Equal Protection Flashcards
Summary of Equal Protection Rules/Principles
. The Equal Protection Clause only applies to government, not private citizens.
2. The Equal Protection Clause limits the extent to which government can treat
some citizens different from how it treats other citizens (discrimination).
3. Generally, the Equal Protection Clause applies as follows:
1) Racial discrimination receives strict scrutiny
(1) a compelling state interest,
(2) narrow tailoring,
(3) least restrictive means.
2) Sex discrimination receives intermediatish scrutiny
(1) exceedingly
persuasive justification,
(2) substantial relationship to government interest.
3) Everything else receives rational basis review:
(1) a legitimate government
interest
(2) rational relationship between policy and government interest
Railway Express
- New York City had a law banning vehicles advertising
other companies’ products but permitted vehicles to
advertise their own business’s products.
Takeaways
▪ The law was reviewed under a rational basis standard and survives as long as:
(1) there is a legitimate government
interest and
(2) the law is rationally related.
▪ This law survived rational basis.
▪ The Court really didn’t want to play
super-legislature for traffic laws.
Dep’t of Agriculture v. Moreno
Facts and Result
▪ Congress changed the food stamp program to
prevent households with unrelated individuals
from getting food stamps if they
(1) lived as one
economic unit,
(2) shared common cooking
facilities,
and (3) ordinarily purchased food in common.
▪ A class action challenged the new policy as violating the 5th Amendment to the U.S. Constitution.
▪ The Court held that the new policy failed rational basis review because it was motivated by animus towards “hippies.”
▪ The Court held that the 5th Amendment implicitly included an Equal Protection Clause.
The Reconstruction Amendments revolutionized America’s constitutional order by
redefining “the people” who had constitutional rights and were sovereign over public affairs.
Courts (currently) consider discrimination differently depending on the basis of discrimination:
▪ Discrimination based on race gets strict scrutiny.
▪ Discrimination based on sex gets intermediatish scrutiny.
▪ Discrimination based on characteristics besides race or sex gets rational basis scrutiny but can still be unconstitutional if animus or hatred was why the discrimination occurred.
Once under rational basis scrutiny
typically goverment will always win
For rational basis, the goverment interest just needs to be
somehow related
5th and 14th amendment
read the 5th amendment in light of the 14th amendment
animus doctrine
you cant pass a law to harm a unpopular group
in effect giving a higher standard of review
The Equal Protection Clause and Race
Racial classifications get strict scrutiny and only survive if (1)
there is a compelling state interest, (2) the policy is narrowly
tailored, and (3) the policy is the least restrictive means of
advancing the compelling state interest.
The 14th Amendment
Important components
▪ Section 1 (1) made former slaves
citizens, (2) promised due process
before deprivation of life, liberty, and property, (3) guaranteed equal
protection of the laws, and (4) protected privileges and immunities.
▪ Section 2 lowered states’ representation
if they disenfranchised Blacks.
▪ Section 3 barred insurrectionists from federal office.
▪ Section 4 repudiated confederate war debt and guaranteed federal debt.
Debates about the 14th Amendment are ultimately debates about
how we as a society choose to live out the Declaration of Independence’s assertion that all men are created equal.
U.S. v. Bhagat Thind
▪ An Indian immigrant sought U.S.
citizenship and had it rescinded.
▪ The relevant congressional statute
only allowed “Whites” and “Blacks”
to be naturalized as American
citizens.
The Supreme Court held that Bhagat Thind was not “White” and could not be a citizen.
▪ Ultimately, he got his citizenship
because of a later act of Congress.
Plessy v. Ferguson: Majority
▪At the insistence of whites,
Louisiana’s legislature
passed a law requiring
racial segregation in
railroad accommodations.
▪Homer Plessy was 1/8
Black and purposefully
tested the law.
Aalysis (4)
▪ The Court quickly rejected a 13th
Amendment challenge.
▪ The Court found that Louisiana’s law didn’t violate the 14th Amendment’s Equal Protection Clause.
▪ The Court believes segregated
railroad cars implicated only social
equality and not the main concerns of the 14th Amendment.
▪ The Court was deferential to the
Louisiana legislature.
White supremacy reflected genuinely held views
about
“liberty,” “equality,” and “the people” and survived the South’s loss in the Civil War.
Commitment to racial segregation and race slavery
necessitated generating definitions of
“White,” “Black,” and “Colored.”
states forcing students to attend schools segregated by race is
unconstitutional
school segregation will have implications for later debates on
race-based affirmative action
Affirmative Action Summary
- Racial classifications get strict scrutiny from courts and are
unlikely to be upheld. - The Supreme Court has found it unconstitutional for public
universities and private universities accepting federal funds to use
racial quotas in admissions or use the fact that someone has
checked a racial box as a basis for giving them a boost in the
admissions process. - There is still considerable uncertainty about the consequences
Students for Fair Admissions will have.
Affirmative Action Definitions
- Taking extra efforts to recruit a diverse applicant pool.
- Giving favorable consideration to members of particular groups in admissions or employment
decisions on an individualized basis. Controversial! - Imposing quotas where a certain number of students or employees must come from particular groups.
Controversial!
Rationale For Affirmative Action
- Remediating Past Discrimination
- Diversity
Critiques of Affirmative Action
- Fairness
- racism Not To Blame for Woes of Racial Minorities
Practical Critiques of Affirmative Action
- Disincentivizing minorities to
produce excellent work. - Creating a cult of victimology
among racial minorities. - Setting minorities up for failure
because of academic mismatch. - Stigmatizing racial minorities as
“unqualified” even if they are
qualified. - Creating racial resentment.
Racial classifications receive
strict scrutiny from courts.
14th Amendment and Women
- The Official Rule
Intermediate Scrutiny
Sex-based classifications are subject to intermediate scrutiny.
You need:
(1) an exceedingly
persuasive justification and
(2) the discrimination must be substantially related to that government interest.
14th Amendment and Women
- Unoffical Guidance:
2
▪ Courts are somewhat skeptical
of sex-based classifications but
more tolerant of them than
they are of racial
classifications.
▪ Stereotypes about how men
and women are different are
unlikely to justify a sex
classification.
The 19th Amendment
The right of citizens of the
United States to vote shall
not be denied or abridged by
the United States or by any
State on account of sex.
Congress shall have power to
enforce this article by
appropriate legislation.
The debate about how to interpret the 14th Amendment reflects deeper divisions over
the proper role of women in society and how to define “equality” and “the people.”
Modern Sex Equality Jurisprudence
14th amendment text
nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Racial classifications receive strict scrutiny. You need
(1) compelling state interest and
(2)/(3) narrow tailoring/least restrictive means.
Racial classifications will almost always be invalidated!
Sex classifications receive intermediate scrutiny and require
(1) an exceedingly persuasive justification and
(2) a substantial relationship.
Everything else besides sex and race classifications gets basis scrutiny. You need
(1) a legitimate
government interest and
(2) a rational relationship.
The desire to hurt an unpopular group isn’t a legitimate interest
Substantive Due Process
The Government (Including States) Can’t Take Away Certain Rights
What Substantive Due Process Incorporates
Against the States: (Most of) The Bill of Rights
- Protected Bill of RIghts
- First Amendment
- Second Amendment
- Fourth Amendment
- Fifth Amendment
- Sixth Amendment
- Eighth Amendment
What Substantive Due Process Incorporates
Against the States: (Most of) The Bill of Rights
- Unincorperated Bill of rights
- Third Amendment (quartering troops)
- Seventh Amendment (trial by jury)
- Tenth Amendment (reserved powers of states)
Unenumerated Rights
Summary (3 pts)
- Court use a history and tradition test to
identify new fundamental
unenumerated rights (the right must be
“deeply rooted.” - In the past decades, fundamental rights
have gotten strict scrutiny and rational
basis scrutiny has been applied to
everything else. THAT MAY
CHANGE. - Courts have prevented states from
enforcing state sodomy statutes out of
animus concerns and because of
“liberty” interests protected by the 14th
Amendment.
Textual Bases for Unenumerated Rights
9th Amendment: The enumeration in the
Constitution, of certain rights, shall not be
construed to DENY or DISPARAGE
others retained by the people.
14th Amendment: No State shall make or
enforce any law which shall abridge the
PRIVILEGES OR IMMUNITIES OF
CITIZENS of the United States
Agreed upon Unenumerated Rights
The right to marry (including gay marriage)
Parental rights
The right to use contraception
Griswold v. Connecticut
Facts and Analysis
▪ In 1879, Connecticut banned the use of any
drug, medical device, or other instrument
in furthering contraception. Fines and
imprisonment awaited violators.
▪ Connecticut and Massachusetts were the
only two states with laws like this.
▪ The defendants were fined $100.
▪ The Court found the Constitution
implicitly protected a right to marital
privacy and to use contraception.
Roe v. Wade
Analysis and Outcome
- The right to privacy includes the right to
have an abortion. - The Court imposed a trimester
framework:
▪ States generally couldn’t regulate first-
trimester abortions.
▪ States generally could regulate second-
trimester abortions to protect a
woman’s health.
▪ States generally could regulate third-
trimester abortions to protect an
interest in fetal life.
Power Ranger Lessons for Constitutional Law
Birth Control Man
v.
Constitutional Megazord
The Supreme Court has held that the 14th Amendment does not generally protect a fundamental right to
abortion
Abortion restrictions are reviewed using
a rational basis test
The Supreme Court will apply a history and tradition test to identify
new fundamental rights under the Due Process Clause going forward.
The Supreme Court has held that LGBQTs have a liberty
interest in
being able to perform anal sex without criminal penalty, but the philosophy underpinning that decision has been called into question
LGBTQ couples have the right to
marry, but the philosophy underpinning that decision has been called into question
Griswold gives the fundamental right to
privacy and individualism
For a federal law, look at how states
are using/not using law
Obergefell
looks like going after
a valunerable minority
Justice Chase understood Section 3 of the 14th Amendment to
require legislation from Congress to implement, but his opinion doesn’t definitively reflect the original understanding of the 14th Amendment.
- doesnt reflect the feelings of the entire supreme court
- matters as an originialist
