I. Introduction to the Post-Civil War Amendments
A. Privileges and Immunities
1. U.S. Const., amend. XIII, amend. XIV, amend. XV
a. 13th: Made slavery illegal and gave Congress police powers over it.
b. 14th:
1. Section 1. US citizenship to all born or naturalized. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
2. Congress police power to enforce
c. 15th:
1. Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.
2. Section 2. The Congress shall have power to enforce this article by appropriate legislation
2. P and I gutted? (Slaughterhouse, Bradwell, and Minroe). In other words, does the 14th A end up applying the Bill of Rights to the States?
a. P&I language could have meant to protect fundamental rights from state and local interference.
1. Courts wanted to avoid giving the federal government power
2. Slaughterhouse – court interpreted the amendments narrowly, stating that they were there to protect former slaves. Except for the P&I part of the opinion, eventually all other interpretations of these amendments were overturned.
i. The EPC has been used in areas of gender, alienage and legitimacy
ii. Due process clause – by the late nineteenth century the court used due process in restraint of trade cases (rejected it here).
iii. Interpreted the P&I clause – right of the citizen (go to seat of government, etc.)
iv. Court’s interpretation robbed the P&I of all meaning.
a. Saenz v. Roe – first time SC used P&I. CA welfare limited new residents to their previous state’s level. Right to travel as a fundamental right. Late 1990’s.
v. Fields dissent
3. Bradwell v. Illinois: Women and the state bar. Use P&I (infringing on chosen trade). Lost.
i. P&I narrow. License to practice law is a state privilege and they can infringe if they want to.
ii. Why not bring an EPC claim? 1st, women’s place was in the home and 2nd, Slaughterhouse said the EPC only applies in race cases.
iii. Court claims that women and men are separate, but good. Women protected for unsuitable profession.
4. Minor v. Happersett: Women denied the right to vote.
i. Section 2 of the 14th A was about voting. BUT it said MEN.
ii. P&I claim: Rule: Voting is not one of the natural rights (inconsistent with Slaughterhouse.)
iii. This case showed how irrelevant the P&I clause is in 14th A when it doesn’t even protect the right to vote in federal elections.
B. The State Action Requirement and the Separate but Equal Doctrine: South and parts of the north pass a wave of laws discriminating based on color. Originally Congress was hostile to the laws, but the SC decisions allowed the Jim Crow laws to flourish.
1. Civil Rights Cases (1883): Rule: 14th A reference State action exclusively, and not to any action of private individuals. Civil Rights Cases credited with mandating requirement for state action. (Shelley v Kramer thought circumvents by saying that state action can be perceived as state involvement)
a. Civil Rights Act of 1875 – “full and equal enjoyment of the accommodations, advantages…inns, public conveyances, and other places of public amusement.” Prohibited private discrimination.
1. Sc – law declared unconstitutional b/c 14th only applies to government action, not private action.
a. How could they decide this way?
1. Slippery slope of federal gov regulation
2. BUT what about state “inaction”?
3. Why even have a state action requirement
a. Textual reason: Text of the constitution seems to limit its application to government
b. Historical reason: At the time made sense as thought that the common law protected individuals from private interference (almost a 3-tier system; common law protects from private, state constitutions protect from state interference and the Constitution protects from federal interference.). How many black people are going to seek legal redress under common law when those people are going to agree with the segregationists?
c. Policy reason: 1st is private autonomy; but this also prohibits freedom b/c it permits violation of rights. 2nd preserves the zone of state sovereignty.
b. Why could Congress control discrimination in employment? Commerce power.
2. Harlan dissented –
a. Language of the 14th A – “All citizens…United States.” Rights of US citizen everywhere
b. Private life and everyday life integrated, should count as government
3. What about the 13th A?
a. Court rejects this – text of the A. BUT slavery was a private citizen thing and Congress regulated THAT.
b. Discrimination is not a badge of slavery – distinction between equal rights and emancipation
c. Harlan’s dissent – freedom means equal rights
2. Strauder v. West Virginia (1880). Didn’t discuss this in class. West Virginia passed laws banning blacks from juries, unconstitutional. The reason I am including it, the court held that:
a. Anti-discrimination. 14th A protects from unfriendly legislation
b. Anti-stigma. 14th A protects from legal distinctions implying inferiority.
c. Anti-subordination. 14th A protects from laws that subject blacks to inferior status.
d. BUT then Plessy happened in 1896.
2. Plessy v. Ferguson, (1896): Rule: Separate but Equal Doctrine (as well as the state’s can decide who is black)
a. 13A challenge – failed textually
b. 14A challenge
1. RULE: Separate but equal consistent with 14A because there is a distinction between social and political rights
2. Even though this is a state law and not private, court justifies:
a. Social, not political right
b. Not intended to create inferior race
c. Can’t force people to co-mingle and can’t legislate private attitudes
3. But isn’t this really promoting superiority of the white race?
a. Whites passed the law
b. “Equal” is a fallacy, the facilities are different and guess which are worse
c. Why the classification of Plessy (1 black grandparent)? The court says it is up to the state to set the standards on being one race or another. Think about it. If one drop makes you black, doesn’t that lend itself to setting one race up as “pure.”
d. Harlan’s dissent –
1. Constitution is color blind
2. Wasn’t endorsing social equality, only the inconsistency of the court not acting when it is state action causing the discrimination.
e. Separate but equal continued for decades. When suits were brought against MO and OK for not allowing blacks into state law schools, the state provided law schools just for black students. The courts said this was enough.
II. The Modern Law of Equal Protection: All EP issues can be broken down into 3 questions: (1) What is the classification; (2) What level of scrutiny should be applied; and (3) Does the particular government action meet the level of scrutiny.
A. Race: When the NAACP challenged the Plessy ruling in the 52-53 court, the court agreed to hear 5 cases. If they had been decided in 53, the court would have maintained Plessy at a 5-4 vote. But they were scheduled to be reargued the next yea
ry – While potentially more expertise, they are not focused on constitutional rights. Remember this was on American soil, not somewhere else and many of these were American citizens. And we did not do this to Germans and Italians.
iii. The court analogized to the draft: Similar in that citizens are called upon to help insure the countries safety, it’s compulsory. Different in that this was ALL Japanese ancestry, while draft only applies to men between the ages of 18 and 35, men drafted don’t lose their homes and property. Internment is stigmatizing.
iv. Ultimately, SS was what came from this decision:
a. “All legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can.”
b. Step 1: suspect classification (often shortened to “suspect class”)
i. Targeting of a single racial group treated as suspect
c. Step 2: strict scrutiny
i. Triggered if a suspect class is identified, or if involves a fundamental right
d. Step 3: compelling state interest (was then called “pressing public necessity”)
i. May sometimes justify discrimination based on race
ii. Here war is found to be such a compelling state interest
e. Step 4: narrow tailoring (actually comes from another case)
i. If there is a compelling state interest justifying discrimination, the law must be narrowly tailored to achieve the goals specified by the interest
f. Race (as we shall see with gender) is an immutable trait, which is important to the court’s analysis.
c. Loving v. Virginia (1967): Rule – Just because it includes whites and minorities, does not place a statute that specifically is race-based outside of strict scrutiny. In general, a law that may treat classes the same but separately, the law may create a social hierarchy (like same-sex schools). The statute (miscegenation) rests solely on the distinctions of race. Second part: Freedom to marry comes under the EPC. In analyzing the statute, the ONLY purpose could be promoting white supremacy. Didn’t care about other races intermixing.
a. Due process issue in this also. Most intimate issue.
b. “The EPC requires the consideration of whether the classifications drawn by any statute constitute an arbitrary and invidious discrimination.”
c. “Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival.” Powell quoting Skinner v OK a case about sterilization.
