Equal protection

Question 1

What are civil liberties?

Answer 1

Civil liberties are the protections citizens have against the government interfering in their lives

Question 2

How are civil rights different?

Answer 2

Civil rights are different in the way that they are primarily about the ways that citizens, often through laws, can treat other groups of citizens differently and often unfairly

Question 3

What amendment do civil rights grow out of?

Answer 3

Civil rights protections grow out of the equal protection clause of the 14th amendment: ‘No state shall make or enforce any law denying to any person within its jurisdiction the equal protection of the laws’

Question 4

Give an example of where the application of this has been straightforward

Answer 4

This seems straightforward and in some of the big cases it has been applied to, like Brown v Board of Education for Topeka, it has been

Question 5

Why are cases normally more complicated than the one we see in Brown?

Answer 5

Unequal treatment of citizens is usually done by private individuals or institutions, which makes things more complicated

Question 6

How did the SC initially interpret the 14th amendment?

Answer 6

Initially the SC perceived this amendment as only applying to state government, not private discrimination

Question 7

Describe the separate but equal doctrine

Answer 7

The SC also said that provided that the government provided equal facilities for both groups, segregation was okay. This is the ‘separate but equal’ doctrine that was established in Plessey v Ferguson

Question 8

What two types of equality should we distinguish between?

Answer 8

The distinction between social and political equality is important and it provides a principle for looking at discrimination that the courts still use. This is complicated and involves looking at the confusing concepts of levels of scrutiny and protected classes…

Question 9

Explain the idea of protected classes

Answer 9

When state law or executive action mentions a protected class, the SC will become suspicious. Protected classes are a racially, ethnically or culturally distinct group that co-exists with but is subordinate to a more dominant group. The court will pay special attention in instances where a statute deals with discrete and insular minorities, such as religious, national or racial minorities. It is automatically suspect and the courts will look at it closely because minorities, by definition, are at a huge disadvantage in the democratic process – their numbers are to small to pass favourable laws and it is easy for a tyranny of the majority to disadvantage them. This gets to the heart of the distinction between civil liberties, which deal with government actions, and civil rights, which deal with majority groups making life hard for minority groups. This creates the principle that the courts will step in to protect those that cannot protect themselves in the legislative process, as it will be too hard for them to pass laws that are in their favour. As a principle this works, but the way that US politics functions in practise complicates this

Question 10

Explain the idea of levels of scrutiny

Answer 10

Certain situations call for a ‘more searching judicial enquiry’. This is known as the level of scrutiny that the courts will apply and it’s not strictly limited to equal protection cases

Question 11

Explain the idea of strict scrutiny

Answer 11

The highest level of scrutiny is strict scrutiny. This means that the government will have a heavy burden to prove that the law or action in question is allowable

Question 12

When does strict scrutiny come into practise?

Answer 12

When government action surrounds a protected class, strict scrutiny kicks in. The courts go through a five step process in determining what the government has done

Question 13

What is the first step in this process?

Answer 13

First they look to see if there is a protected liberty at stake. Sometimes this is easy, like with religious freedom, but sometimes its hard, like with certain property rights or privacy issues

Question 14

Second step

Answer 14

They then look at whether the liberty is fundamental. This can be complicated or not depending on what the government is doing. Freedom from incarceration is a fundamental liberty, so a law that specifically incarcerates one group on the basis of nationality would receive strict scrutiny. This happened during WWII, when Japanese Americans were interned, but it’s a bad example of strict scrutiny because the court, ruling in the case of Korematsu v US, let the action stand

Question 15

Third step

Answer 15

Third, they look at whether the law or executive action places an undue burden on the person or group in question. For example, a state requiring literary tests for voting could be burdensome or not depending on the test and how it is administered

Question 16

4th step

Answer 16

Assuming that the first three qualifications are met, the court will look to see if the law in question furthers a compelling governmental interest. With literary tests, the government interest might be seen as creating an educated pool of voters, but this may not necessarily qualify as compelling

Question 17

5th step

Answer 17

Finally, if the law meets all the other criteria, the courts will check to see if the government action in question follows the least restrictive means of achieving the government’s interests. In other words, is there a less burdensome way the government could accomplish what the law is set out to accomplish. If the answer is yes, then the law will be struck down

Question 18

Why can the test be seen as restrictive?

Answer 18

This five part test is strict and difficult for the government to pass

Question 19

What does this mean?

Answer 19

This means that if the court applies strict scrutiny then the government action or law in question is probably going to be deemed unconstitutional

Question 20

How is scrutiny different when protected classes are not involved?

Answer 20

When the government isn’t dealing with a protected class, which is the case the majority of the time, the court applies the ‘rational basis’ standard for review. This is the lowest level of court scrutiny. It means that if the government can show that it has a rational basis for its actions, the courts will say that those actions are okay. This gives the government much more leeway with its laws

Question 21

What lies inbetween strict scrutiny and rational basis?

Answer 21

In between strict scrutiny and rational basis review is something called intermediate scrutiny. It is a harder standard to meet than the rational basis but it doesn’t mean that the government usually loses, like with strict scrutiny

Question 22

Why was the Brown case important?

Answer 22

Although the Brown v Board of Education for Topeka was not the first case to take on the issue of racial discrimination in education, it is the most important, since it dealt with public schools.

Question 23

What was the Brown case about?

Answer 23

The issue was the Topeka had separate schools for black and white students. Linda Brown was black and her parents wanted her to attend a white school because it was closer to where they lived and better. The schools were supposed to be equal in quality under the ‘separate but equal’ doctrine, but they weren’t

Question 24

What was odd about the ruling?

Answer 24

The decision is interesting because the court essentially discarded everything previously mentioned about how the court should deal with cases involving protected classes. Their reasoning wasn’t legal or historical, but rather sociological, based on the idea that separate facilities are inherently unequal because they make the minority group feel inferior to the majority group

Question 25

Why didn’t the case immediately end racial segregation in schools?

Answer 25

The case didn’t immediately end racial segregation in schools. Many states underwent ‘massive resistance’ to prevent school integration. Despite this, Brown is still a landmark civil rights case

Question 26

What important precedents did Brown set?

Answer 26

It showed that the federal government (judicial branch) could intervene in something as local as public education when racial was involved. More importantly, it showed that states could not use race as a criterion for setting up public schools

Question 27

How can Brown be seen as foundational?

Answer 27

It was the legal basis for the American civil rights movement and provided the foundation for the federal civil rights legislation of the 1960s

Question 28

How is equal protection more complicated than other civil liberties?

Answer 28

Unlike with civil liberties, which are pretty much defined by what is in the BoR, the question of civil rights comes out the 14th amendment equal protection clause, which itself came about because of the civil war and from the beginning was a contested concept, whose meaning has changed over time

Question 29

How do the concepts of civil rights and equal protection change over time?

Answer 29

Civil rights and equal protection almost by definition involve political activity and protection of minority rights, therefore what constitutes civil rights changes over time. This is why in 2015 people talked about same sex marriage as a defining civil rights issue, while 30 years earlier it was hardly mentioned

Question 30

What is important to understand about civil rights?

Answer 30

It is important to understand that civil rights and their denial, have as much, and if not more, to do with citizens and how they treat each other, as they have to do with how the government acts