Vik Amar
Con Law II
I. Equal Protection of the Laws
A. Theories/History of Equal Protection
1. 14th Amendment – can’t prevent classifications, but requires that similarly situated people be treated similarly.
a. All persons born or naturalized in the U.S. are citizens of the U.S.
b. No state shall make or enforce any law which abridges the privileges or immunities of citizens
c. No state shall deprive any person of life, liberty or property w/o due process of the law
d. No state shall deny to any person w/in its jxn the equal protection of laws
2. 5th amendment: No person shall be deprived of life, liberty, or property without due process of law. (Used to forbid Feds from denying equal protection of the laws).
a. EP is a more explicit safeguard of rights, but sometimes discrimination is so bad that it violates due process as well (Bolling)
b. Liberty cannot be restricted, except for the proper gov’t objectie
3. Reasonableness model: Asks how closely the means of a law are tied to the ends – how much over and under inclusiveness. Problems:
a. Subjective evaluation of the acceptable amount of over/underinclusiveness; value-laden assessment of what is reasonable
b. Sometimes the ends are undesirable in and of themselves.
c. Law’s history can be refigured to appear rational if end is defined in terms of the means. Law prohibiting interracial marriage is rational if goal is to keep the races separate.
4. Political Process model: Judges law in terms of the process which led to its enactment. Some processes are not worthy of respect.
a. Factors limiting deference to legislature’s process:
1) Limited political power of narrow minorities makes burdensome laws worse – the bigger the in
al where his race is explicitly excluded from the jury is a denial of EP
5. Color Blind Model: The fact that race (or another out of bounds classification) is used is uniquely problematic and should be forbidden – does not distinguish between a burden and a benefit
a. Racial classification occur so often and are hard to detect – therefore it is better to pay the cost b/c racial classifications are so likely the consequence of prejudice
b. Social consequences of race-based classifications create resentment and perpetuate stereotypes
B. Tests
Rational Relation: If the classification the law uses is rationally related to a government goal – and the classification is not arbitrary- then constitutional.
