connecticut law criminalized the use of contraceptives, even by married couples. Estelle Griswold, a Planned Parenthood director, was arrested for providing birth control. The Court struck down the law, recognizing a constitutional "right to privacy" derived from several amendments. Doctrine: Right to Privacy – The Constitution protects personal decisions in intimate relationships, even if not explicitly enumerated. Scholarly Commentary: • Ruth Bader Ginsburg, then a law professor and later Supreme Court Justice, linked Griswold to a broader vision of gender equality and autonomy. • Robert Bork, who famously opposed the opinion, called the reasoning judicial fiction. • Laurence Tribe, Harvard Law professor, defended the decision’s logic as consistent with constitutional structure and values. Our final case in this set involves another privacy decision, but this time with the Court standing back. Before we go there, let’s close with a ruling that showed how expansive the Court’s view of privacy had become in the mid-60s. Case 20: Katz v. United States (1967) This case updated the Fourth Amendment for the modern age, ruling that privacy doesn’t depend on property lines but on reasonable expectations. Full Case Name: Charles Katz v. United States Decision Date: December 18, 1967 Court: Supreme Court of the United States Opinion by: Justice Potter Stewart Concurrence by: Justice John Marshall Harlan II Decision: 7–1 Famous Quotes: • Justice Potter Stewart: "The Fourth Amendment protects people, not places." • Justice John Marshall Harlan II (concurrence): "There is a twofold requirement: first that a person have exhibited an actual expectation of privacy... and second, that the expectation be one that society is prepared to recognize as reasonable." Background: Charles Katz was convicted of illegal gambling after the FBI recorded his conversations from a public phone booth without a warrant. The Court ruled the recordings violated his Fourth Amendment rights. Doctrine: Reasonable Expectation of Privacy – The Fourth Amendment applies wherever a person has a subjective and objectively reasonable expectation of privacy. Scholarly Commentary: • Orin Kerr, a leading scholar on the Fourth Amendment, called Katz the cornerstone of modern search law. • Stephen Schulhofer, NYU professor, praised the decision for extending rights into the electronic age. • Justice Antonin Scalia, later in Kyllo v. United States, built on Katz to protect homes from thermal imaging without warrants. We’ve seen how the Constitution began to speak not just to the structures of government, but to the lived experience of the individual — in schools, police stations, bedrooms, and even phone booths for Cases 16 through 20. . In our next episode, we’ll cover the great controversies of the 1970s: abortion, affirmative action, the death penalty, and executive power in the wake of Watergate. As we close out this stretch of the Top 100 Constitutional Law Cases, what unites Cases 11 through 20 is a single, powerful shift: the Constitution, once focused primarily on the powers of government, now became a shield for the dignity and autonomy of individuals. From Carolene Products, where the Court hinted it would take minority rights more seriously, to Gideon, which made sure the poor weren’t tried without lawyers, the 1940s through 1960s mark the birth of a rights-conscious Court. We watched it stumble in Korematsu, soar in Brown, and then get personal in Griswold and Katz — extending protections to the bedroom and the phone booth. It’s also the era when law enforcement and government authority were told: “There are limits.” Police couldn’t extract confessions without warning you — Miranda. They couldn’t enter your home without a warrant — Mapp. And they couldn’t wiretap your conversation just because it took place in public — Katz. What’s striking is that each of these doctrines — incorporation, privacy, procedural safeguards — didn’t come from amendments being rewritten. They came from reinterpretation. The Court looked at the same Constitution and saw new principles, sometimes in “penumbras” and “emanations,” to quote Justice Douglas in Griswold. That flexibility is why defenders call this era transformative — and critics call it activist. But either way, this is the Supreme Court stepping into its modern role: not just the referee of government structure, but the guardian of individual freedom. Coming up in Cases 21 to 30, we’ll test those freedoms in the crucible of controversy. Abortion. The death penalty. Affirmative action. Presidential power. The Warren Court fades, the Burger Court takes over, and the backlash begins. Stay with me — we’re heading into the storm. Get full access to Marnie’s Substack at marniekhaw.substack.com/subscribe (https://marniekhaw.substack.com/subscribe?utm_medium=podcast&utm_campaign=CTA_4)

4. 

   2 May 2025

   Understanding Strict Scrutiny

   It’s the highest level of judicial review in constitutional law. And when a court applies it, it’s sending a very clear message to the government: You better have an extremely good reason for this law—and you’d better write it in the narrowest, least harmful way possible. Strict scrutiny is triggered in two main situations: First—when a law interferes with a fundamental right. These are rights that are either explicitly written into the Constitution, or so deeply rooted in our legal tradition that they’re treated as fundamental. We’re talking about rights like: • Free speech under the First Amendment, • The right to vote, • The right to marry, • The right to travel between states, • And the right to make private decisions about family life—like raising children or using contraception. Second—when a law classifies people based on race, national origin, or in some cases, alienage. These are what we call suspect classifications, and they get heightened protection because of a long history of discrimination and political disadvantage. Now, once strict scrutiny kicks in, the government has to clear a three-part test. And it’s a tough one. Step one: The law must serve a compelling government interest. Not just a good reason. A truly vital one—like protecting national security or stopping imminent violence. Step two: The law must be narrowly tailored. That means it can’t cast a wide net. It has to aim with laser precision at solving just the specific problem at hand. Step three: The law must use the least restrictive means available. If there’s a less burdensome way to accomplish the same goal, the government has to use it. No exceptions. And who carries the burden of proof? The government does. If it can’t prove all three elements? The law is struck down. Plain and simple. This is why strict scrutiny has a reputation. Legal scholars say it’s “strict in theory, but fatal in fact.” Most laws that face it… don’t survive. Here’s a quick flashcard-style recap to lock it in: Strict scrutiny applies when a law: • Interferes with a fundamental right, • Or uses a suspect classification. To survive, the law must: • Serve a compelling interest, • Be narrowly tailored, • And use the least restrictive means. Need a mnemonic? Try: C-N-L — Compelling, Narrow, Least. And remember the phrase: “Can Never Last.” Because most laws just can’t make it through. Let’s anchor this with a mental image: Picture a laser beam. That’s strict scrutiny. It’s aimed directly at protecting a glowing treasure chest labeled FUNDAMENTAL RIGHTS. If that beam veers off and zaps anything else? Unconstitutional. Let’s put it to the test with a quick hypothetical: Imagine a city bans all political protests in public parks to prevent violence. Is public safety compelling? Absolutely. But banning all protests? That’s not narrowly tailored. There are less restrictive ways—like requiring permits or adding security. That law would almost certainly fail strict scrutiny. Now, let’s ground this with a few real cases: Loving v. Virginia, 1967. Virginia banned interracial marriage. The Court said: racial classification plus the fundamental right to marry? That’s strict scrutiny—and this law doesn’t come close to surviving. Adarand Constructors v. Peña, 1995. A federal program favored minority contractors. Even well-intentioned racial preferences, the Court said, still trigger strict scrutiny. They must be narrowly tailored to a compelling purpose. Skinner v. Oklahoma, 1942. The state wanted to sterilize certain criminals. The Court said: procreation is a fundamental right, and this law wasn’t carefully drawn. Struck down. And finally: Reed v. Town of Gilbert, 2015. A town treated signs differently based on their message—church events versus political campaigns. The Court applied strict scrutiny to this content-based restriction on speech. And the law didn’t survive. Now, I’ll leave you with three memorable quotes that sum it all up: “Strict scrutiny leaves few survivors.” — Justice Thurgood Marshall “Under strict scrutiny, the government rarely wins.” — Professor Erwin Chemerinsky “It is strict in theory, but fatal in fact.” — Gerald Gunther So next time you hear a case is being reviewed under strict scrutiny, you’ll know: That law is climbing the hardest hill in constitutional law. Thanks for listening to Reading the Law. If this helped clarify strict scrutiny for you, be sure to follow—and stay tuned for our next breakdown. Until then—keep asking questions, and keep reading the law. Get full access to Marnie’s Substack at marniekhaw.substack.com/subscribe (https://marniekhaw.substack.com/subscribe?utm_medium=podcast&utm_campaign=CTA_4)

5. 

   1 May 2025

   Freedom to Contract in the Age of Permission

   By Marnie Khaw | May 1, 2025 When you knock on your neighbor’s door to buy a fresh cream pie and pay in cash, the transaction feels pure. Voluntary. Human. Free. But today, that simple act is illegal in most states unless your neighbor has a license, a certified kitchen, and a stack of state paperwork. Even in Oklahoma—where the Home Bakery Act gives some grace—there are restrictions and prohibitions laced into the statute. Because the pie has cream, because it isn’t shelf-stable, because there’s no label. We’ve drifted so far from the idea that two adults can make a promise and shake on it without the state inserting itself. But this drift has a name: the death of the liberty of contract. And it was codified not by a single statute, but by a long retreat from a bold doctrine of freedom—a doctrine once blessed by the U.S. Supreme Court under the banner of the 14th Amendment’s Due Process Clause. The Rise and Fall of Contractual Freedom In Lochner v. New York (1905), the Court famously struck down a law that capped bakers’ working hours. Writing for the majority, Justice Rufus Peckham insisted that the Constitution protects the “liberty of contract,” and that the government may not interfere with consensual economic arrangements unless doing so was a legitimate use of police power to protect health or safety. The baker’s shop—small, immigrant-owned, and passed down through sweat—became the symbol of liberty against an overreaching state. But by West Coast Hotel Co. v. Parrish (1937), that era ended. The Court abandoned economic liberty in favor of New Deal priorities, prioritizing regulation over autonomy. Since then, liberty of contract has been sidelined. In Williamson v. Lee Optical (1955), the Court upheld nonsensical regulations because they were “conceivably” related to a public interest—even if obviously unwise. So when you buy from an unlicensed baker today, you are not engaging in a constitutionally protected act of free exchange. You are a violator. The state will not protect your right to transact, but it will punish you for attempting to. Why This Matters—And How It Can Change Most legal theorists accepted the death of liberty of contract as necessary to protect vulnerable parties. But what if that very protection has become the new form of control? A shield turned sword? Yes, the Lochner Court erred by declaring economic liberty as unqualified. But modern jurisprudence errs in the opposite direction—assuming the citizen incapable of judgment and always in need of oversight. This infantilizes adults, centralizes power, and builds an administrative behemoth that no one truly voted for. This is where Fatal Hubris enters the frame. Our hubris was in thinking that government, distant and bureaucratic, could regulate the particularities of life better than local communities, families, and voluntary associations could. Lochner didn’t fail because freedom is dangerous. It failed because freedom was divorced from accountability. But that doesn’t mean the answer is authoritarian paternalism. It means we need a new scaffolding for contract—one rooted not in state licensing but community verification. The Path Forward: Community-Based Governance and GOOOH Let’s imagine a world not just of deregulation, but of decentralized trust. Where a network of 150—the Dunbar’s number—serves as the social unit of law. Within these groups, governance is personal, and so is accountability. This is the framework of community-based governance. No faceless bureaucrat decides whether you can bake and sell a pie—your neighbors do. And they do so because they know you, they’ve eaten at your table, and they trust your kitchen. To scale this principle politically, we turn to systems like GOOOH (Get Out of Our House), a nonpartisan model for selecting citizen legislators by peer vetting. It’s an audition-based framework where individuals are chosen by fellow community members based on integrity, competence, and accountability—not campaign cash or party loyalty. Every representative is accountable not to donors but to their local node. Now imagine this model for contract law: instead of requiring a state license, your community could establish a certification board made up of locals. It could be voluntary, reciprocal, and governed by mutual respect. An online dashboard could list certified bakers, builders, mechanics—all peer-reviewed. And if something goes wrong? Your community holds you to account, not an opaque agency. Changing the Rules of the Game So how do we make this shift? * Local Nullification: Start with home rule and municipal pushback. Communities can pass ordinances recognizing cottage contracts as legitimate even if they defy state licensing schemes. * Reciprocal Registries: Create peer-to-peer certification programs that build reputation systems outside state licensing. Think Yelp with teeth—and consequences. * Model Statutes: Draft legal frameworks for Freedom of Contract Zones, where consenting adults may transact with lower regulatory burdens, provided they disclose their uncertified status. * GOOOH-style Vetting for Oversight: Elect oversight boards from local Dunbar groups, not political parties. This keeps decision-makers close and prevents capture. * Judicial Reinvigoration: Encourage strategic litigation to challenge irrational economic regulations under a revived interpretation of the 14th Amendment, especially where health risks are speculative or pretextual. From Control to Consent We don’t need to resurrect Lochner whole-cloth. But we do need to reclaim its insight: that human beings flourish when they are allowed to act freely, with dignity, and within a moral fabric of mutual responsibility. As John Stuart Mill wrote, “The worth of a state in the long run is the worth of the individuals composing it.” And as the Lochner dissenters feared, the worth of the individual is buried when the state assumes he cannot think for himself. Let us propose instead a new kind of liberty of contract—one that is not libertine, but communitarian; not deregulated, but re-rooted in community judgment. You should be able to buy a pie from your neighbor. Not because the state says you can, but because your community knows she bakes with clean hands and a good heart. And that—unlike the 14th Amendment jurisprudence—is not a right that should ever be taken away. Get full access to Marnie’s Substack at marniekhaw.substack.com/subscribe (https://marniekhaw.substack.com/subscribe?utm_medium=podcast&utm_campaign=CTA_4)

6. 

   1 May 2025

   Episode 2 – The First 10: Foundations of American Constitutional Law

   Welcome to “Reading the Law with Marnie.” In our second episode, we’re starting our journey with the first 10 cases going through 100 of the most important constitutional law cases in American history. Whether you’re a law student, a lawyer, or just someone curious about how this country’s legal foundation was built, you’re in the right place. Let’s start with Case One. Case One: Marbury v. Madison, decided in 1803. The full case name is William Marbury v. James Madison, Secretary of State of the United States. It was a unanimous 5–0 decision written by Chief Justice John Marshall. Here’s a quote that still echoes through every law school classroom: “It is emphatically the province and duty of the judicial department to say what the law is.” And another from the same opinion: “A law repugnant to the Constitution is void.” Background: William Marbury sued to receive his judicial commission, which had been signed but not delivered. Chief Justice Marshall ruled that while Marbury had a right to the commission, the Court didn’t have jurisdiction to enforce it—because the statute granting them that power was itself unconstitutional. Doctrine Established: This is where judicial review was born. It gave the Supreme Court the power to strike down laws that conflict with the Constitution. Scholarly Commentary: Yale professor Alexander Bickel praised this case as a wise check on political power. Harvard’s Mark Tushnet was critical—he saw it as the start of excessive judicial elitism. And conservative jurist Robert Bork defended it as the foundation of originalist interpretation. Transitioning now to Case Two… Case Two: McCulloch v. Maryland, decided in 1819. This was another unanimous decision, again authored by Chief Justice John Marshall. Two famous lines from the opinion: “The power to tax involves the power to destroy.” And… “Let the end be legitimate… all means which are appropriate… are constitutional.” Background: Maryland tried to tax a branch of the federally chartered Bank of the United States. The Court said no—you can’t tax the federal government—and affirmed that Congress had the power to create the bank in the first place. Doctrines Established: This case gave us the idea of implied powers under the Necessary and Proper Clause, and reinforced federal supremacy over the states. Scholarly Commentary: Justice Joseph Story wrote extensively in favor of strong federal authority. President Thomas Jefferson, by contrast, opposed implied powers entirely. Legal scholar John Hart Ely later praised this decision as essential to a functional federal government. Let’s keep going. On to Case Three. Case Three: Gibbons v. Ogden, from 1824. Opinion by Chief Justice John Marshall, with a concurrence from Justice William Johnson. Notable quotes: “The power to regulate commerce is complete in itself, and may be exercised to its utmost extent.” — Chief Justice Marshall “The Constitution is one of enumeration, not of reservation.” — Justice Johnson Background: Aaron Ogden had a New York–granted monopoly on steamboat travel. Thomas Gibbons had a federal license. The Supreme Court sided with Gibbons, affirming that federal law overrides state monopolies when it comes to interstate commerce. Doctrine: The Commerce Clause gives Congress full authority over interstate trade. Scholarly Commentary: Historian Charles Beard saw this case as a reflection of pro-commerce federalism. Akhil Amar praised it as reinforcing national unity. And antitrust expert Herbert Hovenkamp viewed it as a key moment in laying the foundation for regulating monopolies. Now we turn to one of the darkest chapters: Case Four. Case Four: Dred Scott v. Sandford, decided in 1857. Opinion by Chief Justice Roger Brooke Taney. From Taney’s majority opinion: “[Blacks] had no rights which the white man was bound to respect.” And from the powerful dissent by Justice Benjamin Robbins Curtis: “A free negro of the African race… is a citizen of the United States.” Background: Dred Scott, a slave, sued for his freedom. The Court ruled that neither he nor any person of African descent could be a U.S. citizen. It also struck down the Missouri Compromise, claiming Congress had no power to ban slavery in U.S. territories. Doctrines: • African Americans denied citizenship • Congressional limits on slavery ruled unconstitutional Scholarly Commentary: Historian Eric Foner calls this the Court’s lowest point. Senator Stephen Douglas defended the ruling at the time—though history has judged that harshly. And Justice Thurgood Marshall viewed Dred Scott as a judicial disgrace that paved the way for Plessy and segregation. Case Five takes us into the Jim Crow era. Case Five: Plessy v. Ferguson, decided in 1896. Majority opinion by Justice Henry Billings Brown, dissent by Justice John Marshall Harlan. Here’s Brown: “Laws permitting, and even requiring, their separation… do not necessarily imply the inferiority of either race.” And Harlan’s iconic dissent: “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.” Background: Homer Plessy, who was seven-eighths white and one-eighth Black, was arrested for sitting in a whites-only railcar. The Court upheld segregation, enshrining the “separate but equal” doctrine. Doctrine: “Separate but equal” became the law of the land—until Brown v. Board of Education overturned it in 1954. Scholarly Commentary: Charles Black condemned it as a betrayal of the 14th Amendment. Randall Kennedy explored how its legacy still shapes race and law. And again, Thurgood Marshall—who argued Brown—called Plessy a blueprint for apartheid. Let’s take a breath and move into the 20th century. Case Six. Case Six: Lochner v. New York, from 1905. Majority by Justice Rufus Wheeler Peckham, with a famous dissent from Justice Oliver Wendell Holmes Jr. Quotes: “The general right to make a contract… is part of the liberty protected by the Fourteenth Amendment.” — Justice Peckham “The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics.” — Justice Holmes, dissenting Background: New York passed a law limiting bakers to 60-hour workweeks. The Court struck it down, arguing it violated the freedom of contract. Doctrine: This was a high point of substantive due process, where courts used the 14th Amendment to block economic regulations. Scholarly Commentary: Cass Sunstein calls it judicial activism for capitalism. Richard Epstein defends it as a cornerstone of economic liberty. Roscoe Pound criticized it for ignoring real labor conditions. Now to Case Seven: Schenck v. United States, 1919. Opinion by Justice Oliver Wendell Holmes Jr. Famous quotes: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” “The question… is whether the words… create a clear and present danger.” Background: Charles Schenck was convicted under the Espionage Act for distributing anti-draft leaflets. The Court upheld the conviction and introduced the “clear and present danger” test for free speech. Doctrine: This case set the standard for limiting speech during wartime. Scholarly Commentary: Geoffrey Stone saw this as contextually justified. Nadine Strossen argued that dissenting speech must be protected. Noam Chomsky condemned it as state censorship in disguise. Case Eight: Gitlow v. New York, decided in 1925. Opinion by Justice Edward Terry Sanford, dissent by Justice Oliver Wendell Holmes Jr., joined by Louis Dembitz Brandeis. Quotes: “A single revolutionary spark… may burst into a sweeping and destructive conflagration.” — Justice Sanford “Every idea is an incitement…” — Justice Holmes, dissenting Background: Benjamin Gitlow was convicted for publishing a socialist manifesto. The Court upheld the conviction, but for the first time, said that the First Amendment applies to the states through the Fourteenth Amendment. Doctrine: This was the beginning of incorporation—where the Bill of Rights is applied to state governments. Scholarly Commentary: Laurence Tribe praised it as a step toward national civil liberties. Erwin Chemerinsky criticized the weak protection it actually gave Gitlow. William Brennan later cited it as foundational to civil rights jurisprudence. We’re almost there. On to Case Nine. Case Nine: Near v. Minnesota, from 1931. Opinion by Chief Justice Charles Evans Hughes, with dissents from Pierce Butler and others. Quotes: “The liberty of the press… is safeguarded against censorship.” — Chief Justice Hughes “[Minnesota] was properly protecting public welfare…” — Justice Butler, dissenting Background: Jay Near’s scandal sheet accused public officials of corruption. Minnesota tried to shut it down before publication. The Court ruled that kind of prior restraint unconstitutional. Doctrine: This case established that prior restraint on the press is almost never allowed. Scholarly Commentary: Floyd Abrams called it the cornerstone of press freedom. Kathleen Sullivan said it protects democracy itself. Robert Post emphasized its role in maintaining a free public sphere. And finally for today, Case Ten. Case Ten: West Coast Hotel Co. v. Parrish, decided in 1937. Opinion by Chief Justice Charles Evans Hughes, dissent by George Sutherland. Quotes: “The Constitution does not speak of freedom of contract.” — Chief Justice Hughes “Arbitrary restraints upon economic freedom are intolerable.” — Justice Sutherland, dissenting Background: Elsie Parrish sued for back pay under Washington’s minimum wage law. The Court upheld the law, marking the end of the Lochner era and ushering in greater deference to state economic regulations. Doctrine: This case signaled the Court’s retreat from substantive economic due process and the beginning of the modern regulatory state. Scholarly Commentary: William Leuchtenburg called it a New Deal triumph. Randy Barnett said it abandoned economic liberty. Bruce Ackerman viewed it as a constitutional transformation. I’m Marnie, and this is Reading the Law. In ink and oath, the law was cast, A shield to guard, a truth to last. Not born of kings, nor forged by might— But penned to keep our freedoms bright. That wraps up our first 10 cases. On the next episode of Reading the Law with Marnie, we’ll continue our journey through the next landmark decisions—cases that shaped everything from education and privacy to civil rights and presidential power. Get full access to Marnie’s Substack at marniekhaw.substack.com/subscribe (https://marniekhaw.substack.com/subscribe?utm_medium=podcast&utm_campaign=CTA_4)

7. 

   24 Apr 2025

   Reading the Law with Marnie: Unpacking Constitutional Rights – Liberty, Equality, and the Fourteenth Amendment

   Reading the Law with Marnie: Episode 1 — Liberty, Equality, and the Constitutional Thread We Can Still Hold On To Welcome to the first episode of Reading the Law with Marnie, where I dive into the texts shaping my understanding of law and governance—and invite you to join me on the journey. Today, we’re cracking open a compelling casebook: Liberty, Equality, and Due Process by Ruthann Robson, which focuses on constitutional rights under the U.S. Constitution, with a deep emphasis on liberty, equal protection, and due process through the lens of the Fourteenth Amendment. I’ll read key cases, analyze them through Libertarian, Anti-Federalist, and Federalist perspectives, and apply a unique lens I call The Fatal Hubris (https://marniekhaw.substack.com/p/prologue-the-fatal-hubris?r=29b1i) which is the title of my upcoming book. We’ll explore how these doctrines shape current issues—tech governance, housing and education equity, and debates over personal freedoms. What I’m Reading Liberty, Equality, and Due Process: Cases, Controversies, and Contexts in Constitutional Law (Third Edition, 2021, CALI eLangdell Press) leans slightly left, reflecting Robson’s background in feminist and queer legal theory. It emphasizes expanding rights for marginalized groups and elevates state constitutions as mechanisms for broader protections beyond the federal baseline. Though social-justice oriented, the book includes conservative dissents (e.g., Obergefell v. Hodges) and constraint-based cases (e.g., Moose Lodge v. Irvis), making it a well-rounded educational resource. This casebook centers on foundational doctrines—state action, equal protection, substantive due process, and unenumerated rights—through pivotal cases: Marsh v. Alabama (1946), Shelley v. Kraemer (1948), Obergefell v. Hodges (2015), and Edgewood Independent Sch. Dist. v. Kirby (1989). Case 1: Marsh v. Alabama (1946) Legal SummaryHolding: A private company town cannot restrict the distribution of religious literature in violation of the First Amendment when the town functions as a public space.Key Doctrine: State action applies to private entities performing public functions.Citation: 326 U.S. 501 (1946) Majority (Justice Hugo Black): "The more an owner... opens up his property for use by the public... the more do his rights become circumscribed by the constitutional rights of those who use it." Dissent (Justice Stanley Reed): "The Constitution does not require the owner of a company town to permit the use of his property for the dissemination of religious literature." Theoretical Frameworks:This case is foundational to the public function doctrine, which holds that private entities acting as public spaces assume constitutional obligations. It connects to Pruneyard Shopping Center v. Robins (1980) and raises modern questions about whether tech platforms like X, when hosting public discourse, are bound by the First Amendment. Legal Theories: * Ronald Dworkin: Dworkin’s “rights as trumps” theory posits that individual rights, like free speech, override state or private restrictions when fundamental liberties are at stake. In Marsh, Dworkin would support the majority, viewing the Jehovah’s Witness’s right to distribute literature as a core liberty that trumps the company’s property claims. He’d argue that the town’s public function creates a moral duty to protect speech, a principle relevant to digital platforms acting as public squares. * Antonin Scalia: Scalia’s originalism demands strict adherence to the Constitution’s text and historical meaning. He’d likely align with the dissent, arguing that the First Amendment applies only to government actors, not private property owners. Scalia would warn that expanding “state action” risks eroding property rights, a concern he’d extend to tech platforms, insisting their private status exempts them from First Amendment duties. * Lon Fuller: Fuller’s “inner morality of law” requires legal systems to be coherent, predictable, and morally aligned. In Marsh, he might evaluate whether the company town’s restrictions meet these standards, supporting the majority if the town’s public role implies a duty to uphold speech. However, he’d caution against disrupting property law’s predictability, a tension relevant to platform governance debates where legal clarity is often lacking. Perspectives: * Federalist View: Federalists, inspired by Hamilton and Madison, advocate a strong national government to ensure uniform rights. They’d see Marsh as a precedent for applying consistent First Amendment protections to platforms functioning as public forums, arguing that national standards prevent fragmented speech protections. Federalists might push for federal legislation to regulate tech platforms, ensuring free speech across state lines. * Anti-Federalist View: Anti-Federalists, echoing Patrick Henry’s emphasis on state sovereignty, prioritize local governance. They’d argue that states should regulate platforms based on community norms, cautioning against federal overreach in Marsh. Today, they’d support state laws like Florida’s and Texas’s, which enforce content neutrality, as legitimate expressions of local democratic will. * Libertarian View: Libertarians, drawing from Friedman and Nozick, champion individual liberty and property rights. They’d side with the dissent, viewing the company town—and tech platforms—as private entities with the right to control their property, including moderation. Forcing platforms to host speech violates autonomy, they argue, and market competition (e.g., users switching platforms) should resolve disputes. * Fatal Hubris View: This lens critiques top-down systems for assuming they can govern better than relational communities. In Marsh, it rejects both federal mandates and corporate monopolies, advocating for digital commons where speech is governed by trust and proximity. Communities should build decentralized platforms rooted in shared purpose, not ruled by courts or corporations. "Speech governed by trust travels further than speech governed by code." — Community-based Governance Current Issue:The Supreme Court is reviewing Murthy v. Missouri, questioning whether federal pressure on social platforms to remove “disinformation” violates the First Amendment. Meanwhile, state laws in Florida and Texas aim to enforce content neutrality, raising Marsh-like questions about public function and private control. Case 2: Shelley v. Kraemer (1948) Legal SummaryHolding: State courts cannot enforce racially restrictive covenants, as such enforcement constitutes state action violating the Fourteenth Amendment’s Equal Protection Clause.Key Doctrine: Judicial enforcement of private discriminatory agreements is state action.Citation: 334 U.S. 1 (1948) Majority (Chief Justice Fred Vinson): "The action of state courts in enforcing restrictive covenants is to be regarded as state action." Theoretical Frameworks:This case embedded legal realism—the idea that law reflects social realities—into equal protection doctrine, showing how state action can be subtle yet coercive. It echoes in debates over algorithmic bias, with precedents like Burton v. Wilmington Parking Authority (1961) and Brentwood Academy v. TSSAA (2001). Legal Theories: * Catharine MacKinnon: MacKinnon’s feminist legal theory critiques “neutral” rules that perpetuate structural inequality. In Shelley, she’d argue that enforcing covenants reinforces systemic racism by embedding segregation into housing markets. She’d extend this to AI lending, asserting that algorithms replicate historical biases (e.g., redlining) and require robust equal protection oversight to dismantle power imbalances. * Thomas Sowell: Sowell, a conservative economist, argues disparities often stem from economic or cultural factors, not systemic discrimination. In Shelley, he might caution against assuming all covenants reflect racism, suggesting some arise from economic preferences. For AI lending, he’d argue disparities in loan approvals may reflect legitimate risk factors (e.g., credit scores), urging rigorous evidence before claiming bias. * Friedrich Hayek: Hayek’s spontaneous order theory warns that centralized interventions disrupt organic systems. In Shelley, he might argue that banning covenants distorts housing markets, which rely on decentralized choices. For AI, he’d caution that regulations risk stifling innovation, advocating for market-driven transparency to correct biases rather than federal mandates. Perspectives: * Federalist View: Federalists would argue that Shelley establishes a federal duty to prevent modern discrimination, like AI-driven redlining, through uniform civil rights laws. They’d see the Fourteenth Amendment as ensuring equal protection nationwide, supporting HUD’s investigations to address systemic bias in national markets. * Anti-Federalist View: Anti-Federalists would emphasize state authority to address local housing practices. They’d argue Shelley should inspire state-level reforms tailored to regional economies, avoiding federal overreach. States like Texas or California, with distinct markets, should experiment with regulations reflecting local values. * Libertarian View: Libertarians would defend private contracts, arguing Shelley limits freedom to associate. They’d suggest AI lending, if transparent, could reduce human bias, and market competition should address flaws. Regulation, they’d warn, risks punishing innovation and imposing bureaucratic controls. * Fatal Hubris View: This view rejects centralized regulation and corporate algorithms, arguing fairness requires relational accountability. In Shelley, it critiques distant courts enforcing abstract equality, advocating for local financial cooperatives where lenders and borrowers know each other. For AI, it calls for community-driven lending rooted in trust, not code or mandates. "Systems of trust beat systems of enforcement every time." — The Fatal Hubris Current Issue:The Department of Housing and Urban Development is investigating AI-based redlining. Conservative economists question studies like The Markup’s, arguing they overlook risk indicators like credit history, while civil rights groups demand equal protection scrutiny of algorithms. Case 3: Obergefell v. Hodges (2015) Legal SummaryHolding: The Fourteenth Amendment guarantees same-sex couples the fundamental right to marry under substantive due process and equal protection.Key Doctrines: Substantive due process and equal protection as applied to intimate association and identity.Citation: 576 U.S. 644 (2015) Majority (Justice Anthony Kennedy): "The Constitution promises liberty to all... a liberty that includes certain specific rights that allow persons... to define and express their identity." Dissent (Chief Justice John Roberts): "Celebrate the achievement... But do not celebrate the Constitution. It had nothing to do with it." Theoretical Frameworks:Griswold v. Connecticut, Loving v. Virginia, and Lawrence v. Texas form a lineage of liberty-as-dignity, grounding Obergefell in substantive due process. Legal Theories: * Ronald Dworkin: Dworkin’s moral reading views the Constitution as embodying principles like dignity and autonomy. In Obergefell, he’d support the majority, arguing marriage is a fundamental expression of identity protected by the Fourteenth Amendment. He’d extend this to modern autonomy debates, like gender-affirming care, as essential to equal dignity. * John Hart Ely: Ely’s “representation-reinforcement” theory argues courts should protect rights when democratic processes fail marginalized groups. In Obergefell, he might question the majority’s unenumerated rights approach, arguing marriage laws belong to legislatures unless systemic exclusion is clear, aligning with the dissent’s call for democratic accountability. * Antonin Scalia: Scalia’s originalism would reject Obergefell’s expansive reading, arguing marriage as a right lacks textual or historical roots. He’d insist social change belongs to democratic processes, opposing extensions to new autonomy claims like gender-affirming care, fearing judicially invented rights. Perspectives: * Federalist View: Federalists would champion Obergefell as a national standard ensuring equal liberty, preventing states from denying rights based on local prejudices. They’d see the Fourteenth Amendment as demanding uniform protections, a model for addressing gender-affirming care bans. * Anti-Federalist View: Anti-Federalists would argue marriage laws should reflect state diversity. They’d critique Obergefell for erasing local traditions, supporting states like Tennessee restricting gender-affirming care as expressions of community norms. * Libertarian View: Libertarians would argue the state shouldn’t regulate marriage at all. They’d agree with Obergefell’s outcome but reject judicial fiat, preferring to dismantle state licensing. They’d oppose both marriage restrictions and care bans, advocating for individual autonomy. * Fatal Hubris View: This perspective sees marriage as a communal institution, not governmental. It critiques Obergefell for entrenching state control, advocating for communities to bless unions through tradition. It rejects both state bans and federal mandates on issues like gender-affirming care, urging local solutions. "Government licensing of love is among the most unnecessary indignities in a free society." — Community-based Governance Current Issue:Tennessee and other states are restricting gender-affirming care for minors. Federal courts are evaluating whether these laws violate substantive due process rights, with Obergefell’s framework under scrutiny post-Dobbs. Case 4: Edgewood Independent Sch. Dist. v. Kirby (1989) Legal SummaryHolding: Texas’s school finance system, reliant on property taxes, violated the state constitution’s requirement for an “efficient system of public free schools” due to funding disparities.Key Doctrine: State constitutional guarantees of educational adequacy.Citation: 777 S.W.2d 391 (Tex. 1989) Majority (Justice Oscar Mauzy): "The amount of money spent on a student's education has a real and meaningful impact..." Theoretical Frameworks:San Antonio Independent School Dist. v. Rodriguez (1973) held education isn’t a fundamental federal right, but Edgewood counters under state law, emphasizing state constitutional duties. Legal Theories: * John Rawls: Rawls’s “difference principle” demands prioritizing the least advantaged. In Edgewood, he’d support the majority, arguing funding disparities harm disadvantaged students and violate fairness. He’d back redistributive policies, seeing state constitutions as tools for justice, relevant to modern equity debates. * Friedrich Hayek: Hayek’s spontaneous order theory critiques centralized approaches. He’d argue Edgewood’s funding mandates ignore local knowledge, advocating for market-driven solutions like vouchers to empower families. He’d caution against uniform formulas, favoring decentralized innovation. * Paulo Freire: Freire’s critical pedagogy views education as liberatory, rooted in community empowerment. He’d support Edgewood’s equity push but argue reform requires involving students, parents, and teachers in designing systems, critiquing top-down funding fixes for missing relational learning. Perspectives: * Federalist View: Federalists would argue education equity demands national standards, potentially through federal funding, to address wealth disparities. They’d see Edgewood as a step toward a federal role, especially for digital and post-COVID learning gaps. * Anti-Federalist View: Anti-Federalists would insist education belongs to communities, reflecting local values. They’d support Edgewood’s state focus but resist federal intervention, backing school choice and parental rights over centralized curricula. * Libertarian View: Libertarians would critique Edgewood for entrenching state control, advocating vouchers and charter schools to empower families. They’d see market innovation, like online platforms, as the path to equity, free from bureaucracy. * Fatal Hubris View: This lens rejects top-down education, arguing learning thrives in relational ecosystems. Edgewood’s funding focus misses the issue: education detached from community. It calls for local models like homeschool co-ops, co-designed by families and teachers. "Equity is not a formula. It’s a relationship." — Community-based Governance Current Issue:Universal school choice laws and Education Savings Accounts are expanding. Courts are litigating parental rights versus public curricula, with Edgewood’s equity principles informing adequacy debates. Final Thoughts Each case reveals a truth: law imposed from above can articulate rights, but it cannot guarantee their protection. Rights secured by strangers rarely feel secure. “No one has the authority to tax me, imprison me, or govern me unless they know me.” — The Fatal Hubris The Constitution remains worth honoring, but its implementation must change. Let law descend from abstraction into daily relationships. Let justice return to scale. Until next time: stay proximate, stay principled, and build your law in the place you live.— Marnie Attribution and License NoticeThis post incorporates material from Liberty, Equality, and Due Process: Cases, Controversies, and Contexts in Constitutional Law, Third Edition, by Ruthann Robson, CUNY School of Law, 2021. Published by CALI eLangdell Press. Licensed under CC BY-NC-SA 4.0. Get full access to Marnie’s Substack at marniekhaw.substack.com/subscribe (https://marniekhaw.substack.com/subscribe?utm_medium=podcast&utm_campaign=CTA_4)

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