Lino Graglia
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Lino A. Graglia is the Dalton Cross Professor of Law at the University of Texas specializing in antitrust litigation. He obtained a BA from the City College of New York in 1952, and an LLB from Columbia University in 1954. He worked in the United States Department of Justice during the Eisenhower administration. Graglia is an outspoken Catholic conservative of Sicilian background. He is a well known critic of affirmative action and racial quotas.
Graglia is a strong proponent of Originalism, a theory of appropriate jurisprudential method supported by some self-identified political liberals, but most often associated with conservative legal theorists such as Robert Bork. Graglia echoes the argument of modern neoconservatives when he insists that the social or policy ends of a given law are often less important than the means employed to achieve those ends. He concludes that the courts are an illegitimate avenue for securing social change, and accuses modern liberals of making an end-run around democracy by seeking political victories in front of judges instead of at the ballot box.
Graglia became controversial when he made a speech on UT campus in 1997 in which he said that "blacks and Mexican-Americans can't compete academically with whites." [1] The comment was widely reported and generated discussions across the country. While many newspapers including the Houston Chronicle as well as Texas NAACP officials labelled the comment insensitive, the remark's context can be construed to indicate what Graglia defender David Horowitz calls an "uncomfortable truth" about the failure of affirmative action.
In an article title The Affirmative Action Fraud, published in 1999 in the Journal of Urban and Contemporary Law, Graglia wrote:
- Blacks are not in fact 'underrepresented,' but rather 'overrepresented'—that is, their numbers are disproportionately high—in institutions of higher education once IQ scores are taken into account. PDF of article
[edit] Writings
- Disaster by Decree: The Supreme Court's Decision on Race and the Schools, 1976, ISBN 0-8014-0980-2
- The Supreme Court's Busing Decisions: A Study in Government by the Judiciary
- Courting Disaster: The Supreme Court and the Demise of Popular Government
- A Country I Do Not Recognize: The Legal Assault on American Values
Graglia is an expert on United States v. Lopez. Congress passed the Gun-Free School Zones Act which prohibited the possession of a gun within 1,000 feet of a school. A student in San Antonio took a gun to school and he was charged with violating the act.
In the majority opinion written by Chief Justice Rehnquist he says that there are three things Congress can do under the commerce power:
1. regulate the use of channels of interstate commerce (bar theory) 2. protect the instruments of or persons/ things in interstate commerce (affects theory) 3. Regulate activities which substantially affect ineterstate commerce (also affects theory b/c this can only fit into this category)
Important to the decision is the distinction between affect and substantially affect: for congress to be able to have power over something, Rehnquist says that the regulation must substantially affect. Graglia mentions with regard to this that the court noticeably avoids the use of the "rational basis" test (it was only used once, and even there it was to imply that past decisions supported a substantial effect requirement). Furthermore, Graglia notices that the court is reverting to a definitional, E.C. Knight-type approach, the distinction being substantial and non substantial (some things simply not being commerce).
The government argues that there is an effect in the fact that violent crimes increase insurance costs and reduce the willingness to travel. Furthermore, they argue that unsafe schools hurt the educational process, which leads to a less productive citizenry, which may result in less educated students, which will in turn affect commerce.
The court counters this, as they did in Schecther, that this proves too much. If the government can regulate anything affecting national productivity, it can regulate the educational process itself, or even family law (marriage, divorce, child custody).
Graglia takes notice that the court is right. However, it is too late because the court does not overturn or criticize any previous decision. Those decisions long ago gave Congress the de facto police power.
The court says that the regulated thing is not commercial (contradictory to Wickard) and congress did not explicitly invoke either the bar or affects doctrine. (Although congress does not have to make such findings, they would help the court in determining "substantiality".) Graglia argues this is only an accommodation to a legal fiction, there is no reason to believe congress made a "legislative judgment" regarding the effect of guns in schools on commerce. What the court is really saying is that congress can't flout the legal fiction in that its laws must be a regulation of commerce. It must play the game of saying the law is a commerce regulation. Therefore, it may be possible that if congress added the words "in interstate commerce" that would make the statute supportable under the affects doctrine.
The court does not mention the bar doctrine, and it even seems that they go out their way to avoid it. "There is no indication that the defendant had recently moved in interstate commerce, and there is no requirement that his possession of the firarm have any concrete tie to interstate commerce." If there had been a showing of this, that either the gun or the student moved over state lines would be enough to allow congress to regulate it as a bar theory piece of legislation.
The logic of the bar doctrine is too clear to question, if something has moved over interstate lines it just is interstate commerce. The bar doctrine is so firmly entrenched that it's revocation is inconceivable.
Gralia mentions that there is a problem with the court saying that this has to be either a police power or a commerce power because it ignores the reality that an act can be both. Inquiring into which thing was intended is useless, as Congress intends all the foreseeable consequences of its litigation.
