2-7-14 - Notes - Judicial Activism

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University of California - Berkeley
Robin Einhorn

Judicial Activism • Dispute does not lie in SC’s role but in what counts as JA/ legislating from the bench. • The constitution gets amended. That’s why it changes. It also changes because the SC has changed their interpretations of it. • Judicial Activism I. Labor Injunctions In re Debs (1895) • In reDebs 1895 – Fed Govt could issue injunction and it was okay to put Debs in jail without a trial because he was charged with contempt (judged by judges without juries) • AFL and IWW only agreed on the idea that the government was hostile to unions and workers. Labor injunctions issued by judges – huge issue • Way to get around supported communities • Courts never banned strikes outright • Hurt the labor movement • Shaped the outlook of many union leaders because they realized how alienated they were from the govt II. Fourteenth Amendment A. Decline of Racial Meaning th • SC retreated wholesale from use of 14 Amendment to protect blacks in the south U.S. v. Cruikshank (1876) o 1873, white militia attacked black republicans who were guarding the state house (?) – Colefax Massacre – no one was prosecuted – Murder = state crime  Several white perpetrators were charged under KKK Act (Enforcement Act of 1870) – federal crime to conspire to deny people their political and civil rights  They were convicted but the SC overturned it and declared the KKK Act unconstitutional because it says “NO STATE” not “no people” aka not individuals  No way to hold whites accountable for killing blacks Civil Rights Cases (1883) o Rule the Civil rights act of 1875 as unconstitutional  CRA 1875 – (see excerpt) – you can discriminate if you’re a private business o Congress cannot override state law to protect individuals from private co discrimination o Plessy v. Ferguson (1896) o Plessy wouldn’t leave the white car – SC upheld segregation law o Constitution should be colorblind! *NOPE th • 14 amendment = USELESS for protecting AA, left to protection of Southern govts • Didn’t void it altogether – just gave it new uses – to protect businesses against attempts to regulate them B. Rise of Economic Meaning Slaughterhouse Case
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