Volume 25, Issue 1

Table of Contents

ARTICLES

Rediscovering the Right to Happiness and Safety
By Joseph R. Grodin

More than half of the state constitutions declare the right of persons "to pursue and obtain happiness and safety," or some variation on that language, but lawyers and judges seldom think to invoke those provisions in asserting or considering state constitutional claims. Professor Grodin, formerly a Justice of the California Supreme Court, explores the roots of such language in classical and Enlightenment philosophy. He then examines judicial opinions which have drawn upon the language and considers the way in which it might inform modern constitutional doctrine.

Professor Grodin argues that the history and text of the language, viewed from a modern perspective, would support constitutional protection for a core of conduct and decisions central to individual identity and development. Such an application of the language would parallel federal and state constitutional developments under the rubric of privacy but would provide a more affirmative, coherent, and textually based grounding for the development of jurisprudence relating to such issues as abortion, sexual orientation, and the right to assistance in dying than the concept of privacy provides.

Supreme Court Voting Behavior: 1996 Term
By Richard G. Wilkins, Scott L. Worthington, David Buchanan

This Article, the twelfth in a series, attempts through statistical analysis to determine whether individual Supreme Court Justices and the Court as a whole voted more "conservatively," more "liberally," or about the same in the 1996 Term as compared with past terms. Overall, the 1996 Term reflects consolidation rather than expansion of the current Court’s conservatism. Although the marked increase in the Court’s rejection of First Amendment claims this Term is atypically conservative, this movement may well be due to cross-cutting ideological issues in the cases decided, not substantive rejection of liberal free speech norms. Moreover, the most politically liberal members of the Court often vote as a bloc in supporting the federal government and in favoring statutory civil rights claims, suggesting that liberal forces on the Court are not quiescent. That reality is underscored by swing vote analysis showing once again this Term that whichever ideological wing captures Justices Kennedy’s vote obtains the power to decide the Nation’s most controversial cases. The ideology of the Rehnquist Court, in sum, is mature and ripe for change. The next replacements on the Court will either energize the Court’s extant (but somewhat quiescent) conservatism, or tip the balance of power in favor of an already established liberal wing.

NOTES

The Constitutionality of the Line Item Veto Act of 1996: Three Potential Sources For Presidential Line Item Veto Power
By Catherine M. Lee

For over a century, Presidents, regardless of their political affiliations, have sought the authority to exercise a line item veto on legislation passed by Congress. Such power was desired because it was believed that the line item veto would increase the President’s leverage in negotiations with Congress and help them root out special interest provisions buried in omnibus bills. Despite Presidents’ desire to attain a line item veto, Congress did not grant such authority because its constitutionality was at issue. Constitutional scholars asserted that the line item veto would violate the separation of powers doctrine because the President would be permitted to exercise lawmaking functions that belong solely to Congress. Although Congress hesitated for many years to grant the President line item veto authority, it finally authorized the President to exercise such power through the Line Item Veto Act of 1996.

The fact that the line item veto is now law has not halted the debate as to its constitutionality. This Note assesses the constitutionality of the Act by proposing and analyzing three characterizations of the line item veto. First, the line item veto may be characterized as a lawmaking authority. Although Congress can constitutionally delegate some authority to the President to make laws, the Act is not a permissible delegation of lawmaking power. Second, while the line item veto may function as an effectuation of the President’s Article I veto, it is unconstitutional because it infringes on Congress’ legislative powers. Finally, the line item veto may constitute power for the President to impound funds. Of the three characterizations, the impoundment theory is the strongest argument in support of the line item veto’s constitutionality because the Constitution does not explicitly bar such authority. However, the impoundment theory fails because it redistributes the balance of power between Congress and the President in favor of the President. This Note concludes that regardless of the line item veto’s characterization, the Line Item Veto Act is an unconstitutional violation of the separation of powers.

 
Quetzalcóatl, Crosses, and the New Constitutional Value of Multiculturalism
By Lori A. Adasiewicz

This Note examines two recent conflicting Ninth Circuit decisions concerning religious displays on publicly-owned land and advocates for the uniform application of a clear standard to this recurring question. In Carpenter v. City and County of San Francisco, the Ninth Circuit condemned the city’s ownership of the Mount Davidson cross, applying Article I, section 4 of the California Constitution. In Alvarado v. City of San Jose, it used the more lenient federal constitutional standard to approve the city’s erection and maintenance of a statute of Quetzalcóatl, an Aztec or pagan deity. The different approaches in these two functionally similar cases might partly be explained by a social and judicial trend embracing multiculturalism. While recognizing the immense value of a pluralistic society, this Note concludes that the law should be applied evenly to accept or reject such displays.