ConLawII Summary

8/14/2019 ConLawII Summary

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Equal Protection under the 14th Amendment

The EP clause of the 14th Amend says that “no state shall make or enforce any law which shall…deny to any

person…the equal protection of the laws.” This clause was enacted shortly after the i!il "ar in order toensure that e#$sla!es were treated equally as other citi%ens. &owe!er' its (road lan)ua)e has (een interpretedas )enerally restrainin) or placin) limits on )o!ernment*s use of classifications in other areas' such as )ender'nationality' etc. "hile the EP clause does not e#pressly limit the federal )o!ernment' the +P clause of the ,th Amend has (een interpreted to place the same restrictions on the federal )o!ernment as the EP clause places onthe states. -ne of the difficulties in interpretin) the EP clause is that while it places restrictions on )o!ernmentuse of classification' all laws necessarily classify )roups of indi!iduals in order to create incenti!es anddisincenti!es in society. Therefore' identifyin) whether a class is to (e protected and the le!el of scrutiny thecourts should apply when ud)in) the necessity of a particular classification is crucial.

History of Equal Protection

Strauder v. West ' decided (y the / in 100' was one of the first / decisions made a(out EP under the 14th Amendment. /trauder' a (lack man con!icted of murder (y an all$white ury' appealed his con!iction ar)uin)that a "2 statute prohi(itin) (lacks from (ein) on uries !iolated the EP clause of the 14 th Amend. The /held that e#clusion of (lacks from uries for no reason other than race was a !iolation of the EP clause (ecausethe purpose of the clause was to assure that (lacks had the same ri)hts as whites' and that these ri)hts should (e protected (y the courts.

3n Pace v. Alabama' decided in 100' the plaintiff ar)ued that an Ala(ama statute !iolated EP (ecause it proscri(ed a )reater punishment for interracial adultery than adultery amon) mem(ers of the same race. The/ upheld the statute sayin) it did not discriminate (ased on race (ecause the punishment for the offenses were

the same for (oth races en)a)ed in the criminal acti!ity.

3n the Civil Rights Cases' decided in 100' the / addressed the constitutionality of the i!il 5i)hts Act of106,. The / created the state action doctrine that limits EP clause to actions that are sanctioned (y the states.Therefore' prohi(itin) (lacks from stayin) at pri!ate inns was not protected (y the EP clause of the 14th Amend.78ustice &arlan dissented sayin) that inns were only quasi$pu(lic and that theatres and the like that werelicensed under the laws of the state and were therefore su(ect to EP under the 14 th Amend.9

3n Plessy v. Ferguson' decided 1 years later' the / upheld a :A law that required separate but equal

accommodations for (lacks and whites on railroads. Therefore' under Plessy the separate but equal doctrinewas considered constitutional. -nce a)ain' 8ustice &arlan dissented sayin) that any arbitrary separation (y

race constituted a badge of servitude that is inconsistent with the onstitution.

3n Buchanan v. Warley' decided in 1;16' a white seller (rou)ht suit for specific performance a)ainst a (lack purchaser on a contract for real estate. The (lack purchaser said that a local ordinance for(iddin) (lacks from purchasin) the lot should (e upheld while the seller ar)ued that the ordinance was unconstitutional under the14th Amend. The / held that an ordinance that interfered with a (lack*s a(ility to e#ercise his property ri)htswas unconstitutional under the +P clause of the 14 th Amend. +istin)uishin) other types of se)re)ation laws'



the / said that this ordinance destroyed the ri)ht of the (lack to acquire and dispose of his property and wastherefore a +P !iolation.

3n Shelly v. Kraemer ' decided in 1;40' a state court*s enforcement of a racially restricti!e contract pre!entin) (lacks from purchasin) homes from whites constituted an EP !iolation. "hile the contract itself was not

unconstitutional' the court’s enforcement of it constituted a state action that !iolated the 14th

Amendment.

The Death of “Separate but Equal”

Brown I ' decided in 1;,4' was a landmark case in which the / ruled ;$ that de jure 7deli(erate9 racialse)re)ation of pu(lic schools was “inherently unequal” and was therefore prohi(ited under the 14th Amend EPclause. E!en if the schools were su(stantially equal in tan)i(le factors' the / reasoned that se)re)ationintan)i(ly affected a child*s moti!ation to learn. Therefore' the / held that the separate but equal educationwas “inherently unequal” and is unconstitutional in </ pu(lic education. "hile Brown limited its scope to pu(lic education' the / has consistently applied Brown in other areas declarin) that all laws mandatin)se)re)ation are unconstitutional. Therefore' Brown effecti!ely )utted the rulin) of Plessy which stated that

laws requirin) separation of the races in pu(lic accommodations were constitutional as lon) as the facilitieswere equal. /ome people ha!e criticized the lo)ic in Brown sayin) that it misinterpreted the 14th Amend. (=cthe i!il 5i)hts Act of 106, did not (an se)re)ated schools and the 14th Amendment was meant to )enerali%ethe requirements of this Act. >oreo!er' others ha!e said that the ourt*s discussion of social science data andthe feelin)s of inferiority and other psycholo)ical harms of se)re)ation were unnecessary and unsound as ale)al analysis. ?or e#ample' in Korematsu v. S ' the / wrote that the criteria for e!aluatin) theconstitutionality of racial classifications “do not depend upon findin)s of psychic harm or social sciencee!idence.” 5ather' the / stated that distinctions amon) citi%ens (ased solely on ancestry “are (y their !erynature odious to a free people…founded upon equality.”

3n Brown II ' the / addressed how relief should (e )ranted under Brown I . The / initially permitted a )radual

inte)ration of pu(lic schools sayin) that the localities had to (alance (etween a (lack*s ri)ht to admission at theearliest possi(le date with the need for a systematic and orderly remo!al of the o(stacles pre!entin) fullinte)ration. The / said that the localities should dese)re)ate with “all deli(erate speed.” This lan)ua)e has (een critici%ed (=c it was am(i)uous and left room for schools to delay. <nder Coo!er v. Aaron' the / heldthat threats of !iolence resultin) from state actions a)ainst dese)re)ation did not ustify failure to inte)rate.

mpact of !ro"n #$ !oard of Education

@ecause of the am(i)uity in Brown II ' some portions of the south were a(le to resist dese)re)ation throu)h the1;s. Therefore' there were questions a(out what types of remedies courts could use to enforce dese)re)ationwhen local authorities failed to do so !oluntarily.

3n 1;61' in Swann v. Charlotte"#ec$lenburg Board o% &ducation' the / held that district courts could use (usin) of students as a remedy to se)re)ation e!en when the racial im(alance was a result of students* pro#imity to the school. The / also addressed the e#tent to which racial quotas could (e used to correctse)re)ation' statin) that awareness of racial composition was useful information (ut in shapin) a remedy onlylimited use of mathematical ratios is allowed. Therefore' each school did not need to reflect the racialcomposition of the entire school system.

http://en.wikipedia.org/wiki/Swann_v._Charlotte-Mecklenburg_Board_of_Education

http://en.wikipedia.org/wiki/Swann_v._Charlotte-Mecklenburg_Board_of_Education



/imilarly' in Keyes v. School 'istrict (o.)' decided in 1;6' the / held that a findin) that school authoritieshad intentionally se)re)ated a su(stantial portion of the district' there was a presumption that the entire schooldistrict was (ein) operated in a se)re)ated way.

The !e%innin% of Hei%htened Scrutiny

3n S v. Carolene Products' decided in 1;0' the / used a rational (asis re!iew to uphold a statute prohi(itin)interstate shipment of filled milk. 3n footnote 4' 8ustice /tone stated that a more strin)ent standard of re!iewmi)ht apply to statutes “directed at !articular religious or national or racial minorities.” >oreo!er' he ar)uedthat stricter re!iew may (e needed for “discrete and insular minorities* (ecause they tend to (e so disfa!oredthat the political system won*t work requirin) the courts to make e#tra efforts to protect them.

3n Korematsu v. S ' decided in 1;44' a man of 8apanese descent appealed his con!iction for stayin) at his homein !iolation of a military order sendin) 8apanese Americans to camps. "hile the / upheld the con!iction (ecause of the military necessity in a time of war' it stated that race$(ased classifications were “immediatelysuspect” and su(ect to a hi)her le!el of scrutiny. This was the first case that defined this concept of

heightened scrutiny and that only a narrowly tailored )o!ernment interest can withstand the scrutiny. 3n thiscase' the war created this e#ception whereas )eneral racial (ias would not.

3n +oving v. ,irginia' decided in 1;6' a couple married in + returned to 2A where they were con!icted undera statute (annin) interracial marria)e. +espite equal penalties to (oth the (lack and white !iolators' the /o!erturned the con!iction sayin) that marria)e was one of the “(asic ci!il ri)hts of man” and that to deny thefundamental ri)ht was a !iolation of EP under the 14th Amend. 3t held that the purpose of the 14th Amendmentwas to eliminate all )o!ernment use of “invidious” racial discrimination. >oreo!er' it held that racialclassifications are su(ected to the most “rigid scrutiny” that are not permissi(le unless they are necessary toachie!e a compelling government objective. This decision has (een critici%ed (ecause' ust like Pace v. Alabama' a literal interpretation of the lan)ua)e su))ests that as lon) as similarly situated people are treated

similarly' a law is not unconstitutional. "hile it is possi(le that this statute mi)ht ha!e e!en failed the rational (asis test (ecause the state*s discriminatory purpose 7(enefitin) the white race9 was not a le)itimate state purpose' this was not the /*s lo)ic.

Disparate mpact #s$ Discriminatory ntent

-ic$ Wo v. o!$ins& decided in 100' was the first case in which the / held that a race-neutral lawadministered that had a disparate impact on racial minorities was a !iolation of the EP clause. 3n -ic$ Wo' acity ordinance placed restrictions on operatin) laundry (usinesses in wooden (uildin)s without a permit. E!erysin)le hinese$owned laundromat was denied a permit while only one non$hinese owned (usiness was denieda permit. The / said that the disparate impact was so extreme that it pro!ided clear e!idence the race$neutral

law was applied in a discriminatory way.

Be!ertheless' the )eneral rule is that laws or official actions that are racially neutral on their face that ser!e ale)itimate )o!*t purpose do not !iolate EP ust (ecause they ha!e a discriminatory impact . 3n Washington v.

'avis' decided in 1;6' a (lack police officer challen)ed promotion and recruitin) of a + Police +ept. sayin)that a qualification test discriminated a)ainst (lacks (ecause a hi)her percenta)e of (lacks failed than whites.The written test measured !oca(ulary' readin) comprehension' etc. The / said that disparate impact was not

enough without a showin) that there was discriminatory purpose. Therefore' where there is a disproportional



racial impact' the rational basis test is used so the )o!*t only has to show the law is 19 neutral on its face' and C9is reasonably related to a legitimate state interest . &ere the le)itimate interest was the need for competent policemen.

The / e#tended the rule from Washington in 1;66 in ,illage o% Arlington eights v. #etro!olitan ousing

Cor!' sayin) that there must (e an invidious discriminatory purpose to !iolate EP. A housin) de!elopment)roup 7P9 planned to use federal money to de!elop low$income tenants in Arlin)ton &ei)hts 7+9. P*s request tore%one the area met with pu(lic criticism from residents concerned a(out ha!in) more (lacks in Arlin)ton&ei)hts and !arious economic impacts. The application was denied and P sued sayin) the decision representedracial discrimination. The / held that there was little e!idence that + was moti!ated (y a discriminatory purpose (=c the area had (een %oned for sin)le$family homes for a lon) time. Therefore' +*s decision was ustifia(le.

THE TEST' <nder the Arlington eights framework' there are (asically three stepsD 19 "as the racism (latantsuch that the facts imply the racism' C9 3f not' is there e!idence of racial moti!e' 9 3f there is' would thele)islature ha!e done the same thin) anyway

3n #cCles$y v. Kem!' decided in 1;06' a (lack man con!icted of murderin) a white man pro!ided statistical

studies showin) that a (lack killin) a white was si)nificantly more likely to )et the death penalty. &e ar)uedthat this disparate impact under a race$neutral death penalty law was a !iolation of his EP. The / held thatsince sentencin) requires consideration of many factors specific to the case' an inference of discrimination inhis case could not (e pro!en (y general statistics. The statistics were not enou)h to show that the law wasapplied in a discriminatory way in >cFleskey*s case. Therefore' + failed to pro!e a discriminatory purpose and therefore lost.

+efendants of Washington and Arlington eights su))est that the EP clause is meant to ensure equalopportunities' not equal outcomes. -thers ar)ue that (ecause some racism is su(conscious' and it is fairly

simple to in!ent some non$discriminatory purpose 7e.). economic ustifications' etc.9' ourts should ha!eleeway to pre!ent equal outcomes to remedy these situations.

(hat is Affirmati#e Action)

Affirmati!e action is when )o!ernment pro)rams are created to try to remedy past discrimination a)ainstminority )roups (y pro!idin) special considerations compared with the rest of society. These specialconsiderations may include access to o(s' promotions or admission to uni!ersities. /ome ar)ue that this ismerely re!erse discrimination that e#cludes more qualified indi!iduals (ased on their race. 3t can (reed

resentment in those more qualified indi!iduals who do not recei!e the (enefit. >oreo!er' it places lessqualified people into situations where they are less capa(le of performin) decreasin) o!erall (enefit to society.

Affirmati#e Action in !usiness

<nder City o% Richmond v. Croson' any affirmati!e action pro)ram that classifies on the (asis of race will (estrictly scrutinized ' re)ardless of which race is (urdened or (enefited (y the classification. 3n Croson'5ichmond required prime contractors to set aside G of their su(contracts to minority (usiness enterprises.

http://en.wikipedia.org/wiki/Affirmative_action




There was no e!idence of racial discrimination (y 5ichmond or on the part of 5ichmond*s prime contractors.The court held that a city cannot adopt a set-aside program that fa!ors minority owned contractors where therewas no e!idence of discrimination (ecause the 14th Amend. EP clause limits states* a(ility to use race as acriterion for le)islation. "hile 5ichmond showed that minority (usiness recei!ed less than 1G of primecontracts despite representin) a(out ,G of the )eneral population' the / said that statistical generalizations

can*t su(stitute for e!idence of discrimination. >oreo!er' when creatin) plans narrowly tailored to remedy past discrimination' the / said the )o!ernment cannot use (road statistical requirements simply to minimi%eassociated administrative burdens of mana)in) these plans.

The rule that all racial classifications must (e narrowly tailored to further compelling state interests wase#tended to the ?ederal Ho!ernment in Adarand Constr. v. Pena. 3n Pena' the </ +-T awarded a (id to asu(contractor that was certified as a small (usiness controlled (y socially and economically disadvantaged

individuals. A different su(contractor' that su(mitted the lowest (id' sued the federal )o!*t. The / held thatstrict scrutiny applies to all race$(ased actions and that the )o!*t can only attempt to redress past discriminationin ways that are narrowly tailored . People ha!e critici%ed this decision ar)uin) that on)ress is different fromstate le)islatures (ecause it is less likely to (e influenced (y local preudices. &owe!er' the fact that on)ress

itself was not makin) the decision 7it was a )o!ernment a)ency with less con)ressional o!ersi)ht9 weakens thisar)ument.

Affirmati#e Action in Schools

3n /rutter v. Bollinger ' decided in C' the / upheld the <ni!ersity of >ichi)an :aw /chool*s affirmati!eaction admissions policy. 3n a ,$4 decision' the ourt upheld its precedent in Regents o% the niversity o%

Cali%ornia v. Ba$$e' statin) that while racial quotas are unconstitutional ' educational institutions can le)allyuse race as one of many factors in their admissions process. A quota' or other mechanical formula was notconsidered to (e narrowly tailored to the compellin) interest of maintainin) a di!erse educational system. Themain ar)ument of the dissentin) opinions was that a true strict scrutiny analysis was not used (ecause a desire

for racial di!ersity is not a compellin) state interest that could ustify the use of racial discrimination.

3n /rat0 v. Bollinger& heard at the same time as /rutter ' the / struck down an under)raduate admissions policy (ased on points sayin) it was too mechanistic and therefore unconstitutional. 3n this case' anunder)raduate needed 1 points to (e )uaranteed admission. There was a C$point (onus for (lacks' &ispanicsand nati!e Americans. The / (asically deemed the policy a quota system <ni!ersity of >ichi)an*s point-

based

3n 1ohnson v. Cali%ornia' decided in C,' the / stated that racial classifications recei!e close scrutiny e!enwhen the classifications are meant to benefit the races equally. &ere' a prison used race to determine which prisoners to pair up in cells. The / held that the standard of re!iew should (e strict scrutiny and that thisclassification was immediately suspect ' e!en if it was intended to (enefit the races.

ritics of /rutter and /rat0 say that while the / claims to use a strict scrutiny analysis' it actually is not (ecause the desire for racial di!ersity is not a compellin) state interest. People ar)ue that the / is su(stitutin)a political a)enda for a reasoned strict scrutiny analysis. -thers ar)ue that since the EP clause was meant to protect minorities from (ein) treated worse than the maority' non-invidious racial classifications aimed athel!ing minorities should not (e su(ect to strict scrutiny.



riticism of Affirmati!e ActionD 19 opponents re)ard affirmati!e action as racial discrimination sanctioned (ythe )o!ernment' C9 that it is condescendin) and demeanin) (y sayin) that minorities aren*t capa(le of earnin)opportunities on their own merits' 9 cultural differences re)ardin) the importance of education cannot (eremedied (y affirmati!e action' 49 (iolo)ical differences (etween races may e#ist that impact intelli)ence thatcannot (e remedied (y affirmati!e action' ,9 affirmati!e action is o!erinclusi!e (ecause it helps mem(ers of the

minority )roup that may not need the help' such as rich (lack families' 9 it reduces the incenti!es of (oth)roups to perform optimally 7qualified minorities can slack off and (orderline maority candidates will think thehard work won*t (e fruitful9' 69 it (reeds resentment (etween the maority that is )enerally outperformin)without special treatment and the minorities that are not.

Ar)uments for Affirmati!e ActionD 19 (enefits society as a whole (y creatin) a di!erse culture' and thatdi!ersity impro!es the quality of society' C9 the cultural or (iolo)ical differences are not accurate' and aredownplayin) the lar)e impact a lon)$term' sustained oppression of a minority can ha!e on its future )enerationsopportunities' 9 they (elie!e that )ettin) rid of affirmati!e action will make the economic di!ide (etweenwhites and minorities will )row rather than lessen.

*ender Discrimination

3n Reed v. Reed& decided in 1;61' the / first chose to in!alidate a )ender classification under the EP clause. 3theld that an 3daho law preferrin) male relati!es in its rules of sur!i!orship !iolated EP. "hile the o(ecti!e ofreducin) the workload of the lower courts was le)itimate' the means used to achie!e that o(ecti!e were foundto (e arbitrary and unconstitutional under EP clause.

3n Frontiero v. Richardson' decided in 1;6' a woman in the Air ?orce sou)ht to claim her hus(and as adependent in order to recei!e add*l (enefits. Accordin) to an Air ?orce rule' men could claim wi!es as

dependents without any showin)' (ut women had to show their hus(ands were actually dependent on them foro!er I their support. The court held that classifications based on sex are included amon) those that areinherently suspect and su(ect to closer scrutiny. &ere' the court found that the statute in!ol!ed arbitrary

discrimination that did not further a significant gov’t interest .

3n Craig v. Boren' the / further clarified the standard of re!iew for )ender classifications into what iscurrently known as Intermediate Scrutiny. A state statute that prohi(ited the sale of (eer to men under the a)eof C1 and to females under 10 was struck down. The ourt held that a gender-based classification must ha!e asubstantial relation to achie!in) an important governmental objective. &ere' administrative ease and

convenience were not sufficiently important o(ecti!es to warrant a )ender classification. The court held thatthe statistical evidence offered (y the state that men (etween 10 and C had more +<3s' was not sufficient to

withstand the EP challen)e. "hile the dissent ar)ues that this new standard uses !a)ue terms that can (emanipulated' they do not appear to (e any less !a)ue than “rationally related” to “le)itimate )o!ernment purposes” or “necessary” to promote “compellin) )o!ernment interests.” -ne important difference (etweenrational basis and intermediate scrutiny' is that the / looks to the actual purpose of the le)islature rather thansimply decidin) that a hypothetical purpose may ha!e e#isted.

*ender Discrimination' mpact #s$ Discriminatory Purpose



3n applyin) intermediate scrutiny' one similarity to its application of strict scrutiny in!ol!ed how it addresseddisparate impact vs. discriminatory purpose. 8ust like in the race$(ased cases' in Personnel Administrator v.

Feeney' decided in 1;6;' the / held that a )ender$neutral law that was not intended to discriminate a)ainstwomen' was not unconstitutional (ecause the le)islati!e purpose was not invidious. 3n Personnel ' a femalewho had (een passed up on a num(er of ci!il ser!ice positions sued the state of >A statin) that a law preferrin)

!eterans !iolated the EP clause (ecause its impact was to (enefit primarily men.

T(+,PA-T TEST' Therefore' Personnel created a t"o,part testD 19 is the classification really neutral 7not)ender$(ased9' and C9 3f so' does the ad!erse effect on the )roup reflect invidious purposeful discrimination./ince the statute (enefitin) 2eterans was created in spite of its effect on women rather than (ecause of itseffect' it is constitutional.

3n S v. ,irginia' the </ ar)ued that a military colle)e*s policy of only admittin) men was unconstitutionalunder the EP clause. The / held that pu(lic military schools cannot e#clude women' e!en if they offerseparate women$only pro)rams unless there is an “exceedingly persuasive justification.” ,irginia reaffirms thestandard of re!iew for )ender classifications requirin) they (e substantially related to important gov’t

objectives. "hile the (enefits of sin)le se# education as an educational option may (e an important o(ecti!e'the / ar)ued that this was not the 2>3*s purpose in enactin) the e#clusion.

+ther .lassifications

Dru% /sers' 3n (-C 2ransit Authority v. Bea0er ' a rule prohi(ited employees of the TA from usin) narcotics'and applied it to methadone' a dru) used in the treatment of heroin addiction. The / applied a rational basis

review sayin) that e!en thou)h the rule was o!erinclusi!e (ecause it pre!ented methadone users who may ha!e (een qualified to work' the special classification was not suspect. >oreo!er' the state*s purpose of furtherin)

safety and efficiency in its pu(lic transportation was a legitimate state purpose. Therefore' the / deferred tothe ud)ement of the TA.

0entally -etarded' 3n City o% Cleburne v. Cleburne +iving Center ' a city ordinance made it harder for )rouphomes for the mentally retarded to )et %onin) permission than other )roup li!in) arran)ements. The / heldthat mental retardation is not a suspect class. 3n e#plainin) why the mentally retarded should not (e deemed aquasi-suspect class' the / ar)ued that the le)islature needs fle#i(ility to address the unique pro(lems of thementally retarded. >oreo!er' despite ha!in) (een su(ected to len)thy historic se)re)ation and discrimination'the / reasoned that it would (e hard to distin)uish them from other classes like the a)ein) and disa(led.Therefore' the / applied a rational basis test .

Homoseuality' 3n Romer v. &vans' decided in 1;;' the / failed to e#tend hei)htened scrutiny tohomose#uals applyin) somewhat questiona(le lo)ic. &ere' - passed a law that prohi(ited the enforcement ofany law desi)ned to protect homose#uals from discrimination (ased on their se#ual orientation. The - /found the law impeded the fundamental ri)ht of homose#uals to participate in the political process. The </ /claimed to apply a rational basis test ' (ut really strayed from this approach and applied somethin) stron)er.<nder a rational (asis re!iew' the / should ha!e considered whether there was any plausi(le reason why thelaw may (e le)itimate. Hi!en that the law classified homose#uals specifically to make them unequal under thelaw' the / held that this was not a le)itimate )o!*t interest. 3n Scalia’s dissent ' he reco)ni%ed that the / has



held that laws that criminali%e homose#uality are not a crime. Bowers v. ardic$ . >oreo!er' he ar)ues the -law merely makes it impossi(le for homose#uals to o(tain !re%erential treatment under the law. Therefore' if itis rational to criminali%e conduct it should (e rational to deny special protections.

Aliens' 3n Sugarman v. 'ougall 3)4567' an alien sued o!er a BJ statute that e#cluded aliens from ci!il ser!ice

positions. The / held that classifications (ased on alienage are su(ect to hei)htened scrutiny. "hile statesha!e an interest in limitin) )o!*t positions to those typically considered part of the political community' the BJlaw was not narrowly tailored in its application. The / did not hold that an alien could not (e refusedemployment (ased on non$citi%enship' if there was a le)itimate state interest that related to the qualifications ofthe particular position. 5ather' it simply prohi(ited a flat ban on the employment of aliens that had littlerelation to any le)itimate state interest. Therefore' this is a fairly narrow decision that prohi(its general bans rather than more narrow bans.

(ealth' p6$,. 3n the 1;,s and s' the / su))ested that these classifications were suspect. 5ecently' the/ has (een more reluctant to apply strict scrutiny. The / has hinted that this le!el of scrutiny may (enecessary when a state fails to pro!ide the poor with (asic necessities such as food and shelter. &owe!er' most

wealth classifications that were in!alidated in!ol!ed fundamental rights' such as !otin) and the a(ility toappeal criminal con!ictions. 3n many ways' the poor seem to (e a discrete and insular minority. They aresuscepti(le to a(use (y the political process (y (ein) underrepresented and classifications could (e considered a (ad)e of inferiority. -ne difficulty of makin) po!erty a suspect class is that it is inherently relati!e in a waythat race and aliena)e are not.

Substanti#e Due Process

The +ue Process lauses of the , th Amend. 7applied a)ainst the federal )o!*t9 and the +P clause of the 14th

Amend. 7applied a)ainst the states9 place su(stanti!e limitations on )o!ernment action. "hat is deemedconstitutional under the +P clause depends on whether the nature of the interest is 19 economic or social' or C9fundamental person ri)hts.

Economic -e%ulations

3n the first part of the Cth century' the / re!iewed the su(stance of le)islation and used the +P clause toin!alidate economic and social re)ulations. The (asic rationale was that the le)islation unreasona(ly interferedwith li(erty' property and freedom of contract. &owe!er' these were made (y the personal ud)ments of the8ustices a(out whether the means used were reasona(ly related to a le)itimate end.

3n +ochner v. (ew -or$ 3)4897' the / held that a law limitin) the num(er of hours (akers could workinterfered with their freedom to contract and was therefore a !iolation of +P under the 14 th Amend. The / (asically felt they had an o(li)ation to protect the free$market system (y readin) +P as a (road protection ofli(erty' includin) the freedom to F and other fundamental ri)hts. Therefore' in the +ochner era' +P was (roadly interpreted to protect economic interests as well as non$economic interests like education and marria)e.

The modern approach has (een to defer to le)islati!e ud)ments with respect to economic and socialre)ulations. nited States v. Carolene Products 7holdin) that the / will not wei)h the wisdom of the



le)islation or su(stitute its own ud)ment for that of the le)islati!e (ody9. 3n Carolene' on)ress adopted astatute prohi(itin) the interstate shipment of skimmed milk that had (een com(ined with certain oils. The effectof this was that pu(lic health and safety measures (ecame effecti!ely immune from a )eneral +ue Processattack.

3n West Coast otel Co. v. Parrish 71;69' the / upheld a state law esta(lishin) a minimum wa)e for women.The pu(lic interest in the health of women and their protection from employers is a le)itimate end. The creationof the minimum wa)e is neither arbitrary nor capricious.

3n Williamson v. +ee :!tical 3)4997' the / held that it cannot strike down state laws dealin) with economics ust (ecause they are unwise. 3t ar)ued that the people should protect a)ainst le)islati!e a(use (y !otin). As aresult' the / has not struck down any economic re)ulation (y state le)islation as a !iolation of su(stanti!e due process since 1;6.

2undamental -i%hts

<nder a theory of su(stanti!e +P' the / has protected a person*s fundamental rights that are implicit inordered liberty. "hile it is sometimes difficult to identify these ri)hts' some include the ri)ht to refuse medicaltreatment' the ri)ht to tra!el and the ri)ht to pri!acy. 3f the ri)ht at issue is determined to (e a fundamental

right ' the )o!ernment cannot infrin)e on the ri)ht unless they do so in a narrowly tailored way that ser!es acompelling interest . Therefore' if the )o!ernment action is o!er$inclusi!e or under$inclusi!e' the rule istypically not considered to (e narrowly tailored. >oreo!er' e!en if the action is not under or o!er$inclusi!e' to (e narrowly tailored there must not (e a less restricti!e means of achie!in) the same end that is equallyeffecti!e.

Parental nterests

#eyer and Pierce' are considered to (e the first cases where the / used su(stanti!e due process to protect ci!illi(erties. 3n Pierce' the / e!en allowed the 14th Amend to apply to corporations' rather than ust indi!iduals.-!er the ne#t half century' a (roadened list of li(erties and ri)hts (ecame protected includin) the ri)ht to marry'the ri)ht to pri!acy' etc.

3n #eyer v. (ebras$a 71;C9' a teacher was con!icted of teachin) Herman to a student in !iolation of a statute prohi(itin) teachin) forei)n lan)ua)es to students prior to 0th )rade. The / held that the li(erty protected (ythe +P clause of the 14th Amendment includes protection for the ri)ht to acquire useful knowled)e and the ri)htfor parents to en)a)e a teacher to instruct their children. The li(erty protected cannot (e interfered with (yle)islati!e action that is arbitrary and lacks a reasonable relation to a state purpose. The American peopleha!e always re)arded education and acquisition of knowled)e as matters of supreme importance which should (e dili)ently promoted. ritics of this opinion say the hi)h population of Herman immi)rants created a realworry of assimilation and that teachin) lan)ua)e would impede this assimilation. >oreo!er' the / does notdraw any clear lines a(out how much educational re)ulation is too much.

3n Pierce v. Society o% Sisters 71;C,9' pri!ate schools filed action challen)in) the constitutionality of theompulsory Education Act that required all normal children from 0$1 to attend pu(lic schools. The / heldthat the Act unreasona(ly interfered with the liberty of parents to direct the upbringing and education of their



children. The Act was considered arbitrary and therefore unconstitutional . E!en thou)h the Ps werecorporations' they could claim constitutional protection for their (usinesses and property.

ritics say that the / has e#alted the power of the parents o!er the children (ut that this lea!es open the possi(ility that some parents will choose to send their children to completely inferior pri!ate schools. &owe!er'

the state can re)ulate pri!ate schools to some e#tent. &owe!er' if the state power to re)ulate pri!ate schools istoo (road' it mi)ht ha!e the practical effect of simply forcin) pri!ate schools to ha!e the e#act same curriculumas pu(lic schools. To what e#tent should the state ha!e a free hand to determine how to approach di!ersity andhomo)eneity and to what e#tent are these the ri)hts of the parents

3n 2ro;el v. /ranville 7C9' )randparents were requestin) the ri)ht to !isit their )randchildren a)ainst the willof the mother. The / held that the liberty protected (y the +P clause includes the right of parents to establish

a home and bring up children and to control their children*s education.

-i%ht to Pri#acy

The ri)ht to pri!acy is not mentioned anywhere in the onstitution. &owe!er' the 4th and ,th Amendments protect a)ainst in!asion of pri!acy (y search and sei%ure. >oreo!er' the ri)ht of personal choice in matters ofmarria)e and (earin) and raisin) children ha!e (een considered so fundamental to society that they ha!e (eenafforded protection. /ome consider them to (e protected under the ;th Amendment which states that e!enthou)h the constitution enumerates some ri)hts' this should “not (e construed to deny or dispara)e othersretained (y the people.” -thers consider these ri)hts protected (y the “penum(ra” of the @ill of 5i)hts.

Pri#acy' .ontraception

3n /riswold v. Connecticut ' decided in 1;,' the / ruled that the onstitution protected a ri)ht to pri!acy.The case in!ol!ed a T law prohi(itin) the use of “any dru)' medicinal article or instrument for the purpose of pre!entin) contraception.” 3n strikin) down the law' the / held that a fundamental ri)ht to pri!acy is protected (y the constitution that includes the ri)ht to use contraception. The maority wrote that while the @illof 5i)hts does not e#plicitly mention pri!acy' it could (e found in the “penum(ra” of other constitutional protections. -ne of the concurrin) opinions claimed the holdin) was ustified under the ;th Amendment.>oreo!er' another concurrin) opinion held that pri!acy was protected under the +ue Process clause of the 14th Amendment' under a theory of su(stanti!e due process.

Therefore' the court found that an indi!idual*s interest in usin) (irth control is a fundamental right and that thestate cannot impair that ri)ht without satisfying strict scrutiny. Therefore' re)ardless of the source of the

pri!acy ri)ht' re)ulation in these areas is only ustified if there is a compelling state interest and the le)islationis narrowly tailored .

3n &isenstadt v. Baird & the / struck down a >A statute' holdin) that sin)le people ha!e the ri)ht to possesscontracepti!es on the same (asis as married couples. Therefore' the ourt e#tended the pri!acy ri)ht createdunder /riswold to any procreati!e se#ual acti!ity. This reected the common law !iew that se#ual partners hadno le)ally enforcea(le ri)hts without a marria)e contract.



Pri#acy' Abortion

3n Roe v. Wade' decided in 1;6' the / esta(lished that most laws a)ainst a(ortion !iolate the constitutionalri)ht to pri!acy. 3n Roe' an unmarried and pre)nant P wanted to pre!ent enforcement of a TK criminal a(ortionstatute. P claimed a constitutional ri)ht to terminate her pre)nancy under 19 the 14th Amendment concept of

liberty' C9 the penumbras of the @ill of 5i)hts' and 9 the ;th

Amendment. The TK +A claimed a state interest in re)ulatin) medical procedures to ensure patient safety and in protectin) prenatal life. The / held that theri)ht to pri!acy protected under the 14 th Amendment +P clause is (road enou)h to include a(ortion. The /held that the state’s interest in prenatal life cannot (e (ased on the fetus*s ri)ht to li!e (ecause a fetus is not a

person' in the constitutional sense. The / held that the state’s interest in the health of the mother (ecomescompellin) at appro#imately the end of the first trimester . -nly after this point can the state re)ulate thea(ortion procedure to preser!e maternal health. >oreo!er' the state’s interest in potential life only (ecomescompellin) at viability. Therefore' a state interested in protectin) fetal life after !ia(ility may proscri(ea(ortion e#cept when necessary to preser!e the life or health of the mother. 3n 5ehnquist*s dissent ' he ar)uesthat the ri)ht of pri!acy is not in!ol!ed in this case (ecause a(ortion is not “pri!ate” in the ordinary sense of theword. &e ar)ues that (reakin) pre)nancy into trimesters and outlinin) when it is permissi(le to make

restrictions represented the udicial (ranch le)islatin) rather than interpretin) the intent of the drafters of the 14

th

Amendment.

-pposition to 5oe typically comes from those who !iewed the ourt*s decision as ille)itimate (ecause itstrayed too far from the te#t of the onstitution. -thers simply (elie!e that a fetus is a person and shouldtherefore ha!e the same ri)hts. /upport for 5oe comes from those who (elie!e the decision was necessary tomaintain women*s personal freedom and pri!acy.

3n Planned Parenthood o% Southeastern Pa. v. Casey' decided in 1;;C' the / reaffirmed the ri)ht to ha!e ana(ortion. 3t held that stare decisis should (e adhered to (ecause 19 5oe had not pro!en unworka(leL C9 5oecaused reliance (y people' who or)ani%ed relationships (ased in reliance on the a!aila(ility of a(ortion' 9 no

new constitutional law de!elopment has made 5oe outdated' 49 while technolo)ical ad!ances ha!e made thetime limits no lon)er rele!ant' they do not effect the central holdin).

The court overturned the strict trimester formula used in 5oe to wei)h the woman*s interest in o(tainin) ana(ortion a)ainst the /tate*s interest in the life of the fetus. 3t lowered the standard for analy%in) restrictions ofthat ri)ht from a strict scrutiny framework to an undue burden test . <nder the undue (urden test' a statutewould (e struck down if it had the “purpose or effect of placin) a su(stantial o(stacle in the path of a womanseekin) an a(ortion of a non!ia(le fetus.” There were four pro!isions of a PA statute that were (ein)challen)ed as unconstitutionalD 19 the informed consent rule that required doctors toe pro!ide women withinformation a(out the health risks and possi(le complications of an a(ortionL C9 the spousal notification rulethat required women to )i!e prior notice to their hus(andsL 9 the parental consent rule requirin) minors torecei!e consent from a parent or )uardian prior to an a(ortion' and 49 a !-hour waiting period (efore o(tainin)an a(ortion. Applyin) the undue burden test ' the court struck down the spousal notification requirement statin)that it )a!e too much power to hus(ands o!er their wi!es and would make situations of spousal a(use worse. 3tupheld the C4$hour waitin) period' informed consent' and parental notification requirements' holdin) that noneof them constituted an undue (urden.

3n their dissent' 5ehnquist and /calia ar)ue that 5oe was wron)ly decided and should (e o!erruled. 5ehnquistar)ues that the ourt is reectin) all of the !iews of 5oe includin) 19 that a(ortion is a fundamental ri)ht su(ect



to strict scrutiny 7it replaced this with an undue (urden test9' C9 it reects the trimester framework. &e ar)uesthat no portion of Roe need to (e left intact. &e ar)ues that the pluralities ar)ument on stare decisis is (ased onthe nation*s psyche and the fact that Roe was so intensely di!isi!e. &e ar)ues that under this principle' once theourt has ruled on a di!isi!e issue' it is pre!ented from o!errulin) that decision e!en if it was incorrect. &ear)ues that the undue burden test is no more wor"able than the trimester framewor" .

riticsD "hile this case purports to reaffirm Roe' in reality it su(stantially alters the maority of Roe. >oreo!er'the opinion seems to say that e!en if the holdin) in Roe was incorrect' the ourt should not o!errule it (ecauseof the intensi!ely di!isi!e nature of the case and the fear that the pu(lic would lose confidence in the le)itimacyof the ourt. This lo)ic has no place in a strictly constitutional analysis of su(stanti!e due process. Scalia wascorrect in his dissent when he ar)ued that the idea the ourt would decide a case differently in order to showthat it can stand firm a)ainst pu(lic disappro!al is “fri)htenin).” >oreo!er' Scalia is correct in notin) that theundue burden test is as “dou(tful in application as it is unprincipled in ori)in” and would allow district ud)esto apply their own personal preferences a(out a(ortion.

3n Stenberg v. Carhart ' decided in C' the / considered whether a Be(raska law makin) partial-birth

abortions ille)al' unless necessary to sa!e the mother*s life' was unconstitutional. The / struck down the lawholdin) that statutes criminali%in) partial (irth a(ortions !iolated the </ onstitution. The law prohi(ited anyform of a(ortion that “partially e!acuates fetal material throu)h the cer!i# into the (irth canal” (efore killin) it.ommon types of a(ortions included suction$aspiration where a !acuum was inserted in the uterus' +ME wherethe cer!i# was dilated and the fetus is remo!ed without a !acuum' and +MK which' rather than killin) it in theuterus' e#tracts part of the fetus first (efore killin) it. arhart preferred the +MK procedure (ecause he (elie!ed it to (e safer and in!ol!e fewer risks to the woman (y reducin) the num(er of instruments used andreducin) the risk that harmful fetal tissue would (e left in the uterus. The ourt held the law unconstitutionalfor two reasonsD 19 it lac"s any exception for the preservation of the mother’s health ' as required (y Planned

Parenthood ' and C9 the statutes language is too broad . 3f Be(raska only intended to (an +MK a(ortions' thelan)ua)e is too (road which would cause doctors usin) other methods to fear prosecution.

ritics ar)ue that this case shows the unworka(ility of the undue (urden standard adopted in Casey. Each ud)eor 8ustice can apply this standard in a different way. Each of them decides whether they (elie!e the (urdenimposed (y the statute is undue. This creates an inherent !alue ud)ment' as Scalia noted in his dissent' in anarea the ourt does not ha!e sufficient knowled)e to make adequate decisions.

Homoseuality

3n Bowers v. ardwic$ ' decided in 1;0' the / upheld a HA sodomy law that criminali%ed oral and anal se# in pri!ate (etween consentin) adults. This decision was o!erruled (y the / in +awrence v. 2e;as 7C9' holdin)that such laws are unconstitutional. The issue in Bowers was whether homose#ual sodomy was a fundamental

right protected (y the +P clause of the 14th Amendment under a ri)ht of pri!acy. The / held no ri)ht toen)a)e in consensual' same$se# sodomy was “deeply rooted in this #ation’s history and tradition$ or “implicit

in the concept of ordered liberty$ . ritics of this case ar)ued that it represented the death of su(stanti!e due process. &owe!er' it does a (etter o( illustratin) the su(ecti!e nature of su(stanti!e due process.

3n +awrence v. 2e;as 7C9' the / struck down a TK law prohi(itin) homose#ual sodomy' o!errulin) Bowers. +awrence held that intimate consensual sexual conduct is part of the li(erty protected (y su(stanti!edue process under the 14th Amendment. "hile an appropriately tailored statute prohi(itin) homose#ual



relations may sur!i!e an EP scrutiny 7rational (asis9' the !iolations of indi!idual li(erty interest !iolate +P./calia dissented ar)uin) that the maorities approach to stare decisis stated that an erroneous decision 7 Bowers9should (e o!erruled if its foundation has (een eroded (y su(sequent decisions and there is a “su(stantial andcontinuin)” criticism of the decision' and there has (een no societal reliance on the decision. <nder thatdescription' he ar)ues that Roe should ha!e (een o!erruled. &e ar)ued that under a due process re!iew' only

ri)hts that are “deeply rooted in this Bation*s history and tradition” are fundamental and raise a compellin) stateinterest. &owe!er' the maority i)nored that sodomy has (een criminali%ed throu)hout American history're)ardless of whether the laws specifically tar)eted a sin)le class of citi%ens. The / decision has (eencritici%ed as (ein) results oriented ' without an adequate supportin) le)al doctrine. They ar)ue that 8ustices are (ound to uphold the onstitution and that this decision represents the creepin) of personal (eliefs into thedecision rather than sound le)al support.

The -i%ht to Die

3n Cru0an v. 'irector< #issouri 'e!t. o% ealth 71;;9' in a ,$4 decision' the / held that incompetent peopleare not a(le to e#ercise the ri)ht to refuse medical treatment under the +P clause. 3n Cru0an' P )ot in a car

accident and was (rou)ht to the hospital in an unconscious state. /he remained in a coma in an unconscious'!e)etati!e state. &er parents asked the hospital to terminate the artificial nutrition and hydration procedures andthe hospital refused without court appro!al. The / held that a person does have a right to refuse medical

treatment ' and that a state can require those that want to cease the medical treatment to provide %clear and

convincing evidence$ of that person’s similar intent (efore permittin) the action. The </ constitution doesnot for(id the creation of this procedural requirement' particularly )i!en the finality of the decision. The +Pclause protects an interest in life as well as the interest in refusin) medical treatment. A state has a legitimate

interest in )uardin) a)ainst a(uses in these situations and may properly decline to make ud)ments a(out thequality of life a particular indi!idual may enoy. 3n Scalia=s concurrence' he ar)ued that the court should ha!eadmitted that this is not a constitutional question. &e ar)ues that American law has always accorded the State

the power to pre!en suicide.

"hile technically the ourt did not decide whether there is a fundamental ri)ht to refuse life support' many people assume that this is the case (ased on the rulin).

3n Washington v. /luc$sberg 71;;69' the / held that there was no fundamental ri)ht to assistance incommittin) suicide. P was in a terminal phase of a painful illness and ar)ued that the "A statute denied himli(erty without +P (ecause he was una(le to recei!e assistance in terminatin) his life. &e requested the law (erewritten to require two qualified physicians to confirm the patient*s dia)nosis and competence' and to requirethe patient make repeated requests o!er a specified period of time while imposin) criminal penalties forcoercion. The maority refused to acknowled)e this fundamental ri)ht ar)uin) that almost e!ery state (anssuicide and that punishment for suicide has (een deeply rooted in the Bation*s history. Therefore' the ri)ht tocommit suicide is not a fundamental ri)ht and is distin)uisha(le from the ri)ht to refuse medical treatment.Therefore' the court applied a rational basis test and found that the state has a le)itimate interest in preser!in)life' protectin) the medical profession' and protectin) disa(led and terminally ill from (ein) de!alued insociety' as well as protectin) a)ainst the possi(ility of !oluntary or in!oluntary euthanasia.

The -i%ht to Tra#el



A citi%en has a fundamental constitutional ri)ht to tra!el freely from state to state. /tate durational residencerequirements that would impair this ri)ht must (e ustified (y a compelling state interest ' at least where theyaffect the citi%en*s ri)ht to recei!e some !ital )o!ernment (enefit or ser!ice.

3n Crandall v. (evada 71009' B2 enacted a statute that required a N1 ta# (e char)ed on all people who left the

state. +' arrested for refusin) to pay the ta#' ar)ued the statute was !oid (ecause it !iolated the onstitution.The / held that e!ery citi%en has the ri)ht to tra!el. The ourt ar)ues that this is necessary to ensure thate!ery citi%en may come to the seat of )o!ernment' le!era)e its sea ports' etc. 3f a state has the ri)ht to ta# aciti%en' /tates co!erin) the only practica(le routes from the east to the west' or from the north to the south'would (e a(le to pre!ent or seriously (urden people from flowin) freely throu)h the country. This is !oid as (ein) repu)nant to the onstitution and the concept of a unified )o!ernment.

3n Sha!iro v. 2hom!son 71;;9' Ps were denied welfare (enefits solely (ecause they had not (een residents ofT for a full year prior to their applications. + ar)ued that the waitin) period should (e permissi(le (ecause it19 protects the fiscal inte)rity of state pu(lic assistance pro)rams' C9 a state should (e a(le to deter indi)entswho would enter the state ust to )et hi)her (enefits' and 9 it ser!es administrati!e o(ecti!es. &owe!er' the

court held that discoura)in) the influ# of poor families needin) assistance was a constitutionally impermissi(leburden on the right to travel . The ourt held that states may not withhold welfare benefits from short$termresidents who ha!e contri(uted throu)h ta#es any more than they may restrict state ser!ices such as fire and police protection to lon)$term residents. Hi!en that the classification affects the fundamental constitutionalri)ht to tra!el' it is ud)ed usin) the strict scrutiny standard that determines whether the statute promotes a

compelling state interest . The administrati!e o(ecti!es of T do not pass this hi)h standard.

The ar)ument is therefore not whether people can (e stopped from mo!in). 5ather' the issue is that when statescreate classifications that penali%e a fundamental ri)ht' strict scrutiny is the proper standard of re!iew.

3n Saen0 v. Roe 71;;;9' the / reaffirmed Sha!iro in!alidatin) a A law that imposed durational residence

requirements that limited welfare (enefits in the first year of residence to what the person would ha!e recei!edin their state of ori)in. Apparently permitted (y on)ress' P challen)ed the constitutionality of the statute. Theourt held that the right to travel includes 19 the right to enter and leave another state' C9 the right to be

treated as a welcome visitor ' and 9 the right to elect to become a permanent resident and be treated li"e other

citizens of the new state. The / held that the PM3 clause of the 14th Amendment protects the rd element of theri)ht to tra!el. The citizenship clause e#pressly equates citi%enship with residence and does not allow fordegrees of citizenship (ased on len)th of residence.

The 'issent ar)ued that the ri)ht to tra!el does not apply (ecause it is distinct from the ri)ht to (ecome a citi%enand the Ps had to stop tra!elin) in order to (ecome citi%ens of A. >oreo!er' the dissent ar)ued the maorityi)nored the state*s need to assure that only (ona$fide residents recei!e (enefits. >oreo!er' it ar)ued that statesare allowed to impose residence requirements prior to )rantin) educational (enefits' the ri)ht to terminatemarria)e' and the ri)ht to !ote in primary elections' and fails to see why welfare (enefits should (e anydifferent.



ESSA3' TET/A5S0 6S$ D+.T-7A5S0

The role of the /upreme ourt should (e to interpret the onstitution from a te#tualist perspecti!e first' andfrom a doctrinalist perspecti!e second. A te#tualist understandin) should attempt to understand e#actly whatthe American people meant when they ratified or amended the onstitution. The onstitution constitutes thesupreme law of the land' and therefore a disciplined' te#tualist approach that requires the most plausi(le readin)is required. This most plausi(le readin) should (e (ased on careful analysis of the te#t' the enactment history ofthe te#t' and )eneral structure of the te#t in the surroundin) document.

The .onstitution is Supreme

The first maor reason that te#tualism is the most appropriate approach for onstitutional interpretation is thatthe onstitution represents the will of the people. 3t is the supreme law of the land and requires ud)es and

political officers to swear alle)iance to it. 3t is the supreme law (ecause the people made it so. >oreo!er' since people do not decide cases' a te#tualist interpretation ensures that when the will of the people' as em(odied inthe onstitution' is in conflict with a 8ustice*s opinion' they must yield to the people.

Superma8oritarian

The second maor ar)ument in fa!or of a te#tualist approach to constitutional interpretation is that theonstitution represents the supermaoritarian will of the people. Hi!en that it is the supreme law of the land andits influence far$reachin)' it is important that its te#t reflect careful' thorou)h deli(eration. Thesupermaoritarian process for modifications to the onstitution require the careful deli(eration of millions of people. 3t has checks and (alances that ensure the ratifyin) (odies are separate from the draftin) (odies.

>oreo!er' there is e!idence from the )eneral acceptance that the current Amendments are “)ood” that this process works to effecti!ely represent the will of the people. These self$imposed modifications represent a process of tria)e much (etter suited to representin) the will of the people than the whimsical decisions of ;o!erworked 8ustices. 8ustices often ha!e little time to think throu)h what they are decreein) in cases' recei!eonly quick oral ar)uments prior to !otin)' and ha!e mea)er dialo)ue afterwards to hash out issues. Theiropinions are drafted (y ine#perienced law clerks that lack e#pertise and face maor time constraints.

9udicial Abuse

Another reason to promote a te#tualist understandin) of the onstitution is that it helps check a)ainst udiciala(use. 8ustices that are not disciplined to understand the nature of their o( is to understand and interpret the

will of the people as reflected in the te#t of the onstitution are more apt to (ase decisions on their own personal (elief systems' (e they reli)ious or political. These 8ustices may pro!ide o!erreachin) decisions thatlack udicial humility. 8ustices may (e (iased towards )ainin) more udicial power and a)ainst the le)itimateclaims of power of the other two (ranches of )o!ernment. This is why all (ranches require pled)in) to theonstitution' the sin)le unifyin) focal point' rather than to prior le)al doctrine. >oreo!er' the ourt hashistorically (een !ery (ad a(out admittin) error. ?or e#ample' in Planned Parenthood !. asey' the / proclaimed that Oa decision to o!errule should rest on some special reason o!er and a(o!e the (elief that a prior



case was wron)ly decided.O &ow can this (e correct +emocracy requires thou)htful deli(eration that leads to asharp crystalli%ation of the issues and honest self$assessment.

2aults

There are faults to a te#tualist approach. Pure te#tualism can risk insta(ility if the le)islature is too (ureaucratically (urdened to keep pace with the American people. >oreo!er' many of the pro!isions (ein)interpreted in the onstitution were adopted a lon) time a)o. Additionally' the onstitution itself is hard toamend as is made clear (y the relati!ely few Amendments that ha!e (een ratified in C years. Be!ertheless'these pro(lems are not as e)re)ious as the alternati!e and they ha!e solutions. 3f the le)islati!e (ody is una(leto keep up' reformation of the le)islati!e (ody can take place in a way proscri(ed (y the people and inaccordance with the onstitution. 3f the onstitution is too difficult to amend' makin) te#tualist interpretationsoutdated' the people can amend the constitution and reduce those (arriers to ensure the document e!ol!es in amore timely manner to the emer)in) trends of modern society.

Therefore'

19 Pure tetualism $ Definition' understandin) what the American People meant and did when we ratified and

amended the onstitution. "e must look to the le)islati!e history to learn what were meant (ythem (y the people who enacted them as the supreme law of the land. "hat counts as te#tualistunderstandin) is what the American people who ratified and amended it understood it to mean.Te#tualism is disciplined' and requires the most plausi(le readin) as fits the te#t' the enactmenthistory' and the )eneral structure.

$ !enefits

i. onstitution is a holistic document' one of themes. 7e.). separation of powers' checksand (alances9ii. "ord patterns emer)e lan)ua)e phrased similarly should (e interpreted similarly

iii. Supreme la" the constitution is supreme law' a(o!e and (eyond statutes enacted (yle)islatures.

i!. .onstitution is :in% ud)es and officials must pled)e alle)iance to it. 3t is the supremelaw (ecause the people made it so. 8ud)es and )o!ernment officials occupy a lower le!elthan the people. /ince the people do not decide cases' this is the check to ensure that' incases of conflict' the 8ustices yield to the People*s pronouncements.

!. Amendments te#tualism allows for e!olution throu)h amendments.+isenfranchisement of (lacks and women' etc. The whims of ; people on the ourt areless democratic than a self$imposed Amendment ratified (y millions of !oters. "hen wedo succeed in amendin) the document' after e#tensi!e political con!ersation andmo(ili%ation' aren*t we entitled to insist it (e treated with the utmost respect /houldn*tthe 8ustices ha!e to heed the reasons of the People whene!er the issue came to the ourt

1. t "or:s' e!ery amendment has made the onstitution (etter. This cannot (e saidof e!ery / decision.

!i. Deliberation democracy requires deli(eration. +ecisionmakin) requires thou)htfuldiscussion and sharp crystalli%ation of the issues. The )ap (etween the drafters



7on)ress9 and the ratifiers ensures a healthy uncertainty and ensures that flawed proposals are shot down.

1. +f S.' 19 little time to think throu)h what they are decreein)' C9 quick oralar)uments' then they !ote. 9 mea)er dialo)ue afterwards' 49 law clerks ha!e noe#pertise and face time constraints draft the opinions' ,9 the court has (een (ad

a(out admittin) error. The amount of time de!oted to any )i!en case is quitemodest.

a. In 1992, the majority in Planned Parenthood v. Casey 184 proclaimed

that "a decision to overrule should rest on some special reason overand above the belief that a prior case was wronly decided." ! how

can this be riht

C. 5ife Tenure' uncertainty who will lea!e and win.. 0ore minds' two heads are (etter than one' and millions are (etter than , or e!en

;.$ .ons

i. Pure te#tualism can risk insta(ility if the le)islature cannot keep up. Therefore' e!en the (est te#tualist understandin) must sometimes yield to prior udicial or political

de!iations.ii. &ard to amendD

iii. >any pro!isions at issue were adopted a lon) time a)o.C9 E#olutionists

$ +efinitionD don*t look to te#t' history and structure to identify meanin). They look to precedent'e!en when precedent displaces the te#t. They start with decisions that may ha!e (een writtenwell after the constitutional te#ts were enacted and authored (y people with political moti!es.

$ 8udicial a(useD o!errachin) and lack of udicial humility. Bo checks. 8ustices may (e (iasedtowards udicial power and a)ainst the le)itimate interpreti!e competence of the other (ranches.-aths require pled)in) alle)iance to the onstitution' not to le)al doctrine.

#ather than rushin to constitutionali$e a trimester framewor% that may not be the most sensible solution

for all time, a sounder & more democratic, less hubristic & approach would have identified the issue ofwomen's e(uality and remanded abortion to a political process in which women's voices and votes would

count e(ually.

1; (ho should be protected by Equal Protection)

a. Definition' understandin) what the American People meant and did when we ratified andamended the onstitution. "e must look to the le)islati!e history to learn what were meant (ythem (y the people who enacted them as the supreme law of the land. "hat counts as te#tualistunderstandin) is what the American people who ratified and amended it understood it to mean.Te#tualism is disciplined' and requires the most plausi(le readin) as fits the te#t' the enactment



ESSA3' E</A5 P-+TE.T+7' (H+ SH+/5D !E P-+TE.TED)

The Problem

The EP clause of the 14th

Amend says that “no state shall make or enforce any law which shall…deny to any person…the equal protection of the laws.” This clause was enacted shortly after the i!il "ar in order toensure that e#$sla!es were treated equally as other 7white9 citi%ens. &owe!er' its (road lan)ua)e has (eeninterpreted as )enerally restrainin) or placin) limits on )o!ernment*s use of classifications in other areas' suchas )ender' nationality' etc. "hile the EP clause does not e#pressly limit the federal )o!ernment' the +P clauseof the ,th Amend has (een interpreted to place the same restrictions on the federal )o!ernment as the EP clause places on the states. -ne of the difficulties in interpretin) the EP clause is that while it places restrictions on)o!ernment use of classification' all laws necessarily classify )roups of indi!iduals in order to create incenti!esand disincenti!es in society. Therefore' identifyin) whether a class is to (e protected and the le!el of scrutinythe courts should apply when ud)in) the necessity of a particular classification is crucial.

(ho should be protected)

3dentifyin) which classifications or )roups should (e protected under the EP clause' and with what le!el of udicial scrutiny' is a difficult question. 3n addition to pro!idin) conte#t to this discussion with some (ack)round on the history of equal protection' 3 will ar)ue that the EP clause should (e used to protect those)roups that ha!e (een unconstitutionally depri!ed of an appropriate le!el of democratic influence such that a udicial check is necessary to ensure they are treated equally under the law. The reasons why these )roups areuna(le to protect themsel!es appropriately throu)h the political process may differ.

Early Equal Protection Decisions

The most o(!ious )roup requirin) protection under the EP clause are racial minorities. The 14

th

Amendmentwas enacted in response to the )ross inequalities afforded (lacks compared to whites prior to and immediatelyfollowin) the i!il "ar. Therefore' the supermaoritarian will of the people clearly intended that racialminorities (e protected. &owe!er' the question of what le!el of udicial scrutiny is appropriate still remains.

Early / decisions (e)an to define what equal protection actually meant. ?or e#ample' in one of the first casesdealin) with equal protection' Strauder v. West 71009' the / held that e#clusion of (lacks from uries for noreason other than race was a !iolation of EP (ecause the purpose of the clause was to assure that (lacks had thesame ri)hts as whites' and that these ri)hts should (e protected (y the courts. &owe!er' the / did not alwaysinterpret the clause in a way that fa!ored inte)ration of (lacks into the )eneral community. 3n Pace v. Alabama3)>>67' the / upheld a statute makin) interracial adultery a )reater crime than re)ular adultery sayin) it did

not !iolate equal protection (ecause (oth races were punished the same. >oreo!er' in the Civil Rights Cases 71009' the / created the state action doctrine limitin) the EP clause to actions sanctioned (y the state' lea!in)the pri!ate sector free to discriminate (ased on race. And in Plessy v. Ferguson 710;9' the / upheld theseparate but equal doctrine' holdin) that ar(itrary separation (ased on race did not constitute a (ad)e ofser!itude.

Therefore' despite the intention of the 14 th Amendment EP clause that similarly situated people of all races (etreated equally under the law' (lacks continued to (e discriminated a)ainst 7particularly in the /outh9 in ways



that did not reflect the will of the supermaority post$i!il "ar. Hi!en this (ackdrop' the / noted in afootnote in its S v. Carolene Products opinion' that a more strin)ent standard of re!iew was necessary to protect racial minorities. Additionally' it seemed to implicitly reco)ni%e that the (road lan)ua)e of the EPclause did not seem to limit the protections afforded under the amendment to classifications (ased on race.Therefore' the / further noted that “reli)ious or national” minorities may (e classes that require strin)ent

udicial re!iew under equal protection. &owe!er' it (roadened the scope of the EP clause*s potential applicatione!en further (y statin) that any “discrete and insular ” minority may need hei)htened re!iew if they tended to (e so disfa!ored that the political system would not work to protect them. 3n these cases' the opinion posited'the courts would ha!e to make e#tra efforts to protect them.

Emer%ence of “Strict Scrutiny”

This was the foundation from which the “hei)htened scrutiny” standard emer)ed in Korematsu 71;449'requirin) that le)islati!e classifications (ased on race (e narrowly tailored to a )o!ernment interest. This wase#panded in +oving v. ,irginia' where the ourt declared that it would apply “ri)id scrutiny” to racialclassifications' and that they would not (e permissi(le unless they were “necessary” to achie!e a “compellin)

)o!ernment o(ecti!e.” There are still questions a(out the adequacy of these standards' )i!en that raciallyneutral laws are typically upheld e!en if they ha!e widely disparate impacts on racial minorities' Arlington eights and Washington v. 'avis. /ome ar)ue that (ecause some racism is su(conscious' and it is fairly simpleto in!ent some non$discriminatory purpose 7e.). economic ustifications' etc.9 for race$neutral le)islation thathas discriminatory impact' ourts should ha!e e!en more leeway to pre!ent equal outcomes to remedy thesesituations. Be!ertheless' in )eneral the ourt*s reco)nition of hei)htened scrutiny has done a (etter o( pro!idin) (lacks equal protection than pre!ious doctrines like se!arate but e?ual .

*ender Discrimination

3n addition to racial minorities' women are another )roup that has historically (een unconstitutionally depri!ed

of an appropriate le!el of democratic influence such that a udicial check is necessary to ensure they are treatedequally under the law. The prescient footnote to Carolene Products pa!ed the way for this )roup to o(tainhei)htened scrutiny. 3n the early 1;6s' the / (e)an to acknowled)e this need in!alidatin) its first state lawdiscriminatin) on the (asis of )ender in Reed v. Reed 71;619 followed closely (y Frontiero v. Richardson 71;69. ?inally' in Craig v. Boren' the / clarified the standard of re!iew for )ender classifications into what iscurrently known as Intermediate Scrutiny. <nder this le!el of scrutiny' the ourt held that a gender-based

classification must ha!e a substantial relation to achie!in) an important governmental objective.

s Protectin% Discrete and nsular 0inorities Enou%h)

The ourt was correct in interpretin) the EP clause as pro!idin) !aryin) le!els of udicial scrutiny dependin)on what is needed to ensure a particular )roup is treated equally under the law. 3t ri)htly reco)ni%es that theneed to scrutini%e these classifications must (e (alanced a)ainst !alid state interests that may require theseclassifications. &owe!er' the Carolene Products claim that discrete and insular minorities are the only )roupsthat may need this additional le!el of udicial scrutiny is (oth under$inclusi!e.

?irst' it is under$inclusi!e (ecause it fails to reco)ni%e that politically ineffecti!e maorities can also e#ist. ?ore#ample' as discussed in his :aw 5e!iew article' Bruce Ac$erman pro!ides a hypothetical e#ample of a (lackmaority that is underrepresented in the political system (y a dominatin) white minority. >y initial ar)ument



that any )roup that has (een unconstitutionally depri!ed of an appropriate le!el of democratic influence shouldrecei!e a hi)her le!el of udicial scrutiny would co!er this situation as well.

/econd' it is under$inclusi!e (ecause it fails to reco)ni%e that in many cases' ud)es should protect )roups thatare the opposite of discrete and insular. Hroups that are discrete and insular )ain political ad!anta)e (y (ein)

close to)ether ena(lin) them to form well$or)ani%ed lo((y*s to press their concerns in the political process.The transaction cost for )roups that are diffuse to form compara(le lo((yin) )roups are much hi)her.>oreo!er' in a ti)htly held community' a minorities non$participation in the political lo((yin) process will (emore apparent and there will (e more pressure to participate. -n the other hand' in diffuse and anonymous)roups there are lar)er pro(lems of free$ridin). They will not ha!e the pressure to participate that comes from (ein) in a sin)le community' and their anonymity 7the fact that they can hide their classification from others9means that they ha!e less incenti!e to push their political a)endas. &omose#uals are a perfect e#ample of adiffuse )roup whose indi!iduals can' if desired' remain anonymous. As a result' they are less likely to forminfluential lo((yin) )roups to ensure they are adequately protected (y the political process than discrete andinsular )roups like racial minorities. Therefore' Carolene Products declaration that discrete and insular )roups'in particular' require a hi)her le!el of udicial scrutiny is not enou)h.

.onclusion

The EP clause should (e used to protect those )roups that ha!e (een unconstitutionally depri!ed of anappropriate le!el of democratic influence such that a udicial check is necessary to ensure they are treatedequally under the law. "hile pro!idin) protections for discrete and insular )roups like racial minorities' anddiscrete=diffuse )roups like )ender is a step in the ri)ht direction' it is not enou)h. The equal protection clausemust also protect diffuse and anonymous )roups such as homose#uality with a hi)her le!el of udicial scrutinyas well.



ESSA3' A22-0AT6E A.T+7

(hat is Affirmati#e Action)

Affirmati!e action is when )o!ernment pro)rams are created to try to remedy past discrimination or promote)eneral di!ersity (y pro!idin) minority )roups special considerations compared with the rest of society. Thesespecial considerations may include access to o(s' promotions or admission to uni!ersities.

The Problem)

/ome ar)ue that affirmati!e action is merely re!erse discrimination sanctioned (y the )o!ernment thateffecti!ely e#cludes more qualified indi!iduals (ased on their race and !iolates the maorities EP under the law.-thers ar)ue that the country has a compellin) interest in remedyin) past discrimination and promotin) adi!erse culture that impro!es the quality of society. They would further ar)ue that since the EP clause wasmeant to protect minorities from (ein) treated worse than the maority' non$in!idious racial classifications

aimed at hel!ing minorities' includin) affirmati!e action' should not (e prohi(ited.

The issue' then' is findin) the appropriate (alance (etween these competin) opinions as a )uide to determinewhen affirmati!e action is appropriate.

The .orrect !alance

"here!er this (alance lies' the startin) point is to ensure that when affirmati!e action is used' it is actuallyeffecti!e in achie!in) its dual aim of remedyin) past discrimination and promotin) )eneral di!ersity. 3tsapplication must not (e o!er$inclusi!e such that it helps mem(ers of a minority )roup that may not need thehelp' such as rich (lack families at the e#pense of white families that may (e more in need. >oreo!er' it must

not reduce the incenti!es of the minority to perform optimally (y encoura)in) qualified minorities to slack off'knowin) they are likely to still (e afforded opportunities (ased on their race. on!ersely' affirmati!e actionmust not (e used in ways where it reduces the incenti!es of the outperformin) maority to perform optimally (yfeelin) that their hard work will not (e as fruitful )i!en the special considerations )i!en to the minority.Additionally' affirmati!e action must (e applied in a way that is not condescendin) and demeanin) to minorities (y effecti!ely sayin) they are incapa(le of earnin) the opportunities on their own merits. And similarly' it mustnot (e applied in a way that (reeds resentment (etween the maority that may (e outperformin) without thespecial treatment.

Hi!en these concerns' affirmati!e action must (e strictly scrutini%ed to ensure that the means used are narrowlytailored towards achie!in) the specific )oals of remedyin) past discrimination and promotin) di!ersity. "ith a

few e#ceptions' the / has (alanced these concerns admira(ly.

Affirmati#e Action in !usiness

?irst' the / has reco)ni%ed the importance of strict scrutiny in re!iewin) race$(ased classifications used for the purposes of affirmati!e action. 3n City o% Richmond v. Croson' the / held that any affirmati!e action pro)ramthat classifies on the (asis of race will (e strictly scrutinized ' re)ardless of which race is (urdened or (enefited (y the classification. The court held that a city cannot adopt a set-aside program that fa!ors minority owned





contractors where there was no e!idence of discrimination (ecause the 14th Amend. EP clause limits states*a(ility to use race as a criterion for le)islation. "hile 5ichmond showed that minority (usiness recei!ed lessthan 1G of prime contracts despite representin) a(out ,G of the )eneral population' the / said that statistica

generalizations can*t su(stitute for e!idence of discrimination. >oreo!er' when creatin) plans narrowly

tailored to remedy past discrimination' the / said the )o!ernment cannot use (road statistical requirements

simply to minimi%e associated administrative burdens of mana)in) these plans.

This rule that all racial classifications must (e narrowly tailored to further compelling state interests wase#tended to the ?ederal Ho!ernment in Adarand Constr. v. Pena. 3n Pena' the </ +-T awarded a (id to asu(contractor that was certified as a small (usiness controlled (y socially and economically disadvantaged

individuals. A different su(contractor' that su(mitted the lowest (id' sued the federal )o!*t. The / held thatstrict scrutiny applies to all race$(ased actions and that the )o!*t can only attempt to redress past discriminationin ways that are narrowly tailored .

"hile critics may ar)ue that on)ress is different from state le)islatures (ecause it is less likely to (einfluenced (y local preudices' these two decisions represent )ood policy. 3n a (usiness conte#t' affirmati!e

action is not typically a(out promotin) )eneral di!ersity for the (enefit of society. 3t is a(out remedyin) pastdiscrimination. &owe!er' the ourt accurately reco)ni%es that pro!idin) special considerations to minority$owned (usinesses is not narrowly tailored to achie!e this )oal. Therefore' the ourt was correct in holdin) thatset$aside pro)rams for minorities are unconstitutional when there is no e!idence of discrimination. >oreo!er' itis not narrowly tailored (ecause ust (ecause a (usiness is owned (y a mem(er of a minority class does notmean that the proceeds and (enefits of the company are )oin) to (enefit the minority )roup. A company madeup of entirely white employees could simply hire a minority owner as a fi)urehead to (e a(le to take ad!anta)eof the special opportunities afforded to this special classification. Additionally' this strict scrutiny ensures that (usinesses are properly incented to perform optimally and does not (reed resentment that underperformin)companies will (e afforded (etter opportunities (ased on the race of its owners.

Therefore' the / was ri)ht to strike down these statutes (ecause the purpose of affirmati!e action in a (usinesssettin) is primarily to redress past discrimination' and affordin) minority$owned (usinesses special ad!anta)esis not narrowly tailored to this )oal.

Affirmati#e Action in Schools

Affirmati!e action in a school settin) has two purposes. ?irst' it is used to remedy past discrimination in whichminority )roups were not afforded the same access to education as whites. /econd' it is used to promote adi!erse culture in the education system to (enefit society as a whole.

3n /rutter v. Bollinger ' decided in C' the / upheld the <ni!ersity of >ichi)an :aw /chool*s affirmati!e

action admissions policy. 3n a ,$4 decision' the ourt upheld its precedent in Regents o% the niversity o%Cali%ornia v. Ba$$e' statin) that while racial quotas are unconstitutional ' educational institutions can le)allyuse race as one of many factors in their admissions process. A quota' or other mechanical formula was notconsidered to (e narrowly tailored to the compellin) interest of maintainin) a di!erse educational system.

3n /rat0 v. Bollinger& heard at the same time as /rutter ' the / struck down an under)raduate admissions policy (ased on points sayin) it was too mechanistic and therefore unconstitutional. 3n this case' an



under)raduate needed 1 points to (e )uaranteed admission. There was a C$point (onus for (lacks' &ispanicsand nati!e Americans. The / (asically deemed the policy a quota system.

ritics of /rutter and /rat0 say that while the / claims to use a strict scrutiny analysis' it actually is not (ecause the desire for racial di!ersity is not a compellin) state interest. &owe!er' the EP clause is supposed to

(e a udicial check that ensures )roups that ha!e (een unconstitutionally depri!ed of an appropriate le!el ofdemocratic influence are treated equally under the law. Therefore' it is for the 8ustices to decide' as part of this udicial check' what is a compellin) state interest.

>oreo!er' the /upreme ourt reached a )ood (alance in these decisions. Prohi(itin) quotas and othermechanical formulas is )ood (ecause those systems often suffer from the o!er$inclusi!e pro(lem. They tend to (enefit the mem(ers of the minority class that are wealthy and educated and are in less need of help. >oreo!er' prohi(itin) quotas reduces the risk of (reedin) resentment amidst well$performin) indi!iduals in the maority (ecause it is harder to find clear e#amples of re!erse discrimination. ?urthermore' (y upholdin) usin) racialclassification as one of many factors in the admissions process' it pro!ides the schools an a!enue for pursuin)the )oal of creatin) a di!erse educational e#perience for its students. 3t also pro!ides some leeway to redress

specific instances of discrimination where they are warranted.

The Supreme .ourt *oes Too 2ar

3n 1ohnson v. Cali%ornia' decided in C,' the / stated that racial classifications recei!e close scrutiny e!enwhen the classifications are meant to benefit the races equally. &ere' a prison used race to determine which prisoners to pair up in cells due to maor pro(lems with racially$(ased' )an)$related !iolence. The / held thatthe standard of re!iew should (e strict scrutiny and that this classification was immediately suspect ' e!en if itwas intended to (enefit (oth of the races. Althou)h the / remanded the case (ack to the lower courts' it islikely that their decision will force alifornia to alter its practice of se)re)atin) (y race.

3n situations where the racial$classification (enefits (oth classes' a lower le!el of udicial scrutiny is warranted.The state*s purpose in pre!entin) prison !iolence is certainly compellin). >oreo!er' the )oal of promotin)di!ersity in a prison settin) is si)nificantly less compellin) than in the educational system.

.onclusion

"hen race$(ased classifications used in affirmati!e action (enefit one race at the e#pense of another' theyshould (e strictly scrutini%ed and narrowly tailored towards the compellin) )oals of promotin) di!ersity insociety and redressin) past discrimination. "hen race$(ased classifications (enefit (oth races equally' the /should use a lower le!el of udicial scrutiny.



Smith=s se discrimination la"suit , ntermediate scrutiny frame"or: >? points;$

/ince Craig v. Boren< statutes that discriminate on the (asis of se# ha!e (een su(ect to intermediate scrutiny'which requires that they (e su(stantially related to the attainment of an important state interest. The pre!entionof !iolent crime a)ainst prisoners is clearly an important state interest. /o the issue of constitutionality comesdown to whether or not there is a “su(stantial relation” to this interest.

&ere' male )uards are some 4, times more likely to commit !iolent crimes a)ainst female inmates than female personnel are. /uperficially' this is similar to Craig< where 10$C1 year old men were some 1$1, times morelikely to en)a)e in drunk dri!in) than women of similar a)e. &owe!er' there are three key differences (etweenthe cases 7in addition to the )reater disproportion in Smith9. ?irst' in the case of the P5A' the interest in!ol!ed$pre!ention of !iolent crime $ is much more si)nificant than reducin) drunk dri!in) 7which (y no means alwaysleads to death or inury9. /econd' and more important' there do not seem to (e )ender$neutral ways to address

the pro(lem' as there were in Craig 7e.). $ -klahoma could ha!e for(idden all people under C1 from drinkin).CG (eer9. Third' the prison en!ironment is one where se# se)re)ation has lon) (een used to protect pri!acyand minimi%e !iolence. The rule of hirin) only female )uards mi)ht potentially (e ustified on the same )roundsas that of se)re)atin) female inmates from male ones.

@$ Smith=s se discrimination la"suit , Administrati#e con#enience > points;$

The state*s ar)ument that psycholo)ical screenin) of )uards 7which studies indicate would reduce the incidenceof male )uard !iolence si)nificantly9 should not (e required (ecause too costly would (e reected (y courts.<nder Reed and Frontiero' “administrati!e con!enience” is not enou)h to ustify se# discrimination.

$ Smith=s se discrimination la"suit , final resolution$

&owe!er' e!en after psycholo)ical screenin)' male )uards are a(out C, times more likely to assault femaleinmates than female ones would (e. Thus' the statute is still su(stantially related to the achie!ement of animportant state interest' as discussed in Q1 a(o!e.

4$ Affirmati#e action for African,American prison %uards >B points;$

Affirmati!e action pro)rams are su(ect to strict scrutiny under current doctrine. They therefore must (enarrowly tailored to the ad!ancement of a compellin) state interest. 3n Croson and Adarand ' the /upreme ourtheld that remedyin) “societal” discrimination was not a compellin) state interest. &ere' howe!er' the

discrimination in question is that of the state a)ency 7the 2ir)inia prison system9 undertakin) the affirmati!eaction pro)ram. This could potentially (e a compellin) state interest. &owe!er' since the discrimination endedsome , years a)o' some proof would ha!e to (e presented that the current disproportion (etween African$American*s percenta)e of the state population and their share of prison )uard o(s was caused at least in lar)e part (y the earlier discriminatory policies. 5educin) !iolence in prisons could well (e a compellin) interest' (utthere would ha!e to (e stron) proof that it would really (e achie!ed (y hirin) more (lack )uards. ?inally'increasin) the num(er of role models for African$American inmates is unlikely to (e a compellin) state interest.





treatment. To (e sure' the pro(lem mi)ht (e resol!ed short of Thomas* death (y means of her )ettin) the painkillers she is askin) for. &owe!er' as far as 3 can remem(er' none of those people who missed this issue proposed that as a solution.

$ -i%ht to tra#el > points;$

As the !ast maority of you reco)ni%ed' the state*s refusal to )i!e Thomas painkillers on the )round that she hadnot li!ed in 2ir)inia lon) enou)h is similar to the conditionin) of welfare (enefits on duration of residency inSha!iro v. 2hom!son. This is for(idden under the ourt*s “ri)ht to tra!el” urisprudence.

$ 2ather notification >4 points;$

3n Casey< the ourt struck down a hus(and notification requirement as an “undue (urden” on the ri)ht toa(ortion. &ere' there is a requirement that any father (e notified' e!en if he and the pre)nant woman are notmarried. >oreo!er' unlike the statute in Casey< this law does not contain any e#ceptions for situations of a(useor any other risks. 3t also contains no e#emptions for protectin) the life or health of the mother.

1F$ 6iability >1 point;$

@ecause Thomas is in the 6th month of pre)nancy' the fetus is likely to (e !ia(le. Therefore the state has amuch stron)er interest in protectin) fetal life. &owe!er' due to the sweepin) nature of the father notificationstatute 7see a(o!e9' it is still likely to (e struck down. 3n particular' the lack of an e#ception for protectin) thelife and health of the mother )oes a)ainst the ourt*s decision in Stenberg v. Carhart< which o!erruled a (an onlate$term “partial (irth” a(ortions.

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