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Inaugural Pod: Reading the Law with Marnie: Unpacking Constitutional Rights – Liberty, Equality, and the Fourteenth Amendment
Reading the Law with Marnie: Episode 1 — Liberty, Equality, and the Constitutional Thread We Can Still Hold On To
Welcome to the first episode of Reading the Law with Marnie, where I dive into the texts shaping my understanding of law and governance—and invite you to join me on the journey. Today, we’re cracking open a compelling casebook: Liberty, Equality, and Due Process by Ruthann Robson, which focuses on constitutional rights under the U.S. Constitution, with a deep emphasis on liberty, equal protection, and due process through the lens of the Fourteenth Amendment.
I’ll read key cases, analyze them through Libertarian, Anti-Federalist, and Federalist perspectives, and apply a unique lens I call The Fatal Hubris which is the title of my upcoming book. We’ll explore how these doctrines shape current issues—tech governance, housing and education equity, and debates over personal freedoms.
What I’m Reading
Liberty, Equality, and Due Process: Cases, Controversies, and Contexts in Constitutional Law (Third Edition, 2021, CALI eLangdell Press) leans slightly left, reflecting Robson’s background in feminist and queer legal theory. It emphasizes expanding rights for marginalized groups and elevates state constitutions as mechanisms for broader protections beyond the federal baseline. Though social-justice oriented, the book includes conservative dissents (e.g., Obergefell v. Hodges) and constraint-based cases (e.g., Moose Lodge v. Irvis), making it a well-rounded educational resource.
This casebook centers on foundational doctrines—state action, equal protection, substantive due process, and unenumerated rights—through pivotal cases: Marsh v. Alabama (1946), Shelley v. Kraemer (1948), Obergefell v. Hodges (2015), and Edgewood Independent Sch. Dist. v. Kirby (1989).
Case 1: Marsh v. Alabama (1946)
Legal SummaryHolding: A private company town cannot restrict the distribution of religious literature in violation of the First Amendment when the town functions as a public space.Key Doctrine: State action applies to private entities performing public functions.Citation: 326 U.S. 501 (1946)
Majority (Justice Hugo Black):
"The more an owner... opens up his property for use by the public... the more do his rights become circumscribed by the constitutional rights of those who use it."
Dissent (Justice Stanley Reed):
"The Constitution does not require the owner of a company town to permit the use of his property for the dissemination of religious literature."
Theoretical Frameworks:This case is foundational to the public function doctrine, which holds that private entities acting as public spaces assume constitutional obligations. It connects to Pruneyard Shopping Center v. Robins (1980) and raises modern questions about whether tech platforms like X, when hosting public discourse, are bound by the First Amendment.
Legal Theories:
* Ronald Dworkin: Dworkin’s “rights as trumps” theory posits that individual rights, like free speech, override state or private restrictions when fundamental liberties are at stake. In Marsh, Dworkin would support the majority, viewing the Jehovah’s Witness’s right to distribute literature as a core liberty that trumps the company’s property claims. He’d argue that the town’s public function creates a moral duty to protect speech, a principle relevant to digital platforms acting as public squares.
* Antonin Scalia: Scalia’s originalism demands strict adherence to the Constitution’s text and historical meaning. He’d likely align with the dissent, arguing that the First Amendment applies only to government actors, not private property owners. Scalia would warn that expanding “state action” risks eroding property rights, a concern he’d extend to tech platforms, insisting their private status exempts them from First Amendment duties.
* Lon Fuller: Fuller’s “inner morality of law” requires legal systems to be coherent, predictable, and morally aligned. In Marsh, he might evaluate whether the company town’s restrictions meet these standards, supporting the majority if the town’s public role implies a duty to uphold speech. However, he’d caution against disrupting property law’s predictability, a tension relevant to platform governance debates where legal clarity is often lacking.
Perspectives:
* Federalist View: Federalists, inspired by Hamilton and Madison, advocate a strong national government to ensure uniform rights. They’d see Marsh as a precedent for applying consistent First Amendment protections to platforms functioning as public forums, arguing that national standards prevent fragmented speech protections. Federalists might push for federal legislation to regulate tech platforms, ensuring free speech across state lines.
* Anti-Federalist View: Anti-Federalists, echoing Patrick Henry’s emphasis on state sovereignty, prioritize local governance. They’d argue that states should regulate platforms based on community norms, cautioning against federal overreach in Marsh. Today, they’d support state laws like Florida’s and Texas’s, which enforce content neutrality, as legitimate expressions of local democratic will.
* Libertarian View: Libertarians, drawing from Friedman and Nozick, champion individual liberty and property rights. They’d side with the dissent, viewing the company town—and tech platforms—as private entities with the right to control their property, including moderation. Forcing platforms to host speech violates autonomy, they argue, and market competition (e.g., users switching platforms) should resolve disputes.
* Fatal Hubris View: This lens critiques top-down systems for assuming they can govern better than relational communities. In Marsh, it rejects both federal mandates and corporate monopolies, advocating for digital commons where speech is governed by trust and proximity. Communities should build decentralized platforms rooted in shared purpose, not ruled by courts or corporations.
"Speech governed by trust travels further than speech governed by code." — Community-based Governance
Current Issue:The Supreme Court is reviewing Murthy v. Missouri, questioning whether federal pressure on social platforms to remove “disinformation” violates the First Amendment. Meanwhile, state laws in Florida and Texas aim to enforce content neutrality, raising Marsh-like questions about public function and private control.
Case 2: Shelley v. Kraemer (1948)
Legal SummaryHolding: State courts cannot enforce racially restrictive covenants, as such enforcement constitutes state action violating the Fourteenth Amendment’s Equal Protection Clause.Key Doctrine: Judicial enforcement of private discriminatory agreements is state action.Citation: 334 U.S. 1 (1948)
Majority (Chief Justice Fred Vinson):
"The action of state courts in enforcing restrictive covenants is to be regarded as state action."
Theoretical Frameworks:This case embedded legal realism—the idea that law reflects social realities—into equal protection doctrine, showing how state action can be subtle yet coercive. It echoes in debates over algorithmic bias, with precedents like Burton v. Wilmington Parking Authority (1961) and Brentwood Academy v. TSSAA (2001).
Legal Theories:
* Catharine MacKinnon: MacKinnon’s feminist legal theory critiques “neutral” rules that perpetuate structural inequality. In Shelley, she’d argue that enforcing covenants reinforces systemic racism by embedding segregation into housing markets. She’d extend this to AI lending, asserting that algorithms replicate historical biases (e.g., redlining) and require robust equal protection oversight to dismantle power imbalances.
* Thomas Sowell: Sowell, a conservative economist, argues disparities often stem from economic or cultural factors, not systemic discrimination. In Shelley, he might caution against assuming all covenants reflect racism, suggesting some arise from economic preferences. For AI lending, he’d argue disparities in loan approvals may reflect legitimate risk factors (e.g., credit scores), urging rigorous evidence before claiming bias.
* Friedrich Hayek: Hayek’s spontaneous order theory warns that centralized interventions disrupt organic systems. In Shelley, he might argue that banning covenants distorts housing markets, which rely on decentralized choices. For AI, he’d caution that regulations risk stifling innovation, advocating for market-driven transparency to correct biases rather than federal mandates.
Perspectives:
* Federalist View: Federalists would argue that Shelley establishes a federal duty to prevent modern discrimination, like AI-driven redlining, through uniform civil rights laws. They’d see the Fourteenth Amendment as ensuring equal protection nationwide, supporting HUD’s investigations to address systemic bias in national markets.
* Anti-Federalist View: Anti-Federalists would emphasize state authority to address local housing practices. They’d argue Shelley should inspire state-level reforms tailored to regional economies, avoiding federal overreach. States like Texas or California, with distinct markets, should experiment with regulations reflecting local values.
* Libertarian View: Libertarians would defend private contracts, arguing Shelley limits freedom to associate. They’d suggest AI lending, if transparent, could reduce human bias, and market competition should address flaws. Regulation, they’d warn, risks punishing innovation and imposing bureaucratic controls.
* Fatal Hubris View: This view rejects centralized regulation and corporate algorithms, arguing fairness requires relational accountability. In Shelley, it critiques distant courts enforcing abstract equality, advocating for local financial cooperatives where lenders and borrowers know each other. For AI, it calls for community-driven lending rooted in trust, not code or mandates.
"Systems of trust beat systems of enforcement every time." — The Fatal Hubris
Current Issue:The Department of Housing and Urban Development is investigating AI-based redlining. Conservative economists question studies like The Markup’s, arguing they overlook risk indicators like credit history, while civil rights groups demand equal protection scrutiny of algorithms.
Case 3: Obergefell v. Hodges (2015)
Legal SummaryHolding: The Fourteenth Amendment guarantees same-sex couples the fundamental right to marry under substantive due process and equal protection.Key Doctrines: Substantive due process and equal protection as applied to intimate association and identity.Citation: 576 U.S. 644 (2015)
Majority (Justice Anthony Kennedy):
"The Constitution promises liberty to all... a liberty that includes certain specific rights that allow persons... to define and express their identity."
Dissent (Chief Justice John Roberts):
"Celebrate the achievement... But do not celebrate the Constitution. It had nothing to do with it."
Theoretical Frameworks:Griswold v. Connecticut, Loving v. Virginia, and Lawrence v. Texas form a lineage of liberty-as-dignity, grounding Obergefell in substantive due process.
Legal Theories:
* Ronald Dworkin: Dworkin’s moral reading views the Constitution as embodying principles like dignity and autonomy. In Obergefell, he’d support the majority, arguing marriage is a fundamental expression of identity protected by the Fourteenth Amendment. He’d extend this to modern autonomy debates, like gender-affirming care, as essential to equal dignity.
* John Hart Ely: Ely’s “representation-reinforcement” theory argues courts should protect rights when democratic processes fail marginalized groups. In Obergefell, he might question the majority’s unenumerated rights approach, arguing marriage laws belong to legislatures unless systemic exclusion is clear, aligning with the dissent’s call for democratic accountability.
* Antonin Scalia: Scalia’s originalism would reject Obergefell’s expansive reading, arguing marriage as a right lacks textual or historical roots. He’d insist social change belongs to democratic processes, opposing extensions to new autonomy claims like gender-affirming care, fearing judicially invented rights.
Perspectives:
* Federalist View: Federalists would champion Obergefell as a national standard ensuring equal liberty, preventing states from denying rights based on local prejudices. They’d see the Fourteenth Amendment as demanding uniform protections, a model for addressing gender-affirming care bans.
* Anti-Federalist View: Anti-Federalists would argue marriage laws should reflect state diversity. They’d critique Obergefell for erasing local traditions, supporting states like Tennessee restricting gender-affirming care as expressions of community norms.
* Libertarian View: Libertarians would argue the state shouldn’t regulate marriage at all. They’d agree with Obergefell’s outcome but reject judicial fiat, preferring to dismantle state licensing. They’d oppose both marriage restrictions and care bans, advocating for individual autonomy.
* Fatal Hubris View: This perspective sees marriage as a communal institution, not governmental. It critiques Obergefell for entrenching state control, advocating for communities to bless unions through tradition. It rejects both state bans and federal mandates on issues like gender-affirming care, urging local solutions.
"Government licensing of love is among the most unnecessary indignities in a free society." — Community-based Governance
Current Issue:Tennessee and other states are restricting gender-affirming care for minors. Federal courts are evaluating whether these laws violate substantive due process rights, with Obergefell’s framework under scrutiny post-Dobbs.
Case 4: Edgewood Independent Sch. Dist. v. Kirby (1989)
Legal SummaryHolding: Texas’s school finance system, reliant on property taxes, violated the state constitution’s requirement for an “efficient system of public free schools” due to funding disparities.Key Doctrine: State constitutional guarantees of educational adequacy.Citation: 777 S.W.2d 391 (Tex. 1989)
Majority (Justice Oscar Mauzy):
"The amount of money spent on a student's education has a real and meaningful impact..."
Theoretical Frameworks:San Antonio Independent School Dist. v. Rodriguez (1973) held education isn’t a fundamental federal right, but Edgewood counters under state law, emphasizing state constitutional duties.
Legal Theories:
* John Rawls: Rawls’s “difference principle” demands prioritizing the least advantaged. In Edgewood, he’d support the majority, arguing funding disparities harm disadvantaged students and violate fairness. He’d back redistributive policies, seeing state constitutions as tools for justice, relevant to modern equity debates.
* Friedrich Hayek: Hayek’s spontaneous order theory critiques centralized approaches. He’d argue Edgewood’s funding mandates ignore local knowledge, advocating for market-driven solutions like vouchers to empower families. He’d caution against uniform formulas, favoring decentralized innovation.
* Paulo Freire: Freire’s critical pedagogy views education as liberatory, rooted in community empowerment. He’d support Edgewood’s equity push but argue reform requires involving students, parents, and teachers in designing systems, critiquing top-down funding fixes for missing relational learning.
Perspectives:
* Federalist View: Federalists would argue education equity demands national standards, potentially through federal funding, to address wealth disparities. They’d see Edgewood as a step toward a federal role, especially for digital and post-COVID learning gaps.
* Anti-Federalist View: Anti-Federalists would insist education belongs to communities, reflecting local values. They’d support Edgewood’s state focus but resist federal intervention, backing school choice and parental rights over centralized curricula.
* Libertarian View: Libertarians would critique Edgewood for entrenching state control, advocating vouchers and charter schools to empower families. They’d see market innovation, like online platforms, as the path to equity, free from bureaucracy.
* Fatal Hubris View: This lens rejects top-down education, arguing learning thrives in relational ecosystems. Edgewood’s funding focus misses the issue: education detached from community. It calls for local models like homeschool co-ops, co-designed by families and teachers.
"Equity is not a formula. It’s a relationship." — Community-based Governance
Current Issue:Universal school choice laws and Education Savings Accounts are expanding. Courts are litigating parental rights versus public curricula, with Edgewood’s equity principles informing adequacy debates.
Final Thoughts
Each case reveals a truth: law imposed from above can articulate rights, but it cannot guarantee their protection. Rights secured by strangers rarely feel secure.
“No one has the authority to tax me, imprison me, or govern me unless they know me.” — The Fatal Hubris
The Constitution remains worth honoring, but its implementation must change. Let law descend from abstraction into daily relationships. Let justice return to scale.
Until next time: stay proximate, stay principled, and build your law in the place you live.— Marnie
Attribution and License NoticeThis post incorporates material from Liberty, Equality, and Due Process: Cases, Controversies, and Contexts in Constitutional Law, Third Edition, by Ruthann Robson, CUNY School of Law, 2021. Published by CALI eLangdell Press. Licensed under CC BY-NC-SA 4.0.
Get full access to Marnie’s Substack at marniekhaw.substack.com/subscribe
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By Reading the Law with MarnieReading the Law with Marnie: Episode 1 — Liberty, Equality, and the Constitutional Thread We Can Still Hold On To
Welcome to the first episode of Reading the Law with Marnie, where I dive into the texts shaping my understanding of law and governance—and invite you to join me on the journey. Today, we’re cracking open a compelling casebook: Liberty, Equality, and Due Process by Ruthann Robson, which focuses on constitutional rights under the U.S. Constitution, with a deep emphasis on liberty, equal protection, and due process through the lens of the Fourteenth Amendment.
I’ll read key cases, analyze them through Libertarian, Anti-Federalist, and Federalist perspectives, and apply a unique lens I call The Fatal Hubris which is the title of my upcoming book. We’ll explore how these doctrines shape current issues—tech governance, housing and education equity, and debates over personal freedoms.
What I’m Reading
Liberty, Equality, and Due Process: Cases, Controversies, and Contexts in Constitutional Law (Third Edition, 2021, CALI eLangdell Press) leans slightly left, reflecting Robson’s background in feminist and queer legal theory. It emphasizes expanding rights for marginalized groups and elevates state constitutions as mechanisms for broader protections beyond the federal baseline. Though social-justice oriented, the book includes conservative dissents (e.g., Obergefell v. Hodges) and constraint-based cases (e.g., Moose Lodge v. Irvis), making it a well-rounded educational resource.
This casebook centers on foundational doctrines—state action, equal protection, substantive due process, and unenumerated rights—through pivotal cases: Marsh v. Alabama (1946), Shelley v. Kraemer (1948), Obergefell v. Hodges (2015), and Edgewood Independent Sch. Dist. v. Kirby (1989).
Case 1: Marsh v. Alabama (1946)
Legal SummaryHolding: A private company town cannot restrict the distribution of religious literature in violation of the First Amendment when the town functions as a public space.Key Doctrine: State action applies to private entities performing public functions.Citation: 326 U.S. 501 (1946)
Majority (Justice Hugo Black):
"The more an owner... opens up his property for use by the public... the more do his rights become circumscribed by the constitutional rights of those who use it."
Dissent (Justice Stanley Reed):
"The Constitution does not require the owner of a company town to permit the use of his property for the dissemination of religious literature."
Theoretical Frameworks:This case is foundational to the public function doctrine, which holds that private entities acting as public spaces assume constitutional obligations. It connects to Pruneyard Shopping Center v. Robins (1980) and raises modern questions about whether tech platforms like X, when hosting public discourse, are bound by the First Amendment.
Legal Theories:
* Ronald Dworkin: Dworkin’s “rights as trumps” theory posits that individual rights, like free speech, override state or private restrictions when fundamental liberties are at stake. In Marsh, Dworkin would support the majority, viewing the Jehovah’s Witness’s right to distribute literature as a core liberty that trumps the company’s property claims. He’d argue that the town’s public function creates a moral duty to protect speech, a principle relevant to digital platforms acting as public squares.
* Antonin Scalia: Scalia’s originalism demands strict adherence to the Constitution’s text and historical meaning. He’d likely align with the dissent, arguing that the First Amendment applies only to government actors, not private property owners. Scalia would warn that expanding “state action” risks eroding property rights, a concern he’d extend to tech platforms, insisting their private status exempts them from First Amendment duties.
* Lon Fuller: Fuller’s “inner morality of law” requires legal systems to be coherent, predictable, and morally aligned. In Marsh, he might evaluate whether the company town’s restrictions meet these standards, supporting the majority if the town’s public role implies a duty to uphold speech. However, he’d caution against disrupting property law’s predictability, a tension relevant to platform governance debates where legal clarity is often lacking.
Perspectives:
* Federalist View: Federalists, inspired by Hamilton and Madison, advocate a strong national government to ensure uniform rights. They’d see Marsh as a precedent for applying consistent First Amendment protections to platforms functioning as public forums, arguing that national standards prevent fragmented speech protections. Federalists might push for federal legislation to regulate tech platforms, ensuring free speech across state lines.
* Anti-Federalist View: Anti-Federalists, echoing Patrick Henry’s emphasis on state sovereignty, prioritize local governance. They’d argue that states should regulate platforms based on community norms, cautioning against federal overreach in Marsh. Today, they’d support state laws like Florida’s and Texas’s, which enforce content neutrality, as legitimate expressions of local democratic will.
* Libertarian View: Libertarians, drawing from Friedman and Nozick, champion individual liberty and property rights. They’d side with the dissent, viewing the company town—and tech platforms—as private entities with the right to control their property, including moderation. Forcing platforms to host speech violates autonomy, they argue, and market competition (e.g., users switching platforms) should resolve disputes.
* Fatal Hubris View: This lens critiques top-down systems for assuming they can govern better than relational communities. In Marsh, it rejects both federal mandates and corporate monopolies, advocating for digital commons where speech is governed by trust and proximity. Communities should build decentralized platforms rooted in shared purpose, not ruled by courts or corporations.
"Speech governed by trust travels further than speech governed by code." — Community-based Governance
Current Issue:The Supreme Court is reviewing Murthy v. Missouri, questioning whether federal pressure on social platforms to remove “disinformation” violates the First Amendment. Meanwhile, state laws in Florida and Texas aim to enforce content neutrality, raising Marsh-like questions about public function and private control.
Case 2: Shelley v. Kraemer (1948)
Legal SummaryHolding: State courts cannot enforce racially restrictive covenants, as such enforcement constitutes state action violating the Fourteenth Amendment’s Equal Protection Clause.Key Doctrine: Judicial enforcement of private discriminatory agreements is state action.Citation: 334 U.S. 1 (1948)
Majority (Chief Justice Fred Vinson):
"The action of state courts in enforcing restrictive covenants is to be regarded as state action."
Theoretical Frameworks:This case embedded legal realism—the idea that law reflects social realities—into equal protection doctrine, showing how state action can be subtle yet coercive. It echoes in debates over algorithmic bias, with precedents like Burton v. Wilmington Parking Authority (1961) and Brentwood Academy v. TSSAA (2001).
Legal Theories:
* Catharine MacKinnon: MacKinnon’s feminist legal theory critiques “neutral” rules that perpetuate structural inequality. In Shelley, she’d argue that enforcing covenants reinforces systemic racism by embedding segregation into housing markets. She’d extend this to AI lending, asserting that algorithms replicate historical biases (e.g., redlining) and require robust equal protection oversight to dismantle power imbalances.
* Thomas Sowell: Sowell, a conservative economist, argues disparities often stem from economic or cultural factors, not systemic discrimination. In Shelley, he might caution against assuming all covenants reflect racism, suggesting some arise from economic preferences. For AI lending, he’d argue disparities in loan approvals may reflect legitimate risk factors (e.g., credit scores), urging rigorous evidence before claiming bias.
* Friedrich Hayek: Hayek’s spontaneous order theory warns that centralized interventions disrupt organic systems. In Shelley, he might argue that banning covenants distorts housing markets, which rely on decentralized choices. For AI, he’d caution that regulations risk stifling innovation, advocating for market-driven transparency to correct biases rather than federal mandates.
Perspectives:
* Federalist View: Federalists would argue that Shelley establishes a federal duty to prevent modern discrimination, like AI-driven redlining, through uniform civil rights laws. They’d see the Fourteenth Amendment as ensuring equal protection nationwide, supporting HUD’s investigations to address systemic bias in national markets.
* Anti-Federalist View: Anti-Federalists would emphasize state authority to address local housing practices. They’d argue Shelley should inspire state-level reforms tailored to regional economies, avoiding federal overreach. States like Texas or California, with distinct markets, should experiment with regulations reflecting local values.
* Libertarian View: Libertarians would defend private contracts, arguing Shelley limits freedom to associate. They’d suggest AI lending, if transparent, could reduce human bias, and market competition should address flaws. Regulation, they’d warn, risks punishing innovation and imposing bureaucratic controls.
* Fatal Hubris View: This view rejects centralized regulation and corporate algorithms, arguing fairness requires relational accountability. In Shelley, it critiques distant courts enforcing abstract equality, advocating for local financial cooperatives where lenders and borrowers know each other. For AI, it calls for community-driven lending rooted in trust, not code or mandates.
"Systems of trust beat systems of enforcement every time." — The Fatal Hubris
Current Issue:The Department of Housing and Urban Development is investigating AI-based redlining. Conservative economists question studies like The Markup’s, arguing they overlook risk indicators like credit history, while civil rights groups demand equal protection scrutiny of algorithms.
Case 3: Obergefell v. Hodges (2015)
Legal SummaryHolding: The Fourteenth Amendment guarantees same-sex couples the fundamental right to marry under substantive due process and equal protection.Key Doctrines: Substantive due process and equal protection as applied to intimate association and identity.Citation: 576 U.S. 644 (2015)
Majority (Justice Anthony Kennedy):
"The Constitution promises liberty to all... a liberty that includes certain specific rights that allow persons... to define and express their identity."
Dissent (Chief Justice John Roberts):
"Celebrate the achievement... But do not celebrate the Constitution. It had nothing to do with it."
Theoretical Frameworks:Griswold v. Connecticut, Loving v. Virginia, and Lawrence v. Texas form a lineage of liberty-as-dignity, grounding Obergefell in substantive due process.
Legal Theories:
* Ronald Dworkin: Dworkin’s moral reading views the Constitution as embodying principles like dignity and autonomy. In Obergefell, he’d support the majority, arguing marriage is a fundamental expression of identity protected by the Fourteenth Amendment. He’d extend this to modern autonomy debates, like gender-affirming care, as essential to equal dignity.
* John Hart Ely: Ely’s “representation-reinforcement” theory argues courts should protect rights when democratic processes fail marginalized groups. In Obergefell, he might question the majority’s unenumerated rights approach, arguing marriage laws belong to legislatures unless systemic exclusion is clear, aligning with the dissent’s call for democratic accountability.
* Antonin Scalia: Scalia’s originalism would reject Obergefell’s expansive reading, arguing marriage as a right lacks textual or historical roots. He’d insist social change belongs to democratic processes, opposing extensions to new autonomy claims like gender-affirming care, fearing judicially invented rights.
Perspectives:
* Federalist View: Federalists would champion Obergefell as a national standard ensuring equal liberty, preventing states from denying rights based on local prejudices. They’d see the Fourteenth Amendment as demanding uniform protections, a model for addressing gender-affirming care bans.
* Anti-Federalist View: Anti-Federalists would argue marriage laws should reflect state diversity. They’d critique Obergefell for erasing local traditions, supporting states like Tennessee restricting gender-affirming care as expressions of community norms.
* Libertarian View: Libertarians would argue the state shouldn’t regulate marriage at all. They’d agree with Obergefell’s outcome but reject judicial fiat, preferring to dismantle state licensing. They’d oppose both marriage restrictions and care bans, advocating for individual autonomy.
* Fatal Hubris View: This perspective sees marriage as a communal institution, not governmental. It critiques Obergefell for entrenching state control, advocating for communities to bless unions through tradition. It rejects both state bans and federal mandates on issues like gender-affirming care, urging local solutions.
"Government licensing of love is among the most unnecessary indignities in a free society." — Community-based Governance
Current Issue:Tennessee and other states are restricting gender-affirming care for minors. Federal courts are evaluating whether these laws violate substantive due process rights, with Obergefell’s framework under scrutiny post-Dobbs.
Case 4: Edgewood Independent Sch. Dist. v. Kirby (1989)
Legal SummaryHolding: Texas’s school finance system, reliant on property taxes, violated the state constitution’s requirement for an “efficient system of public free schools” due to funding disparities.Key Doctrine: State constitutional guarantees of educational adequacy.Citation: 777 S.W.2d 391 (Tex. 1989)
Majority (Justice Oscar Mauzy):
"The amount of money spent on a student's education has a real and meaningful impact..."
Theoretical Frameworks:San Antonio Independent School Dist. v. Rodriguez (1973) held education isn’t a fundamental federal right, but Edgewood counters under state law, emphasizing state constitutional duties.
Legal Theories:
* John Rawls: Rawls’s “difference principle” demands prioritizing the least advantaged. In Edgewood, he’d support the majority, arguing funding disparities harm disadvantaged students and violate fairness. He’d back redistributive policies, seeing state constitutions as tools for justice, relevant to modern equity debates.
* Friedrich Hayek: Hayek’s spontaneous order theory critiques centralized approaches. He’d argue Edgewood’s funding mandates ignore local knowledge, advocating for market-driven solutions like vouchers to empower families. He’d caution against uniform formulas, favoring decentralized innovation.
* Paulo Freire: Freire’s critical pedagogy views education as liberatory, rooted in community empowerment. He’d support Edgewood’s equity push but argue reform requires involving students, parents, and teachers in designing systems, critiquing top-down funding fixes for missing relational learning.
Perspectives:
* Federalist View: Federalists would argue education equity demands national standards, potentially through federal funding, to address wealth disparities. They’d see Edgewood as a step toward a federal role, especially for digital and post-COVID learning gaps.
* Anti-Federalist View: Anti-Federalists would insist education belongs to communities, reflecting local values. They’d support Edgewood’s state focus but resist federal intervention, backing school choice and parental rights over centralized curricula.
* Libertarian View: Libertarians would critique Edgewood for entrenching state control, advocating vouchers and charter schools to empower families. They’d see market innovation, like online platforms, as the path to equity, free from bureaucracy.
* Fatal Hubris View: This lens rejects top-down education, arguing learning thrives in relational ecosystems. Edgewood’s funding focus misses the issue: education detached from community. It calls for local models like homeschool co-ops, co-designed by families and teachers.
"Equity is not a formula. It’s a relationship." — Community-based Governance
Current Issue:Universal school choice laws and Education Savings Accounts are expanding. Courts are litigating parental rights versus public curricula, with Edgewood’s equity principles informing adequacy debates.
Final Thoughts
Each case reveals a truth: law imposed from above can articulate rights, but it cannot guarantee their protection. Rights secured by strangers rarely feel secure.
“No one has the authority to tax me, imprison me, or govern me unless they know me.” — The Fatal Hubris
The Constitution remains worth honoring, but its implementation must change. Let law descend from abstraction into daily relationships. Let justice return to scale.
Until next time: stay proximate, stay principled, and build your law in the place you live.— Marnie
Attribution and License NoticeThis post incorporates material from Liberty, Equality, and Due Process: Cases, Controversies, and Contexts in Constitutional Law, Third Edition, by Ruthann Robson, CUNY School of Law, 2021. Published by CALI eLangdell Press. Licensed under CC BY-NC-SA 4.0.
Get full access to Marnie’s Substack at marniekhaw.substack.com/subscribe