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Constitutional Law II
University of Wyoming School of Law
Feldman, Stephen M.

Con Law 2
Professor Feldman
Fall 2013
Direct Approach for Protecting Individual Rights & Freedoms & Liberties
[Amendments → 14th Equal protection Clause & 13th, 14th, & 15th Reconstructive Clauses]  
Most of the Constitutions’ purpose is to prevent government tyranny. Like the government cannot infringe on free speech, religion ext. This is the approach we see in the bill of rights, and in the 14th amendment. This is the no fly zone approach where the government is prohibited from infringing on certain minority rights. We have a public sphere with legitimate government actions and a private sphere where property and K rights are established. The government cannot cross into the private sphere.
            Problems with this approach
o   Who is going to police the government from intruding in private sphere? The most common argument is that it should be the court
•       Who polices the ct? The political process cannot determine this because this area was supposed to be protected from that area.
(1)   Public sphere v. Private sphere
(a)    If you keep the government focused on the public sphere and then keep them out of the private sphere then this will lead to the maximizing of individual liberties
(b)   Problems: 
(i)     If there is a boundary between private and public sphere who will determine if the line has been crossed?  The court?
(ii)   Who will police the court?
(iii) Premise of keeping government out of the private sphere might be faulted b/c public sphere enterprises such as big business interfere with private rights
(2)   Alternative approach: 
(a)    Elimination of line between public and private spheres (One Big Sphere)
(b)   You don’t really have a private property or K right unless the government backs that right up. Thus, there is only one big sphere and personal rights are nothing but political interests that trump other political interests.
(c)    Virtues of this approach:
(i)     Eliminates the problems associated with the sharp dichotomy between public and private sphere
(ii)   Participation in Politics is the way to maximize liberty, this might require more government or less government
History of Equal Protection
(d)   Constitution COMPROMISE
(i)     There are numerous clauses that protect the institution of slavery, but the constitution does not use the word slaves or slavery  [article one, section 9; article 4, section 2, clause 3] 1.      Why wasn’t slavery or slave used in the constitution?
a.       This was a compromise between those who wanted slaves and those that didn’t
b.      Some thought that slavery was a temporary evil and that is would eventually go away, but in the 1830s the south was saying that slavery was a positive thing and good for the slave
c.       1830s a strong abolitionist movement also began
d.      South is more committed to slavery, the North less so (South depended on slaves for economic livelihood)
e.       The framers were faced with a choice:  make a temporary concession or lose the union and, as the argument goes, life for slaves would be worsened if the south had its own union (Benevolent Argument)-because the N continued to put pressure on the South
f.       Constitutional compromise did not involve those that were mainly effected, that is the slaves did not get to participate and they suffered the fruits of the compromise
(ii)   Framers
1.      Approaches
a.       virtuous leaders sacrificing their own self interests to seek the common good
b.      framers only wanted to protect their property interests
i.        slaves were considered property, thus no reason to abolish slavery
(3)   State v. Post (1845, p. 648)
(a)    While the framers generation believed in natural law and natural rights, you start to see a division between those that believed in this and those that believed they should follow the positive law
(b)   Courts are uncomfortable with saying that slavery was morally right in NJ (not afraid to say this in the south) so they said that they had to follow the law
Dred Scott v. Sandford
1)      Background → As conflict between the North and South became more severe, Congress tried to legislate some kind of solution in the form of The Missouri Compromise. This act divided the new territories in to free and slave states. Southerners didn’t like this solution. They didn’t like any recognition of control by the Federal government over slavery, thought it should be a matter of State sovereignty and not national sovereignty. In 1850, Congress legislated that each territory should be able to decide for itself whether they would endorse slavery or not. This approach did not work well in areas where the number of abolitionists equaled the number slaveholders. This problem extremely evident in Kansas → Bleeding Kansas, a civil war erupted over this issue. Bleeding Kansas was the political context when this case was decided.
2)      Issue → Whether the class of persons described in the plea in abatement compose a portion of this people, and are constituent members of this sovereignty.
3)      Facts → Dred Scott taken by his owner from Missouri to Illinois (slavery prohibited). Taken back to Missouri, Scott sued his owner arguing that his trip into a free state (IL) made him a free man under the Missouri Compromise.
4)      Arguments
a.       South → Congress doesn’t have the power to pass this type of legislation.
b.      North → Scott was free because of the Missouri Compromise.
5)      Holding
a.       No Rights for slaves → African Americans had no Federal Rights under the Constitution.
b.      No Congressional Power → Congress lacked the power under the Constitution to prohibit slavery in the territories → removed the possibility of any Congressional compromise with this ruling.
Reconstruction Amendments:  13, 14, 15 (shifted power away from state government because they were likely to tyrannize)
(c)    13—Eliminates Slavery, 14—overrules dread Scott-equal protection and due process, 15—right to vote for everyone
(d)   Slaughter-House Cases Butchers’ Benevolent Assn. of New Orleans v. Crescent City Livestock Landing and Slaughter-House Co (1873, p. 449)
(i)     Slaughter house gives a very narrow interpretation of the Reconstruction amendments. Social inequalities were left in place.
Plessy v. Ferguson
(ii)   Background:
1.      state law that provided equal but separate facilities for blacks and whites
2.      Court upheld the constitutionality of “separate but equal”
Brown v. Board of Education
(iii) Holding: Brown I
1.      even if tangible factors are completely the same, separate educational facilities are inherently unequal
(iv) Importance of Brown
1.      some say that it slowed down civil rights progress b/c it inflamed white southe

s used, this usually means – court will uphold the governmental action
b.      Rationally related to govt purpose… 2 prongs
2)      Rational Basis with Bite –
3)      Intermediate Scrutiny – between rational and strict
a.       Is the gvt. action substantially related to an important govt. interest or purpose? 
b.      Developed for gender based suits
c.       Truest type of test the court might apply because rational rubber and strict are often foregone conclusion. Less certain here.
4)      Strict Scrutiny – highest level of scrutiny
a.       Is the gvt. action necessary to achieve a compelling govt interest or purpose?
b.      Under equal protection, if court decides strict scrutiny, court will almost always strike down governmental action. Hard for govt to satisfy.
                                                              i.      Two ways to trigger strict scrutiny level:
1.      suspect classification route (racial)
2.      fundamental interest strand (we don’t cover this)
1)      Discrete and Insular Minority- to determine if in group
a.       Is the group identified by immutable trait (something that cannot be changed)
b.      Is that trait highly visible? (skin color)
c.       Is there a history of subjugation of this societal group?
d.      Is this group a numerical minority?
*Representative Reinforcement – has this group been excluded from the political process? [intertwined with criteria] Societal Groups that SCT has accepted/rejected as suspect/quasi or refused→
SUSPECT groups – (triggers strict scrutiny):
1)      Race
2)      National origin (where ancestors came from)
3)      Alienage (sometimes discrimination based on non-citizenship)
a.       For federal laws – courts apply rational basis
b.      For state laws – courts apply strict scrutiny unless the law is related to self-government and the demo process
QUASI SUSPECT: (triggers intermediate level scrutiny)
1)      Gender
2)      Non-marital/illegitimate children
NEITHER – MIGHT QUALIFY AS SUSPECT, MIGHT NOT [might rational basis with bite]:
1)      poverty
2)      age
3)      disability
a.       Cleburne – rational basis with bite
1)      sexual orientation
a.       Romer – rational basis with bite
2)      Any other societal group imaginable could claim to be insular minority.
3)      Analysis – if court not held, use 4 criterion to determined if should be quasi/suspect class.
RATIONAL BASIS REVIEW – default level, if no justification for higher level.
Rational Basis Test – Government’s action must be rationally related to a legitimate purpose.
·         Highly deferential to legislature.