Individual Rights Flashcards
Two major changes brought by Civil Rights Act
- Extended US citizenship to anyone born in the US
- Whatever rights given to white citizens must be given to everyone else.
Text of 14A §§1, 2, 5
§1
- Born in USA = Citizen (straight from CRA)
- Privileges & immunities
- equal protection
- due process
§ 2
- If someone is denied the right to vote, their state’s number of representatives will be reduced the pro rata amount.
§ 5
- Power to enforce by appropriate legislation the provisions of this article.
Two interpretations of the privileges & immunities clause
- A guarantee of substantive rights
- enumerated or unenumerated (people disagree about this) - A guarantee of equal rights (similar to Art IV). Not actually about protecting any rights, but is an equality principle.
- You can give the people of your state whatever rights you want. But you have to give them all to everyone.
Slaughter-House cases and it’s implication on privileges & immunities
Law says — if anyone wants to slaughter animals they have to do it at this specific slaughter house.
Court: Privileges & immunities clause DOES grant substantive rights that come with US citizenship, but the privileges and immunities that come with US citizenship is EXTREMELY narrow (none of the important stuff. Nearly every civil right is protected by STATE citizenship rights.
Effective read the privileges and immunities clause out of the Constitution.
Since Slaughter house, SCOTUS has never held a state statute to violate US citizenship rights
Arguments for why privileges & immunities should NOT be narrowed as the Slaughter House Court did
[Consequences]
- Yeah, it’ll upset state and federal power to interpret privileges and immunities broadly. . . but that’s like the whole point of the 14A. States on their own were trying to enslave people. So this takes some of that power and discretion away from them.
[Tex]
- The supremacy clause already does all of the work the majority is saying P&I is doing. States already can’t deny you your US citizenship rights bc that would violate the Supremacy clause
[Purpose]
- During the drafting of the 14A, people seemed to think privileges & immunities was the most important part.
Two views of the equal protection clause
- the equal protection clause is color blind. It means that you CAN’T look at race at all. That’s what it means to have equal protection.
- equal protection bars invidious discrimination, but allows states to adopt race-conscious laws for the purpose of promoting racial equality.
Arguments that 14A Equal protection clause is color blind
[text]
- the text naturally reads that the law applies to all equally and does not mention race.
- If you treat two races differently under the laws regardless of the reason, that would directly go against the 14A’s text.
[Precedent]
- I guess you have the famous dissent from Harlan in Plessy arguing that it is color blind
[Purpose]
- Congress debating in 1866 when 14A was drafted arguing for “the absolute equality of all citizens” seems color blind.
- CRA 1866 “citizens of every race & color shall have the same right”
Arguments that the EPC is NOT color blind but is race conscious
[Purpose]
- the EPC was enacted to specifically protect Black citizens and strike down discrimination against them. That’s race conscious.
- Legislative history from Congress shows that Congress REJECTED language that said “No state shall recognize any distinction between citizens on account of race or color”
[History]
- Stating that the Constitution is color blind “blinks both history and reality in ways too numerous to count”
[Consequences]
- Color blindness leads to entrenched racial inequality in education. If you want to achieve racial equality, you can’t be blind to issues of race.
[Precedent]
- like almost all of the affirmative action decisions allowed considerations of race
State action general requirement & exceptions
14A (and rest of constitution) requires STATE action and generally doesn’t prohibit private individuals or incorporations.
BUT there are several narrow exception
- 13A and slavery (private people can’t own slaves)
- Judicial enforcement (Shelly)
- Although private agreement itself doesn’t violate the 14A, when parties seek the courts enforcement of that contract, it becomes a violation of 14A. A requirement/agreement the State could NOT enforce on its own. So by inviting the court to enforce it, it becomes state action, which violates 14A. (pretty limited court doesn’t apply anywhere else) - Traditional public forums
- not just about preforming a traditional government function, it’s about performing a function that is traditionally ONLY performed by the governments (company downs, running elections) - Government compulsion
- when private company is compelled by state to do something, that’s state action. - Joint action
Best arguments AGAINST the holding of Plessy v. Ferguson
We know that the obvious purpose of 14A was to prevent discrimination.
Slaughter-House & Strader recognize that 14A prohibits racial discrimination
Then in RR v. Brown, the court recognizes that segregation IS discrimination
So therefore, the 14A prohibits segregation.
Non Originalism & Desegregation — Brown v. Board
Basically comes out and says we are not going to try to base our decision on the original meaning of the Constitution.
Claims the 14A’s OG meaning is inconclusive and instead relies on the “modern authority” of social science.
- but are courts good at figuring out what is good or bad social science?
Some skeptics speculate that Brown just thought originalism actually allowed segregation. And they just thought that would be unthinkable (institutionalist)
Non Originalism & Desegregation — Bolling v. Sharpe
Holds that 5A incorporates the EPC of 14A for the federal government.
Almost an impossible argument to make textually.
- the 5th amendment when it was written was meant to encompass the 14A that didn’t exist for the next 75 years
Affirmative Action
Current doctrine
Students for Fair Admissions v. Harvard
There are three limits to affirmative action programs
- Strict Scrutiny
- Huge problem with most AA is that the interests ID’d “education benefit from diverse student body” is apparently too amorphous to be subjected to meaningful judicial review.
- RS: but often other interests are just like “national security” which is even more amorphous so…. - Can’t use race as a negative
- Assuming students from the same racial group have similar views is using race as a stereotype
- another example: stereotype asian americans are smart so we should let less of them in - At some point the AA programs must end
Discrimination on the basis of sex
current doctrine
Sex discrimination gets intermediate scrutiny PLUS (added plus in US v. Virginia)
- All governmental gender classifications must be substantially related to an important government purpose that can be demonstrated by the government if it offers an exceedingly persuasive justification for the action.
Adds the phrase “exceedingly persuasive justification”
In practice, makes this very close to strict scrutiny
Heightened Scrutiny (when tiers of scrutiny review are triggered)
Laws that discriminate on their face
Laws that are facially neutral, but have a discriminatory purpose
Laws that are facially neutray, didn’t have a discriminatory purpose, but are applied in a discriminatory fashion.
Does NOT apply to laws that have only a disparate impact (laws that are neutral and lack discriminatory purpose, but turn out to effect certain groups more than others).
Tiers of Scrutiny
Strict Scrutiny
- The government has a compelling interest in the action/regulation (more than a legitimate or substantial interest, but hard to come up with a precise definition)
- BUT how do you figure out whether programs are actually for the purpose they say they are instead of a pretextual one? - The government action has been narrowly tailored to advance the interests
(a) program must directly advance the government’s interests (in a relatively direct and substantial way; AND
(b) be the least restrict means of achieving your interest
Tiers of Scrutiny
Intermediate Scrutiny
(1) the law/action/regulation requires an IMPORTANT governmental interest
(2) the law/action/regulation must be substantially related to achieving that interest
— Can’t just be a prediction about the future with no evidence that it is actually true
Tiers of Scrutiny
Rational basis
(1) the action/regulation requires a legitimate governmental interest; AND
- appropriate for the government to do
(2) the action/regulation must be rationally related to it
Procedural Due Process analysis
- Has there been a deprivation (or threatened deprivation) of life, liberty, or property?
- If so, what procedures are you entitled to?
(a) First, court will look to see if common law answers this question ^
- Whatever procedure you would have gotten BEFORE the constitution was ratified, you still get. Look to English and early American history. Courts have assumed that these procedures are incoperated into the due process clause bc the Magna Carter used “law of the land” the same way we use “due process”
- Really hard to do.
(b) If the history is unclear, or you want different procedures than the ones you would have gotten at common law, courts will use the “balancing approach” from Matthews v. Eldridge
Factors:
1. What is the private individual’s interest?
2. What is the risk of error from the existing procedures and the reduced risk of error from the additional procedures?
3. What is the government’s interest?
Big disagreement about substantive due process
Everyone agrees that 14A due process clause incorporated the Bill of Rights. This is a SUBSTANTIVE protection that that the due process clause gives.
BUT does it also include unenumerated rights?
Substantive due process current doctrine
Apply Glucksberg test
Two limits on substantive due process
1. Whether the right you are claiming must be described specifically
- Can’t use “right to choose humane death” as a proxy for “right to assisted suicide”
- Can’t use “right to privacy” as a substitute for “right to abortion”
- Have to show that THIS specific ^ right is “deeply rooted” in the nation’s history and tradition.
- look to state and federal statutes, old judicial decisions, state constitutions, ratification debates
Burdens on fundamental rights are subject to strict scrutiny and are likely to fail
Burdens on non fundamental rights are subject to rational basis review and are likely to succeed.
Enforcement of 14A current rule
Congress’s power under § 5 extends only to “enforce”, which requires the action to be either remedial or preventative.
Congress can use it prophylactically to prevent FUTURE violations, which will sometimes require it to ban something that doesn’t actually violate 14A yet, but if that is the case:
1. There must be a real history or patten of constitutional violations
2. the law must be congruent to preventing or remedying those violations
3. the law must be proportional to those violations
