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
