Dartmouth College Undergraduate Journal of Law Volume 2, Issue 1: Winter 2004

• Additional Support for Race-Based Affirmative Action Policies Not Addressed in Grutter v. Bollinger
  By William Rack '04
  
  

  The Supreme Court recently decided the future of affirmative action in the decisions concerning the University of Michigan's admissions programs. While the Court ultimately upheld a limited use of racial preferences, this article examines three areas of reasoning the Court omitted. First, the Court avoided addressing Justice Powell's diversity rationale in the Bakke decision. Second, the lingering effects of residential and educational segregation provide evidence that there is still need for racial preferences to achieve social equality. Third, the black-white test score gap and discrepancies in educational opportunities diminishes the reliability of typical methods of measuring academic merit. This paper explores these three issues and analyzes the Court's decision.




• The Underlying Choices Inherent in Constitutional Interpretation
  By Curtis Leitner '04
  
  

  This article argues that the heated debate over modern constitutional interpretation comes down to a difference in fundamental choices about the nature of the Constitution and the institutional capacities of the judiciary and the legislature. These choices are traced back to a conflict, earlier in the 20th century, between the theories of James Thayer and Learned Hand on the one hand, and Eugene Rostow on the other. Then they are unearthed in the context of modern theories of judicial review. Without offering an answer as to which choices are ultimately the right ones, this article argues that they are unavoidable. Neutrality, although feigned by proponents of the original understanding, is not an option.




• Weak-Mindedness, Subordinance, and Assistance:
  Expression Exceptions
  By Andrew Verstein '05
  
  

  Thomas Scanlon can be taken as a model proponent of freedom of expression. He advocates it even in cases where the public good seems to be better served by censorship. At the same time he recognizes some exceptions to the rule. This paper considers one case in which Scanlon is very likely to defend the freedom of expression - censorship of a religious pamphlet likely to incite violence - and argues that it qualifies as exceptional by Scanlon's own criteria: this case displays "weak minded" individuals, coercion, and assistance. After showing that censorship is warranted here, the paper suggests that there may be many other cases where censorship is similarly justified.




• A Call to Protect Tribal Sovereignty and its Applicability to Tribal Water Rights
  By Brandon L. Morris '05
  
  

  Ever since European arrival to the North American continent, Native Americans had to struggle to retain not only their ancestral homelands but also their inherent right to self-governance, a concept known as "tribal sovereignty." Tribal sovereignty is important in all aspects of Indian affairs, but it is vitally so when dealing with water issues, particularly for tribes located in the western United States, where water is a precious commodity sought by all. Securing and protecting their right to access and implement water use is paramount for the ability of a tribe to meet both their current and future water allocations.




• The United States Juvenile Justice System:
  What is Wrong, and What Should We Do Differently?
  By Jessica Lynn Smith '05
  
  

  The United States Juvenile Justice System has fallen under harsh criticism both nationally and internationally. The practice of trying minors as adults, and assigning them the death penalty, is under scrutiny at home and abroad. The system is widely perceived as racist. The U.S. does not meet the criteria of international treaties on human rights and child welfare. Overcrowding and repeat offences are rampant. However, movements to correct these problems have been successful in various cities across the U.S., underscoring the need to redesign the juvenile justice system to focus once again on prevention, rehabilitation, and the needs and rights of juvenile offenders.




• The Constitutionality of Interracial Marriage:
  Loving in Thought
  
  By Liza Williams '05
  

  This paper examines the constitutional development of interracial marriage in the United States. The Supreme Court's unanimous decision in Loving v. Virginia (1967) supplies the basic framework for study, which includes the evaluation of three phases. The first section attempts to understand the connection between legal authority and its impact upon social practice. Did the invalidation of the remaining sixteen antimiscegenation statutes under Loving change social attitudes toward interracial marriage and assist in curbing racism? The second section attempts to understand the Court's significant statement on the freedom to marry as it pertains to the Fourteenth Amendment. The third section advocates an extension of the legal findings in Loving v. Virginia and explores the analogy between legal precedent and the contemporary question of gay marriage.




• Reid v. Covert:
  The Court's Continuing Legacy of Colonialism
  
  By Cortelyou Kenney '05
  

  In 1901 the Supreme Court rendered a series of nine decisions collectively referred to as the Insular Cases. In ruling that constitutional rights do not extend to "unincorporated territories," these cases created a legal limbo permitting the systematic exploitation of the Puerto Rican citizens. In 1975 the Court reevaluated the Insular Cases in the hope of rectifying harms they had caused. The resulting ruling, Reid v. Covert, was touted as a victory for justice and equality. Reid, however, both perpetuated and obscured the colonialist politics of the Court, endowing the institution with an aura of neutrality while simultaneously allowing it to apply the doctrine of Insular Cases under a new name. Recent decisions like Verdugo-Urquidez, which supported limiting Constitutional protections in areas other than the 50 states, suggest the Insular cases are far from dead.