Must local levels of government respect the US Constitution and its amendments?

[lawbuff]

@jtgain

Wasn’t it the desegregation companion to Brown v. Board? Basically the Court had said that the 14th amendment equal protection clause didn’t allow segregated schools. But, oopsy, the 14th amendment doesn’t apply to D.C., only to states, so they came up with some crazy interpretation to make it stick., so that the absurd result of Washington, D.C. to the exclusion of everywhere else, could have segregated schools …

You got it! I knew it had something to do with the Heller case. This last case I will post was cited in a brief, your case though is Bolling v. Sharpe, 1954, cited in the same brief. That was good thinking there jt, I’m impressed, really.
Bolling v. Sharpe;

Racial segregation in the public schools of the District of Columbia is a denial to Negro children of the due process of law guaranteed by the Fifth Amendment. Pp. 498-500.

(a) Though the Fifth Amendment does not contain an equal protection clause, as does the Fourteenth Amendment, which applies only to the States, the concepts of equal protection and due process are not mutually exclusive. P. 499.

(b) Discrimination may be so unjustifiable as to be violative of due process. P. 499.

(c) Segregation in public education is not reasonably related to any proper governmental objective, and thus it imposes on Negro children of the District of Columbia a burden that constitutes an arbitrary deprivation of their liberty in violation of the Due Process Clause. Pp. 499-500.

(d) In view of this Court’s decision in Brown v. Board of Education, ante p. 483, that the Constitution prohibits the States from maintaining racially segregated public schools, it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government. P. 500.

(e) The case is restored to the docket for further argument on specified questions relating to the form of the decree. P. 500. [p498]
In part;

“There is nothing in the history of the Constitution or of the original amendments to justify the assertion that the people of this District may be lawfully deprived of the benefit of any of the constitutional guaranties of life, liberty, and property – especially of the privilege of trial by jury in criminal cases.”

It is important to bear constantly in mind that the District was made up of portions of two of the original states of the Union, and was not taken out of the Union by the cession. Prior thereto, its inhabitants were entitled to all the rights, guaranties, and immunities of the Constitution, among which was the right to have their cases arising under the Constitution heard and determined by federal courts created under, and vested with the judicial power conferred by, Art. III. We think it is not reasonable to assume that the cession stripped them of these rights, and that it was intended that, at the very seat of the national government, the people should be less fortified by the guaranty of an independent judiciary than in other parts of the Union.

O'Donoghue v. United States, 289 U.S. 516 (1933)

[gatorslap]

What if the city in question was San Juan? It’s not part of a state.

[lawbuff]

edit; double post

[lawbuff]

@gatorslap

What if the city in question was San Juan? It’s not part of a state.

If it applies to PR, it applies to SJ also, as discussed, an arm of the state itself for Constitutional purposes.

[Peremensoe]

@lawbuff

It is important to bear constantly in mind that the District was made up of portions of two of the original states of the Union, and was not taken out of the Union by the cession. Prior thereto, its inhabitants were entitled to all the rights, guaranties, and immunities of the Constitution, among which was the right to have their cases arising under the Constitution heard and determined by federal courts created under, and vested with the judicial power conferred by, Art. III. We think it is not reasonable to assume that the cession stripped them of these rights, and that it was intended that, at the very seat of the national government, the people should be less fortified by the guaranty of an independent judiciary than in other parts of the Union.

Why not? There would seem to be a consistent logic in arguing that the territory ceded by states is removed from the Union of states. Prior to the cession (or at least to the Organic Act of 1801) the residents of the District territory were citizens of Maryland and Virginia; afterwards, not. They were obviously stripped of some Constitutional rights, namely representation in Congress. In those days relatively few people would have expected to live permanently in the District, and until the Fourteenth Amendment would normally have retained their “home” state citizenships.

[Northern_Piper]

@friedo

In short: the states and the federal government share sovereignty. Everything else is devolved. That includes things like the District of Columbia, federal territories, and Indian reservations (devolved from the federal government) and every municipal government within the states (devolved from the state government.)

I thought that Indian tribes in the US are considered “domestic nations” or some such term - that they hold residual aboriginal sovereignty, not devolved from either the federal or state governments?

[Northern_Piper]

@Polycarp

Later, Massachusetts and Virginia were divided, with their consent, by splitting off Maine and West Virginia …

for certain values of consent

[Polycarp]

@lawbuff

If it applies to PR, it applies to SJ also, as discussed, an arm of the state itself for Constitutional purposes.

Just adding for US-centric perceptions that “state” here means “body politic”, not “second-level governmental unit ithin a federal system” as in “the 50 states.” One might equally say that what applies to England applies to Manchester, as it is a municipal corporation created by the state (meaning England as a self-governing body politic).

[Really_Not_All_That_Bright]

@Northern_Piper

I thought that Indian tribes in the US are considered “domestic nations” or some such term - that they hold residual aboriginal sovereignty, not devolved from either the federal or state governments?

Indian tribes were once “domestic dependent nations”, per Cherokee Nation v. Georgia - which meant states could not exercise any jurisdiction over reservations within their boundaries. The aftermath of the Cherokee Nation case (that is, the Trail of Tears) demonstrated that this was essentially a fiction and states could do anything with the Indians in their boundaries they wanted.

Tribal sovereignty pretty much works as you describe: it consists of any powers the tribe has not waived by treaty or had taken from it by Congress.

That the Navajo Tribe’s power to punish offenses against tribal law committed by its members is an aspect of its retained sovereignty is further supported by the absence of any federal grant of such power. If Navajo self-government were merely the exercise of delegated federal sovereignty, such a delegation should logically appear somewhere. But no provision in the relevant treaties or statutes confers the right of self-government in general, or the power to punish crimes in particular, upon the Tribe.

<snip>

But none of these laws created the Indians’ power to govern themselves and their right to punish crimes committed by tribal offenders. Indeed, the Wheeler-Howard Act and the Navajo-Hopi Rehabilitation Act both recognized that Indian tribes already had such power under “existing law.” See Powers of Indian Tribes, 55 I. D. 14 (1934). That Congress has in certain ways regulated the manner and extent of the tribal power of self-government does not mean that Congress is the source of that power.

In sum, the power to punish offenses against tribal law committed by Tribe members, which was part of the Navajos’ primeval sovereignty, has never been taken away from them, either explicitly or implicitly, and is attributable in no way to any delegation to them of federal authority. It follows that when the Navajo Tribe exercises this power, it does so as part of its retained sovereignty and not as an arm of the Federal Government.

US v. Wheeler, 435 U.S. 313 (1978)

[Polycarp]

@Northern_Piper

for certain values of consent

snerkl True. But Maine did get full consent from the rest of Massachusetts. And when I say, "the legal principle that a state may not unilaterally secede from the Union without Congress’s condent (Grant v Lee, Appomattox Co., VA, affirmed by SCOTUS in Texas v White), the cite is only partially tongue in cheek – the military victory of the Union made the later legal case where SCOTUS rendered a decision about the secessionist legislature’s bonds possible. So the Unionist members of (antebellum) Virginia’s legislature met as the Virginia legislature at Wheeling, the remainder having constructively resigned from the legislature of Virginia-the-state-of-the-USA by entering into rebellion, and gave consent to the formation of the new state of West Virginia. It’s a real stretch, but it does follow logically from the premises involved.

[Cliffy]

N.B. – the extension of the Equal Protection provision of the 14th Amendment to the federal government (including federally-managed areas such as D.C., P.R., and the territories) is referred to as “reverse incorporation.” The theory being (as sketched out in Bolling) that the contours of Equal Protection are themselves a part of due process, and therefore are binding on the federal government as part of the Due Process Clause of the Fifth Amendment.

This frankly doesn’t make much sense from a textual standpoint – if eq. prot. is a part of due process, why did it need to be spelled out in the 14th? And given that it is spelled out in the 14th but does not appear in the Fifth, then doesn’t the substantial textual difference mean the two amendments must mean something different? But that’s not the way the text has been construed.

And it’s not entirely unfair, given that the states – or some of them – spent most of Reconstruction trying to reinstitute slavery despite the 13th Amendment, and despite having just lost a war over it. In that context, maybe it made sense to highlight a facet of due process with textual support in the 14th, even if those protections should have already been understood to be extant in the Due Process Clause.

–Cliffy

P.S. Glad to help, Karl.