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Constitutional Law II Outline - Professor Wallace - Campbell Law - Part 2

By Miller Moreau
Professor Wallace - 2020

Download the PDF version of this outline

<< Part 1 | Part 3 >>

Equal Protection Clause

Strauder v. WV, blacks not able to serve on jury

  • 14A prohibits states from enacting laws that deny any of its citizens equal protection under the law based on rights
    • Purpose of amendment was for race, but court did not expressly hold that it was limited to that
    • 14A prohibits government racial discrimination in ANY form
  • Decision would/should have been same if D was white

Enforcing Reconstruction Amendments

  • 13A: Congress can enforce prohibition of slavery and involuntary servitude even by private actors
  • 14A: Congress can enforce state action based on broader prohibitions of discrimination and denial of civil rights

Civil Rights Cases: Challenge to Civil Rights Act of 1875 (illegal for railroads, inns, places of public accommodation or amusement to discriminate—why these places?)

  • Held:
    1. 13th A prohibits “badges and incidents of slavery,” but not individual discrimination;
      • Court found these laws not to be “badges & incidents of slavery”
    2. 14th A did not authorize Congress to forbid discrimination by private persons—limited to “state action”
      • Problem: Ignored “state inaction” to protect civil rights of the black freedmen and white Republicans
        • i.e., unequal enforcement of laws already on the books that protect against private violence (see note 4, pp. 1320-21)
  • Better view: 14th A does not apply to private action per se, but to state action that discriminates and state inaction that fails to protect person’s civil and property rights from private violence
State Action Doctrine
  • Can Congress regulate private action under Reconstruction Amendments?
    • Answer: Generally YES under 13th Am (see note 1, p. 1321), but generally NO under 14th Am (see Civil Rights Cases and note 2, p. 1321)
  • What constitutes “state action” under 14th Am?
    • Easy: Law, regulation, court decision, government act
    • Hard: Private actor harms someone in way that would constitute a constitutional violation if done by government actor and there is reason to impute private harm to the government
  • Repeated themes in Supreme
  • Amendment 14, Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article
    • Example: Deputy Sherriff, off-duty, chases friend with his cop car. Beats and handcuffs the man. Court will look to see if perpetrators actions are fairly attributable to state of action

14A Brief Review of Early SCOTUS Cases

  • 14th A does NOT apply Bill of Rights to the states
    • Slaughterhouse Cases, Cruikshank
  • 14th A applies to state action, not private action
    • Civil Rights Cases
  • 14th A applies ONLY to those whose rights have been violated on account of race
    • inferred from Cruikshank
  • BUT 14th A prohibits governmental racial discrimination in any form
    • Strauder

Segregation Cases

  • Cummings: “Separate but equal” satisfies 14th Am when it is reasonable
    • (e.g., when state is merely redistributing scarce resources)
  • Giles: Black disenfranchisement—Supreme Court says federal courts are powerless to effect change in southern practices
  • Berea College: Supreme Court upholds KY’s mandatory segregation law, as applied to private schools organized as corporations, on ground that states have plenary power to amend corporate charters they have granted
    • Plessy reasoned that social equality is not the same as the political equality protected under 14A
      • Upholds “reasonableness” test

Desegregation Cases

  • Korematsu: developed strict scrutiny standard for race-based classifications
  • Brown I: Separate but equal is inherently unequal, segregation violates EP clause
    • Based on social science, bad reasoning
    • Wallace: 14A was meant to protect against this type of segregation
      • This case should have overruled Plessy but didn’t explicitly
  • Loving v. VA: interracial marriage barred, but equally applied to both races
    • Court: doesn’t matter if law is equally applied, racial classification per se violates EP
  • Brown and Loving establish the modern rule: The government may not discriminate on the basis of explicit racial classifications

Modern Equal Protection Clause

  • 14A: No state shall deny “equal protection of the laws”
  • Bolling v. Sharpe: Fifth Amendment Due Process Clause includes “equal protection”
  • Clause is implicated by laws or regulations that improperly classify or draw distinctions (discriminate) by imposing special burdens on OR granting special benefits to some persons but not others
    • Discrimination must be against member of protected class based on personal characteristic (e.g., race, sex, religion, national origin, etc)
  • Yick Wo (1886): facially-neutral laws still can be racially discriminatory if they have a racially-discriminatory motive.
    • Here, SCOTUS infers motive from application
  • Two strands of EP analysis:
    1. laws that discriminate against persons;
    2. laws that discriminate against exercise of fundamental rights
  • Proper ways to “discriminate” (ie- drivers license age) still exist as long as not “invidiously”

Types of invidious discrimination:

  1. Facial—classification made on face of law (typically classification or distinction made on basis of protected characteristic)
  2. Underlying motivation or purpose (Griffin)
    • often inferred from discriminatory application of law (Yick Wo not granting laundry licenses to Japanese people)
  3. NOT Impact or effect (de facto)

Washington v Davis: Black applicants to be cops often failed test. Neutral legal rule or requirement that simply happens to produce a disparate impact on different races does not necessarily violate the EP Clause

  1. Discriminatory treatment (intended) vs. discriminatory impact (unintended consequence)
  2. Must show discriminatory intent (purpose or motive)
    • Bottom line is that EP requires purposeful discrimination
      • Difference between discriminatory treatment and discriminatory impact
        • “Impact” does not violate EP without showing intent

Modern Equal Protection Analysis

  1. What is the classification, member of protected class?
    1. Race, gender, age, sexual orientation, etc.
  2. Appropriate level of scrutiny? (purpose → means/end) Typically:
    1. Strict for suspect classifications: race, national origin, religion, alienage, marital v. nonmarital (exceptions for aliens l8r)
      1. Gov. must have compelling reason for classification and no less discriminatory means to achieve that purpose (gov. burden)
        1. If any other less discriminatory way to do it → government fails
    2. Intermediate semi-suspect classifications: sex, non-marital children.
      1. Gov. must have significant or important purpose and means must be substantially related to achieve that purpose (narrowly tailored)
        1. Significant/important interest is slightly more allowing than compelling, very little over-inclusiveness is tolerated
    3. Rational basis: Age, economic status, disability, sexual orientation . every other law, just must be “rationally related to government purpose”
      1. Not what is “actual purpose” of the law, just if any conceivable purpose
  3. “Under-inclusive” laws are fine because they are a “step” towards achieving the desired purpose
    • But- can point to if government purpose is actually legitimate

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