1. This note seeks to explore various state standards for determining if a mentally disabled person is incompetent in terms of reproductive rights. Part I is a discussion of the evolution of federal case law covering the rights of individuals concerning reproductive freedom. It provides an overview of the attitudes courts have taken addressing reproductive rights following Buck v. Bell. Part II of the note reviews how involuntary sterilization cases are handled on the state level. This section discusses in further detail the three main approaches taken by state courts. Through analysis of the underlying policy motivations of these approaches, this section explores the legal evolution of sterilization standards to include an expanded interpretation of substantive due process with a focused inclusion on the fundamental right to privacy. Part III focuses on the modern state of legal reconciliation of due process rights with sterilization guidelines using the details of the recent Massachusetts involuntary sterilization case, Guardianship of Moe to exemplify the continued emphasis on procedural due process rights. Finally, Part IV discusses how, as a result of various state interpretations, the legal trend towards allowing standards for administering involuntary sterilization actually fits in with the general message of Buck v. Bell in terms of its strong emphasis on procedural safeguards. Part IV contends that the arguments expressly endorsing eugenic sterilization are purely dicta, and not binding authority. This discussion leads to the conclusion that in light of the varying state standards for sterilization of incompetent persons, the precedent in Buck v. Bell binds later society to enforce the protections of both procedural and substantive due process. At this point, this note explains that the Buck v. Bell precedent is not, in fact, binding law endorsing eugenic sterilization.

2. It has been many years since I first wrote that the American Revolution was, at once, an event in time and an idea out of time.¹ Lincoln meant no less when he wrote that Jefferson enshrined in the Declaration of Independence “an abstract truth, applicable to all men and all times.”² It was a commonplace among the Founders (and Lincoln) that the American experiment in self-government was not for Americans alone, but for all mankind.³ This was not merely an expression of national pride. It was a sober judgment. It was almost as impossible then, as it is now, to imagine circumstances more favorable to the success of this experiment than those that existed at the Founding. It was, and is, hard to imagine this experiment succeeding elsewhere if it failed here. The Civil War clearly was a test, as Lincoln said at Gettysburg, of whether any nation “conceived in Liberty, and dedicated to the proposition that all men are created equal” could long endure.⁴ The test came when *198 eleven states “seceded” following the election of Abraham Lincoln in 1860. The Republican platform in that year contained a pledge to end any further extension of slavery into the new territories from which new states might be formed.⁵ The seceding states found it intolerable that all new states would be free states, so that eventually three-fourths of the states might be able to abolish slavery by constitutional amendment, without the consent of the slave states. As Lincoln put it in his first inaugural, “One section of our country believes slavery is right, and ought to be extended, while the other believes it is wrong, and ought not to be extended. This is the only substantial dispute.”⁶

3. 

“[ W] here we find that the legislators, in light of the facts and testimony before them, have a rational basis for finding a chosen regulatory scheme necessary to the protection of commerce, our investigation is at an end.”¹“Congress had a rational basis for believing that carjacking substantially affects interstate commerce.”²

I. Introduction

The point of this Article is a simple one: The prevailing rational basis test is the wrong test for determining the constitutional scope of federal commerce power and is inconsistent with the bedrock principle of our federalist form of government that the central government is limited to enumerated powers.³The 1964 case of Katzenbach v. McClung,⁴ is the germinal beginning of this misuse of the rational basis test in resolving fundamental issues of federalism.⁵The Court in McClung found *2 that Congress had the commerce power to regulate racial discrimination at the consummately local Ollie's Barbecue. The 1995 case of United States v. Lopez,⁶ holding that a congressional ban on guns on public school property was outside the scope of Congress' commerce power, unfortunately is not a significant retreat from the improper use of the rational basis test.⁷ After summarizing the historical cases, including McClung, Chief Justice Rehnquist for the majority in Lopez concludes, “[s]ince that time, the Court has . . . undertaken to decide whether a rational basis existed for concluding that a regulated activity sufficiently affected interstate commerce.”⁸ It then obfuscated the matter by seeming to apply the fundamentally different “substantially affects” test.⁹ The four-person dissent in Lopez relies even more heavily on the *3 rational basis test. As Justice Breyer for the dissent concludes, “[t]hus, the specific question before us, as the Court recognizes, is not whether the ‘regulated activity sufficiently affected interstate commerce, but, rather, whether Congress could have had ‘a rational basis' for so concluding.”¹⁰ Not until the March 1999¹¹ Fourth Circuit en banc decision, Brzonkala v. Virginia Polytechnic Institute and State University,¹² did the Lopez case have any significant impact at the Circuit Court level.¹³ *4 Brzonkala held that the civil portion¹⁴ of the Violence Against Women Act (VAWA), giving a civil rights action to women who were abused because of their gender, was outside of federal power.¹⁵ Brzonkala was clearly a minority approach among the federal courts.¹⁶ Lopez and the plethora of lower court federal cases generated by it,¹⁷ especially Brzonkala, have made McClung and the misapplication of the rational basis test relevant again.

4. 

Black feminist thought cannot challenge race, gender, and class oppression without empowering African-American women. “Oppressed people resist by identifying themselves as subjects, by defining their reality, shaping their new identity, naming their history, telling their story.”¹

The practice of storytelling or Narrative² is deeply rooted in African-American culture. It is a tradition based on the continuity of wisdom, and it functions to assert the voice of the oppressed. Storytelling is not merely a means of entertainment. It is also an educational tool, and for many, it is a way of life. For others, it is the only way to comprehend, analyze, and deal with life.

In this paper, I argue for the value of storytelling or Narrative in the broad and nebulous field of theory in general, with a particular focus on its utility in the area of Black Feminist Theory.³ Most students of “the law”-- whether the practice of law or the theory of its construction--have come to recognize legal theory as a rather intimidating area of study. This intimidation is grounded in the inaccessible language and abstract application of theoretical *85constructs. However, the importance of theory should not be dismissed, for theory is the key to growth and development in any discipline, and law is no exception. In constructing a theory which is to be applied to and understood by a particular part of society, the theory should be infused with that particular group's experiences. Recognition of this seemingly basic proposition is what has prompted feminist and critical race theorists to develop their own respective theoretical streams, which function to fill in the gaps which mainstream (i.e. white male patriarchal) theory has sorely neglected.

The practice of Narrative functions to allow traditionally marginalized and disempowered groups, such as women and people of color, to reclaim their voices. In addition, by laying claim to personal Narrative (i.e. the telling of one's own story), oppressed peoples are able to create their own sphere of theorized existence, and thus remove themselves from the marginalized position to which the dominant society has relegated them. The lessons of life are learned faster and told better by those who have experienced them.⁴ Sharing stories creates a network. The strength of the network stems from an understanding that human experience is the basis for Narrative, and that Narrative is, in turn, a credible basis for theory. In my view, it is the method of Black Feminist Theory. To this end, I will discuss the general understanding and application of theoretical discourse, how the voices of Black women will affect this traditional construction, and how necessary change in the perception, construction, and application of theory can be accomplished through the use of Narrative.

5. 

A bedrock assumption of almost all judicial and academic interpreters of the Constitution is that the Constitution is in large part permissive. That is, most laws or governmental actions are neither forbidden nor required by the Constitution but are merely permitted.¹ I will call this presumably rather large set of governmental actions “constitutionally optional.”

The purpose of this essay is to show that this assumption -- that there are (many) constitutionally optional laws and governmental actions -- gives rise to some immense and perhaps intractable difficulties in justifying large areas of constitutional doctrine. At stake is the entire domain of the Equal Protection Clause (and the equal protection component of Fifth Amendment due process), as well as the “equal protection” component of other constitutional rights, which is sometimes dealt with as a matter of equal protection, and sometimes as a matter of unconstitutional conditions on the rights in question.² At the most general level, the theoretical difficulties I elaborate are all bound up *288 in the question of why the greater power to choose the option or to forgo it does not include the lesser powers to place conditions on it or to distribute it unequally. How is it that one can have a constitutional complaint over conditions attached to or inequalities in the distribution of a benefit that one has no constitutional right to in the first place? Unless that question can be given an answer, much of constitutional law will lack a solid theoretical foundation.

6. 

As a result of a determined political effort to dismantle women's reproductive rights and health care services, a sharp split developed among the Circuit Courts over the constitutionality of state restrictions of abortion practices and facilities.¹ State legislatures across the United States enacted restrictive measures in hostility towards a woman's right to choose to have an abortion.² The legal community eagerly anticipated *234 judicial resolution of the parameters on legislative regulation regarding reproductive rights.³ On June 27, 2016, in a 5 - 3 ruling, the United States Supreme Court, invalidated the 2013 Texas statute regulating abortions in their decision of Whole Woman's Health v. Hellerstedt.⁴

The Texas abortion law, known as H.B. 2, a prototype of similar restrictive state statutes, introduced new measures to the legislative landscape of abortion.⁵In their brief to the Court, the petitioners, Whole Woman's Health, LLC, argued that the Fifth Circuit distorted the careful balance struck in PlannedParenthood of Southeastern Pennsylvania v. Casey, by utilizing a “blind” and “overly deferential” standard of judicial review of the Texas abortion statute.⁶Leading up to this recent case, in a similar case in 2015, the *235 Court reversed a Fifth Circuit decision and upheld a woman's constitutionally guaranteed right to choose, as established forty-three years ago in the landmark decision of Roe v. Wade.⁷ In Hellerstedt, Whole Women's Health argued that the true purpose of the Texas statute, which purportedly was enacted to protect maternal health and safety, was actually to “close the vast majority of Texas abortion clinics” by singling them out with heightened medical regulation when the abortion procedure is safer than other common medical procedures.⁸ They believed the statute should be invalidated for two reasons: (1) failure to confirm that the legislation was designed to serve a valid state reason, and (2) both the purpose and effect prongs of the Casey undue burden test had been violated.⁹

With an eight-member, ideologically-divided Court expected for the next two years, the distinct reality quite possibly could have been that the legislative chipping away of reproductive rights might not be reversed.¹⁰ Yet the Court was compelled by precedent, the bedrock of our common law judicial system, and retained the constitutionally enshrined right to choose, settled the conflict in the circuits, and doomed future state efforts to block access to abortion.¹¹ How far may states go without violating a woman's constitutional right to choose? Some legislatures justified *236 such state mandates in the name of women's health. Others, such as South Dakota, denigrated these very same regulations as unconstitutional restrictions, made in the guise of women's health, but with the real goal of restricting the right to terminate a pregnancy.¹² The unexpected and untimely death of Justice Antonin Scalia following oral arguments in the Hellerstedt case in conjunction with a partisan-gridlocked and dysfunctional Congress of an election year increased the likelihood that no replacement nomination for the vacancy of the late Justice Scalia's seat on the court would present for a vote before the Senate Judiciary Committee.¹³

This paper will first examine the Court's decision in Hellerstedt, and the lower courts' decisions on the Texas H.R. 2 statute,¹⁴ second assess the history of abortion jurisprudence and place Hellerstedt into the context of this history,¹⁵ and third analyze *237 and evaluate the contradictory decisions of the appellate courts from the Fifth, Seventh and Ninth Circuits.¹⁶ This paper will conclude by clarifying how the Court, despite being only an eight-member composition, could arrive at no other legal conclusion in Hellerstedt.¹⁷

^7. 

The No Child Left Behind (NCLB) Act is a controversial piece of federal legislation that only grows in controversy each day that Congress refuses to amend or renew the Act.¹ Until now, no state has successfully challenged the constitutionality of the law's broad sweeping power over education, which has traditionally been a state power.² However, in National Federation of Independent Business v. Sebelius, the United States Supreme Court provided states a new opportunity to challenge NCLB, as well as any other federal law that seeks to overthrow a traditional state power.³ In refusing to allow Congress to cut federally funded Medicaid dollars under the new Patient Protection and Affordable Care Act, Chief Justice Roberts provided states a brand new arsenal to fight federalism.⁴ The opinion further blurs the line between Congress providing states incentives and Congress coercing states to comply.⁵ States now have the opportunity to argue that Congress cannot take federal funding from a governmental program Congress previously created and label that program a new incentive program.⁶ Rather, states have the chance to challenge these programs and show that Congress is implementing its agenda by forcing state legislatures to enact Congress's programs or go broke.⁷

This comment will examine the ramifications of Sebelius on NCLB and the Texas Education Agency (TEA)'s opportunity to challenge the law as unconstitutional.⁸ The purpose of this comment is to demonstrate that Chief Justice Roberts's opinion created a new facet of litigation in education that can lead to positive changes in the federal government's influence on state education programs.⁹ As a result, the TEA should challenge the law in court, and the state legislature should begin to reframe Texas education around the needs of the citizens of Texas instead of national ideals.¹⁰ Part II will explain Chief Justice Roberts's holding in Sebelius.¹¹ Part III discusses the history of *469 federal involvement in state education as well as the history of the Texas education system.¹² In Part IV, this comment discusses how Texas attempted to avoid the requirements of NCLB in the past.¹³ Part V applies the holding in Sebelius to NCLB and provides insight into how Texas should challenge the law.¹⁴ Part VI speculates about the future of Texas education if the TEA successfully challenges NCLB.¹⁵

^8. 

Felon disenfranchisement--the practice of denying the right to vote to currently incarcerated felons, those serving terms of probation or parole, and former felons--prevents over four and one-half million men and women from voting in local, state, and federal elections.¹ Felon disenfranchisement laws are particularly troublesome when viewed in light of their racially disparate impact. While African-Americans comprise approximately 12% of the United States population,² they comprise 36% of the population that has lost the right to vote due to a criminal conviction.³

The right to vote has been declared fundamental by the United States Supreme Court,⁴ yet states, which are constitutionally empowered to control voter qualifications, continue to disenfranchise felons and ex-felons in staggering numbers. Consequently, some of the state laws that restrict the voting rights of felons have been challenged as impermissible violations of that fundamental right. These challenges have traditionally proceeded as claims of violations of the Equal Protection Clause, the Due Process Clause, and the Fifteenth Amendment.⁵ Attempts to overturn felon disenfranchisement laws have, however, been largely unsuccessful.

*1876 The Voting Rights Act of 1965 (“VRA”),⁶ which prohibits states from imposing racially discriminatory voting practices, has emerged in the last decade as a potentially powerful tool for challenging felon disenfranchisement laws. The VRA was revised in 1982 to prohibit voting restrictions that have a racially discriminatory impact, abandoning the previous version of the Act which prohibited only voting restrictions that were enacted with discriminatory intent.⁷Because felon disenfranchisement statutes disproportionately impact African-Americans,⁸ plaintiffs have attempted to use the revised version of the VRA to challenge the legality of state felon disenfranchisement laws. These challenges have not yet resulted in the overturning of a state felon disenfranchisement law. Yet if VRA challenges to these laws are permitted to proceed in a meaningful way, because the racial impact of felon disenfranchisement is so great, many of these laws could be declared impermissible restrictions on the right to vote.

The federal circuit courts are divided on whether the VRA provides a valid means to challenge felon disenfranchisement laws because such challenges involve application of a federal law to state statutes in an area of law typically under state control. Four recent cases in three circuits have addressed this issue head on. In each, convicted felons who at the time were incarcerated, on probation or parole, or have already fully served their sentences alleged that their state's felon disenfranchisement scheme violated the VRA. These cases have not yet addressed whether the state felon disenfranchisement statutes under review must be struck down for having a racially discriminatory impact. Rather, these four cases have addressed only whether a VRA challenge to a state felon disenfranchisement statute can proceed.

The three federal circuit courts that have addressed this issue disagreed about the use of the VRA in the context of state felon disenfranchisement statutes. The disagreement is largely about the allowable scope of the VRA as legislation passed pursuant to the enforcement powers of the Fourteenth and FifteenthAmendments. The circuits also disagree about whether there must be a “clear statement” from Congress that it intended the VRA to apply to felon disenfranchisement statutes, the underlying congressional intent that accompanied the amendment of the VRA in 1982, and whether the VRA, as applied to felon disenfranchisement laws, is congruent and proportional legislation under the Fourteenth and Fifteenth Amendments. All of these factors inform whether the VRA, a federal law, may be used to challenge state felon disenfranchisement statutes.