Constitutional Law II Outline

 
1)      OVERVIEW
a)      Focus of Con Law III Inquiry: what lessons are we to learn from the mistakes of the past? This is fundamentally an inquiry linked to history. A systematic inquiry into the mistakes of the past and what we must learn from them. 
b)      The Fourteenth Amendment — Textual support for our inquiry
i)        The background:
(1)   Constitutional crisis: the 14th A was born out of a failure of our constitutional system – the civil war. 
(2)   Preventing South from Undoing Defeat in Civil War: after Civil War southern states enacted ‘black codes’ that tried to restore as close a state as slavery as possible (blacks can’t own property, etc). Congress responded by enacting Civil Rights Act. Pres Johnson vetoed CRA so Congress developed 14th A to Constitutionalize Civil Rights Act. 
(3)   Equality: the one place in the Constitution where equality is mentioned is in the Equal Protection Clause (EPC) of the 14th A. 
ii)      The text
(1)   Section 1:
(a)    overturns Dred Scott by making blacks citizens;
(b)   privileges OR immunities clause; (“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;”)
(c)    due process clause; (“nor shall any State deprive any person of life, liberty, or property, without due process of law;”)
(d)   Equal Protection Clause; (“nor deny to any person within its jurisdiction the equal protection of the laws.”). 
(2)   Section 2: deals with voting and provides penalty for states by reducing their representation in Congress proportionately to the rate at which they deny the right to vote to “any male inhabitants of such State, being twenty-one years of age and citizens of the United States.”
(a)    Opposition from feminists: many women’s rights activists opposed the 14th A at its inception b/c it codified sex discrimination by not recognizing women’s rights to vote.
(3)   Sections 3-4: Civil War related amendments. 
(4)   Section 5: Congress has power to enforce the provisions of the 14th A
iii)    Interpreting the 14th A –
(1)   Originalism
(2)   Textualism
(3)   Intentionalism
(4)   Evolutionary process: (Common Law approach)
2)      EQUAL PROTECTION – RACE DISCRIMINATION
a)      Early application of 14th A: first case to invalidate a law under the EPC was Strauder, which found that exclusion of blacks from juries denied them equal protection of the law. 
b)      Expanded Purpose of 14th A: purpose of 14th A to secure for all blacks civil rights whites enjoy. Strauder HUGELY significant holding because moves EPC inquiry beyond text. Text supports limited equality principle for blacks but Strauder (decided w/in 2 decades of passage of 14th A) says 14th A guarantees blacks all rights whites enjoy.
i)        Jury service example: black D convicted of murder by all white jury from which blacks were excluded as potential jurors, sued to have his conviction overturned bc all white jury violates EPC. Strauder
(1)   Held: Ct agreed that all white juries violate EPC.
(2)   Injury: who injured? Blacks who were denied opportunity to serve (jury service like citizenship badge) or black defendants convicted by all white jury? Black D not indifferent to being sentenced by jury randomly white or jury where blacks excluded. 
(3)   Expressive harm: keeping blacks off juries injures blacks b/c stigmatizes as 2nd class citizens. 
(4)   Impact of Strauder: recognizing harm suffered by black D sentenced by white jury where blacks excluded from selection pool, paves way for recognition of further rights under EPC –right to integrated schooling, to integrated public transportation, etc. 
(5)   Race as paradigm EPC class: Strauder paradigm class for EPC violation is race-blacks. To see if other classes of people protected, ask how much they are like blacks. 
(6)   Using race where statistically valid: state wants to exclude illiterate jurors and more illiterate blacks than whites, can’t use race as proxy for literacy. This is law today. 
c)      Separate but Equal: Plessy held separate facilities not inherently unequal; if blacks perceive sep as inherently unequal must be their problem (“…it is not by reason of anything found in the act, but solely because the colored race chooses to put the construction upon it.”).
i)        Constitution no solution for inherent inequalities: majority asserted that if the two races weren’t equal the Constitution couldn’t make them so.
ii)      Harlan dissent: despite his racism (making Chinese example of permissible discrim) wrote passionately that Constitution is colorblind. Accurately predicted Plessy would be infamous decision.
(1)   Facial neutrality: though the law as written applies to blacks and whites, all know that its purpose was to exclude blacks. 
iii)    Antiprecedent: Plessy is a precedent for what we don’t want to do again. 
(1)   What does Plessy really say? Separate facilities are allowed as long as are reasonable; doesn’t ensure separate ok as long as equal. 
(2)   See — Cumming v Board of Ed: SCt rejected challenge to closing of black high school b/c funds for HS needed to fund black elementary school. This despite fact that whites had HS. 
iv)    Two possible attacks on Plessy’s separate but equal holding
(1)   Freedom of contract/property rights: argue statute that prevents blacks from buying train tix for white cars interferes w/blacks’ and RR’s F of K rights. 
(a)    Buchanan: Ct found statute that prohibited blacks and whites from living on same street violation of EPC. This may be a decision on basis of property rights. 
(2)   Separate but not really equal: show that separate facilities aren’t really equal. At best this gets separate facilities of same quality; doesn’t undo segregation. 
(a)    McCabe v Atchison Railway: Ct agreed that RR had to provide separate dining/sleeping facilities despite low black demand b/c otherwise whites and blacks don’t enjoy equal rights on trains. 
v)      Historical lessons: at time, Plessy was not controversial. WARNING there are wrongs lurking in behavior we take for granted as morally justifiable even today.
d)     Origins of Strict Scrutiny Doctrine and Racial Classifications:
i)        Classifications based on race are suspect classifications: any statute that curtails the rights of a single racial group is immediately suspect. Korematsu
(1)   Three rationales: Process Effects and Political Process Failure
(a)    Process: worry when make classifications that single out particular racial group that the law was the result of process infected by prejudice. 
(i)     Therefore: no racial classifications b/c risk of prejudiced outcome too great. 
(b)   Effects: worry that classifications that single out particular racial group treat that group as second-class citizens. (THIS IS HIGHLY INTUITIVE)
(i)     Therefore: no racial classifications b/c of harmful effects on racial groups.
(ii)   Strauss: “effects” theory is hard to