Today we continue talking about zoning, and focus on non-conforming uses, variances, special exceptions, and other ways of making zoning codes more flexible. The lecture notes are here.
And on the topic of zoning of adult book stores, see this case where the New Jersey Supreme Court case held that it was unconstitutional for a town in New Jersey to ban strip clubs because patrons could go to a strip-club in nearby Staten Island. I swear, I didn’t make this up.
The lecture notes are here.
This is Linda Brown, the third-grader who challenged the Topeka, KS law requiring her to enroll in a segregate school.
Here is Brown’s family.
(Linda Brown of Topeka (left), with her parents, Leola and Oliver, and younger sister Terry. ) Here are all of the plaintiffs from the various companion cases to Brown v. Board, and their parents.
Front row: Vicki Henderson, Donald Henderson, Linda Brown, James Emanuel, Nancy Todd, Katherine Carper Back row: Zelma Henderson, Oliver Brown, Sadie Emanuel, Lucinda Todd, Lena Carper. Here is an other photograph of all of the students.
This is Monroe Elementary School at issue in Brown v. Topeka Board of Education. Linda Brown, third grade, was forced to enroll in this all-black school. It was 21 blocks from where she lived.
Here are photographs from inside Monroe Elementary.
The white-Sumner Elementary School was much closer to where Linda lived.
The path to the Supreme Court’s decision in Brown was long and arduous, and quite complicated. Here is a memo from Chief Justice Warren, dated May 7, 1954, querying whether it would be appropriate to have the state Attorneys General provide argument on the case as well.
Here is the oral argument sheet from decision day.
Here is Chief Justice Warren’s draft of the final opinion.
Here is a memo Justice Felix Frankfurter wrote to Chief Justice Earl Warren on decision day. It reads:
This is a day that will live in glory. It is also a great day in the history of the Court, and not in the least for the course of deliberation which brought about the results. I congratulate you. Felix Frankfurter.”
This iconic photograph is of George E.C. Hayes, Thurgood Marshall, and James Nabrit congratulating each other afther the Court announced the decision in Brown, on may 17, 1954. 
Here is the entire NAACP Legal Defense Fund legal team:
Nettie Hunt, and her daughter Nikie, sitting on the steps of the Supreme Court in 1954. The headline reads, “High Court Bans Segregation in Public Schools.” This newspaper headline, however, belies the greatest limitation of Brown. Desegregation was only ordered with “All deliberate speed.”
This newspaper headline, however, belies the greatest limitation of Brown. Desegregation was only ordered with “All deliberate speed.”
Bolling v. Sharpe This is Spottswood Thomas Bolling, Jr., twelve years old. He was not allowed to attend a new junior high school in Washington, D.C. reserved for for whites.
Please take a moment to look at this slideshow of the Little Rock Nine.
The Little Rock 9:
Gov. Orval Faubus holding up newspaper: “Guns Force Integration.”
A very worthwhile trip if you ever make it to Little Rock.
During my recent trip to Little Rock, I visited the Little Rock Central High School. This is the locus of Cooper v. Aaron, and the school where the famous Little Rock 9 were escorted into the desegregated school by federal troops. What makes this national park site remarkable is that it is *still* an active high school.
Across the street from the school, they refurbished a gas station to appear as it did during the 1950s. It was at this gas station that the media filed their reports.
Gas was $.22 per gallon. Adjusted for inflation, that would be about $2.50 today.
As I approached the school, and climbed those famous steps, I was overcome by a very powerful feeling. Constitutional history was made right here. Looking across the street, I imagined the lynch mobs tormenting those poor students. As I came to the front door of the school, I peered inside, and imagined what those students felt when they entered. (I understand they were rushed to the Principal’s office so they were not intercepted). As chance would have it, classes were in session, so I could not enter the school.
The school is huge. It takes up an entire block, and has many sections.
Across the street from the High School was a visitor center that had some interesting exhibits.
Alas, this sign states an inaccuracy–We the People , as written in in 1787, “included only white male landowners.” I understand the point they were trying to make, but the Constitution itself was not so limited. In fact, it spoke in broad terms of people, and not men. It didn’t even use the word “slave,” but reverted to other euphemisms (other persons, etc.). At the time of the framing, in New Jersey at least, women had the right to vote. They may have even participated in the Constitutional ratification conventions. It would be more accurate for the Museum to have explained how the Constitution was interpreted. But it is not accurate–and somewhat misleading–to state it like this.
One of the cooler exhibits in the Visitor Center was a telegram President Eisenhower sent Governor Orval Faubus.
Here is a PDF of the original, courtesy of the National Archives:
When I became President, I took an oath to support and defend the Constitution of the United States. The only assurance I can give you is that the Federal Constitution will be upheld by me and by every legal means at my command.
Also at the Visitor Center were passes given to White Students, giving them permission to beat up the Black Students.
This was the original docket sheet for Cooper v. Aaron.
Rather than desegregate a swimming pool, the city of Jackson, Mississippi filled it with cement.
In 1963, Alabama Governor George Wallace stood in the schoolhouse door at the University of Alabama. President Kennedy ordered the General of the Alabama National Guard to confront him.
Here are Mildred Delores Loving (nee Jeter) and Richard Perry Loving. They had three children, Donald, Peggy, and Sidney.
Here is a video of a documentary about their case.
Here is a trailer for a movie about Loving v. Virginia.
Today we will begin covering covenants, and spend most of the class of Village of Euclid v. Ambler Realty.
The lecture notes are here.
Here is the text of the 5th Amendment:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Here is the text of the Section 1 of the 14th Amendment:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
This diagram will be helpful to explain Euclid.
As best I can tell, the lot is currently bounded by E 196th St and E 204th St, between Euclid Avenue and the train tracks.
Here is the map.
It seems to be some kind of business park today. Here are some photographs of what the lot looks like today, courtesy of Michael Alan Wolf.
And in case you were wondering (I know you were!) what the Supreme Court looked like in 1926, here it is:
Chief Justice William Howard Taft Associate Justices Oliver W. Holmes, Jr. Willis Van Devanter James C. McReynolds Louis D. Brandeis George Sutherland Pierce Butler Edward T. Sanford Harlan Fiske Stone
Here is some information about Houston’s lack of zoning.
There was massive opposition to the site, which will be completed in Spring 2014 at Bissonnet and Ashby, north of Rice University.
Also, here is a graph that illustrates how eminent domain takings focus on areas of minorities and those with low education. It will be relevant to our discussion on zoning.
Here is a February 2013 Houston Chronicle article on mobility in Houston, based on a Texas A&M report:
Washington D.C. is ranked with the worst traffic in America,followed by Los Angeles, San Francisco, and New York.
Here is a good comparison of New York City & Waco.
The lecture notes are here.
This is the Hill Military Academy, a private school shut down due to the compulsory education law.
This is Carrie Buck. Why was she designated as “feebleminded”? Because she had an “illegitimate child,” and they charged her with “promiscuity.” The pregnancy resulted from a rape.
This is Carrie Buck with her mother, Emma Buck.
This is Dr. J. H. Bell, the superintendent at the Virginia State Colony for Epileptics.
This is the courthouse in Amherst County, Virginia where Buck’s case was first “heard”:
This is the “State Colony for Epileptics and Feebleminded,” where Carrie Buck was sterilized in the wake of Buck v. Bell.
Here is a rendering of Carrie’s Buck family tree, as performed by Dr. Harry H. Laughlin. F stands for “feebleminded.” Notice That Carrie Buck is designated with an F, her mother Emma was designated with an F, and her daughter, Vivienne, was designated with an F. There you have three generations of imbeciles. Enough.
Haughlin, impressed that Nazi Germany adopted his ideas, had this to say:
The fact that a great state like the German Republic, which for many centuries has helped furnish the best that science has bred, has in its wisdom seen fit to enact a national eugenic legislative act providing for the sterilization of hereditarily defective persons seems to point the way for an eventual worldwide adoption of this idea.
In 1936, Laughlin was invited by the Nazis to receive an honorary degree of Doctor of Medicine at the University of Heidelberg for his work in the “science of racial cleansing.”
During the Nuremberg trials, attorneys for the Nazis read from Justice Holmes’s opinion to illustrate that the Germans did not invent eugenics.
Here is Carrie Buck shortly before she died.
Here are several pieces of American propaganda about Eugenics.
This one says, “Some people are born to be a burden on the rest. Learn about heredity. You can help to correct these conditions.”
This piece of propaganda says “Eugenics is the self direction of human evolution.”
Speaking of social darwinism, and surivival of the fittest, here is Justice Oliver Wendell Holmes, Jr., who firmly believed that “Three generations of imbeciles are enough.”
Buck’s daughter, Vivian, was raised by foster parents, This is Vivian at 6 months old. She flunked her IQ test. So she was also deemed an imbecile:
It was Estabrook’s habit to photograph the subjects of his eugenical family studies, and one surviving photo shows Alice Dobbs holding Carrie’s baby. It appears that Mrs. Dobbs is holding a coin in front of Vivian’s face in an attempt to catch her attention. The baby looks past her, staring into the distance, apparently failing the test. Estabrook described that moment during his testimony at trial a few days later: “I gave the child the regular mental test for a child of the age of six months, and judging from her reaction to the tests I gave her, I decided she was below the average.”
In case you were wondering, the child was not an imbecile. Here is her report card from first grade. She was a solid B student, with an A in deportment, and on the honor roll.
Vivian died at the age of 8 due to intestinal diseases.
Despite her sterilizations, Buck would go on to be married, twice. First to William Eagle.
25 year after William’s death, Buck married Charlie Deatmore.
Here is Carrie Buck shortly before she died.
Here is a sign in Virginia to commemorate Buck v. Bell.
Nebbia v. New York
Grocer Leo Nebbia, holding a bottle of milk and a loaf of bread. The government fixed the price of milk at nine cents per quart. Nebbia tried to get around that rule with a deal: if customers bought two quarts of milk at eighteen cents (the regulated price), they would receive a free loaf of bread, which was worth five cents.
This is the West Coast Hotel is Wenatchee, Washington.
First, here is Carolene Product’s famous footnote four:
There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth. See Stromberg v. California, 283 U.S. 359, 369-370; Lovell v. Griffin, 303 U.S. 444, 452.
It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation. On restrictions upon the right to vote, see Nixon v. Herndon, 273 U.S. 536;Nixon v. Condon, 286 U.S. 73; on restraints upon the dissemination of information, see Near v.Minnesota ex rel. Olson, 283 U.S. 697, 713-714, 718-720, 722; Grosjean v. American Press Co., 297 U.S. 233; Lovell v. Griffin, supra; on interferences with political organizations, see Stromberg v.California, supra, 369; Fiske v. Kansas, 274 U.S. 380; Whitney v. California, 274 U.S. 357, 373-378;Herndon v. Lowry, 301 U.S. 242; and see Holmes, J., in Gitlow v. New York, 268 U.S. 652, 673; as to prohibition of peaceable assembly, see De Jonge v. Oregon, 299 U.S. 353, 365.
Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious, Pierce v. Society of Sisters, 268 U.S. 510, or national, Meyer v. Nebraska, 262 U.S. 390; Bartels v. Iowa, 262 U.S. 404; Farrington v. Tokushige, 273 U.S. 484, or racial minorities,Nixon v. Herndon, supra; Nixon v. Condon, supra: whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry. Compare McCulloch v. Maryland, 4 Wheat. 316, 428; South Carolinav. Barnwell Bros., 303 U.S. 177, 184, n. 2, and cases cited.
I have collected a fortune of information about Carolene Products, Charles Hauser (the President), and his return trip to the Supreme Court which resulted in an affirmed conviction, and a pardon by President Roosevelt. Three decades later, a district court in Illinois found the federal Filled Milk Act Unconstitutional.
As a result of United States v. Carolene Products (1938), the Carolene Products company changed the name of their product from “Carolene” to “Milnut” at some point in 1938. I previously acquired a Carolene Products Cookbook from 1939, labelled as “Milnut.”
Now, thanks to a successful eBay bid, I am the proud owner of a Carolene Products cookbook from 1937 (before the Supreme Court case!). It is labelled as “Carolene” with the same logo.
Note how it is called a “Scientific Milk Product.” After 1938, the advertisements did not call it “Milk” to avoid problems under the Federal, and state Filled Milk Acts.
Who want’s some frizzled dried beef or baked ham slice?
As well, here is the history of the Carolene Products company from MilnotMilk.com, with some interesting photos.
The Seneca plant that was built right on the border with Oklahoma, in a means to work around (literally) the Filled Milk Act. I have more details on the Seneca plant here. The plant is still in operation today, operated by the Sumker’s company (you can order Milnot online! – I have a case).
Here is a copy of FDR’s pardon of Charles Hauser, President of the Carolene Products company.
Here is a copy of the remission of imprisonment, which I received from Hauser’s granddaugther. Note that the year 1944 is printed, and someone scribbled over it 1945.
Williamson v. Lee Optical
Here is how a lensometer works.
I recently participated in a symposium at Michigan State on Immigration Policy in the 21st Century. I spoke on a panel with Ilya Somin, John Eastman, and Mike Ramsey. Our topic: does the federal government have a power over immigration. Ilya has explained the answer is no. My take is different. Congress has the power to exclude, but the answer is not as straightforward as I (and most people) have assumed. I’ve posted my draft paper to SSRN. Here is the abstract:
Under modern doctrine, the federal government has an inherent authority to exclude aliens from entering the United States. In contrast, states lack any power to exclude aliens from entering their own borders. Though well settled, this dichotomy stands in tension with our Constitution’s structural design. It is a bedrock principle that the federal government only has those powers that are enumerated in the Constitution. In many respects, modern doctrine inverts our constitutional order. The states, which have the strongest claim to a general power to exclude cannot exercise that power. Congress, which has the weakest claim to an inherent power to exclude, can exercise that power with few discernible limits.
Does the federal government have the power to exclude aliens? Yes, though the answer is not as straightforward as many of us have assumed. There are four plausible candidates in Article I to support an exclusionary power: the Naturalization, Commerce, Law of Nations, and Migration of Importation Clauses. However, none of these clauses, standing by itself, supports an enumerated power to prevent foreign aliens from entering the United States. Rather, the strongest argument in support of an exclusionary power is an implied authority. It is both “necessary” and “proper” for Congress to restrict entry to aliens in order to more effectively naturalize citizens and, perhaps, regulate commerce. This authority is incidental, and does not “flatten[] the principle of state sovereignty.” Therefore, the exclusionary power does not amount to a “great substantive and independent power” that improperly aggrandizes Congress’s reach over states, their officials, and individual Americans. This authority belongs solely to Congress, and is not an inherent executive power.
I welcome any comments or feedback.
