Talk:United States v. Morrison/Archive1

I don't get it? Couldn't the girl simply go to the FBI and have the two guys convicted for violating her civil rights and lock them up for up to 30 years? The FBI is well known to use civil rights violation convictions against criminals who were not punished for violent crimes. Like the KKK's negro activist killings in the early 1960's. 195.70.48.242 14:34, 11 January 2006 (UTC)


 * No. 128.255.8.84 02:12, 29 March 2007 (UTC)

Can someone please cleanup the red template.Lan Di 23:02, 10 August 2006 (UTC)

Facts of Case
Are you disputing those are facts of the case? Do you have a counter cite as that is what Taylor's articles clearly say? 69.105.0.115 02:20, 22 August 2006 (UTC)

Hi, how are you?Jimmuldrow 01:10, 23 August 2006 (UTC)

Disputed rationale
This sentence is simply incorrect. "...the Court majority ruled that the theory that states are "sovereign" in the area of law enforcement overrode the commerce clause and the equal protection clause."

The courts real rationale was that,

A. Gender motivated crimes are not economic activity "Gender-motivated crimes of violence are not, in any sense of the phrase, economic activity. While we need not adopt a categorical rule against aggregating the effects of any noneconomic activity in order to decide these cases, thus far in our Nation's history our cases have upheld Commerce Clause regulation of intrastate activity only where that activity is economic in nature. See, e.g., id., at 559-560, and the cases cited therein." (Section 2, Paragraph 15)

B. The law in question gives too much police power to the Feds. "If accepted, petitioners' reasoning would allow Congress to regulate any crime as long as the nationwide, aggregated impact of that crime has substantial effects on employment, production, transit, or consumption. Indeed, if Congress may regulate gender-motivated violence, it would be able to regulate murder or any other type of violence since gender-motivated violence, as a subset of all violent crime, is certain to have lesser economic impacts than the larger class of which it is a part." (Section 2, Paragraph 20)

C. This decision gives police powers to Feds that states have always had but Framers did not give to federal government. "We accordingly reject the argument that Congress may regulate noneconomic, violent criminal conduct based solely on that conduct's aggregate effect on interstate commerce. The Constitution requires a distinction between what is truly national and what is truly local. Lopez, 514 U.S., at 568 (citing Jones & Laughlin Steel, 301 U.S., at 30). In recognizing this fact we preserve one of the few principles that has been consistent since the Clause was adopted. The regulation and punishment of intrastate violence that is not directed at the instrumentalities, channels, or goods involved in interstate commerce has always been the province of the States. See, e.g., Cohens v. Virginia, 6 Wheat. 264, 426, 428 (1821) (Marshall, C. J.) (stating that Congress "has no general right to punish murder committed within any of the States," and that it is "clear ... that congress cannot punish felonies generally"). Indeed, we can think of no better example of the police power, which the Founders denied the National Government and reposed in the States, than the suppression of violent crime and vindication of its victims. [n8] See, e.g., Lopez, 514 U.S., at 566 ("The Constitution ... withhold[s] from Congress a plenary police power"); id., at 584-585 (Thomas, J., concurring) ("[W]e always have rejected readings of the Commerce Clause and the scope of federal power that would permit Congress to exercise a police power"), 596-597, and n. 6 (noting that the first Congresses did not enact nationwide punishments for criminal conduct under the Commerce Clause)." (Section 2, Paragraph 22)

D. Congress may only punish state actions of discrimination, not personal ones. "As our cases have established, state-sponsored gender discrimination violates equal protection unless it " 'serves "important governmental objectives and ... the discriminatory means employed" are "substantially related to the achievement of those objectives." ' " United States v. Virginia, 518 U.S. 515, 533 (1996) (quoting Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982), in turn quoting Wengler v. Druggists Mut. Ins. Co., 446 U.S. 142, 150 (1980)). See also Craig v. Boren, 429 U.S. 190, 198-199 (1976). However, the language and purpose of the Fourteenth Amendment place certain limitations on the manner in which Congress may attack discriminatory conduct. These limitations are necessary to prevent the Fourteenth Amendment from obliterating the Framers' carefully crafted balance of power between the States and the National Government. See Flores, supra, at 520-524 (reviewing the history of the Fourteenth Amendment's enactment and discussing the contemporary belief that the Amendment "does not concentrate power in the general government for any purpose of police government within the States") (quoting T. Cooley, Constitutional Limitations 294, n. 1 (2d ed. 1871)). Foremost among these limitations is the time-honored principle that the Fourteenth Amendment, by its very terms, prohibits only state action. "[T]he principle has become firmly embedded in our constitutional law that the action inhibited by the first section of the Fourteenth Amendment is only such action as may fairly be said to be that of the States. That Amendment erects no shield against merely private conduct, however discriminatory or wrongful." Shelley v. Kraemer, 334 U.S. 1, 13, and n. 12 (1948).

Shortly after the Fourteenth Amendment was adopted, we decided two cases interpreting the Amendment's provisions, United States v. Harris, 106 U.S. 629 (1883), and the Civil Rights Cases, 109 U.S. 3 (1883). In Harris, the Court considered a challenge to §2 of the Civil Rights Act of 1871. That section sought to punish "private persons" for "conspiring to deprive any one of the equal protection of the laws enacted by the State." 106 U.S., at 639. We concluded that this law exceeded Congress' §5 power because the law was "directed exclusively against the action of private persons, without reference to the laws of the State, or their administration by her officers." Id., at 640. In so doing, we reemphasized our statement from Virginia v. Rives, 100 U.S. 313, 318 (1880), that " 'these provisions of the fourteenth amendment have reference to State action exclusively, and not to any action of private individuals.' " Harris, supra, at 639 (misquotation in Harris).

We reached a similar conclusion in the Civil Rights Cases. In those consolidated cases, we held that the public accommodation provisions of the Civil Rights Act of 1875, which applied to purely private conduct, were beyond the scope of the §5 enforcement power. 109 U.S., at 11 ("Individual invasion of individual rights is not the subject-matter of the [Fourteenth] [A]mendment"). See also, e.g., Romer v. Evans, 517 U.S. 620, 628 (1996) ("[I]t was settled early that the Fourteenth Amendment did not give Congress a general power to prohibit discrimination in public accommodations"); Lugar v. Edmondson Oil Co., 457 U.S. 922, 936 (1982) ("Careful adherence to the 'state action' requirement preserves an area of individual freedom by limiting the reach of federal law and federal judicial power"); Blum v. Yaretsky, 457 U.S. 991, 1002 (1982); Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 172 (1972); Adickes v. S. H. Kress & Co., 398 U.S. 144, 147 n. 2 (1970); United States v. Cruikshank, 92 U.S. 542, 554 (1876) ("The fourteenth amendment prohibits a state from depriving any person of life, liberty, or property, without due process of law; but this adds nothing to the rights of one citizen as against another. It simply furnishes an additional guaranty against any encroachment by the States upon the fundamental rights which belong to every citizen as a member of society"). (Section 3, Paragraph 4-6)

So they actually ruled that crime in general is not part of interstate commerce and that the federal government has never had a general police power, which the states do, and this law gave them a power that the constitution reserves for the states. They then ruled that Feds can't through 14th punish private individual actions, only state actions, and she was suing him, not the state for action or inaction. This is more accurate and nuanced then simply saying "state sovereignty" overruled commerce and 14th amendment. 68.122.9.232 01:15, 23 August 2006 (UTC)

I did try to squeeze a lot of the above into an encyclopedia sized article. It's much more complete than it was before.Jimmuldrow 03:15, 23 August 2006 (UTC)

I think this statement "the Court majority ruled that the theory that states are "sovereign" in the area of law enforcement overrode the commerce clause and the equal protection clause." is not true, as the court ruled that sexual assualt was not interstate commerce and that private actions were not covered under the fourteenth amendment, not that state sovereignty overrode them, as state sovereignty was only discussed to show that the federal government didn't in general have the same powers over individuals and law enforcement that the state's do. So the decision said the federal government didn't have certain powers, not that state sovereignty overrode them. IR 05:40, 29 August 2006 (UTC)

All I can say is that, not having looked at this article for a while, and returning to it only now, I am deeply disappointed. The changes made since April have been highly inaccurate, for substantially the reasons given by User:68.122.9.232, and the quality of the writing itself is, I must say, very low. Hydriotaphia 13:05, 30 August 2006 (UTC)

Maybe Hydriotaphia has suggestions for improving the quality of the writing. There were fewer facts before, and worse formatting. Please point out any more inaccuracies that are valid. For now, I defer to your interpretation of the statement in question.Jimmuldrow 14:26, 30 August 2006 (UTC)

Also, if Hydriotaphia's reasons are substantially the reasons given by User:68.122.9.232, isn't the previous version worse? Those points are mentioned now, and weren't before. I appreciate good faith efforts to improve accuracy and writing, but no more (as User:68.122.9.232 did before) saying that a thing isn't there if (as happened on a previous occasion) it was only mentioned seven or eight times. Or repeating the same thing over and over no matter what the facts are. A good faith concern for accuracy includes not ignoring facts.Jimmuldrow 15:44, 30 August 2006 (UTC)

As for the old version, most of the old Rationale sub-section was a paragraph on the Lopez precedent which was removed at the repeated suggestion of User:68.122.9.232. You can say my writing quality is very low compared to that if you want to, but your expertise does us no good if you don't share what it is.Jimmuldrow 16:27, 30 August 2006 (UTC)

In terms of logic, Hydriotaphia's major premise is that he's deeply disappointed in the current version for reasons of factuality and prose.

Hydriotaphia's minor premise is that the reasons for the major premise are points mentioned by User:68.122.9.232 above.

Which, in terms of logic, would imply contradictory conclusions, namely that: that weren't there before, and taking out what User:68.122.9.232 wanted taken out, make the article worse than before. Jimmuldrow 16:41, 30 August 2006 (UTC)
 * Adding in points mentioned by User:68.122.9.232 above
 * The reason why is that Hydrotaphia agrees with points mentioned by User:68.122.9.232.

Maybe a good place to start would be for Hydrotaphia to decide whether adding points mentioned by User:68.122.9.232 makes the sub-article better or worse, and go from there.Jimmuldrow 16:49, 30 August 2006 (UTC)

The "original research" for Cruikshank applying the equal protection clause to state action, not to state inaction, was from another fine Wikipedia article on that decision.Jimmuldrow 19:47, 30 August 2006 (UTC)

Glad you found the sovereignty quote. Could all concerned here try to avoid Truthiness.Jimmuldrow 19:57, 30 August 2006 (UTC)

And Hydriotaphia, as to the factuality and prose of the old version, what did "additionally punishing criminals for the faults of the judicial system lacks the required proportionality." mean? That we should feel sorry for Morrison? Or that he was in danger of being punished too much? I thought the proportionality thing was about punishing Morrison instead of the state, although Rehnquist had another problem with that. So what was so great about the old version? Answer.Jimmuldrow 22:45, 30 August 2006 (UTC)

What I'm basically trying to say is, don't bluff or pretend. If you know the facts can be improved, do so by telling me something that's verifiable and that I don't already know, as opposed to incorrect corrections and bad manners. If the prose needs to be improved, why was it so bad before? Why didn't you improve it then, if you knew how?Jimmuldrow 22:52, 30 August 2006 (UTC)

Sorry I offended you. Let's see what we can do to improve the article. Hydriotaphia 03:03, 1 September 2006 (UTC)

As to Cruikshank, I think it's a matter of emphasis. I'm somewhat puzzled as to why it's discussed at such length in the article. The citation of Cruikshank is part of a larger string citation, and isn't relied on to the degree that, for example, the Civil Rights Cases and United States v. Harris are. Are you trying to make the point that the Morrison court reaffirmed the state action doctrine? If so, it seems to me Cruikshank isn't the case that Morrison relies on for that doctrine – it is, more than anything else, the Civil Rights Cases, which, as I'm sure you know, is the case that everybody cites to for the state action doctrine. Perhaps we should just eliminate the reference to Cruikshank altogether; it seems otiose, and it is more pertinent to discuss the Civil Rights Cases.

As to the "sovereignty" point, it's important to emphasize that the court, doctrinally at least, didn't strike down VAWA because it ruled that there are some inviolable core subject matters that only the states and not the federal government can regulate. The court struck it down – again, as a matter of explicit legal doctrine – because of the state action doctrine and because the "aggregation principle" of Wickard v. Filburn was held in Lopez not to apply to "noneconomic" activity. Now, if you want to say that the unstated but motivating force behind the decision was in fact the idea that there should be core state subject matters, that is fine, and indeed I agree with you; but we'll need to find a reputable authority for that proposition, because there's no support for that thesis in the text of the opinion itself. (When I have time I'll see if I can find such an authority.)

Finally, when I referred to the writing, I meant merely to refer to phrases such as "Rehnquist mentioned Civil Rights Cases decided by the Court in 1883 that overruled the Civil Rights Act of 1875 as a precedent." I've never heard lawyers or judges refer to statutes as "precedents" to be "overruled"; I've only heard those words used for case law. My point is simply that we should be a bit more precise and conventional in our diction here, that's all.

I'll see if I can find the time to pitch in. Meanwhile, best of luck to you. Hydriotaphia 03:21, 1 September 2006 (UTC)

So before you overlooked Rehnquist's quote about areas where states are "sovereign", then you found it, now you lost it again.

Whatever.Jimmuldrow 11:54, 1 September 2006 (UTC)

Also, Cruikshank wasn't just part of a string citation. It was cited because Rehnquist chose to quote from it. If you missed that, look again.

Rehnquist's interest in court cases from the Cruikshank era dates back at least to his 1952 memo "A Random Thought on the Segregation Cases."Jimmuldrow 12:03, 1 September 2006 (UTC)

I'm not sure what you're getting at here. Surely you're not saying that we ought to discuss every case from which Rehnquist quotes, because that would mean we'd have to devote space to United States v. Guest, Cohens v. Virginia, Shelley v. Kraemer, etc. I'm also not clear on why Rehnquist's personal "interest in court cases from the Cruikshank era" is either unique or (more importantly) relevant here; every constitutional lawyer is necessarily interested in Reconstruction-era case law, because it's so important to interpretation of the Fourteenth Amendment; and at any rate, this article is about Morrison, not about the intellectual predilections of Chief Justice Rehnquist. Best, Hydriotaphia 13:17, 1 September 2006 (UTC)

If you want relevance to law-enforcement issues, which is what is relevant to Morrison, Cruikshank and United States v. Harris apply to that more than a segregation decision. By 2000, even Rehnquist no longer tried to argue that "Plessy v. Ferguson was rightly decided and should be reaffirmed."Jimmuldrow 14:29, 1 September 2006 (UTC)

Also, if you want relevance, the part of Rehnquist's remark on areas of state sovereignty is the part that mentions law enforcement, which is why I had it that way before.Jimmuldrow 14:31, 1 September 2006 (UTC)

But I'll do it your way for now and give Civil Rights Cases top billing.Jimmuldrow 14:37, 1 September 2006 (UTC)

I think this is the right decision. After all, whether we should spend a whole paragraph talking about Cruikshank and Harris doesn't just depend on whatever factual similarities they may have to Morrison. It depends mostly on the emphasis that the court gave to those opinions. But it's not a huge deal, and at any rate I'm glad you got rid of the Cruikshank quote; that strikes me as a major improvement. The article is a bit clearer now, though it could stand more improvement of course, especially in the Commerce Clause section. I'll try my hand at it a bit later on today, if I have time. Best wishes, Hydriotaphia 14:44, 1 September 2006 (UTC)

Your the one that mentioned relevance, and Rehnquist is the one who mentioned law enforcement issues (murder, rape) when writing the opinion of the Court.Jimmuldrow 14:52, 1 September 2006 (UTC)

But you should get along just fine with the IP address guy.Jimmuldrow 14:54, 1 September 2006 (UTC)

Less Truthiness would be more helpful.Jimmuldrow 15:09, 1 September 2006 (UTC)

From
 * it's "original research" to
 * it's not original research but it's not relevant to
 * it's relevant but it's not the emphasis of the Court
 * unless you count what Rehnquist said about murder and rape.Jimmuldrow 15:22, 1 September 2006 (UTC)

Not only does never admitting you're wrong not mean you're right, it's one more huge problem on top of the rest. Especially if you insist on helping.Jimmuldrow 15:36, 1 September 2006 (UTC)

Again, I'm sorry that I seem to have offended you; I hope you won't get even angrier if I say this, but I do wonder whether you might want to step away from this article for just a little while to cool down. Best wishes, Hydriotaphia 18:31, 1 September 2006 (UTC)

I've revised the Equal Protection Clause section in keeping with our discussions here. Tell me if you have any objections to what I've done. Best, Hydriotaphia 18:57, 1 September 2006 (UTC)

Your additions to the revised section are very good, it seems to me. I'm so glad you mentioned Katzenbach v. Morgan and how Boerne (quite out of the blue!) replaced its older standard with "congruence and proportionality." Best, Hydriotaphia 01:22, 2 September 2006 (UTC)

I've now revised the Commerce Clause section to stress the reasoning the court set forth in its opinion. I believe the article is now a bit more accurate and informative now. I wonder if we shouldn't modify the sequence of this article, and discuss the Commerce Clause before discussing the Equal Protection Clause. That is, after all, the sequence of the majority opinion itself. Also, one final thing. The last section says the decision was seen as a part of a larger set of states' rights decisions "by both the Court and the press." I'm not sure whether we can justifiably say that the court saw it this way. The majority certainly didn't say anything like that. I certainly agree that it is part of a larger line of so-called "federalism" decisions striking down civil rights statutes, but I don't think the Morrison court acknowledged it as such. Best, Hydriotaphia 16:18, 2 September 2006 (UTC)

Ok, you did add a lot of good information. Much, much better than the old stuff that was there the first time I looked at it. ALthough, if I say so myself, even I did better than that.

At least you're not dumb. An opinionated son of a gun, but that's alright.Jimmuldrow 19:17, 2 September 2006 (UTC)

Complaining and failing to enforce the laws
The article was recently reverted here without comment, and I disagree with the reversion. First, consider this paragraph:

Rehnquist's opinions on the issue of states' rights dates back at least as far as a 1957 article he wrote for U. S. News and World Report, in which he (complained)(asserted) that Court clerks have a "liberal" bias about "expansion of federal power at the expense of State power."

The word "asserted" has a neutral point of view, whereas the word "complained" does not. Why insist on the word "complained"? Even if Rehnquist whined and moaned about this issue, still Wikipedia should say "asserted" because this is supposed to be a neutral encyclopedia rather than an editorial. If a person is correct about something, then it's unusual to say that they are "complaining." What could possibly be wrong with using the word "asserted"?

The following passage was also reverted without comment, and I disagree with that too:

In other words, the Rehnquist wing of the Court defined the failure of states to (equally enforce their own) (enact) laws as state inaction, whereas dissenting justices defined the same thing as state action, and rejected the majority's assertion that unequal (enforcement) (enactment) of the laws was consistent with equal protection of the laws.

Justices Breyer and Stevens criticized the states for not providing sufficient (or any) remedies. As I previously explained in the comments, failure to provide remedies means a failure to enact laws, not a failure to enforce laws already enacted. This was not a situation where the state had laws on its books and was refusing to enforce those laws to protect a particular class of people. Is there any serious disagreement?Ferrylodge 15:18, 30 January 2007 (UTC)


 * "Asserted" is fine, but the justices did mention studies indicating that states didn't equally enforce existing laws, which is why Rehnquist mentioned his own rather broad interpretation of Civil Rights Cases (broad in that it went beyond the holding of the case) to indicate that "There were state laws on the books bespeaking equality of treatment, but in the administration of these laws there was discrimination against newly freed slaves."Jimmuldrow 23:57, 30 January 2007 (UTC)


 * You say that "the justices did mention studies indicating that states didn't equally enforce existing laws". Where did the justices do that?  More importantly, the legislation that Congress passed did not order any state to enforce its existing laws, but rather gave new remedies to private parties.Ferrylodge 00:50, 31 January 2007 (UTC)

The following is in addition to Rehnquist's understanding of the government's argument mentioned above.

Here you go:

Souter's opinion

“Less than 1 percent of all [rape] victims have collected damages.” S. Rep. No. 102—197, at 44 (citing report by Jury Verdict Research, Inc.). “ ‘[A]n individual who commits rape has only about 4 chances in 100 of being arrested, prosecuted, and found guilty of any offense.’ ” S. Rep. No. 101—545, at 33, n. 30 (quoting H. Feild & L. Bienen, Jurors and Rape: A Study in Psychology and Law 95 (1980)). “Almost one-quarter of convicted rapists never go to prison and another quarter received sentences in local jails where the average sentence is 11 months.” S. Rep. No. 103—138, at 38 (citing Majority Staff Report of Senate Committee on the Judiciary, The Response to Rape: Detours on the Road to Equal Justice, 103d Cong., 1st Sess., 2 (Comm. Print 1993)). The National Association of Attorneys General supported the Act unanimously, see Violence Against Women: Victims of the System, Hearing on S. 15 before the Senate Committee on the Judiciary, 102d Cong., 1st Sess., 37—38 (1991), and Attorneys General from 38 States urged Congress to enact the Civil Rights Remedy, representing that “the current system for dealing with violence against women is inadequate,” see Crimes of Violence Motivated by Gender, Hearing before the Subcommittee on Civil and Constitutional Rights of the House Committee on the Judiciary, 103d Cong., 1st Sess., 34—36 (1993). It was against this record of failure at the state level that the Act was passed to provide the choice of a federal forum in place of the state-court systems found inadequate to stop gender-biased violence. See Women and Violence, Hearing before the Senate Committee on the Judiciary, 101st Cong., 2d Sess., 2 (1990) (statement of Sen. Biden) (noting importance of federal forum).21 The Act accordingly offers a federal civil rights remedy aimed exactly at violence against women, as an alternative to the generic state tort causes of action found to be poor tools of action by the state task forces. See S. Rep. No. 101—545, at 45 (noting difficulty of fitting gender-motivated crimes into common-law categories). As the 1993 Senate Report put it, “The Violence Against Women Act is intended to respond both to the underlying attitude that this violence is somehow less serious than other crime and to the resulting failure of our criminal justice system to address such violence. Its goals are both symbolic and practical … .” S. Rep. No. 103—138, at 38.

Breyer's opinion

The majority adds that Congress found that the problem of inadequacy of state remedies “does not exist in all States, or even most States.” Ante, at 27. But Congress had before it the task force reports of at least 21 States documenting constitutional violations. And it made its own findings about pervasive gender-based stereotypes hampering many state legal systems, sometimes unconstitutionally so. See, e.g., S. Rep. No. 103—138, pp. 38, 41—42, 44—47 (1993); S. Rep. No. 102—197, pp. 39, 44—49 (1991); H. R. Conf. Rep. No. 103—711, p. 385 (1994). The record nowhere reveals a congressional finding that the problem “does not exist” elsewhere. Why can Congress not take the evidence before it as evidence of a national problem? This Court has not previously held that Congress must document the existence of a problem in every State prior to proposing a national solution. And the deference this Court gives to Congress’ chosen remedy under §5, Flores, supra, at 536, suggests that any such requirement would be inappropriate.

Rehnquist's opinion

Petitioners alternatively argue that, unlike the situation in the Civil Rights Cases, here there has been gender-based disparate treatment by state authorities, whereas in those cases there was no indication of such state action. There is abundant evidence, however, to show that the Congresses that enacted the Civil Rights Acts of 1871 and 1875 had a purpose similar to that of Congress in enacting §13981: There were state laws on the books bespeaking equality of treatment, but in the administration of these laws there was discrimination against newly freed slaves. The statement of Representative Garfield in the House and that of Senator Sumner in the Senate are representative:

“[T]he chief complaint is not that the laws of the State are unequal, but that even where the laws are just and equal on their face, yet, by a systematic maladministration of them, or a neglect or refusal to enforce their provisions, a portion of the people are denied equal protection under them.” Cong. Globe, 42d Cong., 1st Sess., App. 153 (1871) (statement of Rep. Garfield).

“The Legislature of South Carolina has passed a law giving precisely the rights contained in your ‘supplementary civil rights bill.’ But such a law remains a dead letter on her statute-books, because the State courts, comprised largely of those whom the Senator wishes to obtain amnesty for, refuse to enforce it.” Cong. Globe, 42d Cong., 2d Sess., 430 (1872) (statement of Sen. Sumner).


 * Material about what Congress was attempting to do, and rephrasing how the two sides in Morrison defined the case, is not "Background on Rehnquist". That kind of stuff belongs in another section of the article, if it belongs in the article at all.Ferrylodge 04:32, 31 January 2007 (UTC)

I agree with Ferrylodge's comment immediately above. I would go a bit further, though. I would suggest that the section titled "Background on Rehnquist" be removed. It's interesting information, to be sure, but I think it belongs in his biography only. Here's my reasoning. To say that the pre-judicial writings which the section cites are relevant to this article, you must infer that these writings – more than 40 years old at the time Morrison was decided – influenced Rehnquist's opinion for the Court. (And I emphasize "opinion for the Court". Rehnquist authored it, to be sure, but he was writing for five Justices.)  But an inference like this seems to me a clear example of original research. If one wishes to make a connection between the pre-judicial writings and Morrison, I think the only permissible way to do it is to cite a reliable source which itself makes that connection. Essentially, I'm concerned that if the "Background on Rehnquist" section is included here, it'll become OK to include biographical speculation in every article about Supreme Court decisions. Best, Hydriotaphia 14:16, 31 January 2007 (UTC)

My original intention was to have no speculation at all, but merely allow Rehnquist to speak for himself. But people kept messing with it.Jimmuldrow 01:38, 1 February 2007 (UTC)

Big Problems With This Article
There is no way to cover Katz. v. Morgan and SC v. Katz. in one sentence. First off, the courts did not do anything substantive (Morgan did not end literacy tests, Congress did that). Also, the one sentence summaries miss the whole point of these cases. The literacy tests in Morgan had judicial backing as non-discriminatory, and therefore they did not violate the 14th or 15th amendment per se. The court, using the complex remedial theory (which I hear is a four letter word in this article) upheld the otherwise unconstitutional intrusion into states' rights based on the theory that it would remedy other discrimination, namely inequality of garbage collection in Puerto Rican communities. It was OK that it disenfranchized Puerto Ricans, because it disenfranchized EVERYBODY who could not read at a certain level regardless of race or other protected class. I changed this section a little bit but it still needs a lot of work. Maybe the article can just reference these two cases' pages instead of trying to give an incorrect summary?

I agree that the section on “Background on Rehnquist” should be removed, for the reasons explained by Hydriotaphia. It should be enough to link to the main article about Rehnquist. Attributing the Court’s Morrison decision to things like Rehnquist’s US News piece 50 years earlier is really too much like original research, and gives undue weight. I’m sure that Morrison is at least as attributable to its prior decision in Lopez, not to mention the framers’ design that we have not just a national government but also state governments that are somewhat independent of the national government in certain matters.

I’m also very concerned that Jimmuldrow is on the verge of an edit war here, and is misconstruing the Court’s holding in Morrison. We need to get this straightened out. It is not appropriate to delete stuff like the following from the article:

“While justices agreed on this aspect of the state action doctrine, the Rehnquist wing of the Court preferred a much broader interpretation of this doctrine: ‘the language and purpose of the Fourteenth Amendment place certain limitations on THE MANNER in which Congress may attack discriminatory conduct' (emphasis added)."

Thus, the Court was not saying that there was no discrimination by state actors in this case, but rather was saying that Congress was attacking it the wrong MANNER.

Rehnquist was not arguing “that his interpretation of Civil Rights Cases wouldn't allow laws against state actors.” Rehnquist was saying that the Civil Rights Cases involved discriminatory enforcement of laws on the books (just like in Morrison), and that Congress tried in the Civil Rights Cases to remedy the state action by attacking private parties INSTEAD of by attacking the state actors.

Rehnquist was not purporting to “interprete (sic) states that don't equally enforce their own laws as state inaction.” He was saying there was state action just like in the Civil Rights cases, but that Congress attacked it in the wrong MANNER.

It is incorrect to say that “As Rehnquist mentioned before, aiming laws at state officials would also be unconstitutional because of the 'Civil Rights Cases' precedent.” The Civil Rights Cases precedent DID NOT INVOLVE aiming federal laws at state officials, nor did Rehnquist say otherwise.

Thus, it is also incorrect to say: “According to the Rehnquist wing of the Court, the fact that many states don't equally enforce laws protecting women from rape and violence equally with other laws does not allow an equal protection of the laws reason for federal interference.” Additionally, the following material about the Katzenbach case is unnecessary and misleading, because the Morrison decision did not alter or change the precedent from Katzenbach whatsoever (if the Katzenbach precedent had been changed, it was changed in Boerne rather than in Morrison):

“The Rehnquist Court’s congruence and proportionality theory replaced the ratchet theory advanced in Katzenbach v. Morgan (1966). The ratchet theory held that Congress could ratchet up civil rights beyond what the Court had recognized, but that Congress could not ratchet down judicially recognized rights. The Rehnquist Court's congruence and proportionality theory made it easier to revive older precedents for preventing Congress from going too far in enforcing equal protection of the laws.”

As mentioned, this description is also slanted. In Boerne, Justice Kennedy argued that this description of Katzenbach “is not a necessary interpretation, however, or even the best one.”Ferrylodge 16:32, 31 January 2007 (UTC)

In keeping with this discussion, I will go ahead and get rid of the section on Justice Rehnquist. I'll keep watching this talk page to see if anybody objects to such an action. Hydriotaphia 03:49, 1 February 2007 (UTC)

We're all trying to solve problems, not cause them
Rehnquist addressed TWO separate issues. NOT ONE BUT TWO. While Flores referred to private actors, Rehnquist's interpretation of Civil Rights Cases meant equal protection would not apply to unequal enforcement of the laws regardless. Again, read the following:

Rehnquist's opinion

Petitioners alternatively argue that, unlike the situation in the Civil Rights Cases, here there has been gender-based disparate treatment by state authorities, whereas in those cases there was no indication of such state action. There is abundant evidence, however, to show that the Congresses that enacted the Civil Rights Acts of 1871 and 1875 had a purpose similar to that of Congress in enacting §13981: There were state laws on the books bespeaking equality of treatment, but in the administration of these laws there was discrimination against newly freed slaves. The statement of Representative Garfield in the House and that of Senator Sumner in the Senate are representative:

“[T]he chief complaint is not that the laws of the State are unequal, but that even where the laws are just and equal on their face, yet, by a systematic maladministration of them, or a neglect or refusal to enforce their provisions, a portion of the people are denied equal protection under them.” Cong. Globe, 42d Cong., 1st Sess., App. 153 (1871) (statement of Rep. Garfield).

“The Legislature of South Carolina has passed a law giving precisely the rights contained in your ‘supplementary civil rights bill.’ But such a law remains a dead letter on her statute-books, because the State courts, comprised largely of those whom the Senator wishes to obtain amnesty for, refuse to enforce it.” Cong. Globe, 42d Cong., 2d Sess., 430 (1872) (statement of Sen. Sumner).

I have been accurate a few times before, so let's both try to make sure we're not missing something.Jimmuldrow 17:12, 31 January 2007 (UTC)


 * Jim, Rehnquist was arguing here that there WAS discriminatory state action in both the Civil Rights Cases and in Morrison. And, he was saying that Congress attacked that discriminatory state action the wrong way in both cases.  It was the MANNER in which Congress attacked the discrimination that was the problem in both cases.  If Congress had instead given aggrieved parties a right to sue their state for lax and discriminatory enforcement of the state's criminal laws, then Rehnquist had no problem with such a suit.  The Court has said repeatedly that the 14th Amdt did abrogate sovereign immunity.Ferrylodge 17:22, 31 January 2007 (UTC)


 * I believe he was stating that state inaction is not state action. Flores did not involve private actors (state action when state lent its judicial might; otherwise private covenants OK).  This part of the opinion is difficult for me too, but the next sentence sheds some light on the overall message.  Civil rights cases had this legis. hist., VAWA has this legis. hist., therefore for VAWA to be good law notwithstanding Civ Rts Css, the two histories must be distinguishable.  The opinion goes on, "even if that distinction were valid . . . ."  Take from this what you will. 128.255.8.84 02:10, 29 March 2007 (UTC)

What Rehnquist said about private vs. state actors was with reference to Flores, which was a separate issue. For both private and state actors, Rehnquist also repeatedly said that the equal protection clause applied in very specific circumstances which clearly did not include states refusing to enforce their own laws. When did Rehnquist say that state actors could be sued for that specific reason? Find a quote for that if I'm missing something, but you might be confusing this with what Rehnquist said about Flores, which is a different matter.

Peace.Jimmuldrow 18:05, 31 January 2007 (UTC)


 * The quote from the case that you recently deleted was: "the language and purpose of the Fourteenth Amendment place certain limitations on THE MANNER in which Congress may attack discriminatory conduct" (emphasis added). In contrast, you have been arguing that the Morrison Court somehow held that Congress may not attack the discriminatory conduct at issue in any manner at all.  Where did Rehnquist say that?  Where did Rehnquist say that Congress couldn't allow women to sue a state that neglects to prosecute a serial rapist?  The VAWA didn't authorize any action whatsoever against a state, despite the fact the the 14th Amendment is obviously phrased as a limitation on states, rather than on private citizens.Ferrylodge 18:13, 31 January 2007 (UTC)

Again, the MANNER (dealing with the issue of state vs. private actors) was discussed with reference to Flores. A different, separate issue was Civil Rights Cases (or Rehnquist's understanding of it) that dealt with the CIRCUMSTANCES under which the equal protection clause could override the rights of states. These are two separate issues. For the Civil Rights Cases issue, Rehnquist said the equal protection clause would apply only if the written law was unequal in itself, without regard to whether the law was enforced equally or not.

Again, there are not one but two issues here. Flores requires the VAWA law to be aimed at state actors, as opposed to private actors. As an additional and separate issue, Civil Rights Cases, according to Rehnquist, additionally requires that VAWA address a state law that applies more to some than others with regard to the way it's written, and without regard to unequal enforcement. So Rehnquist mentioned NOT ONE BUT TWO hurdles that had to be cleared before equal protection would apply to the states. Lets not mix apples and oranges, or Flores and Civil Rights Cases.

In other words, Flores DID NOT REPLACE Civil Rights Cases but was and ADDITIONAL reason on top of what Rehnquist said about Civil Rights Cases. WHETHER VAWA WAS AIMED AT STATE ACTORS OR NOT, THE CIVIL RIGHTS CASES issues would still apply.Jimmuldrow 18:45, 31 January 2007 (UTC)

Remember also that one point disputed between the majority and the minority was whether the failure of states to equally enforce their own laws qualified as state action (the minority view), or state inaction (the majority view). According to the majority, unequal enforcement of the laws qualifies as state inaction and therefore the equal protection clause does not apply, and again this is an additional and separate issue from whether VAWA should apply to state and private actors.Jimmuldrow 19:02, 31 January 2007 (UTC)


 * Jim, you say, “According to the majority, unequal enforcement of the laws qualifies as state inaction and therefore the equal protection clause does not apply.” However, you’re not quoting anything, and you’re mistaken. Rehnquist very specifically said: “Petitioners alternatively argue that, unlike the situation in the Civil Rights Cases, here there has been gender-based disparate treatment by state authorities, whereas in those cases there was no indication of such STATE ACTION.”  Rehnquist DISAGREED with petitioners.  He argued that there WAS state action in the Civil Rights cases.


 * The Morrison Court also said: "As our cases have established, state-sponsored gender discrimination violates equal protection unless it serves important governmental objectives...." The Court NEVER hinted that the state-sponsored gender discrimination in the Morrison case serves important governmental objectives.  The Court continued: "the language and purpose of the Fourteenth Amendment place certain limitations on the manner in which Congress may attack discriminatory conduct. These limitations are necessary to prevent the Fourteenth Amendment from obliterating the Framers' carefully crafted balance of power between the States and the National Government."


 * You say, "Rehnquist said the equal protection clause would apply only if the written law was unequal in itself." That is just incorrect.  You aren't quoting anything, and are just making a bald assertion.  Regardless of whether a law is being discriminatorly enforced, or instead is unequal on its face, state-sponsored gender discrimination violates equal protection unless it serves important governmental objectives.  That's what the Morrison Court said.  The only issue is the manner in which Congress can attack that discrimination.  The minority in Morrison argued that, since there was state action, Congress can circumvent the states and directly provide remedies to private parties.  The majority in Morrison disagreed, and held that the states cannot be circumvented by Congress.  The solicitor general argued the Civil Rights Cases weren't applicable because the state statutes in the Civil Rights cases did not bespeak equality, and Rehnquist countered that those old statutes did bespeak equality; therefore, the Court concluded that --- just like in the Civil Rights cases --- Congress had to authorize lawsuits against the states rather than against private individuals.  The Morrison Court never suggested that the states could freely engage in state-sponsored gender discrimination.Ferrylodge 19:17, 31 January 2007 (UTC)

Two big issues here. First, Civil Rights Cases is IN ADDITION TO Flores, NOT A REPLACEMENT. Second, you keep saying I didn't mention quotes from the majority opinion indicating that, in Rehnquist's opinion, Civil Rights Cases does NOT define state action as a state's refusal to enforce its own laws. If you missed this before, here it is again:Jimmuldrow 20:04, 31 January 2007 (UTC)

Rehnquist's opinion

Petitioners alternatively argue that, unlike the situation in the Civil Rights Cases, here there has been gender-based disparate treatment by state authorities, whereas in those cases there was no indication of such state action. There is abundant evidence, however, to show that the Congresses that enacted the Civil Rights Acts of 1871 and 1875 had a purpose similar to that of Congress in enacting §13981: There were state laws on the books bespeaking equality of treatment, but in the administration of these laws there was discrimination against newly freed slaves. The statement of Representative Garfield in the House and that of Senator Sumner in the Senate are representative:

“[T]he chief complaint is not that the laws of the State are unequal, but that even where the laws are just and equal on their face, yet, by a systematic maladministration of them, or a neglect or refusal to enforce their provisions, a portion of the people are denied equal protection under them.” Cong. Globe, 42d Cong., 1st Sess., App. 153 (1871) (statement of Rep. Garfield).

“The Legislature of South Carolina has passed a law giving precisely the rights contained in your ‘supplementary civil rights bill.’ But such a law remains a dead letter on her statute-books, because the State courts, comprised largely of those whom the Senator wishes to obtain amnesty for, refuse to enforce it.” Cong. Globe, 42d Cong., 2d Sess., 430 (1872) (statement of Sen. Sumner).

Rehnquist's interpretation of Civil Rights Cases that says "There were state laws on the books bespeaking equality of treatment, but in the administration of these laws there was discrimination against newly freed slaves" indicates that, according to Rehnquist, what Congress was calling state action had been defined as state inaction in the Civil Rights Cases, according to Rehnquist. The confusion might be from the fact that Rehnquist disagreed not on the state action principal in theory, but on how to define it. In case you missed it, the Civil Rights Cases allowed "discrimination against newly freed slaves", and Rehnquist's interpretation of this is that laws that aren't enforced equally don't count as state action. Jimmuldrow 20:13, 31 January 2007 (UTC)


 * Jim, if this is all you've got, then you haven't got anything to show that, as you put it, Rehnquist believed unequal enforcement of the laws qualifies as state inaction and therefore the equal protection clause does not apply. The quote you provided shows the exact opposite: that the Morrison majority did view unequal enforcement of the laws as state ACTION, not inaction.  Look at your quote:


 * ”Petitioners alternatively argue that, unlike the situation in the Civil Rights Cases, here there has been gender-based disparate treatment by state authorities, whereas in those cases there was no indication of such state action. [Rehnquist then goes on to argue the last point.]  There is abundant evidence, however, to show that the Congresses that enacted the Civil Rights Acts of 1871 and 1875 had a purpose similar to that of Congress in enacting §13981: There were state laws on the books bespeaking equality of treatment, but in the administration of these laws there was discrimination [i.e. unequal enforcement] against newly freed slaves.”


 * Where in this quote does Rehnquist say that his interpretation of Civil Rights Cases wouldn't allow laws against state actors? Where does it portray states that don't equally enforce their own laws as state inaction?  Where does it say that aiming laws at state officials would be unconstitutional because of the 'Civil Rights Cases' precedent?   Where does it not allow an equal protection of the laws reason for federal interference?


 * The Civil Rights Cases did NOT allow state actors to discriminate against newly freed slaves. The statement that, "There were state laws on the books bespeaking equality of treatment, but in the administration of these laws there was discrimination against newly freed slaves" does NOT indicate that, according to Rehnquist, what Congress was calling state action had been defined as state inaction in the Civil Rights Cases. Instead, it indicates that state action had been attacked the wrong way by Congress, which had attacked private actors instead of attacking the administrators of the laws.  This is a quote from the Civil Rights Cases:


 * "the legislation which congress is authorized to adopt ... is not general legislation upon the rights of the citizen, but corrective legislation; that is, such as may be necessary and proper for counteracting such laws as the states may adopt OR enforce, and which by the amendment they are prohibited from making or enforcing, OR such acts and proceedings as the states may commit or take, and which by the amendment they are prohibited from committing or taking. It is not necessary for us to state, if we could, what legislation would be proper for congress to adopt" (emphasis added).Ferrylodge 20:20, 31 January 2007 (UTC)

Forget state actors for this part of it for the moment. That issue is and ADDITION TO, NOT A REPLACEMENT OF how to define state action. Refusal of states to equally enforce laws was called by two opposite and contradicting terms, state action and state inaction. I think that’s where the confusion lies.

Quoting from Civil Rights Cases is less relevant to Morrison than quoting Rehnquist's interpretation of Civil Rights Cases. It's ok for you to agree with the dissenters in Morrison, but you also need to read Rehnquist’s version of the story, which is the opposite. Both sides agreed with Civil Rights Cases. Both sides agreed with the state action doctrine. so why did they vote on opposite sides on this issue?

DIFFERENCES IN INTERPRETATION. Read again.Jimmuldrow 20:54, 31 January 2007 (UTC)


 * You ask, "so why did they vote on opposite sides on this issue?" They all agreed that there was possibly an Equal Protection violation, and the disagreement was about the MANNER in which Congress may remedy it.  What part of this explanation do you still disagree with?Ferrylodge 20:59, 31 January 2007 (UTC)

The MANNER MANNER MANNER MANNER MANNER is a SEPARATE SEPARATE SEPARATE SEPARATE SEPARATE issue from opposite interpretations of how to define state action. This was an issue for Rehnquist REGARDLESS AND IN ADDITION TO - REGARDLESS AND IN ADDITION TO - REGARDLESS AND IN ADDITION TO - REGARDLESS AND IN ADDITION TO - REGARDLESS AND IN ADDITION TO what was said about private vs. state actors.

Rehnquist made it very clear that the state actor issue was an add on in addition to his very clear contention that unequal unforcement of laws is STATE INACTION NOT STATE ACTION.Jimmuldrow 21:09, 31 January 2007 (UTC)

When Rehnquist switched from state action to private vs. public actors, there was a "But even if that distinction were valid" (for defining state action) in between. The state vs. private actors issue was ADDITIONAL to the other, NOT A REPLACEMENT FOR IT. If you keep mixing this up, you need to read more carefully.Jimmuldrow 21:20, 31 January 2007 (UTC)


 * Jim, you’ve said over and over again that, according to the Morrison Court, "unequal enforcement of laws is state inaction, not state action." Why not stick to what the justices actually said?  The word "inaction" was never mentioned by any justice on either side.


 * The only thing you quote from the Court's actual opinion is something that says the exact opposite. Rehnquist wrote: "Petitioners alternatively argue that, unlike the situation in the Civil Rights Cases, here there has been gender-based disparate treatment by state authorities, whereas in those cases there was no indication of such STATE ACTION.  There is abundant evidence, however, to show that the Congresses that enacted the Civil Rights Acts of 1871 and 1875 had a purpose similar to that of Congress in enacting §13981....”   Thus, your key quote says the exact opposite of what you say it says. Rehnquist argued AGAINST the position that there was no indication of state action, by citing evidence of unequal enforcement of facially equal statutes.


 * Moreover, the Morrison Court said that, “state-sponsored gender discrimination violates equal protection unless it serves important governmental objectives...." The Morrison Court did not give the slightest hint that the congressional findings of state-sponsored gender discrimination were incorrect. On the contrary, the Court said that the congressional findings were “supported by a voluminous congressional record.”  It is preposterous for you to insist that the Morrison Court's position was that the gender discrimination at issue in that case was no violation of equal protection.  Not even the dissents suggested that that was the Court's position.Ferrylodge 22:11, 31 January 2007 (UTC)

When Rehnquist said:

"Petitioners alternatively argue that, unlike the situation in the Civil Rights Cases, here there has been gender-based disparate treatment by state authorities, whereas in those cases there was no indication of such state action. There is abundant evidence, however, to show that the Congresses that enacted the Civil Rights Acts of 1871 and 1875 had a purpose similar to that of Congress in enacting §13981: There were state laws on the books bespeaking equality of treatment, but in the administration of these laws there was discrimination against newly freed slaves."

He was saying that those he disagreed with (petitioners) claim that Morrison was different from Civil Rights Cases in that they (petitioners who Rehnquist disagrees with) allege that "unlike the situation in the Civil Rights Cases, here there has been gender-based disparate treatment by state authorities, whereas in those cases there was no indication of such state action." By contrast, Rehnquist said "There is abundant evidence, however, to show that the Congresses that enacted the Civil Rights Acts of 1871 and 1875 had a purpose similar to that of Congress in enacting §13981: There were state laws on the books bespeaking equality of treatment, but in the administration of these laws there was discrimination against newly freed slaves."

In other word, petitioners thought that the Civil Rights Cases didn't apply because of the "gender-based disparate treatment by state authorities" they thought distinguished Morrison from Civil Rights Cases. By contrast, Rehnquist said this situation was addressed by the Civil Rights Cases precedent because "There were state laws on the books bespeaking equality of treatment, but in the administration of these laws there was discrimination against newly freed slaves."

Rehnquist made it clear that he thought the Civil Rights Cases argument was seperate from the issue of state vs. private actors when he said "But even if that distinction were valid" (about the petioners argument for defining state action) before subsequently giving the additional and independent argument about state vs. private actors.

I did read what Rehnquist wrote. And once again, you missed a spot.Jimmuldrow 23:15, 31 January 2007 (UTC)

This isn't the first or second or third time you argued endlessly and then found out you missed a spot.Jimmuldrow 23:22, 31 January 2007 (UTC)

It sounds as if you repeatedly mistake Rehnquist's summary of the opinions of petitioners that he disagrees with for Rehnquist's own opinions because of your bias.Jimmuldrow 23:27, 31 January 2007 (UTC)

Given what's been said up to now, remember that the statement "But even if that distinction were valid" contains the words "but" and "if".Jimmuldrow 23:30, 31 January 2007 (UTC)

After all the times you were wrong before, why didn't you read more carefully before repeating the same stuff over and over this time?Jimmuldrow 23:33, 31 January 2007 (UTC)

When Rehnquist was arguing against the assertion that "gender-based disparate treatment by state authorities" distinguished Morrison from the Civil Rights Cases, he very clearly sought to point out that what the petioners thought was "disparate treatment" that wasn't interpreted as state inaction by Civil Rights Cases was indeed interpreted that way by the Civil Rights Cases Court based on Rehnquist's private research on statements made by radical Republicans who supported the Civil Rights bills in question.Jimmuldrow 23:53, 31 January 2007 (UTC)


 * Jim, I've certainly been mistaken no more often then you, so let's leave aside the snarky comments, please. And as for bias, I think you have enough for both of us. Let’s try to focus on facts.


 * You say Rehnquist was arguing that disparate gender treatment should be considered just as constitutional as the state-sponsored discrimination that Rehnquist saw in the Civil Rights cases. But that's not what he said.  Rehnquist never suggested any disagreement with petitioners’ contention that there was discriminatory state action in Morrison.  And he was very clear that “state-sponsored ... discrimination violates equal protection unless it serves important governmental objectives...."


 * You quote Rehnquist’s statement: "But even if that distinction were valid". Rehnquist was saying, for the sake of argument, that perhaps the petitioners were correct that there was no "state action" in the Civil Rights Cases (i.e. Rehnquist was supposing that his "private research" was not dispositive), and so Rehnquist was supposing that the Civil Rights Cases could be distinguished from the case at issue (Morrison).  Either way, Rehnquist was saying that there WAS state action in Morrison.  Why do you keep insisting that Rehnquist denied there was state action in Morrison?Ferrylodge 00:15, 1 February 2007 (UTC)

Rehnquist didn't say there was "state sponsored" discrimination. If Rehnquist agreed with the government when he mentioned that "There were state laws on the books bespeaking equality of treatment, but in the administration of these laws there was discrimination against newly freed slaves", he would have been writing with the dissenters instead of the others. This was an argument for the Morrison majority, not an argument against it. His point was that Civil Rights Cases DID allow unequal enforcement of laws where "disparate treatment" was the result. And Rehnquist WAS NOT UP TO THE PARAGRAPH ON STATE VS. PRIVATE ACTORS YET. And so neither are we, because to do so would not be encyclopedic. And yes, Rehnquist made it very clear that the private vs. state actor argument was IN ADDITION TO the rest.Jimmuldrow 01:16, 1 February 2007 (UTC)


 * Jim, if you honestly still believe that five justices wrote in Morrison that the equal protection clause does not apply to unequal enforcement of the laws, then you've got to explain yourself much more clearly. Pretend that I'm a complete idiot (I know that shouldn't be hard for you), and write a paragraph in this discussion page that explains your reasoning as clearly as you can.  I very much doubt that I'll agree with you, but we'll see.  It really seems absurd that the Supreme Court would ever say such a thing.  How could they ever go out in public after saying that states can discriminate as much as they want as long as their laws look good on paper?  It really makes no sense to me.Ferrylodge 01:23, 1 February 2007 (UTC)

Sorry if I was rude. I was frustrated. I think it would be better to explain the "disparate treatment" argument in one sub-section and the state vs. private actors issue in a separate sub-section, in keeping with the "but" and "if" that Rehnquist used in between the two. I think the rest will make sense if you don't try to combine the two, since Rehnquist didn't do so. I think the result will be consistent with a careful reading of the holding of the case.Jimmuldrow 04:11, 1 February 2007 (UTC)

I think Ferrylodge probably has the better of this argument. The paragraph where Rehnquist quotes the statements of Garfield and Sumner and draws a comparison between the invalidated provisions of the Reconstruction Civil Rights Acts and the civil remedy provisions of VAWA seems to me to be dicta, more or less. True, a fair reading of the opinion is that Rehnquist was trying to suggest that mere unequal enforcement of already existing laws does not constitute state action. (Ferrylodge is right, by the way, that the opinion never uses the term "inaction," which is significant; we should try to stick as close to the text of the opinion as possible, so as to avoid original research.) The subjunctive in the phrase, "But even if that distinction were valid," certainly lends credence to the interpretation that Rehnquist was saying "unequal enforcement is not state action." However, nowhere does the Court actually say this. Moreover, the Court's opinion expends significantly more effort (3 paragraphs compared to 1) in showing that VAWA is inconsistent with City of Boerne than in drawing a comparison between VAWA and the post-Civil-War Civil Rights Acts. Perhaps it is best to say something like "the Court briefly implies that unequal enforcement does not constitute state action, but holds that VAWA's civil remedy is not congruent and proportional under City of Boerne." Also – a somewhat different subject – I think the article's references to the "Rehnquist majority" or the "Rehnquist opinion" should be modified to read simply "the majority" and "the Court's opinion." Without biographical speculation of the sort to which I've already objected, it is irrelevant that Rehnquist wrote the majority opinion in Morrison. Hydriotaphia 04:14, 1 February 2007 (UTC)


 * It seems pretty clear that the Morrison Court assumed that there was disparate treatment by state authorities in both the VAWA context as well as in the context of the Civil Rights cases. Isn't that pretty clear? The headnotes say: "Assuming that there has been gender-based disparate treatment by state authorities in this case, it would not be enough to save §13981's civil remedy, which is directed not at a State or state actor but at individuals who have committed criminal acts motivated by gender bias."


 * The Morrison Court believed that there was state action in both the VAWA context and the Civil Rights Act context. But state action alone is not enough to justify whatever remedies Congress can dream up.  The remedies must attack the state action, rather than circumventing the state action.  This case was about whether a particular type of remedy for discriminatory state action is unconstitutional, and not about whether all remedies for that state action would be unconstitutional. Ferrylodge 04:50, 1 February 2007 (UTC)


 * Well, the headnotes aren't the case. Indeed, there's always a disclaimer in every Supreme Court opinion that the headnotes are for the reader's convenience only.  I agree, however, that the Court's emphasis was on the congruence and proportionality of the remedy.  The article as it is now written spends way too much time discussing The Civil Rights Cases, Harris, and Cruikshank.  In fact, the Equal Protection section is much too long.  All it needs to say is that the Court reaffirmed the state action doctrine and held that the remedy lacked congruence and proportionality.  Much editing remains to be done to this article.   Hydriotaphia 13:56, 1 February 2007 (UTC)

The article would be shorter if we reverted back to the way it's been for many months before all the controversy (and pressures to expand the article by including detailed explanations for things) started. Would it be ok to revert to that? Jimmuldrow 18:19, 1 February 2007 (UTC)

Also, the very top of the opinion for the Court lists Civil Rights Cases and Harris as among the controlling precedents for Morrison, in addition to Lopez. It would be a good idea to accept what's written in the Court's opinions more, whatever our own opinions.Jimmuldrow 18:34, 1 February 2007 (UTC)

Hydriotaphia, I hope you don't mind if I copy and paste a suggestion of yours.Jimmuldrow 07:21, 1 February 2007 (UTC)

I never meant to imply that ALL remedies are unconstitutional, only the specific ones mentioned by Rehnquist.Jimmuldrow 07:30, 1 February 2007 (UTC)


 * Why not mention that in the article Jim? Instead you say in the article the exact opposite: "Rehnquist mentioned before [that] aiming laws at state officials would also be unconstitutional because of the Civil Rights Cases precedent."  This is a false statement, by the way.  What remedies do you imagine the Morrison Court allowed, if the Court forbade congressional action against private parties and forbade congressional action against state officials?  Who is left for Congress to constitutionally take action against, according to your theory of this case?Ferrylodge 09:45, 1 February 2007 (UTC)

It sounds like you'll just keep endlessly mushing the state actor/private actor argument with the one that applies to unequal enforcement, and endlessly ignore the fact that Rehnquist did not do so in his opinion for the Court.Jimmuldrow 17:55, 1 February 2007 (UTC)

Diatribe Against Rehnquist
I find that the recent edits by Jimmuldrow make the article read more like a diatribe against Rehnquist than a balanced summary of the case. I agree with Hydro that the "Background on Rehnquist" section should go. Breyer's agreement with the state action doctrine has now been deleted, in order to make the Morrison majority look extreme.

It is also now stated in the article that the Civil Rights Cases "allowed segregation" when in fact they did not. The Civil Rights Cases never said that segregation by states was constitutional (quite the opposite), and moreover the dissenters in Morrison agreed with the state action principle of the Civil Rights Cases.

The article is now sprinkled with "Rehnquist did this" and "Rehnquist did that", as if he had five votes all by himself. There is no explanation that the Morrison Court acknowledged that there was evidence of state-sponsored gender discrimination, and no explanation that the Morrison Court allowed Congress to remedy that gender discrimination by taking action against the state perpetrators (rather than against private actors).

Additionally, the following statement in the article is egregiously wrong: "Rehnquist mentioned before [that] aiming laws at state officials would also be unconstitutional because of the Civil Rights Cases precedent." That is completely untrue, and is unsupported by any quote, or any reasonable argument. The Civil Rights Cases did not involve any federal laws aimed at state officials, but rather involved federal laws aimed at private actors, and so that case created no precedent whatsoever against aiming laws at state officials. The Morrison majority argued that the Civil Rights Act had been designed to remedy state-sponsored discrimination. No one in the Morrison case (including the majority, the minority, and the parties) disputed that the congressional remedy in the Civil Rights Cases was directed only at private actors.

Also, the present article's description of the "ratchet theory" is not balanced. The article now describes the ratchet theory, while merely mentioning at the end that Justice Kennedy disputes that description. If Kennedy disputes it (on behalf of a majority of justices), then why is that description being presented as if it were the official Wikipedia view?

Even if the whole section on Equal Protection were accurate (which it is not), the section needs a rewrite for syntax and composition. I wish that a consensus had been reached before the most recent edits.Ferrylodge 07:12, 1 February 2007 (UTC)


 * I agree with a good deal of this. The "Equal Protection" section is indeed poorly written – sometimes almost incomprehensible.  I had not seen that the article says the Civil Rights Cases "allowed segregation."  That is both incorrect and remarkably tendentious.  When I have time I will try my hand at a rewrite of the Equal Protection section.  Hydriotaphia 13:46, 1 February 2007 (UTC)


 * And let me again say that I find highly objectionable the article's references to Rehnquist. It was a majority of the Court that signed on to his opinion.  I have, once again, eliminated the "Background on Rehnquist" section, because I have not heard any justification for its presence.  Hydriotaphia 13:49, 1 February 2007 (UTC)

The Wikipedia article on Civil Rights Cases begins with the following summary of the result:

The Civil Rights Cases, 109 U.S. 3 (1883)[1], were a group of five similar cases consolidated into one issue for the United States Supreme Court to review. The decision held that Congress lacked the constitutional authority under the enforcement provisions of the Fourteenth Amendment to outlaw racial discrimination by private individuals and organizations, rather than state and local governments.

Maybe allowing "racial discrimination" is different from allowing "segregation"? If so, I was unaware of the distinction.Jimmuldrow 16:20, 1 February 2007 (UTC)


 * You have omitted the following crucial qualifier in the present article: "by private individuals and organizations, rather than state and local governments." You also omitted the fact that Breyer and Souter AGREED that Congress cannot use the 14th amdt to remedy private discrimination.Ferrylodge 19:50, 1 February 2007 (UTC)

The article does say that Civil Rights Cases applies the the Equal Protection Clause "only to acts done by states, not to those done by private individuals."Jimmuldrow 20:47, 1 February 2007 (UTC)

Redundancy
Thanks for criticizing the way it was written before, but why the redundancy? And to repeat the same point over and over without the qualifications clearly mentioned by Rehnquist, and then add a "perhaps" in front of the place where that qualification does exist, seems like denial. Relentless, hysterical, repetitive denial.Jimmuldrow 23:50, 1 February 2007 (UTC)


 * Jim, if you want an intelligent response, you'll have to make intelligent comments. I have no idea if you're referring to "redundancy" on this discussion page, or redundancy in the article.  I have no idea what particular "qualifications clearly mentioned by Rehnquist" you're referring to.  When did I ever delete any such qualifications?  Maybe you could quote them, so we would all have some clue about what you're talking about.


 * I did edit the article so that it says the following:


 * "The Court in Morrison also said: 'but even if that distinction were valid' (referring to the government's argument that unequal enforcement of laws protecting women was different from the Civil Rights Cases scenario), the civil remedy would still be unconstitutional under the doctrine first set forth in City of Boerne v. Flores (1997). The Court thus briefly acknowledged that perhaps unequal enforcement had not been recognized by the Court in the Civil Rights Cases, but nevertheless the Morrison Court then held that VAWA's civil remedy failed to meet the Flores requirement ...."


 * If that is what you are referring to, then why not quote it? How can you expect anyone to follow what you're saying if you don't specify what paragraphs you are referring to?  The Court was saying that "perhaps" the distinction is valid.  That should be quite obvious.  As you have pointed out, the Morrison Court's discussion of unequal enforcement re. the Civil Rights Cases was based on congressional statements rather than based on what the Court had said in the Civil Rights Cases.  So, Rehnquist acknowledged that perhaps the factors mentioned in congressional debate were not really part of the Court's decision in the Civil Rights Cases.  What in the world is controversial about mentioning that in the present article?  And I only mentioned it once, not redundantly.Ferrylodge 00:21, 2 February 2007 (UTC)

Oh, that's a very good edit that you've made, Ferrylodge. The "perhaps" is precisely right. Very good, very terse, very accurate. Bravo! Hydriotaphia 04:26, 2 February 2007 (UTC)

Rehnquist used the word "perhaps" with regard to Wickard when discussing the Commerce Clause. Maybe that's what you meant?Jimmuldrow 18:22, 2 February 2007 (UTC)


 * I'm sorry Jim, I'm not sure I understand what you're getting at. Hydriotaphia 18:40, 2 February 2007 (UTC)

With reference to the above by FerryLodge, I believe the word "perhaps", if this is meant to be from Rehnquist's opinion, exists there with regard to Wickard and the Commerce Clause, as opposed to whatever else is being talked about. I didn't see it used elsewhere.Jimmuldrow 20:09, 2 February 2007 (UTC)


 * The word "perhaps" is not quoted in the article, so it seems appropriate.Ferrylodge 21:04, 2 February 2007 (UTC)


 * Unless I'm mistaken, I don't think the "perhaps" was meant as a quote but rather as a paraphrase. The Court briefly drew a comparison between VAWA and the law struck down by the Civil Rights Cases, but rested its holding elsewhere.  That is, the dispositive factor was not the analogy between VAWA and the Reconstruction-era civil rights law, but rather the fact that the remedy was not congruent and proportional (according to the Court).  In short, the opinion itself (as opposed to interpretations of the opinion) briefly took up the analogy between VAWA and the Civil Rights Act of 1875 – but then dropped it and went on to its Boerne analysis.  The reason why "perhaps" is appropriate is because it is very hard, if not impossible, to tell what role the analogy between VAWA and the Civil Rights Act of 1875 played in Morrison; the Court never says.  Respectfully,  Hydriotaphia 21:11, 2 February 2007 (UTC)

I have made fairly drastic changes to the equal protection section in light of what has been discussed on this page. I very much agree with Jim Muldrow that redundancy was a problem, and I tried to do something about that. I also retained many of Ferrylodge's edits. I believe the section now accurately reflects the Court's opinion, without including any irrelevant and unnecessary digressions. Best, Hydriotaphia 04:57, 2 February 2007 (UTC)


 * I agree with the recent changes by Hydriotaphia. I only made a few extremely slight edits (e.g. for spelling).  It's now very concise and straightforward.  I would say that the very diplomatic Hydriotaphia must be from the State Department, except that the State Department is rarely so concise.Ferrylodge 05:24, 2 February 2007 (UTC)


 * You should stop complimenting me like that ... people will start to think you're my sock puppet! Seriously, though, thanks for your kind words.  Hydriotaphia 06:04, 2 February 2007 (UTC)


 * I'll compliment Jimmuldrow too, if we can settle this and move on with our lives.Ferrylodge 06:09, 2 February 2007 (UTC)

Comments on latest revision
I've reverted the latest revision because of pretty significant problems in it. If one wishes to discuss Lopez and Boerne, which I think appropriate and indeed necessary in this article, it should be done in a much more concise way. And a discussion of Lopez and Boerne should be part of the discussion of the Court's opinion itself. Also, there was a great deal of original research, lack of citation, weasel words, etc. in the additions. Just a few examples:


 * the Court's Morrison decision was widely interpreted as a continuation of the Court's changing interpretation of the Commerce Clause and the Equal Protection Clause.

"Widely interpreted" is weaselly. "Changing interpretation" is supportable, I think – I very much agree that the Court's interpretation of the Commerce Clause and Fourteenth Amendment substantially altered under the Rehnquist Court – but unless it is supported by a citation is nothing more than an unsubstantiated expression of opinion, which is inappropriate here.


 * Until five years before Morrison the Court interpreted the Commerce Clause as imposing very few restrictions on which laws Congress could pass that would affect the states.

Again, this is unsupported.


 *  Lopez represented the most significant restriction on the Commerce Clause powers of Congress in the 53 years between Wickard v. Filburn (1942) and Lopez.

I agree with this statement, but unless it is supported by a citation it is simply an assertion (and therefore OR).


 *  Boerne specifically limited Congress to the Court's interpretation of this clause, which was more restrictive than the interpretation that prevailed during the 31 years between Katzenbach v. Morgan and Boerne.

The Court in Boerne did not agree with this statement. Kennedy's majority opinion asserted that it was not departing from Katzenbach. While I disagree with the majority opinion in this assertion, I also think that saying that Boerne was more restrictive than Katzenbach is utterly inappropriate unless a reputable source can be cited for this proposition.


 *  Lopez didn't completely reverse Wickard, but did significantly narrow its scope.

This is an egregious example of POV. While I agree with it, it is unsupported.


 * This congruence requirement replaced the previous theory advanced in Katzenbach v. Morgan that the Equal Protection Clause is "a positive grant of legislative power authorizing Congress to exercise its discretion in determining the need for and nature of legislation to secure Fourteenth Amendment guarantees." Before the 1997 Boerne decision, Katzenbach v. Morgan was widely interpreted as allowing Congress to go beyond, but not fall short of, the Court's interpretation of the Equal Protection Clause.

This is too long, expresses original research, and contains weasel words. Again, inappropriate here. The rest of the recent addition is, with due respect to the author, rambling and difficult to understand.

When I have time, I'll try my hand at this article once again and try to incorporate as much as I can of the recent addition. But in its current form, that addition is highly objectionable under Wikipedia standards. Respectfully, Hydriotaphia 19:18, 13 February 2007 (UTC)


 * Is the alleged "lack of citation" in comparison to everything else in the article, including the sizable block done by yourself? If so, the entire article should be deleted by your own assumptions, since I cited quite a bit more than you.Jimmuldrow 20:07, 13 February 2007 (UTC)


 * Hydriotaphia raised limited objections about a specific portion of the article. Those objections cannot be addressed by raising objections about other parts of the article.  Let's please take one thing at a time, and focus on the specific portion of the article.Ferrylodge 20:16, 13 February 2007 (UTC)

Jim, I'm sorry, but I honestly don't understand what you're referring to when you mention the other sections of the article. I don't see any citations for the opinions expressed in the section you added. The other sections, by contrast, cite to the Court opinion or to the media (and, probably more importantly, they merely summarize and do not express an unsupported point of view). Of the two footnotes in the section you added, one adds no information and the second is very difficult for anyone who has not read the opinion in Boerne to understand; I don't object to its content, I object to its presentation, and to the loaded term "states' rights" in the text. (You would agree that that is an awfully loaded term, right?) Perhaps we're just talking past each other. I'm not sure what else I can say to convince you that the section you added is full of assertions which, because they are unsourced, are essentially opinionated original research, and also full of slippery terms like "widely interpreted," etc. I sincerely regret that you feel, as you said on my talk page, that I've made "repeated incorrect corrections and seemingly deliberate mistakes." I assure you that all the mistakes I've made have been quite by accident! For better or for worse, I don't have the time or the energy to keep up what looks to have become more or less an edit war. Good luck with this page; please do take a second look at pages like WP:OR, and in particular this. Respectfully, Hydriotaphia 20:29, 13 February 2007 (UTC)


 * Ok, I'll assume good faith as far as my previous criticisms go. It sounds like loaded words are part of your objection? All the quoted material is from the Court opinions, and a reference does indicate the opinion (Kennedy's for Boerne) when it's not the one for Morrison directly. I'll try again, since I think this is important, but I'll try to address your objections as best I can. I'll also try to reduce the length a bit.Jimmuldrow 20:47, 13 February 2007 (UTC)


 * I've tried to include as much of the new material as possible, while eliminating POV problems, reformatting per Wikipedia guidelines, et cetera. Others may want to make the article more concise, but my goal has been primarily to make the article more neutral and balanced.Ferrylodge 04:37, 14 February 2007 (UTC)

I think this is a lot closer to what the Court opinions say
Before getting too excited, please check the original Court opinions carefully. To be as objective as possible, I tried to mirror closely what the Court opinions say about unequal enforcement of state laws. It is evident that Rehnquist understood the form of logic that includes a major premise, a minor premise, and a conclusion that follows from the premises. The conclusion is implied, but if you accept Rehnquist's premises, you must also accept the conclusion that follows from the premises.

In any event, lets all try to assume good faith and be as objective as possible here. Since what Court opinions say is objective as far as this article is concerned, let' make certain that any revisions more closely approximate what the Court opinion has to say. If a desired change doesn't reflect the Court opinions, let's leave it out.Jimmuldrow 03:30, 18 February 2007 (UTC)


 * I've tried to keep as much of what was there as possible. I have, however, eliminated the very long discussions of Boerne and Lopez.  Those discussions belong instead on the Boerne and Lopez article pages.  Respectfully,  Hydriotaphia 04:24, 18 February 2007 (UTC)


 * I generally think the article is in good shape. Although I have qualms about the article, I won't press them at this point.  My primary qualm is that I don't think the Court was intimating in Morrison that unequal enforcement of state laws could never be remedied by Congress, and could never justify a federal statute authorizing suits against the responsible state officials.Ferrylodge 04:52, 18 February 2007 (UTC)


 * Yeah, problems remain. I too am concerned about what you term your primary qualm.  Because it's so hard to figure out what the Court meant, I think it would be wiser not to mention it at all.  I am more or less content with the present state of the article, however, and hope it will placate all concerned parties.  Hydriotaphia 05:14, 18 February 2007 (UTC)


 * In light of this discussion about your primary qualm, I am troubled by this edit. What do you think we should do?  Hydriotaphia 07:04, 20 February 2007 (UTC)


 * I've made an edit that should resolve the matter. If it doesn't, then I guess we just keep on going round and round.Ferrylodge 07:07, 20 February 2007 (UTC)

Hydriotaphia, you said elsewhere that I made more that three reverts. Where was that? I don't see it.Jimmuldrow 13:33, 19 February 2007 (UTC)

Also, sorry if I wrongly accused you of stalking. You appeared behind almost every change I made, including changes to a couple of articles that didn't exist before I created them. If this is coincidental, sorry.Jimmuldrow 14:46, 19 February 2007 (UTC)


 * It was not me who objected, it was Ferrylodge. If I were you, I would take up this subject on the RfC page.  Offhand, though, I think he was referring to these reverts:  first, second, and third.   Hydriotaphia 14:33, 19 February 2007 (UTC)

Is that more than three reverts?Jimmuldrow 14:49, 19 February 2007 (UTC)

Unequal Enforcement
I have just edited the article so that it says:


 * "In response to the government's argument that VAWA was intended to correct the states' systemic gender bias in enforcing their own criminal laws dealing with violent criminal actions by private parties, the Court said that such actions resulting from unequal enforcement of the laws would not qualify as state action under the Fourteenth Amendment."

This seems entirely accurate to me, and I hope we won't dwell on this issue much longer. Let's get it settled. Thanks.Ferrylodge 21:04, 20 February 2007 (UTC)

"Seen by both the Court and the press"
I renew my earlier and repeated objections to this edit, which replaces the phrase, "[t]he United States v. Morrison decision was seen by the press as part of the Rehnquist Court's series of federalism or states' rights decisions," with an earlier version, "[t]he United States v. Morrison decision was seen by both the Court and the press as part of the Rehnquist Court's series of federalism or states' rights decisions." As I have said above on this talk page, "seen by the Court" is not supported. How do we know Morrison was seen by the Court as part of a line of states' rights decisions? It's not that I don't think it was part of such a line of decisions, it's that I don't see any support given for the proposition. The justification given in the edit summary for the edit, which seems to argue that the edit lets the Court speak for itself, is, I think, precisely wrong. For the edit does not cite to the Court in order to support the proposition that the Court itself saw Morrison as part of a larger pattern of decisions. I note that these concerns have not been addressed at all by the party who has repeatedly added the phrase "by both the Court, etc." to the text. Because no justification has been given for its presence, I think it should be eliminated. Before getting into an edit war, can we please discuss this? Respectfully, Hydriotaphia 18:15, 21 February 2007 (UTC)

My edit summary
My edit summary should have read, "the government was not trying to analogize the two cases." Sorry about that. The government was arguing that the Civil Rights Cases was not about unequal enforcement of already existing state laws. Rather, as the government stated in its merits brief in Morrison, [t]he statute at issue in the Civil Rights Cases ... purported to extend the affirmative requirements of the Fourteenth Amendment directly to private persons. Unlike the statutes invalidated by the Reconstruction-era Court, Section 13981 is not premised on the assumption that private conduct can violate the Fourteenth Amendment. Instead, Section 13981 remedies and prevents discrimination by the States themselves. Thus, the United States was emphatically not arguing that there was unequal enforcement of already existing laws in the Civil Rights Cases. Indeed, the United States was trying to distinguish the Civil Rights Cases on precisely that basis. Respectfully, Hydriotaphia 02:32, 8 March 2007 (UTC)

What you said is correct. So why do you keep removing the line "The Court, however, said that even if it accepted the government's argument that unequal enforcement of the laws constituted state action in Morrison but not in the Civil Rights Cases", which makes it clear that the government, but not Rehnquist, was trying to distinguish the two? The bolded part is what you keep removing, even though it agrees with what you just said.Jimmuldrow 20:47, 8 March 2007 (UTC)


 * It does make it clear that the government was trying to distinguish the two, but it doesn't make clear the basis on which the government was trying to distinguish them. (Sorry if the gravamen of my last comment was unclear.)  The phrase, "the government's argument that unequal enforcement of the laws constituted state action in Morrison but not in the Civil Rights Cases," makes it sound like the government was arguing that there was unequal enforcement of the laws in the Civil Rights Cases, but that somehow this unequal enforcement of the laws did not constitute state action.  But in fact that was not what the government was arguing.  It was arguing that the facts of the Civil Rights Cases contained no government action or inaction at all, and that the only acts at issue in the Civil Rights Cases were private acts by private innkeepers, common carriers, etc.  For that reason, your phrasing of the sentence is, I would submit, misleading.  Respectfully, Hydriotaphia 21:29, 8 March 2007 (UTC)


 * To clarify. My complaint is essentially a complaint about grammar.  The sentence as you phrased it sets up a parallelism.  The rhetoric form of ellipsis is typical in parallelism.  Take the example of the Gettysburg Address:
 * The world will little note [implied: "what we say here"], nor long remember what we say here.
 * This and this may also be helpful. Parallelism and ellipsis are what make the sentence misleading.  In order to clarify what the sentence sounds like it's saying, I'll make the parallelism and ellipsis explicit. The sentence as you phrased it sounds like it's saying the following:
 * The Court, however, said that even if it accepted the government's argument that unequal enforcement of the laws constituted state action in Morrison but [that unequal enforcement of the laws] [did] not [constitute] [state action] in the Civil Rights Cases ....
 * Hence my objection. I hope this a helpful explanation; if not, let me know.  Hydriotaphia 21:58, 8 March 2007 (UTC)


 * I've edited the sentence in question so that it simply says: "The Court, however, said that even if it accepted the government's distinction between the Civil Rights Cases and the case at bar, VAWA was still unconstitutional." This sticks more closely to what the Court actually said.  I think this is better than the earlier sentence: "The Court, however, said that even if it accepted the government's argument that unequal enforcement of the laws constituted state action...."  The earlier sentence gave the impression that the Court did not think unequal enforcement of the laws violates the EP Clause.  But actually, the Court did think so, and was merely objecting to the type of remedy that Congress chose.Ferrylodge 21:25, 11 March 2007 (UTC)


 * Thanks. That strikes me as a definite improvement.  Hydriotaphia 21:33, 11 March 2007 (UTC)

Overview
I disagree with creation of an "overview" section that moves considerable material related to the Commerce Clause and the Equal Protection Clause from those respective subsections. That is material that people will expect to find if they go to those subsections.

I also object to much of the new material, such as this sentence: "The Morrison Court held that Congress could not impose VAWA on state governments through either the Commerce Clause or the Equal Protection Clause". The Morrison Court did not say that at all. First of all, no one suggests that the Equal Protection Clause gives Congress any power at all (section 5 of the 14th Amendment is what gives Congress power). Secondly, the Court did not have any objection if Congress would have imposed VAWA on state governments instead of on private parties.

This article should be left alone. We've already haggled enough about it. We don't need to spend the rest of our lives constantly rearranging it.Ferrylodge 02:43, 28 March 2007 (UTC)


 * Have a nice day.Jimmuldrow 04:04, 28 March 2007 (UTC)


 * I agree with Ferrylodge that the overview section should not be in this article. It contains several different things whose inclusion in this article is foreclosed by earlier discussions on this very page.  Any changes should be justified by discussion on the talk page.  This is frustrating; the RfC was closed on the assumption that Jimmuldrow would be willing to engage in discussion.  Hydriotaphia 19:53, 29 March 2007 (UTC)


 * I'll discuss if you insist, although you seem overly controlling. There was nothing new to this, so it shouldn't be controversial. It was just to highlight some of the more important basic facts of the case up front that were mentioned further down before.Jimmuldrow 00:00, 30 March 2007 (UTC)


 * And if you want to reopen the Rfc, that's up to you.Jimmuldrow 00:11, 30 March 2007 (UTC)


 * On the other hand, you two made more than your share of mistakes, so why do you keep acting like I'm supposed to ask your permission for things?Jimmuldrow 01:23, 30 March 2007 (UTC)


 * There was absolutely no threat implied, and I'm sincerely sorry if I made it sound as if there were. The reason why discussion is essential on this page before any major changes (such as the recent ones) are made is because the article is the product of delicate compromise and consensus.  I'm sorry you feel I've made mistakes, but let's not compound them.  Best wishes,  Hydriotaphia 01:54, 30 March 2007 (UTC)


 * Jim, if you're going to accuse me of making threats, then please use quotations.Ferrylodge 02:04, 30 March 2007 (UTC)


 * I want to be very clear. I never intended to communicate a threat and do not want to reopen the RfC.  I was expressing only my frustration at what seemed to me to be a renewed unwillingness on Jimmuldrow's part to engage in discussion.  Hydriotaphia 02:32, 30 March 2007 (UTC)

Thanks. I'd like to believe I'm merely over-reacting here. If you want to communicate, that's fine. I didn't think I was introducing anything new, just highlighting the essentials. Do you disagree?Jimmuldrow 04:34, 30 March 2007 (UTC)


 * Yes, I disagree with creation of a lengthy "overview" section that moves considerable material related to the Commerce Clause and the Equal Protection Clause from those respective subsections. That is material that people would expect to find if they go to those subsections.


 * I also object to much of the new material, such as this sentence: "The Morrison Court held that Congress could not impose VAWA on state governments through either the Commerce Clause or the Equal Protection Clause". Actually, the Court did not have any objection if Congress would have imposed VAWA on state governments instead of on private parties.


 * This so-called “overview” is not brief, and it is not easily understandable. For example, it launches into a highly technical discussion of “aggregation” principles as if the reader already knows what that means.  It contains extensive footnotes and quotes.  It is not an overview, but rather is a selective presentation of portions of the article, together with additional new commentary.  The article is already too long, but that has appeared to be necessary in order to accommodate some editors.  The "overview" would increase the article length by well over 150 words.Ferrylodge 04:59, 30 March 2007 (UTC)


 * I agree with Ferrylodge that the proposed overview section threw the article out of whack. The aggregation principles discussion was only one of the things that was misplaced; such a discussion should occur much later in the article, after the groundwork is laid, so to speak.  Moreover, I think the article shouldn't be substantially longer than it is now.  Hydriotaphia 16:27, 30 March 2007 (UTC)

I understand some points more than other. Maybe the article could be shortened and kept within existing categories by making them more concise, and move issues more important to the outcome of the case toward the front? As to whether the outcome would be different if the facts were different, I really don't understand why that point is relevant at all.Jimmuldrow 19:45, 30 March 2007 (UTC)

Also, please avoid overly controlling behavior and overly emotional reactions to facts in the future. Maybe more than one person should remember that no single individual "owns" this article or that.Jimmuldrow 19:53, 30 March 2007 (UTC)

If you want to shorten the article, and make it less confusing, would anyone object to removing the following? I'm not sure how important ending literacy tests was to motivating Puerto Ricans to reduce discrimination in the garbage industry, or how relevant those details are. The line "indirectly influence state actors to remove unrelated state discriminatory action" also sounds hazy and confusing to me. Jimmuldrow 20:04, 30 March 2007 (UTC)

The Court distinguished VAWA from prior laws upheld as a valid exercise of Fourteenth Amendment powers in that the prior legislation was designed to motivate state actors. The Court in Katzenbach v. Morgan (1966), South Carolina v. Katzenbach (1966), and Ex parte Virginia (1880) upheld legislation designed to indirectly influence state actors to remove unrelated state discriminatory action. For example, Katzenbach v. Morgan upheld a law preventing the imposition of literacy tests in New York despite a judicial ruling that the tests were not discriminatory. Morgan upheld the legislation under the Fourteenth Amendment on the grounds that it would give Puerto Ricans increased political power, which they could use to remedy discrimination in the local garbage collection industry. VAWA had no such effect. The legislation established a cause of action against private individuals acting in their private capacity. The Court could not find a way that these private fines would influence state actors to change their behavior.


 * Jim, did you post the immediately preceding paragraph? Is it a quote from the article?  Is it a quote that you are suggesting to delete?  I would have no objection to deleting the following material:

to remove unrelated state discriminatory action. For example, Katzenbach v. Morgan upheld a law preventing the imposition of literacy tests in New York despite a judicial ruling that the tests were not discriminatory. Morgan upheld the legislation under the Fourteenth Amendment on the grounds that it would give Puerto Ricans increased political power, which they could use to remedy discrimination in the local garbage collection industry.


 * By the way, the overly emotional reaction here was you accusing me of making threats. I still don't have any idea why you did that.  The three of us have spent countless hours discussing this article, and we went through an RfC too.  At this point, I hope the three of us might be able to agree that it would be best for the three of us to leave the article as it is for the time being, unless there are clear errors or omissions or other things that we agree about.  There is no consensus to change the article further, at this point.  However, if you would like to discuss more particular changes here on the talk page, we can certainly do that.  What's been said so far in this "Overview" section of the talk page does not indicate the need for any further changes in the article, in my opinion.  Conversely, please feel free to shoot down any changes to the article that I may suggest.  Thanks.Ferrylodge 20:20, 30 March 2007 (UTC)


 * I have no problem with that deletion either. To respond briefly to something Jim said, I don't think anyone has displayed "overly controlling" behavior here.  I quite agree that nobody "owns" this article.  The article is, however, the product of a great deal of discussion and compromise.  Like other pages that are the product of people coming together to agree on a version satisfactory to all, large changes should not normally be made without prior discussion.  Best wishes,  Hydriotaphia 02:21, 31 March 2007 (UTC)


 * To give an example of what I'm talking about. Quite a while ago, I made what I took to be fairly reasonable edits of the Terri Schiavo page based on concerns voiced by others on its featured article nomination page.  (I hadn't been involved in editing the article prior to that.)  My edits were reverted almost immediately, and I have since concluded they were reverted appropriately, since the article had been discussed at great length and in great detail on the talk page before I came along.  Obviously, that article is much more controversial (let us hope!) than this one, but the difference, I think, is one of degree and not of kind.  Respectfully,  Hydriotaphia 02:30, 31 March 2007 (UTC)

Recent tweaks
I deleted the above mentioned fuzzy logic, and made a few small tweaks to try to make a few points less confusing.Jimmuldrow 15:04, 31 March 2007 (UTC)


 * As anyone can see from your edit, you have made much more than "small tweaks." You have made large deletions and rewritten large parts of the article.  You have deleted much more than the portions that we agreed to delete.  Jim, as much as you complain that others do not own this article, you are editing as if this article were your property.  Please seek consensus for major changes, and please stop making changes that others have specifically objected to. I'd like to know how it's a "tweak" to delete critical portions of the majority opinion ("But even if that distinction were valid, we do not believe it would save §13981’s civil remedy. For the remedy is simply not 'corrective in its character, adapted to counteract and redress the operation of such prohibited [s]tate laws or proceedings of [s]tate officers'").  And it is not a "tweak" to delete material that we discussed above should not be deleted ("The Court distinguished VAWA from prior laws upheld as a valid exercise of Fourteenth Amendment powers in that the prior legislation was designed to motivate state actors. The Court in Katzenbach v. Morgan (1966), South Carolina v. Katzenbach (1966), and Ex parte Virginia (1880) upheld legislation designed to indirectly influence state actors. VAWA had no such effect. The legislation established a cause of action against private individuals acting in their private capacity. The Court could not find a way that these private fines would influence state actors to change their behavior.").  Also, I wish you would not start a sentence by saying "Civil Rights Cases say...."  The correct phraseology is "The Civil Rights Cases say...."Ferrylodge 17:45, 31 March 2007 (UTC)


 * If no one objects, I will delete the following two footnotes which take up a lot of space and really don't add much to the article:

The Court quoted the following statements made by nineteenth-century Republicans who supported the civil rights bills in question to support its argument: "The statement of Representative Garfield in the House and that of Senator Sumner in the Senate are representative:
 * "'[T]he chief complaint is not that the laws of the State are unequal, but that even where the laws are just and equal on their face, yet, by a systematic maladministration of them, or a neglect or refusal to enforce their provisions, a portion of the people are denied equal protection under them.' Cong. Globe, 42d Cong., 1st Sess., App. 153 (1871) (statement of Rep. Garfield).
 * "'The Legislature of South Carolina has passed a law giving precisely the rights contained in your "supplementary civil rights bill." But such a law remains a dead letter on her statute-books, because the State courts, comprised largely of those whom the Senator wishes to obtain amnesty for, refuse to enforce it.' Cong. Globe, 42d Cong., 2d Sess., 430 (1872) (statement of Sen. Sumner)."

529 U.S. at 625.

AND To support its argument that Congress had limited power to enforce the Fourteenth Amendment against state governments, the Court pointed to a proposed enforcement provision which was rejected by the Congress that eventually approved the Fourteenth Amendment: "Democrats and conservative Republicans argued that the proposed Amendment [i.e., the proposed enforcement provision] would give Congress a power to intrude into traditional areas of state responsibility, a power inconsistent with the federal design central to the Constitution. Typifying these views, Republican Representative Robert Hale of New York labeled the Amendment 'an utter departure from every principle ever dreamed of by the men who framed our Constitution,' and warned that under it 'all State legislation, in its codes of civil and criminal jurisprudence and procedures … may be overridden, may be repealed or abolished, and the law of Congress established instead.' Senator William Stewart of Nevada likewise stated the Amendment would permit 'Congress to legislate fully upon all subjects affecting life, liberty, and property,' such that 'there would not be much left for the State Legislatures,' and would thereby 'work an entire change in our form of government.'"


 * I definitely agree that those two footnotes should be deleted. If they belong anywhere, it's in the article about Boerne, not here.  Hydriotaphia 21:24, 31 March 2007 (UTC)


 * Do you have any thoughts about deleting these two footnotes, Jim?Ferrylodge 22:19, 31 March 2007 (UTC)

It would be better if this article could do what an encylopedia article should do, which is to clarify the most important points in a concise way, in the body of the article itself, so that the above footnotes aren't needed. And bulky quotes are ok for people that don't read this article to find out what they don't know to begin with, but it would be better if, without emotional reactions that led to multiple errors before, clearly explain what is being referred to and why.

Emotional reactions to relevant facts are what make this article large and confusing.Jimmuldrow 19:56, 1 April 2007 (UTC)

I still thing that the Commerce Clause section should emphasize the issue that affected the outcome of the case the most, and the reason why, up front. Issues that were mentioned but had little effect on the outcome are better left at the end.Jimmuldrow 20:01, 1 April 2007 (UTC)

And since you two were not diplomatic, I will mention the persistent problem here. You made edits based on emotional reactions to the facts that objectively did result in a number of errors. On FerryLodge's discussion page, you said you were wonderful, made many insulting comments about me and lodged a long formal complaint about me in the form of an Rfc. You need to recognize the cause of errors made with this article and a number of others as well. I will try to be objective if others do the same, but too much confusing muck is here because a clear explanation of the relevant facts causes persistent emotional reactions among two Wikipedians. Too many errors were too flagrant. You need to stop blaming everyone but yourselves. I'll also be more diplomatic in the future if you two do likewise.Jimmuldrow 20:09, 1 April 2007 (UTC)

Just a hint at an issue where clarity and objectivity should replace emotional reactions. "Perhaps."Jimmuldrow 20:14, 1 April 2007 (UTC)

One more hint here: Hydriotaphia removed a large portion of Garrett and called it "irrelevent" or "incorrect" "original research" even though it was all straight from the majority opinion. When emotional responses undoubtedly cause multiple errors, you need to stop blaming everyone but yourselves.Jimmuldrow 20:44, 1 April 2007 (UTC)


 * I'm sorry you're upset, Jim, but let's try to deal with the issue immediately at hand. You haven't really said why you think the two footnotes should stay.  I agree that, strictly speaking, they're relevant, but don't you think they really belong on the Boerne page, not here?  It's like in the law of evidence:  something can be relevant, but can nonetheless be excluded on the ground that it may waste time, confuse the issues, etc.  Here, I think the problem with the footnotes is twofold.  First, they take up a lot of space for no reason that I can clearly see.  Second, they're not directly relevant to Morrison except insofar as Boerne is relevant to Morrison.  Don't you think it might be better to discuss Boerne in a somewhat less wordy manner?  Respectfully,  Hydriotaphia 23:04, 1 April 2007 (UTC)


 * Jim, you have again deleted material from this article that I explained should not be deleted. Instead of disagreeing with me here at this talk page, you have simply deleted the material again, while dismissing everything I say as "emotionalism".  Please stop edit-warring.  I will revert so that the sentences in question are restored ("But even if that distinction were valid, we do not believe it would save §13981’s civil remedy. For the remedy is simply not 'corrective in its character, adapted to counteract and redress the operation of such prohibited [s]tate laws or proceedings of [s]tate officers'" and "The Court distinguished VAWA from prior laws upheld as a valid exercise of Fourteenth Amendment powers in that the prior legislation was designed to motivate state actors").Ferrylodge 01:58, 2 April 2007 (UTC)


 * Incidentally, I agree that it would be better if this article could do what an encylopedia article should do, which is to clarify the most important points in a concise way. However, I do not think you have been doing that, for the reasons already explained.  Therefore, it would be best to leave the Equal Protection section as it was at the end of the RfC, unless we agree on changes.Ferrylodge 02:09, 2 April 2007 (UTC)


 * I agree that changes should be discussed substantively and on their merits. Ad hominem accusations of emotionalism seem counterproductive to me.  I am ready, willing and indeed enthusiastic to engage in discussion with you, Jim.   Respectfully,  Hydriotaphia 02:21, 2 April 2007 (UTC)

No, I don't think the footnotes should stay. They shouldn't be needed, and neither should long confusing quotes with no mention of what they refer too or the context because of repeated (seemingly deliberate) incorrect corrections and so on. And enough very clear cut mistakes have been made up to now for what certainly sound like emotional reasons, with long direct quotes as the only way to avoid them, resulting in a confusing and in places awful article. It will remain awful until you stop.

Before you thought other changes made the article too long. Now what?Jimmuldrow 14:49, 2 April 2007 (UTC)

Whoa, let's slow down and take one thing at a time. Maybe the best thing, Jim, would be (in keeping with tax season!) if you could "itemize" your grievances with the article, so that we could deal with each one and address it on its merits. It's very hard to know how to respond to a comment like the one you've just made, because it's so generalized. Again, I'm really sorry that you're unhappy with things here, but articulate discussion, though sometimes tedious, seems to me to be the best way to proceed. Hydriotaphia 15:43, 2 April 2007 (UTC)

One more try
Lets start with improving the section that contrasts "gender-based disparate treatment by state authorities" in the case of VAWA with "no indication of such state action" in the Civil Rights Cases. Large blocks of direct quotes are difficult to understand, especially for anyone not familiar with the case that wants a clear explanation of the basic issue. Problems with a clear and concise summary of the issue up to now include:


 * The qualifiers "briefly intimated", "might" and "suggested," none of which have anything to do with what was mentioned in the Court opinions.


 * FerryLodge repeatedly ignored the fact that Rehnquist's statement "But even if that distinction were valid..." indicates a deliberate change from one argument to another separate, different argument, and instead kept trying to combine the state action issue above it with the issue of private vs. public actors below it. FerryLodge persisted even after this was pointed out repeatedly.  Please don't repeatedly ignore the common sense interpretation of what's there.


 * FerryLodge's assertion that gender based discrimination vs. racial discrimination is the relevant issue here. The problem is that Rehnquist's description of the government's argument with regard to the Civil Rights Cases was that there was "no indication of such state action." In other words, the relevant issue is state action, which the government said existed with Morrison but did not exist, in the government's opinion, with the Civil Rights Cases.  The fact that one dealt with gender discrimination while the other dealt with racial discrimination is true but not relevant to the issue mentioned by Rehnquist, in that it has nothing to do with state action.  This is made even more clear by the quotes Rehnquist mentioned that were made by 19th century Republicans that sponsored the civil rights laws in question, such as the statement by Garfield that "The chief complaint is not that the laws of the State are unequal, but that even where the laws are just and equal on their face, yet, by a systematic maladministration of them, or a neglect or refusal to enforce their provisions, a portion of the people are denied equal protection under them."

The article is currently terrible in spots, or at least doesn't do much good for those that don't know about Morrison to begin with and might want to use the article to find out. It needs to make these points concise and clear, and explain what statements refer to and the context where that would aid understanding of the basic issues.

Please be objective if you want input into how this is done. If you disagree with any of the above, point out in detail where you think I'm wrong and facts to prove it. Otherwise, let's do better.Jimmuldrow 22:50, 2 April 2007 (UTC)


 * Thank you, Jim, I really appreciate this. As a preliminary response to your points – and I agree with quite a few of them – I'll say the following:
 * I think you're absolutely right, Jim, that the Court's emphasis (let's remember to use the terms "Court" or "majority" in the article; otherwise we'll get into biographical speculation of the sort we've already rejected) was on state action, not on the fact that the discrimination complained of was gender discrimination. Indeed, the Court spent no time on the fact that the discrimination was specifically gender-based, and in fact conceded that the government's argument that there was "pervasive bias" in state justice systems was "supported by a voluminous congressional record."
 * I think my main problem with putting any interpretation on the passage in which the Court says, "[b]ut even if that distinction were valid," is that an interpretation would be just that – a contestible interpretation. And here is where we get into the problem of original research.  Right now, we have what I agree is a pretty unsatisfactory "solution" to this problem: we simply quote the Court's opinion at length.  I would suggest another, better solution.  We look at secondary sources.  We see what they have to say about the disputed passage in the majority opinion.
 * I also agree, Jim, that to the extent "intimated," "might," etc. are contestible interpretations of the Court's opinion, they should be eliminated. The problem, though, is what they should be replaced with.  And again, I think the best solution is to look at reputable secondary sources.  Here I'm mostly thinking of treatises, lower court interpretations, law review articles, and casebooks.  My suggestion is that we consult these sources in order to remedy the problems to which you object.
 * Again, Jim, thanks so much for setting out your objections at length. Tell me what you think of my proposals.  Best wishes,  Hydriotaphia 00:36, 3 April 2007 (UTC)


 * Jim, I don't want to be disagreeable. You have recently accused me of making "threats" and then you accused me of basing edits on "emotion", and now you're accusing me of an "assertion that gender based discrimination vs. racial discrimination is the relevant issue here."  I deny all of these accusations.  If you're going to attribute such things to me, Jim, would you please back them up instead of just moving on to other unfounded accusations?  The issue in this case is whether Congress can enforce the Equal Protection Clause by remedying state-sponsored discrimination in a way that acts against private parties instead of state actors.  If you want to dispute that very obvious fact, then fine, but please stop with the wild assertions that I somehow think this case is about a distinction between race and gender (I made one small typo weeks ago, and I do not think it matters in these cases whether gender or race was at issue ).  Thank you.Ferrylodge 00:59, 3 April 2007 (UTC)


 * I have edited the following paragraph which Jim Muldrow recently rewrote yet again:

The majority opinion by Chief Justice Rehnquist mentioned the government's argument that VAWA was in response to "gender-based disparate treatment by state authorities," and that there was "no indication of such state action" in the Civil Rights Cases. Rehnquist countered that, "There were state laws on the books bespeaking equality of treatment, but in the administration of these laws there was discrimination against newly freed slaves." Rehnquist was referring here to disparate enforcement of state laws that concerned Congress when Congress enacted the legislation at issue in the Civil Rights Cases. The Court in the Civil Rights Cases held that the issues before it did not include state action, and disparate enforcement of state laws was not mentioned by the Court in the Civil Rights Cases.


 * It previously said:

Rehnquist mentioned the government's argument that VAWA was in response to "gender-based disparate treatment by state authorities," whereas with the Civil Rights Cases there was "no indication of such state action." Rehnquist countered that "There were state laws on the books bespeaking equality of treatment, but in the administration of these laws there was discrimination against newly freed slaves." Rehnquist was referring to disparate enforcement of state laws that were among the issues before the Civil Rights Cases Court. The Civil Rights Cases held that the issues before it did not include state action. Therefore, the implication is that the Civil Rights Cases Court did not regard disparate enforcement of state laws as state action.


 * Was "disparate enforcement of state laws ... among the issues before the Civil Rights Cases Court"? Disparate enforcement motivated Congress, but was that one of the issues mentioned by the Court, in the Civil Rights Cases?  I would be very surprised if the Civil Rights Cases said that disparate enforcement was not state action.  The Morrison Court certainly said the exact opposite.  The Morrison Court said that disparate enforcement IS state action, and said that Congress was fully entitled to penalize state actors, and said that there was no state action by the private parties punished by Congress.Ferrylodge 02:00, 3 April 2007 (UTC)


 * Jim, I wish you hadn't reverted – reverted dramatically – without explanation. That makes things unnecessarily difficult.  Please, let's discuss things here before making huge changes.  Hydriotaphia 02:40, 3 April 2007 (UTC)

Did the Civil Rights Cases Court decide that the issues before it were a result of state action? I thought the opposite was true. And that was what Rehnquist was referring to in the part toward the beginning.

Also, we can't do what a Wikipedia article should do if we don't correctly understand what it means. Are you sure that the plain, common sense interpretation of the line "but even if that distinction were valid ..." is incorrect? If so, what am I missing?Jimmuldrow 12:18, 4 April 2007 (UTC)

Although I thought the version with the "perhaps" and so on was ok without the needless qualifiers. Anyone ok with going back to that minus the qualifiers in question?Jimmuldrow 12:20, 4 April 2007 (UTC)


 * Sure, that's fine with me, as a kind of stop-gap measure. As I said, we should probably consult secondary sources, but I was satisfied with the "perhaps" version.  Hydriotaphia 14:14, 4 April 2007 (UTC)


 * I forget what the "perhaps" version said, and I don't know which "perhaps" version you're referring to. Could you please quote it here, or provide a link?  Thanks.  Also, the article does not presently say that the Civil Rights Cases Court decided that the issues before it were a result of state action, so what's the problem?  The article presently says, "The Court in the Civil Rights Cases held that the issues before it did not include state action."Ferrylodge 16:22, 4 April 2007 (UTC)

The "perhaps" version
I'm guessing that Jim was referring to:

The majority then reaffirmed this state action doctrine, and specifically reaffirmed the results reached in United States v. Harris (1883) and the Civil Rights Cases (1883), both decided fifteen years after the Fourteenth Amendment's ratification in 1868. In the Civil Rights Cases, the Court had held that the Equal Protection Clause applied only to acts done by states, not to those done by private individuals; because the Civil Rights Act of 1875 applied to private establishments, the Court said, it exceeded congressional power under section 5 of the Fourteenth Amendment. In Harris, the Court had ruled that the Clause did not apply to prison lynching, since the Fourteenth Amendment did not prohibit private criminal acts. In this discussion, the Morrison Court noted that the law struck down in the Civil Rights Cases was perhaps analogous to VAWA, in that both laws were attempting to remedy unequal enforcement of laws by the states.

The Court then proceeded to analyze VAWA's private civil remedy under the doctrine first set forth in City of Boerne v. Flores (1997), which held that only congressional remedies which were "congruent and proportional" to the wrongs they sought to redress or deter were constitutional under section 5 of the Fourteenth Amendment....

Which would replace the (long!) current version, which is this:

The majority reaffirmed the state action doctrine, and specifically reaffirmed the results reached in United States v. Harris (1883) and the Civil Rights Cases (1883), both decided fifteen years after the Fourteenth Amendment's ratification in 1868. In the Civil Rights Cases, the Court had held that the Equal Protection Clause applied only to acts done by states, not to those done by private individuals; because the Civil Rights Act of 1875 applied to racial discrimination in private establishments, the Court said, it exceeded congressional power under section 5 of the Fourteenth Amendment. In Harris, the Court had ruled that the Clause did not apply to a prison lynching, since the Fourteenth Amendment did not prohibit private criminal acts.

According to Morrison, "assuming that there has been gender-based disparate treatment by state authorities in this case, it would not be enough to save § 13981's civil remedy, which is directed not at a State or state actor but at individuals who have committed criminal acts motivated by gender bias." The Court agreed with the government that there was a "voluminous congressional record" supporting the "assertion that there is pervasive bias in various state justice systems against victims of gender-motivated violence," and the Court also agreed with the government that "state-sponsored gender discrimination violates equal protection unless it serves important governmental objectives...." However, according to the majority, even if there is unconstitutional state action, that only justifies Congress in targeting the state actors, rather than targeting private parties: "[T]he language and purpose of the Fourteenth Amendment place certain limitations on the manner in which Congress may attack discriminatory conduct. These limitations are necessary to prevent the Fourteenth Amendment from obliterating the Framers' carefully crafted balance of power between the States and the National Government."

The majority opinion mentioned the government's argument that VAWA was in response to "gender-based disparate treatment by state authorities," and that there was "no indication of such state action" in the Civil Rights Cases. Rehnquist countered that, "There were state laws on the books bespeaking equality of treatment, but in the administration of these laws there was discrimination against newly freed slaves." Rehnquist was referring here to disparate enforcement of state laws that concerned Congress when Congress enacted the legislation at issue in the Civil Rights Cases. The Court in the Civil Rights Cases held that the issues before it did not include state action, and disparate enforcement of state laws was not mentioned by the Court in the Civil Rights Cases.

The majority continued that even if the government's distinction between Morrison and the Civil Rights Cases was valid, the VAWA still was unconstitutionally aimed not at state actors but at private criminal conduct....

As I said, I think the replacement would be fine as a stop-gap measure. Hydriotaphia 16:59, 4 April 2007 (UTC)


 * I wouldn't mind simply replacing the following current language:

The majority opinion mentioned the government's argument that VAWA was in response to "gender-based disparate treatment by state authorities," and that there was "no indication of such state action" in the Civil Rights Cases. Rehnquist countered that, "There were state laws on the books bespeaking equality of treatment, but in the administration of these laws there was discrimination against newly freed slaves." Rehnquist was referring here to disparate enforcement of state laws that concerned Congress when Congress enacted the legislation at issue in the Civil Rights Cases. The Court in the Civil Rights Cases held that the issues before it did not include state action, and disparate enforcement of state laws was not mentioned by the Court in the Civil Rights Cases.


 * with this older language:

In this discussion, the Morrison Court noted that the law struck down in the Civil Rights Cases was analogous to VAWA, in that both laws were attempting to remedy unequal enforcement of laws by the states.


 * How about that? Is that the kind of thing that Jim had in mind? Any problems with that?Ferrylodge 19:09, 4 April 2007 (UTC)