outlineConLawII Amar Sp2000 Essay

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Words: 5215
Pages: 21

Vik Amar
Con Law II

I. Equal Protection of the Laws
A. Theories/History of Equal Protection
1. 14th Amendment - can’t prevent classifications, but requires that similarly situated people be treated similarly.
a. All persons born or naturalized in the U.S. are citizens of the U.S.
b. No state shall make or enforce any law which abridges the privileges or immunities of citizens
c. No state shall deprive any person of life, liberty or property w/o due process of the law
d. No state shall deny to any person w/in its jxn the equal protection of laws
2. 5th amendment: No person shall be deprived of life, liberty, or property without due process of law. (Used to forbid Feds from denying equal protection of the laws).
a. EP is a more explicit safeguard of rights, but sometimes discrimination is so bad that it violates due process as well (Bolling)
b. Liberty cannot be restricted, except for the proper gov’t objectie
3. Reasonableness model: Asks how closely the means of a law are tied to the ends - how much over and under inclusiveness. Problems:
a. Subjective evaluation of the acceptable amount of over/underinclusiveness; value-laden assessment of what is reasonable
b. Sometimes the ends are undesirable in and of themselves.
c. Law’s history can be refigured to appear rational if end is defined in terms of the means. Law prohibiting interracial marriage is rational if goal is to keep the races separate.
4. Political Process model: Judges law in terms of the process which led to its enactment. Some processes are not worthy of respect.
a. Factors limiting deference to legislature’s process:
1) Limited political power of narrow minorities makes burdensome laws worse - the bigger the injured class, the more likely the law is fair/rational.
2) Discrete and insular minorities or fundamental rights may require less deference - footnote 4 of Carolene Products
3) Strict scrutiny: suspect classification may be the manifestation of prejudice against discrete minority - Korematsu (but there, Ct found compelling state interest)
Law must serve a compelling state interest (overriding public necessity) and
Be narrowly tailored to accomplish that interest
b. Fritz: Transition scheme btw types of benefits for railroad workers classifies based on how recently an employee had served. Ct found that the process by which this law was made was legitimate and typical -- therefore, no violation.
c. Compare Strauder: Statute prohibiting black jury service requires rigorous standard b/c the burdening of discrete insular minority my be the result of a polluted political process! here, TBJ is a constitutional guarantee and jury of one’s peers is essential part of equal protection clause
Compelling a man to stand trial where his race is explicitly excluded from the jury is a denial of EP
5. Color Blind Model: The fact that race (or another out of bounds classification) is used is uniquely problematic and should be forbidden - does not distinguish between a burden and a benefit
a. Racial classification occur so often and are hard to detect - therefore it is better to pay the cost b/c racial classifications are so likely the consequence of prejudice
b. Social consequences of race-based classifications create resentment and perpetuate stereotypes
B. Tests
1. Rational Relation: If the classification the law uses is rationally related to a government goal - and the classification is not arbitrary- then constitutional.
a. Underinclusive: Everyone within the classification helps the goal, but many outside the classification would also help the goal.
b. Overinclusive: Many within the classification are unrelated to or do not help the goal.
c. Kotch: LA statute allowing river pilots to be certified based on recommendations from existing RPs is upheld. Goal of the law is to have safe pilots, and Ct finds that there is some correlation btw that goal and allowing nepotism
d. Railroad Express: Law prohibiting companies from renting advertising space on other trucks,…