CONSTITUTIONAL LAW II CHINN SPRING 2016
EQUAL PROTECTION DEVLOPMENTS
Plessy v. Ferguson
Facts: Right after the civil war the south is coming up with new ways to subordinate newly freed blacks. Southerners find comfort in Jim Crow/Black codes. Southerners are trying to retake control. Political retreat by federal government and judiciary leaves state governments open to be create Jim Crow. This took the form of 1) voting disenfranchisement [poll tax, literacy tests, grandfather clause] 2) separate but equal [separate schools, parks, transportation, etc.]. segregation operates as a form of social control; to enforce this requires hyper vigilance, reinforces racism.
Here, Louisiana based legislation for separate black/white train cars. Activists create a test case on a train with a black man who refuses to leave a white car.
@this time 14th Amendment recognizes tripartite rights.
Civil rights: the right to contract, right to sue, to testify
Political rights: voting, jury rights
Social rights: rights related to social interaction
Here lies the horror of interracial marriage
In this opinion when J. Brown says political rights he is not talking about social rights, only political and civil rights.
(Majority) Argument: J. Brown [worst supreme court decision of all time(?)]
The 14th am does not protect minority social rights. Only protects civil (and maybe some political) rights.
The Louisiana statute only implicates social rights -> hence, it does not run afoul of 14th am concerns.
Railroad seating is a social activity.
The 14th am imposes a rule of reasonableness on segregation laws (so social rights do matter).So then states just have to be reasonable, and this statute is reasonable.
Social conventions are driven by social norms
So let those norms dictate how the law operates
AND LEAVE THE SOUH ALONE
#Critique 1: this statute has nothing to do with private social rights. Equal protection (14th) prohibits segregation b/c the social meaning of rail road seating implicates civil equality-> which then invokes 14th am.
#Critique 2: irony in Brown talking about gov. non intervention when the Louisiana law is radical gov. intervention via telling people where you can and cannot sit.
Seeking to shape racial behavior by dictating racial behavior.
#Critique 3: problematic on how to enforce racial identity: defendant here was 1/8 black, probably looked white.
#Critique 4: pessimistic that the law can change social norms, and yet history has shown us how the law DOES change norms, though some social norms are more resistant.
#Critique 5: rail roads are new, so this law can’t actually be customary/conventional, any law in this arena is breaking ground. No real social conventions.
(Dissent)Argument: J. Harlan. On the right side of history for racial equality, except for Chinese exclusion. [essentially a white person playing two minorities off on each other in this opinion/ or comparative inclusion- aligning to whomever is more like me.]
Highlights Anti-discrimination principal -> racial classification codified by law are strongly disfavored and statute runs afoul of the antidiscrimination principals.
Law discriminates and stigmatizes African Americans
Also infringes on freedom of association
So, racial seating implicates civil rights
Separate but equal is landmark here b/c the Louisiana statute has that phrase in it.
Separate but equal is ok under the 14th am rule of reasonableness
Separate but unequal could still be unconstitutional
In reality, separate but equal was settled in 1918 (clearing clarifying 1. Here).
Plessy as considered for judicial role and legitimacy
2 defenses of J. Brown and Plessy: 1) Brown’s argument is legally plausible during this time period. 2) political constraints abounded to limit influence on the south.
Counter: however, 1.) Harlan was able to see and say this ruling was problematic 2)courts should speak the truth to power as much as justice can allow.
Legal legitimacy:
Plessy has always been wrong
Plessy has always been right no one says this
Plessy was right/plausible @ the time, but it is wrong today
Legitimacy: seeking “perfect truth” (recognizing 1)). OR maybe there can be evil under constitutional law (recognizing 2)).
Sometimes legal does not mean ethical or moral (DUH). Further, what is right is not always mean constitutional correctness -> result is constitutional evil.
Brown v. Board of Education
Facts: Original Intent of Framers: Here, inconclusive (and generally this is the case).
Did slavery never fit constitutional correctness OR is the constitution inherently corrupt?
Further, inconclusive on education as an institution.
Here, separate never was equal; poorer services were afforded to African Americans. Eventually during WWI and WWII Jim Crow crumbles because POC move North for manufacturing jobs and break the boundaries previously established. Separate but equal was not providing equal protection.
(Majority) Argument: J. Warren. Segregated schools fail b/c of psychological harm they inflict on African American children -> this claim was supported by social science at the time. *this ruling did not overturn Plessy exactly, but did bring down Jim Crow.
This WAS a crazy change of social norms, controversial.
There are three oddities to the Brown opinion.
This opinion is substantively thin
Answer: Wanted to brief and lack accusatory nature in the hopes the decision would go over more easily.
This opinion is poorly reasoned via the identification of the harm using originalist approach
Answer: originalist approach is inconclusive and might have actually weighed in favor of segregation [thanks founding fathers]
No history of leg intent in the past.
Current leg’s were setting money aside to continue segregation.
Plus Plessy and its progeny had reinforced what was probably already an originalist attitude.
What is the REAL harm of Brown
A problem that there is state sponsored separation that corresponds to access to resources?
Brown is a constitutional development: the court made moves.
Court action proceeded public opinion.
#Counter 1: is psychological harm a strong basis for this opinion?
No, probably not because psychological harm is contestable and empirical (not a sound place to rest a legal argument)
LEAGL harm of segregation can be addressed outside of social science. Plus, does the constitution give anyone the right NOT to be psychologically harmed?
Wechsler ~ Brown opin
he end, racial equality is a good idea. But one might ask how much Brown is worth with de facto racial issues.
What is the worse evil here? Racial classification or subjugation of subordinated group?
Jim Crow
Racially classifies
Subordinates racial minorities
1.)Racial classification is embodied by modern Equal Protection: this is the legal principal.
Anti-classification
Primary harm is racial classification
Legal Rule: state actors shouldn’t generally have explicit racial classifications
Nor should there be implicit racial classification i.e. racially discriminatory motive/intent.
Unit of analysis if focused on the individual.
The mode of analysis: formalistic or purpose driven.
Primary harm: subordinating effects of the law on racial minorities
Legal Rule: laws that function to subordinate minority groups are prohibited.
Unity of analysis: group focused
This mode of analysis is effects driven.
Example: All individuals have to show their drivers license before they vote.
Based in racial classification: well fine, because there is nothing here on its face to do with racial classifying.
Based on racial subordination: look at implicit racial class with a ban on subordinate effects on racial minorities.
Proving a racial motive (classification argument) is hard to prove
Instead w/ subordination just show the effects of the law are racist.
Green case
Facts: legal uncertainties arise after Brown I,II. School district institutes a freedom of choice plan, in response to Brown II. [There was nothing in the school numbers to indicate the schools had been integrated.] but, on its face this plan was colorblind.
Holding: No freedom of choice plan; districts have an affirmative duty to bring about better integration. Cannot have separation by choice or by law.
The court here is demanding actual integration which is much more radical than what Brown said. OR given the numbers indicating racial disparity was this still clearly a segregated school system.
Swann Case
Facts: pre-Brown, this was a formally segregated school system. Post Brown the school district remedied with:
Racial quotas
Allowing minorities to transfer schools
Altering attendance zones
Bussing
The courts were okay with the aggressive remedy. Argument for why this is okay speaks to anti-classification argument b/c of prior history of discrimination. These aggressive remedies are being attached to school districts that had ambiguously been guilty of racial discrimination/racial classifying. -> b/c the core sin or product of racially legal segregation.
