Equal Protection Flashcards
What is Hamburger’s reality test?
evident prejudice in its adoption?
Was it applied in a prejudiced way?
The BOR protects ___ while the 5/14 protect ___
all persons, all citizens (US and states)
Some people say 14A protects ___ but Ham says ___
services of Fed rights including everything in BOR and other fundamental rights, PI clause odd if refers back to BOR
Ham thinks the goal of the PI clause is to ___
provide equality from state to state (not just enslaved Blacks but also free Blacks from state to state)
Ham thinks the goal of the equal protection clause is ___
to provide equality within a state
Virginia v. Paul held that the 14A protects whatever rights ____
given generally to citizens in a state
Virginia v. Paul says that 14A does not protect ___ only ___
fundamental rights, whatever states happen to give
Yick Wo law was ___ BUT ___
on its face not discriminatory, used to exclude Asian Americans
What was the non-discrim reason behind Yick Wo
prevent heat/fire risk (no wooden laundromats)
The Yick Wo Mathews opinion is worried not about __ but about ___
equality, discriminating power in the hands of the licensors
What if licensors decision just arbitrary?
No Consti bar on unreasonable laws
With regulatory licensing, each license is ___
a judicial act because determining if each person suitable
Licensing since ancient times was considered okay ___
at the local level (but not necessarily federal)
The licensing in Yick WO is not even done through ___
agency process (public rule then ask for comments)
Ham thinks Yick Wo licensing is ____
leg power taken out of Cong and judicial power taken out of courts
Why is Yick Wo due process problem
out of courts (old), lack neutral adjudicator (new/Mathews)
Mathews knows that the Yick Wo licensing is __
highly arbitrary but not sure what to do about it
Mathews says have to tame ___
public official discretion (not judicial but should be handled in judicial manner)
Mathews says need to tame discretion by ___
having standards and seeing if individuals meet them
Ham still thinks there is a due process problem after the Mathews opinion because ___
(1) even if adjudicator not done by courts
(2) have to prove not what you did in past not unlawful BUT that what you do in future won’t be
(3) burden of proof on individual
(4) not law passed by elected body
Ham thinks the licensing system invites ___
prejudice and extortion
If rules are limits on govt then no ____ can override because rights are __
amount of consent, communal
Two ways to reduce discrimination
(1) system of law with rules against discrimination
(2) rules that reduce opportunity for it
Ham says system of law with rules against discrim doesn’t work because ___
easy to avoid rules
Ham says in Yick Wo there was clearly ___ + ____
discrim intent, discrim application
Yick Wo implies that ___ is unconstitutional
prejudicial application by itself
In most cases ___ is not state action
state enforcement of private unreasonable limitation
Ham thinks Shelley is at ____
one end of a continuum of state action
Murphy suggests that maybe one line for state action is when private actors ___
coerced by state actors (social media censorship)
Hamburger thinks state action not a clear line but maybe reason in Shelley that ___
recognizing some sort of regime in the formation of the subdivision
Ham thinks statutes can ____ of con law
fill in the gaps
Ham says Shelley is not under PI because __
not people coming from out of state
What are the layers of law that make a whole?
common law, statutory law, constitutional law
Plessy required discrimination that is clearly ____
not a benefit
Plessy says 14A wasn’t intended to abolish ____ but rather to ___
distinctions based on color to enforce social equality, enforce political equality
Plessy draws a distinction between __
social status vs. political status
One problem with Plessy is that fed constitutional right ordinarily ___
trumps state police power
Plessy says if there are any laws requiring ____
discrimination just ask if reasonable
Plessy Harlan dissent says our constitution ____
is colorblind and law knows no race
Harlan thinks our constitution doesn’t tolerate _____ which Ham agrees with
different treatment on the grounds of race
Harlan also says Plessy violates 13A because __
badge of servitude
Equal protection language not the same as ___
no discrimination language
Public schools could be considered a privilege ___ BUT __
because benefit from the govt, now compulsory attendance (not Brown argument)
Brown says public education ____
most important function of state/local govts
Brown court says it is a ____ problem
unconstitutional conditions
Brown says govt giving ed ___
on the condition that it is segregated
Brown says can’t distribute benefit in ___
way that violates equal protection
Maybe separate can be equal if ___
doesn’t generate feelings of inferiority (women’s colleges)
Ham thinks sometimes equal protection shifts from ___ analysis to ___
inequality/due process, liberty analysis (some rights so fundamental need to be protected)
Loving says marriage is __
fundamental so it deserves special protection
Loving says marriage is a right standing ___
on its own even if no equality analysis here
Maybe due process protects ___
fundamental rights regardless of process you get
Substantive due process is a way to correct error of not ___
having expansive PI clause
If equal protection problem can probably throw in ___ and may get away with it
fundamental rights, substantive due process
Toqueville says modern govt is a ___
benevolent dictatorship that controls us by giving us stuff
Ham thinks Brown may be important for ___
structural recognition of new way we are governed
Loving also rests on the recognition that this is a ___
method designed to uphold white supremacy
Ham problem that standards of review suggest ___
judges different standard of judging depending on the type of case
