Con Law Question

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Arboreal
Posts: 62
Joined: Mon Mar 24, 2014 3:36 pm

Con Law Question

Postby Arboreal » Wed May 06, 2015 3:19 pm

One of my sample exam questions asks me to compare/contrast City of Boerne v. Flores and Swann v. Charlotte-Mecklenburg.

I'm not seeing what the connection between the cases really is. Boerne says Congress must enforce the judiciary's definition of a substantive right, and can take a prophylactic enforcement step so long as it is within the bounds of enforcement. Swann holds that if there was formerly de jure segregation at a school, the court will assume that any de facto segregation is a result of the earlier law and insist that the school integrate by any means necessary.

What ties between the cases am I missing?

Traynor Brah
Posts: 718
Joined: Sun Apr 19, 2015 10:23 pm

Re: Con Law Question

Postby Traynor Brah » Wed May 06, 2015 3:24 pm

we weren't assigned that (non borne) case so IDK but I mean it's very possible what you said is the answer he's looking for.

k5220
Posts: 144
Joined: Mon Jan 02, 2012 10:36 pm

Re: Con Law Question

Postby k5220 » Wed May 06, 2015 3:36 pm

Arboreal wrote:One of my sample exam questions asks me to compare/contrast City of Boerne v. Flores and Swann v. Charlotte-Mecklenburg.

I'm not seeing what the connection between the cases really is. Boerne says Congress must enforce the judiciary's definition of a substantive right, and can take a prophylactic enforcement step so long as it is within the bounds of enforcement. Swann holds that if there was formerly de jure segregation at a school, the court will assume that any de facto segregation is a result of the earlier law and insist that the school integrate by any means necessary.

What ties between the cases am I missing?


Swann says that the action at issue was okay only because there was a pre-existing constitutional violation, but suggests that where there's no preexisting constitutional violation or showing of deliberate control of racial composition, the Constitution doesn't require every school to be perfectly integrated. Under this doctrine, preexisting inequality is effectively taken off the table as a constitutional problem. But Boerne says Congress can use their section 5 power to enforce the 14th amendment by acting to prevent, as opposed to remedy constitutional violations (as long as the means chosen are proportionate to the injury to be prevented).

(Levinson? You need to get into the nuances of the cases and the little bits of theory behind them to do well on that part of his test)




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