美国宪法诉讼与人权的历史.doc

本文档系作者精心整理编辑，实用价值高。Practising Law InstituteLitigation and Administrative Practice Course Handbook SeriesLitigationPLI Order No. H4-5210December, 1994MCLE Compulsories: 1994*417 HISTORY OF CONSTITUTIONAL LITIGATION FOR HUMAN RIGHTS IN U.S.- ESPECIALLY RACE ISSUESNorman ChachkinCopyright (c) 1994, Practising Law Institute*419 Introduction: Holmes remarked that a page of history was worth a volume of logic. The American experience with constitutional litigation is bounded by the specifics of our history and our governmental structure. Its applicability to this nation, as it starts its existence under the new constitution that has been adopted, must be by analogy rather than direct application. It is for this reason that we decided that it would be important to give you some notion, within the limitations of the time available to us, of how constitutional law and litigation in the United States came to be where it is today.I. Background of American ConstitutionA. Separate coloniesB. Revolution resulted from common grievances against central authority (King of England)C. Deep distrust of centralized authority was felt even during Revolutionary War period, with Continental Congress having only limited powersD. After war, Articles of Confederation created weak national structure uniting separate state governmentsII. Structure of the ConstitutionA. Dissatisfaction with experience under Articles of Confederation did not translate to uniform support for strong central authorityB. Constitution provided for federal republic with national government to have only “enumerated” powers (together with “necessary and proper” powers) - opposite of new South African Constitution which itself identifies areas in which provincial governments may have authorityC. Question of how national government would be structured and what powers would be “enumerated” was determined by compromise, accommodating interests of different states: large and small, trading and agricultural, slave and free, etc.D. Thus Constitution weighted slave populations 3/5 in assigning seats in House of Representatives and *420 included Fugitive Slave Clause; Bill of Rights designed to limit federal government only.III. Constitutional litigation to Civil War (1790-1860)A. In general, American society much less litigious, outside commercial sphere, during this period than is presently the case.B. At federal level, most controversies concerned scope of authority of national government vs. states. Few human rights issues except for “fugitive slave” issues arising in context of geographical movement (e.g., Dred Scott case).C. U.S. Supreme Court early ruled Bill of Rights inapplicable to States (Barron v. Baltimore, 7 Pet. 243, 8 L. Ed. 672 (1833). There was virtually no affirmative litigation attempting to use provisions of U.S. Constitution as a sword.D. At state level, picture somewhat different. Experience with King as well as tradition of royal Charters establishing authority of colonial governments resulted in states adopting their own constitutions to limit governmental authority and often to guarantee specific individual rights. In fact, Mass. and Va. documents were model for Bill of Rights in U.S. Constitution.E. Prior to Civil War there was more litigation over constitutional issues, including human rights protections, at state level than at federal. In fact, some state courts, relying on provisions of state constitutions, did things such as require admission of black children to otherwise all-white public schools. Others upheld segregation, the American form of apartheid.F. In general, such rulings grew out of interpretations of specific state constitutional provisions dealing with the subject matter (such as education), rather than broad anti-discrimination language (of which there was relatively little). Moreover, results varied widely based on the jurisdiction. For example, in states in which slavery remained legal until the Civil War blacks had almost no enforceable rights. N.B. Recent scholarship indicates there were limited and infrequent exceptions to the general pattern of slave codes.G. Supreme Court has limited role in reviewing cases from state courts; only decides issues of federal law, *421 including federal constitutional claims, when they have arisen and been decided (explicitly or implicitly) by the state court.IV. The Civil War AmendmentsA. Significant constitutional litigation was made possible by enactment and ratification of Civil War Amendments to the Constitution (13th, 14th and 15th Amendments), although their potential was not immediately realized.B. This was true for two reasons: breadth of purpose and language, and expansion of powers of national government, including judiciary, to protect rights from state, as well as national, government actionC. Congress moved immediately to protect rights of newly freed slaves, as authorized by enforcement clauses of the Amendments. Civil Rights Act of 1866, Enforcement Act of 1870, Ku Klux Klan of 1871, and Civil Rights Act of 1875 imposed federal criminal penalties for certain kinds of discriminatory conduct and made available a civil damages or injunctive remedy.D. Until 1877 national government moved with some vigor to eliminate effects of slavery in the South, through Freedmens Bureau and criminal prosecutions of state officers, including judges, who kept black citizens off juries, or voting rolls, etc. There were also attempts to bar segregation, in at least some spheres, i.e., public accommodations, including passage of national civil rights act.E. However, after Compromise of 1877 federal troops withdrawn from South and nation lost its will to achieve any sort of racial equality. Supreme Court led the way through a series of crippling interpretations of the Civil War constitutional amendments, limiting Congress enforcement authority only to governmental, not private, acts. See, e.g., Civil Rights Cases, 109 U.S. 3 (1883).F. At the same time, as southern state governments were “redeemed,” state Reconstruction legislation was repealed and replaced by regime of total apartheid and segregation. By turn of century, process virtually complete and sealed by Supreme Courts decision in Plessy v. Ferguson, 163 U.S. 537 (1896), a case that itself had been brought as a test suit by black community leaders in an effort to turn back the reactionary tide.*422 G. Ironically, during this time period, 14th Amendment, and especially guarantee of “due process of law,” became fount of protection of rights or corporations, and was used to strike down all sorts of state government efforts during Populist era to protect workers.Thus, in a period of about 40 years, the Constitution went from being the source of broad new national powers to foster equality in the racial sphere to being the guarantor of the status quo. Only lasting achievement at this point was the formal abolition of slavery, although many blacks in the south were captured by a sharecropping system that was almost feudal in nature and that kept them in circumstances that were close to slavery economically and socially.V. “Separate but Equal”A. United States engaged in collective self-delusion about status of Negro. In theory, accommodations, facilities and services were “separate but equal.” In reality, separate was never equal. During this period of time, the inferior status of blacks was also maintained by a widespread pattern of lynchings, terrorist intimidation, etc.B. Throughout the South, black voters enfranchised during Reconstruction were purged from the rolls; throughout the nation black children were consigned to a separate and often (especially in the South) tangibly inferior education; nationwide, enforced separation in public accommodations and most aspects of social life was common; the federal Civil Service under the supposedly liberal President Woodrow Wilson was segregated as were the armed forces; and there was the ever present threat of violence to “keep the Negro in his place.”C. Law was important bulwark in maintaining this situation. Practically the only areas in which the Supreme Court gave any meaning to Civil War Amendments were Strauder v. West Virginia, 100 U.S. 303 (1880) (statute made blacks ineligible for jury service), Buchanan v. Warley, 245 U.S. 60 (1917) (ordinance requiring maintenance of residential segregation), and a few instances of denial of the right to vote, e.g., Guinn v. United States, 238 U.S. 347 (1915) (grandfather clause); Myers v. Anderson, 238 U.S. 368 (1915) (same). But the Court, for example, upheld discontinuance of high schools for blacks but not whites in order to save money during a fiscal crisis, without any dissent from Justice Harlan (dissenter in *423 Plessy). Cumming v. County Board of Education, 175 U.S. 528 (1899).D. While there was increased pressure for change from black soldiers returning home from World War I, this basic situation prevailed through World War II.The modern American civil rights movement, then, began after period in which law had become a substantial obstacle to equality and a force for maintaining rigid apartheid in United States society. It is all the more remarkable, then, that during the 20th century it did not take another Revolution or Civil War to bring about massive - though not complete - changes in society. Instead, the courts (using the lever of the Constitution) led the way.VI. The Legal Campaign for Equal Rights and Equal TreatmentA. Just as Plessy was conceived of by leading Reconstruction era black lawyers as test case to establish interpretation of Civil War Amendments to Constitution (on model of Strauder) that would prevent expansion and entrenchment of legal apartheid, so groups that were disadvantaged in society saw possibility that eventually unfortunate precedents could be reversed.B. Planned litigation campaigns sustained by organizations with sufficient resources have played important role in legal and constitutional development in U.S. For example, business interests in last quarter of 19th century and first two decades of 20th were frequent litigants in Supreme Court, using Due Process Clause of 14th Amendment to limit state legislation favorable to workers, unions or consumers.C. To be sure, not all victories resulted from planned campaigns. The degree of control over cases raising important constitutional issues that would imply is not feasible. To give one example, in an isolated 1886 Supreme Court decision of profound later importance, Yick Wo v. Hopkins, 118 U.S. 356 (1886), the Court ruled unconstitutional a San Francisco ordinance requiring that laundries be licensed but leaving the standards for granting licenses entirely to municipal officials, who awarded more than 80 licenses to whites and denied more than 200 to Chinese persons.D. Also true that courts are influenced by external events and developments in the political arena. In particular, interplay between popular sentiment as *424 reflected in legislative action and judicial interpretations of principles embodied in constitution is significant. There are clear examples of this in civil rights area which will be mentioned later. Also clear in, for instance, labor area (after passage of Norris-LaGuardia Act).E. Advantages of litigation campaign are apparent, however:1. To significant degree, cases can be selected and presented in accord with a strategic plan to advance toward a long-term goal in small steps, requiring court to chip away at earlier precedent rather than reversing entire course of decisions in one step.2. Financial support for research, evidentiary presentation and appellate proceedings that are often beyond the resources of individual litigants, especially those from societys disadvantaged groups who are almost inevitably of modest means.3. Specialization in constitutional questions and practice before the court which is the ultimate arbiter of them, making available to litigants in critical cases a high degree of expertise.4. Presence and persistence that allows organization to publicize and explain issues beyond the confines of the court room, which is so often critical to acceptance and successful implementation, and which frequently stimulates the positive legislative response that can encourage the court to continue its trend of decisionmaking.F. Principal organization in legal campaign to end racial discrimination was NAACP, founded early in 20th century, and its subsidiary (and later independent organization), LDF. In development of American constitutional principles, several other groups deserve mention, especially labor unions (though these were generally not progressive on race issues), the American Civil Liberties Union, and religious sects such as the Jehovahs Witnesses.G. NAACP focused largely on civil suits, where there was greater control and absence of negative connotations associated with many criminal matters. E.g., Nixon v. Herndon, 273 U.S. 536 (1927) (reversing dismissal of *425 suit challenging statute making blacks ineligible to participate in Democratic primary); Nixon v. Condon, 286 U.S. 73 (1932) (invalidating state law delegating power to party executive committee to bar blacks from primary). In addition, no organization could have coped with enormous number of criminal matters competing for attention. NAACP and LDF did handle some criminal cases, especially in later years when public demonstrations in the South resulted in waves of mass arrests, but so did other groups like the ACLU and the Communist Party (e.g., in the Scottsboro cases) (Powell v. Alabama, 287 U.S. 45 (1932); Norris v. Alabama, 294 U.S. 587 (1935).H. In early 1930s Margold Report plotted general strategy for NAACP attack on segregation and inequality, commencing in public schools. Rather than simply bring litigation seeking to alter the Cumming result and make “separate but equal” promise a reality (with the hope that this would render segregation too expensive for the white community), idea was to build line of cases to ultimate holding that legally enforced segregation itself was unconstitutional.I. While principal focus of this campaign was on education, NAACP and LDF continued to litigate in other areas such as voting, public accommodations, and housing. In addition, equalizing teacher salaries and expenditures in black schools not completely ignored. One effect of favorable decisions in this area was to undercut, to some degree, the assumption of inferiority that made whites comfortable with segregation. But major campaign successful in less than a generation, and once decision made in educational arena (in Brown), rapid progress in changing face of society took place.VII. The Progression of DecisionsA. The cases leading to Brown:1. Pearson v. Murray, 169 Md. 478, 182 Atl. 590 (1936).2. Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938).3. Lower court litigation in early 1940s equalizing teacher salaries in white and black schools in the South*426 4. Smith v. Allwright, 321 U.S. 649 (1944) (holding that primary election racially exclusionary rule adopted by Democratic convention violated Fifteenth Amendment whether or not it constituted “state action” within scope of Fourteenth Amendment)5. Shelley v. Kraemer, 334 U.S. 1 (1948).6. Sipuel v. University of Oklahoma, 332 U.S. 631 (1948).7. Sweatt v. Painter, 339 U.S. 629 (1950) and McLaurin v. Oklahoma State Regents, 339 U.S. 637 (1950).8. Henderson v. United States, 339 U.S. 816 (1950)9. Terry v. Adams, 345 U.S. 641 (1953) (Jaybird Association slating organization)10. Brown v. Board of Education, 347 U.S. 483 (1954); id., 349 U.S. 294 (1955) (Equal Protection Clause of Fourteenth Amendment)11. Bolling v. Sharpe, 347 U.S. 497 (1954) (Due Process Clause of Fifth Amendment)B. The Per Curiam Decisions following Brown1. Muir v. Louisville Park Theatrical Assn, 347 U.S. 971 (1954) (vacating and remanding public parks and facilities case in light of Brown)2. Mayor and City Council of Baltimore v. Dawson, 350 U.S. 877 (1955) (beaches)3. Holmes v. City of Atlanta, 350 U.S. 879 (golf course)4. Gayle v. Browder, 352 U.S. 903 (1956) (public buses)5. New Orleans City Park Improv. Assn v. Detiege, 358 U.S. 54 (1958) (parks)6. Turner v. City of Memphis, 369 U.S. 350 (1962) (airport restaurant)7. Johnson v. Virginia, 373 U.S. 61 (1963) (courtrooms)*427 C. The struggle to implement Brown1. For a decade after Brown there was intense resistance, especially in the deep South, to requirements of ending segregation in public facilities and especially schools. Public transportation facilities, where experience was transitory, fell first and easiest.2. Ancillary “public accommodations” under private ownership, such as terminal restaurants, lunch counters in stores, etc., continued to resist on case-by-case basis and became focus of “sit-in” demonstrations of 1960s.3. Supreme Court did not push hard when its school decrees were greeted with resistance. E.g., Shuttlesworth v. Birmingham Bd. of Educ., 162 F.Supp. 372 (N.D. Ala.), affd mem., 358 U.S. 101 (1958) (sustaining pupil placement laws which delayed desegregation).4. The Court limited itself to individual pronouncements designed to preserve supremacy of law. School desegregation outside the Border States, for example, proceeded by way of tokenism, and even that was bitterly fought. E.g., Cooper v. Aaron, 358 U.S. 1 (1958) (Little Rock); Holmes v. Danner, 191 F.Supp. 394 (M.D. Ga.), stay denied, 364 U.S. 939 (1961) (University of Georgia); Bush v. Orleans Parish School Bd., 187 F.Supp. 42 (E.D. La. 1960), affd, 365 U.S. 569 (1961) (invalidating state school-closing laws); Hall v. St.