Volume 27, Issue 1

Volume 27, Number 1                                                                                                     Fall 2000

ARTICLES

The Missing Pieces  of the Debate Over Federal Property Legislation
By Richard H. Seamon & Max Kidalov

This Article analyzes the constitutionality of bills in Congress that would alter the two "ripeness" rules that the United States Supreme Court has developed for certain federal court lawsuits based on the Just Compensation Clause of the U.S. Constitution. The Court’s ripeness rules apply when a property owner sues a local land-use agency in federal court claiming that the agency has "taken" property by severely restricting the property’s use. One of the Court’s rules requires the owner to get a final decision from the local agency regarding permissible uses of the property. The other rule requires the owner to exhaust all available and adequate state procedures for obtaining just compensation. The bills in Congress would alter the "final decision" requirement and eliminate the "exhaustion" requirement. Opponents of the bills contend that the elimination of the exhaustion requirement, in particular, would violate Article III of the Constitution and exceed Congress’s power. This Article concludes that the bills’ elimination of the exhaustion requirement would not violate Article III but would exceed Congress’s power on the current legislative record. This Article also concludes, however, that if the legislative record were properly supplemented, the bills’ elimination of the exhaustion requirement would fall within Section 5 of the Fourteenth Amendment.

Neutrality of the Equal Protection Clause
By K.G. Pillai

Espousing colorblindness as the defining feature of the Equal Protection Clause, a bare majority of the Justices of the United States Supreme has outlawed almost all race and gender-conscious government programs such as affirmative action, legislative redistricting and school desegregation. The doctrinal foundation of colorblindness is government neutrality. Colorblindness also envisions vigorous enforcement of anti-discrimination laws as the substitute for race-conscious measures to achieve racial equality. However, equal protection neutrality remains amorphous, undefined and structureless, and it often provides a safe harbor for race disadvantaging laws that do not measure up to the Court’s standard of invidious discrimination. Moreover, the securement of individual and group-wide remedies for racial and gender discrimination is rendered difficult by the prevailing theories of discriminatory intent and disparate impact.

This Article analyzes the doctrinal deficiencies of equal protection neutrality as currently conceived and applied. Prof. Pillai argues that the ultimate success of the Court’s pursuit of a colorblind constitution hinges not only on its ability to objectively define neutrality by grounding it on the principle of absolute governmental impartiality, but also on its willingness to formulate an analytical structure to scrutinize claims of neutrality with the aid of properly allocated proof burdens. He maintains that a clearly defined neutrality concept will prevent or discourage the creation and enforcement of laws which disproportionately disadvantage racial minorities, women and other vulnerable members of our society.

NOTES

By Christina McPherson

Global Responsibility and the United States: The Constitutionality of the International Criminal Court
By Shannon K. Supple