Volume 26, Issue 4

Volume 26, Number 4                                                                                                     Summer 2000

ARTICLES

Searching for the Structural Vision of City of Boerne v. Flores: Vertical and Horizontal Tensions In the New Constitutional Architecture
By Thomas W. Beimers

During the Rehnquist Court, America has witnessed accelerating federal judicial activism on behalf of States’ rights, and a judicial branch that increasingly views itself as final arbiter of the proper allocation of power between the federal and State governments. Apologists for this trend identify it closely with perceived structural checks embedded in the Constitution, which are designed to ensure greater participatory access in self-governance. Despite this laudable goal, federalism-based precedents appear to conflict with civil rights legislation, such as the Americans With Disabilities Act and the Age Discrimination In Employment Act.

This article attempts to reconcile this apparent conflict by reference to the jurisprudence of Justice Brandeis, who embodied the simultaneous concern for States’ and individual rights. This article begins by analyzing the Court’s opinion in City of Boerne v. Flores and other decisions. It then examines the questions raised by lower court applications of City of Boerne to delimit congressional power to implement antidiscrimination legislation. In response to such decisions, this article situates City of Boerne squarely within existing separation of powers jurisprudence. Though federalism concerns clearly motivate the Court’s decision in City of Boerne, they are not the centerpiece of the Court’s decision. Rather, they constitute an important consideration for courts applying the test set forth in that decision. Turning more directly to the federalism concerns implicated by City of Boerne, this article concludes that such considerations necessarily give way to the more fundamental protections embodied in the challenged antidiscrimination laws.
 
Constitutional Comparisons and Converging Histories: Historical Developments in Equal Educational Opportunity Under the Fourteenth Amendment of the United States Constitution and the New South African Constitution
By Alfreda A. Sellers Diamond

The black populations in both the United States and South Africa continue to suffer under the legacy of past discrimination and unequal educational opportunity. In both countries, the constitutional revisions eliminating state-sanctioned racial discrimination failed to alleviate the disadvantages experienced by blacks in terms of socioeconomic status, educational opportunity and political power.

America’s post-emancipation history, including the Plessy v. Ferguson and Brown v. Board of Education Supreme Court jurisprudence, shows that the removal of de jure racial discrimination and constitutionally countenanced unequal treatment is not enough to repair the damage and lingering effects caused by former discrimination. Rather, more affirmative steps are necessary. South African policy makers would do well to learn from America’s experiences with post-emancipation inequality as they enter their own post-apartheid era and to create affirmative action policies directed at quickly creating true equality or opportunity.

NOTES

By Thomas Stuart Patterson

The biotechnological field of genetic engineering is advancing so rapidly that some scientists predict that within the next decade, technology will be available that will enable people to genetically engineer their offspring. This ability could be used for purposes as diverse as curing a genetic disease or selecting certain "favorable" characteristics for one’s progeny.

While there seem to be some potential benefits to such technology, there are specific dangers as well. Throughout the short history of genetic engineering, scientists have found that there are sometimes unanticipated negative effects that arise with genetic manipulation. Because of this fact, some scientists are particularly concerned with the idea of genetically engineering human children. As a result of this concern, it is quite possible that attempts will be made to pass legislation that would limit the ability to genetically engineer human offspring. This Note examines the issue of whether such regulations would be constitutional in light of the United States Supreme Court’s current jurisprudence relating to procreative liberty, the right to parental control, and the rights of the children who would be the subjects of the genetic engineering.

Separation of Powers: The Appointment of Bill Lann Lee as Acting Assistant Attorney General for Civil Rights
By David L. Jordan

This note asserts that President Clinton's naming of Bill Lann Lee as Acting Attorney General for Civil Rights, after the Senate's refusal to consent to his appointment, violated the doctrine of separation of powers under Article II, Section II, Clause 2 of the Constitution.  The President was possessed of neither the constitutional nor statutory authority to make Lee an "Acting" appointment.   Without such authority, the President's actions contravene the principles of separation of power set forth in the Supreme Court's seminal holding of Youngstown Sheet & Tube Co.  This conclusion is consistent with the intent of the drafters of the Constitution, as expressed in the Federalist Papers.