Constitutional Law II Outline

Con Law II Levin Spring 2017

Equal Protection

Tiered system

There is Rational Basis, Intermediate Scrutiny, Strict Scrutiny
Tiered system (of scrutiny)

What goes in each box (RB/IS/SS)?

RB – law must rationally related to legitimate gov’t interest

99% of time it’s fine
Any possible reason – can spitball, no matter how implausible
All we ask: Could a rational person consider this to be a concern?

Can even be pretext, as long as valid possible RB

IS – law must be substantially related to important gov’t interest
SS – law must be narrowly tailored to compelling gov’t interest

99% of time it’s going to fail

Once applying scrutiny, how does it work?

Laws discriminate BUT

Be more skeptical of laws that discriminate based on immutable, innate qualities

Rational Basis

RB box contains everything that does not go into a heightened scrutiny box

RB is VERY TOLERANT
RB permits pointless laws, bad politics, underinclusiveness, overbroadness, economic favorability
Seems like legislature can do anything they want – regardless of bad effects
Why would court allow? Prefers that legislature consider public policy and make the laws & court only polices outer boundaries

So those with more political influence (lobbyists) get more laws favoring

Railway Express – law differentiates btw owners of trucks – owner can advertise on truck while non-owner cannot advertise on side of truck

Standard is RB – maj. only needs to look at possible rational basis for law

Maybe some legislator has good reason (who are we to question)
Seems like court doesn’t need any rational reason (loose std)

Overbroad (gets non-distraction) & underinclusive (misses some distractions)

Williamson –to make glasses, you must have an “ophthalmologist” or “optometrist” EXCEPT department stores (like Macy’s) who can use an “optician”

RB tolerates underinclusiveness –One good reason would be if only highly qualified eye professionals make, but undermined by Macy’s
Can also be overbroad
Can lead to bad policy (that favors some industries) & still pass RB

Central State University – law that professors cannot negotiate workload

Rule: Even if your policy is proven not to work (not solve any problem or the specific problem it’s supposed to), if someone thought it might work, it passes RB

State Action

14th Am. – “No state shall…” – now talking to states, not fed

Under EP, must have a state action
Does not apply to inns, RR, etc. – these aren’t state actors

Racial Classifications & Discrimination

Theories

Separate but equal argument for social situations (Plessy – now OFF TABLE)
NOT equal bc other races not treated equally
Colorblindness (Plessy D.)
Anti-subordination – no more badge of inferiority/caste system (Plessy D.)
Inherently unequal – so violates EP (Brown)

Current standard

If law treats races differently on its face, SS applies

SS = Compelling gov’t interest + narrowly tailored
YW says SS is not only when facially discriminatory

Discriminatory purpose/intent or effect

Effect – YW seems to say this can be SS

Need DISPARATE IMPACT + for SS

Purpose

If no discriminatory effect, don’t ask purpose (Palmer) – use RB
If discriminatory effect, don’t ask purpose (Washington) – use RB

So when can we ask about purpose – for SS?

Maybe need to show both discriminatory effect and purpose to get SS
Or suspicious state action + unfettered discretion (like in YW)

Show there probably/likely is an impermissible motive – good reason to doubt the supposed purpose

Facially Discriminatory

Civil Rights Cases – It’s not inherently unconstitutional for common carriers to discriminate on the basis of race

Want a statute to disallow – but need a constitutional hook

It can’t be EP bc requires state action – so now uses CC

Dissent – state action via inaction

Plessy (overruled) – P is partially black, must go in black car in train

Law = no racial intermingling on trains, trains segregated

Clear state action – made the law separate cars for separate races
Shows social inequality

“Separate but equal” – access to same tangible goods but for comfort, keep separate socially

Court says SBE is ok socially

Political equality – functions of gov’t (like jury of whites)

Most generous possible reason: preserving cultural identity

Fails bc separated by “White” and “Other”
Only identity that mattered was white & other races could intermingle

Harlan Dissent –Civil rights include 1) colorblindness & 2) not preserving superior race/white supremacy

Colorblindness – our laws have to be colorblind, otherwise we’re classifying by race & that in itself is offensive

Affirmative action would offend this notion of 14th

Bad purpose – keep black people second-class/preserve servitude

Brown v. BOE –facilities actually equal in this case but Ps want integration, not separate – held segregation of schools unconstitutional – state laws establishing separate schools were struck down/unconstitutional bc violates EP

What is unequal here?

Didn’t have access to certain professions, esp. in poor communities
Same tangible goods but lack of same intangible goods (like good examples/influences)
Harm children who are segregated – feel inferior

Times have changed since Plessy (why they can unbind precedent)
Remedy – decided it’s unequal but need time to figure out how to integrate

Brown II – says all public schools must integrate with “deliberate speed”

Deliberate = careful, slow, considerate | speed = fast à so????

Korematsu – (zombie case) Americans of Japanese descent put in internment camps

Law = military order (by a general) to exclude those of Japanese descent by sending them to internment camps (like jails) bc at war with Japan
STRICT SCRUTINY – 1st case to use