upholding constitutionality of California’s ban on political party endorsements of nonpartisan candidates
How later courts described this case
- upholding constitutionality of California’s ban on political party endorsements of nonpartisan candidates
Written by the judges who cited it.
The opinion
SNEED, Circuit Judge,
concurring separately:
I concur in Judge Trott’s opinion.
I write only to comment on Judge Can-by’s discussion of Federalist No. 45. See infra at 1086 n. 3.
It has become fashionable to reject arguments based on principles of federalism rooted in the Tenth Amendment by referring to the Fourteenth Amendment. Presumably the reference is to that portion of the first section of the Amendment containing the Due Process and Equal Protection Clauses as augmented by certain of the Bill of Rights. Perhaps I have missed something, but it is a fact that I have never read of the subject of nonpartisan elections being discussed by Congress in 1866 when it debated and passed the Fourteenth Amendment. More to the point, the context of these clauses has never been constant. That is not a criticism, only a statement reflecting the life of the law, yes, even constitutional law. Incorporation of portions of the Bill of Rights, for example, is a fairly recent development that perhaps may be, or already has been, extended to the Ninth Amendment. The content of the incorporated Bill of Rights also evolves over time.
In truth, when we, circuit judges, rely on the Fourteenth Amendment to curb the powers of a state, we are only relying on our perception of what the Supreme Court presently believes the Amendment requires. Judge Trott and I share a perception; Judge Canby has another. None of us has access to any stone tablets; yes, not even the Supreme Court.