Equal Protection

Question 1

What is Hamburger’s reality test?

Answer 1

evident prejudice in its adoption?
Was it applied in a prejudiced way?

Question 2

The BOR protects ___ while the 5/14 protect ___

Answer 2

all persons, all citizens (US and states)

Question 3

Some people say 14A protects ___ but Ham says ___

Answer 3

services of Fed rights including everything in BOR and other fundamental rights, PI clause odd if refers back to BOR

Question 4

Ham thinks the goal of the PI clause is to ___

Answer 4

provide equality from state to state (not just enslaved Blacks but also free Blacks from state to state)

Question 5

Ham thinks the goal of the equal protection clause is ___

Answer 5

to provide equality within a state

Question 6

Virginia v. Paul held that the 14A protects whatever rights ____

Answer 6

given generally to citizens in a state

Question 7

Virginia v. Paul says that 14A does not protect ___ only ___

Answer 7

fundamental rights, whatever states happen to give

Question 8

Yick Wo law was ___ BUT ___

Answer 8

on its face not discriminatory, used to exclude Asian Americans

Question 9

What was the non-discrim reason behind Yick Wo

Answer 9

prevent heat/fire risk (no wooden laundromats)

Question 10

The Yick Wo Mathews opinion is worried not about __ but about ___

Answer 10

equality, discriminating power in the hands of the licensors

Question 11

What if licensors decision just arbitrary?

Answer 11

No Consti bar on unreasonable laws

Question 12

With regulatory licensing, each license is ___

Answer 12

a judicial act because determining if each person suitable

Question 13

Licensing since ancient times was considered okay ___

Answer 13

at the local level (but not necessarily federal)

Question 14

The licensing in Yick WO is not even done through ___

Answer 14

agency process (public rule then ask for comments)

Question 15

Ham thinks Yick Wo licensing is ____

Answer 15

leg power taken out of Cong and judicial power taken out of courts

Question 16

Why is Yick Wo due process problem

Answer 16

out of courts (old), lack neutral adjudicator (new/Mathews)

Question 17

Mathews knows that the Yick Wo licensing is __

Answer 17

highly arbitrary but not sure what to do about it

Question 18

Mathews says have to tame ___

Answer 18

public official discretion (not judicial but should be handled in judicial manner)

Question 19

Mathews says need to tame discretion by ___

Answer 19

having standards and seeing if individuals meet them

Question 20

Ham still thinks there is a due process problem after the Mathews opinion because ___

Answer 20

(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

Question 21

Ham thinks the licensing system invites ___

Answer 21

prejudice and extortion

Question 22

If rules are limits on govt then no ____ can override because rights are __

Answer 22

amount of consent, communal

Question 23

Two ways to reduce discrimination

Answer 23

(1) system of law with rules against discrimination
(2) rules that reduce opportunity for it

Question 24

Ham says system of law with rules against discrim doesn’t work because ___

Answer 24

easy to avoid rules

Question 25

Ham says in Yick Wo there was clearly ___ + ____

Answer 25

discrim intent, discrim application

Question 26

Yick Wo implies that ___ is unconstitutional

Answer 26

prejudicial application by itself

Question 27

In most cases ___ is not state action

Answer 27

state enforcement of private unreasonable limitation

Question 28

Ham thinks Shelley is at ____

Answer 28

one end of a continuum of state action

Question 29

Murphy suggests that maybe one line for state action is when private actors ___

Answer 29

coerced by state actors (social media censorship)

Question 30

Hamburger thinks state action not a clear line but maybe reason in Shelley that ___

Answer 30

recognizing some sort of regime in the formation of the subdivision

Question 31

Ham thinks statutes can ____ of con law

Answer 31

fill in the gaps

Question 32

Ham says Shelley is not under PI because __

Answer 32

not people coming from out of state

Question 33

What are the layers of law that make a whole?

Answer 33

common law, statutory law, constitutional law

Question 34

Plessy required discrimination that is clearly ____

Answer 34

not a benefit

Question 35

Plessy says 14A wasn’t intended to abolish ____ but rather to ___

Answer 35

distinctions based on color to enforce social equality, enforce political equality

Question 36

Plessy draws a distinction between __

Answer 36

social status vs. political status

Question 37

One problem with Plessy is that fed constitutional right ordinarily ___

Answer 37

trumps state police power

Question 38

Plessy says if there are any laws requiring ____

Answer 38

discrimination just ask if reasonable

Question 39

Plessy Harlan dissent says our constitution ____

Answer 39

is colorblind and law knows no race

Question 40

Harlan thinks our constitution doesn’t tolerate _____ which Ham agrees with

Answer 40

different treatment on the grounds of race

Question 41

Harlan also says Plessy violates 13A because __

Answer 41

badge of servitude

Question 42

Equal protection language not the same as ___

Answer 42

no discrimination language

Question 43

Public schools could be considered a privilege ___ BUT __

Answer 43

because benefit from the govt, now compulsory attendance (not Brown argument)

Question 44

Brown says public education ____

Answer 44

most important function of state/local govts

Question 45

Brown court says it is a ____ problem

Answer 45

unconstitutional conditions

Question 46

Brown says govt giving ed ___

Answer 46

on the condition that it is segregated

Question 47

Brown says can’t distribute benefit in ___

Answer 47

way that violates equal protection

Question 48

Maybe separate can be equal if ___

Answer 48

doesn’t generate feelings of inferiority (women’s colleges)

Question 49

Ham thinks sometimes equal protection shifts from ___ analysis to ___

Answer 49

inequality/due process, liberty analysis (some rights so fundamental need to be protected)

Question 50

Loving says marriage is __

Answer 50

fundamental so it deserves special protection

Question 51

Loving says marriage is a right standing ___

Answer 51

on its own even if no equality analysis here

Question 52

Maybe due process protects ___

Answer 52

fundamental rights regardless of process you get

Question 53

Substantive due process is a way to correct error of not ___

Answer 53

having expansive PI clause

Question 54

If equal protection problem can probably throw in ___ and may get away with it

Answer 54

fundamental rights, substantive due process

Question 55

Toqueville says modern govt is a ___

Answer 55

benevolent dictatorship that controls us by giving us stuff

Question 56

Ham thinks Brown may be important for ___

Answer 56

structural recognition of new way we are governed

Question 57

Loving also rests on the recognition that this is a ___

Answer 57

method designed to uphold white supremacy

Question 58

Ham problem that standards of review suggest ___

Answer 58

judges different standard of judging depending on the type of case