Equal Protection Law Outline

Equal Protection Outline

Professor Rosenberg

Spring 2012

Questions

What if there is school segregation?

Who does it affect?

i. Race, women, other

What is the policy?

i. Segregation, affirmative action

Is there a fundamental right

i. Privacy (family stuff, procreation)

What could the remedy be?

i. Segregation – bussing, etc.

Incorporation

Policy – What role do you want the court to play?

Purposes

Different Views on the Purpose:

Constitutionalize the Civil Rights Act of 1866 (Legislative History)

Only meant to protects to African Americans Slaughterhouse Cases

Only applies to state actors Civil Rights Cases

Only covers political/economic, not social rights Plessy

Get rid of all invidious racial discrimination Loving

Recurring Themes

Undermine the whole system…

Using a disparate impact standard might call into question every government policy Washington/McCleskey

Allowing alienage full right would undermine political community Sugarman

Statistics:

Can’t show the specific with the general stat McCleskey

Kicked out of economic matters:

Carolene Products – We will look at discrete and insular minorities

Rational relation deference, especially in economic maters.

Background

Pre-Fourteenth Amendment

Structure of government

The Constitution creates gridlock, which favors liberty over equality.

i. Federalist 10 – Factions are a threat to liberty

1. Control factions through:

a. Representative democracy:

i. In a large population will produce great leaders

ii. Representatives will act like a filter. They will debate the issues and really think about their decisions.

b. Big Republic:

i. Different interest groups will have to work with one another to form a majority

ii. Federalist 51 – Government is a threat to liberty

1. Concentrated power will cause tyranny:

a. Solution = Separation of Powers

Tyranny of the Majority – Tocqueville – Democracy in America

i. Majority controls everything, despite the separation of powers

1. The legislature and President are elected

2. Judges are elected or appointed by elected officials

3. Juries are even made out of the majority

ii. Equality is granted according to the will of the majority

1. Even if there are laws or constitutional amendments, the majority will ignore it…

2. It is difficult/impossible to protect fundamental rights until the majority wants to.

Views of African Americans

Dread Scott:

i. Blacks were not included under the word citizen.

1. They were inferior beings/property

2. This is pulled from the understandings of the nation and the framers at the time of passing the Constitution

3. As a result, court holds that slaves did not have a right to sue

ii. Majority had a broadly held view of African Americans and the majority gets what it wants. Tocqueville

History of 14th Amendment

History:

Purpose

i. Constitutionalize Civil Rights Act of 1866

“make and enforce contracts, to sue, be parties, and give evidence, inherit, purchase, lease, sell, hold, and convey real and personal property and equal benefits of all laws and proceedings for the security of person and property as is enjoyed by white citizens”

1. The black codes oppressed African American liberty

ii. Who was it meant to protect?

1. Clearly meant to protect African Americans

2. Women and other groups not contemplated

a. Even though the language is general “Any person”

iii. What rights does it include?

1. No mention. Political Rights, economic rights, etc

a. Voting not included since covered in 15th Amendment

b. See quote above

Ratification:

i. North used coercive means to pass the amendment.

1. They un-sat Southern Congressmen, and then forced the states to accept the Amendment to be made a state again

ii. Was it legal?

1. Depends on whether the states actually left the Union. If they did, then it seems that passing the Amendment was Constitutional. If they never left the Union, as Lincoln thought, then it was unconstitutional.

a. Even if it is unconstitutional, there is some kind of statute of limitations – it is also part of our fabric as a nation

iii. Domed from the start:

1. Since the South did not agree, it had little chance of succeeding

The Civil Rights Amendments:

13th Amendment –

i. Banned slavery and gave the Congress the power to enforce it.

ii. After, the states started enforcing the black codes, which undermined…

14th Amendment –

i. There is not a lot of debate about the language of Section 1. Bingham is purposefully ambiguous. The ratification debates doesn’t shine light either

ii. What does it do?

1. It gives citizenship to all those born in the nation.

a. Overturns Dred Scott

2. Privileges and Immunities

a. The Court will read this to be vacuous

3. Due Process

a. Essentially applies the 5th Amendment to the states

4. Equal Protection Clause

a. Congress can enforce the Amendment

15th Amendment

i. Right to vote for all races and colors

Segregation/Jim Crow

Jim Crow Era

Views of the 14th Amendment

Amendment only applies to African Americans Slaughterhouse Cases

i. The history points to it only applying to African Americans

ii. The Amendment was needed to counter the black codes

iii. Later overruled by Korematsu

Harm by stigmatization

Strauder – D was accused of murder. There was a law that only whites could serve on juries. The court found that not allowing blacks to serve on juries implied that blacks are inferior

i. Implying that blacks are inferior is a harm enough to constitute a violation

1. West Virginia though they were cutting blacks a break, but not allowing them to serve was the harm

14th Amendment only applied to state actors

Civil Rights Cases – The court held the Civil Rights Act of 1875 was unconstitutional because it prohibited discrimination in public places such as inns, theaters, etc. 14th Amendment only applies to state actors, not private conduct. Congress can only regulate state actors through §5. A