#5 - Specific Reference, Must Be True, Parallel

[Administrator]

Please post your questions below!

[jwheeler]

I was stuck between A and B for this one; is B the better answer because there isn't a "distinction" that the Shelley Court uses? I think there is a conceptual incoherence; they cite the 14th Amendment when regulating a personal/individual action (when it's traditionally been applied only to states), but I think that "distinction" word is where it invalidates the answer.

[Malila Robinson]

Hi Jwheeler,
I think that your reasoning is spot on. I can't pinpoint the distinction that Answer A would be referring to. So even though the rest of the answer seems to be ok, but perhaps a bit too strong- incoherence is more definitive than confusion, it would fail to be the correct answer because of the missing distinction.
Hope that helps!
-Malila

[IneedLSAThelp]

Hello, why isn't C correct? I was stuck between C and A, which unfortunately were both wrong. A looked good because I thought the distinction referred to the distinction (or lack thereof) between state and private action.

[Malila Robinson]

Hi IneedLSAThelp,
The problem with Answer A is that, as you said, there was a lack of distinction. The distinction was pointed out by the author of the passage, but that did not come from the Shelley Court.
For Answer C, the author says that the Court had an answer for the part that was quoted in the question. "although the
restrictive covenants themselves were perfectly legal, judicial enforcement of the covenants violated the (25) Fourteenth Amendment because responsibility for a contract’s substantive provisions should be attributed to the state when a court enforces it." So it wasn't that the court was not properly attending to the facts, instead it was that the court used a confusing interpretation of the law when reaching its decision. And that leads to Answer B.
Hope that helps!
-Malila

[ruthtaterginsburg]

Hi Jwheeler,
I think that your reasoning is spot on. I can't pinpoint the distinction that Answer A would be referring to. So even though the rest of the answer seems to be ok, but perhaps a bit too strong- incoherence is more definitive than confusion, it would fail to be the correct answer because of the missing distinction.
Hope that helps!
-Malila

The distinction employed by the Shelley Court is the difference between the Fourteenth Amendment not applying to private contracts, but applying to the state. That's not really an incoherence. We know this because line 46 states, "Courts routinely enforce contracts whose substantive provisions could not have been constitutionally enacted by the government."

The passage even gives an example of this, in the fact that courts have enforced agreements that limit a party's ability to speak, despite this being a violation of speech. Thus, this isn't an incoherent distinction, but rather a confusing issue (B).

[Rachael Wilkenfeld]

Hi Ruth,

I agree you could see that as a distinction, but not incoherence. Great analysis, and welcome to the forums!

Rachael

[meredithphillips]

Please post your questions below!

Can you please explain why E is wrong?

[H714W7]

The distinction employed by the Shelley Court is the difference between the Fourteenth Amendment not applying to private contracts, but applying to the state. That's not really an incoherence. We know this because line 46 states, "Courts routinely enforce contracts whose substantive provisions could not have been constitutionally enacted by the government."

The passage even gives an example of this, in the fact that courts have enforced agreements that limit a party's ability to speak, despite this being a violation of speech. Thus, this isn't an incoherent distinction, but rather a confusing issue (B).

Why isn't it incoherent for the court to say that state governments should refuse to enforce private contracts that would be illegal to enact as law, even though they are currently enforcing other private contracts as law? Is that not inconsistent and therefore incoherent? I had been thinking it was just overly negative -- am I misinterpreting "incoherent"?

[H714W7]

The distinction employed by the Shelley Court is the difference between the Fourteenth Amendment not applying to private contracts, but applying to the state. That's not really an incoherence. We know this because line 46 states, "Courts routinely enforce contracts whose substantive provisions could not have been constitutionally enacted by the government."

The passage even gives an example of this, in the fact that courts have enforced agreements that limit a party's ability to speak, despite this being a violation of speech. Thus, this isn't an incoherent distinction, but rather a confusing issue (B).

Why isn't it incoherent for the court to say that state governments should refuse to enforce private contracts that would be illegal to enact as law, even though they are currently enforcing other private contracts as law? Is that not inconsistent and therefore incoherent? I had been thinking it was just overly negative -- am I misinterpreting "incoherent"?

I think I figured it out. The passage means the first definition of incoherent: lacking clarity or intelligibility of speech or thought, and I thought it meant the second definition, lacking orderly continuity, arrangement, or relevance: inconsistency. It is inconsistent because the court doesn’t prevent the state from enforcing other private contracts, e.g. involving limiting speech, even though the state can’t limit speech. I should have known it wasn’t inconsistent because it says conceptual incoherence, and it isn’t the concept in the 14th amendment that is inconsistent -- the court’s interpretation of the distinction over different court cases is the thing that is inconsistent. The author also only mentions the inconsistent actions later, whereas the distinction in the fourteenth amendment is the sentence before this one, so maybe I shouldn't have taken the later bits of the passage into account.