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Con Law: Equal Protection, 2009
O VERVIEW
1.
Recurring theme
: everyone agrees that the US committed mistakes in history; the CivilWar was a complete failure of the political system. The q is: what lessons do we learnfrom history? This is a study of how the American society learns from its mistakes, thelessons it learns and the impact of history on these issues.2.
13
th
A:
abolished slavery3.
14
th
A:
A.Privileges or Immunities: doesn’t have much bite; “privileges or immunities” hasnever been clearly defined; is not the basis for implied fundamental rightsi.Was likely seen by the drafters as a key protection of equality; so privileges/immunities were to be given equally but nonprivileges or nonimmunities could be applied unequally, ie public education which was notconsidered a privilegeB.Due Process: can’t deprive life, liberty or property w/o substantive and proceduraldue processC.Equal Protection: as it’s written, it doesn’t say that people ought to be treated equally;at time of drafting, it was meant for equality w/ respect to protection in terms of crim/tort law. Keeping black kids out of white schools was ok b/c that’s not a“protection.” In the modern day interpretation, “protection” has dropped out.4.
15
th
A:
Gave blacks (males) the right to vote.
RACE DISCRIMINATION
AND
STRICT SCRUTINY
(1) R 
ACE
-S
PECIFIC
C
LASSIFICATIONS
 
THAT
D
ISADVANTAGE
R 
ACIAL
M
INORITIES
 
 S 
TRAUDER
 
AND
 
 P 
 LESSY 
 
Two analytical tracks:
•
When are laws that explicitly discriminate against a minority group unconstitutional?
Strauder, Korematsu
•
Is segregation ok as long as the segregated group is treated equally?
Plessy, Brown
1.
Originalist/Textualist 14
th
:
 blacks get equal protection in terms of crim and tort law protections (since public schooling is not a “protection,” it need not be distributedequally)2.
Modern/
 Strauder 
14
th
:
in terms of equal protection, it doesn’t matter 
what 
is beingdistributed; blacks are entitled to all the rights that whites get3.
CASE:
 Strauder v WV 
 
A.Facts: D was tried and convicted by an all-white jury. He challenged the WV law thatonly allowed whites to serve on juries.B.Held: WV’s law is unconstitutional. D has the right to a jury that is selected from amixed pool that includes blacks.C.
Exactly whose rights were violated? D’s rights or blacks who wanted to servebut couldn’t?
1
 
Con Law: Equal Protection, 2009
i.D argues that he needs members of his own race to properly understand hissituation and evaluate his case. D argues that there are some differences b/t blacks and whites.ii.Response today: blacks and whites are the same and thus should beinterchangeable or indifferent among the twoiii.Response: If that’s true, then it shouldn’t matter that the jury is all-white, correct?iv.No! A black D who sits on an all-white jury per the law is in a worse positionthan an all-white jury chosen from a mixed pool. In the first case, the state issanctioning the the prejudice and announcing that discrimination is ok. Notallowing blacks on the jury reinforces the perception that blacks are inferior andstigmatizes them.
D.If D can’t bring this claim, then the real discrimination is against blacks whocan’t serve
i.WV argued that that this was actually a benefit to blacks—they were beingexcused from the burden of serving on a jury.ii.Clearly sketchy as it denies them the right to participate in the legal process thatwhites have. It’s also not clear that it’s a burden.iii.Hypo: blacks aren’t excused automatically but rather get to serve but have theright to refuse? (This was the law in FL and applied to women.)
Might cause probs in the aggregate if blacks excuse themselves and black D’s have no real shotat a mixed jury.E.Hypo: Under 
Strauder,
it would be ok for the State to impose conditions like literacy.Given that mostblacks were illiterate, this would effectively keep them out anyway,so we could avoid all the red tape by just having a blanket rule not allowing them toserve at all. (“Statistical discrimination”)i.Literacy isn’t a perfect proxy for race.ii.In the long run, it disincentivizes blacks from becoming literate.iii.Makes it too easy for the State to hide its discriminatory practices.iv.“Statistical discrimination” isn’t a valid justification generally. Even if a racialclassification has statistical support, it’s nonetheless illegal b/c it’s a pernicioususe of race
4.Why is discrimination against racial minorities unacceptable?
A.Branding/Stigmatizing : state-sanctioned discrimination announces to the world thatthey are inferior or that they are less than humanB.Historical context: race has historically been used for pernicious purposes so when it’s purportedly used for a “benign” purpose, we should be suspicious. Govt can’t betrusted to use race as a legit proxy; based on history, govt is more likely to be prejudicial and stereotypical; process is corrupt.C.
Carolene Products
: cts have to be particularly vigilant when it comes to discrete andinsular minorities who lack access to the political process and make changes that wayD.Statistical discrimination : illegal b/c it’s still a pernicious use of race5.
CASE:
 Plessy v Ferguson
 
A.Facts: Plessy, who was 1/8 black, was held criminally liable for failure to leave thewhite car.B.Held: “Separate but equal” is ok.C.Harlan’s Dissent: “our constitution is color blind.” The majority reasoning willarouse hate and feelings of distrust by sanctioning state laws that deem blacks asinferior. (Has no problem w/ racism towards the Chinese.)
2
 
Con Law: Equal Protection, 2009
D.
How can
 Plessy
be reconciled w/
 Strauder?
i.The law didn’t discriminate against blacks. The
Strauder 
situation treated blacksless well than whites.ii.This is wrong! The
 Plessy
rule continues to stigmatize blacks and we can’tescape the conclusion that the law is designed to enforce that stigmatism—weshould view it suspiciously.iii.It is an empirically true sociological judgment that at the time, people thought(soc judgment) that blacks and whites should be kept separate
 K 
OREMATSU 
 
AND
S
TRICT
S
CRUTINY
 
1.
Strauder 
says that the 14
th
is really about blacks but
 Korematsu
extended racialclassifications to the Japanese.2.
CASE:
 Korematsu v US 
 
A.Facts: Korematsu challenged the exclusion order that placed all those of Japaneseancestry in internment camps.B.Held: Although restrictions on a single racial group are immediately suspect andsubject to the “most rigid scrutiny,” pressing public necessity may sometimes justifythe existence of such restrictions.C.Case gives rise to the strict scrutiny doctrine but application is wrong.i.
Rule:
if there’s a suspect classification, analyze the measure by asking if it’snecessary to promote a compelling state interest.ii.AT: compelling state interest-protecting West Coast from invasioniii.AT: necessary-is there a close means-end nexus? Yes, b/c can’t determine whichones are loyal to the US and which are loyal to Japan, have to intern them all.D.Conventional view: internment was the product of political hysteria, not genuinesecurity needs. After Pearl Harbor, there was lots of agitation against the Japanese but nothing similar occurred towards Germans or Italians. After the fact, it turns outthat the govt evidence presented before the SC had been fabricated.3.
 Korematsu
Antiprecedent:
statutes that are prima facie discriminatory are always unjustand unconstitutional4.
Strict Scrutiny Doctrine:
 A.Suspect classificationB.Compelling interest: interest can’t be trivial; has to be something importantC.Close means-end nexus: measure has to be necessary—there has to be no other wayto achieve the ends but for this measure
5.Critique of the Doctrine:
A.Why’d the Japanese get put on the same side of the line as blacks? If we are worriedabout racial classifications being based on animosity or incorrect stereotypes, thenthis test is pretty good. You don’t increase those feelings if the compelling interestand close means-ends nexus is met.B.But if we’re more worried about stigmatizing, then this test makes less sense. Even if it’s met, it will stigmatize or ostracize members of the racial group. So you can’treally enact the measure unless something akin to calamity or emergency will happen.C.The law has developed in terms of the second option: can’t use these measures unlessto avert a disaster.D.When faced w/ the measure of interning the Japanese for nat’l security purposes, judges/exec should look at the time frame, quality of intelligence and be on the
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