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Law Outlines Constitutional Law: Fourteenth Amendment, Separation of Powers Outlines

Equal Protection Outline

Updated Equal Protection Notes

Constitutional Law: Fourteenth Amendment, Separation of Powers Outlines

Constitutional Law: Fourteenth Amendment, Separation of Powers

Approximately 49 pages

Extensive detailed outline for Harvard Law class on Constitutional Law: Fourteenth Amendment, Separation of Powers....

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I: Equal Protection: Minimum Basis Review

Question: Classification justified by a permissible purpose.

Tiers of Scrutiny

  1. Rational basis: Rational relationship to a legitimate government interest. Challenger has burden of proving.

    1. Very deferential.

    2. Classifications: Sex-orientation [?], Age, Disability, Wealth.

  2. Intermediate Scrutiny: Substantial relationship to an important government purpose. Government burden of proof.

    1. Classifications: Gender, illegitimacy, sex-orientation [?]

  3. Strict Scrutiny: narrowly tailored to achieve a compelling government purpose

    1. Classifications: Race, National Origin.

    2. “Strict in theory, fatal in fact”

[also used for fundamental rights]

What determines why heighted scrutiny?

3 Traditional Criteria:

  1. Immutable characteristic

  2. Historical Discrimination

  3. Powerless to protect self via political process.

New York City Transit Authority v. Beazer (1978)

  • Not hiring an employee who uses methadone. Safety & efficiency

  • Fn. 9: Policy is overinclusive, but still has rational relationship.

  • Stevens Majority: Methadone users not a politically unpopular group

  • White Dissents: Might need protection from judiciary

    • Fn. 15: Moreno, Cleburne

II: Equal Protection: Race

Dred Scott (1857)

  • Birth of 14A in response to this.

  • Why didn’t Taney stop on the jurisdiction question?

  • Taney on Judicial Role:

    • Not to evaluate merits of this opinions

    • Decision up to law-making political process.

    • Bifurcation of Justice and Constitutional Interpretation

  • Dicta: Missouri compromise was beyond

  • Second federal invalidation of a federal law after Dred Scott.

  • PROF: What’s wrong with Dred Scott

    • Should have stopped before Diversity claim?

    • Abdication of Morality and Justice and Personal responsibility

    • Scape-goating Taney for being a product of his time?

Frederick Douglas Speech

Plessy v. Ferguson (1896)

  • Applying effectively rational basis to race

  • Statute: Separate but equal train cars; but allows nurses of the “other race”

    • Facially neutral

  • Separate but equal reasonable for race

  • Harlan Dissent:

    • Expressive function of law; can shape social values and inferiority

    • But still slightly racist: White as dominant and continue to be… Chinaman…

    • Two theories:

      • Anti-classification: Colorblind. Harm to race is when any classification is made. Draw no lines on the basis of race

        • No one believes this in its entirety; can’t send a white cop undercover into a black gang. So, what kind of racial divisions acceptable?

      • anti-subordination: No superior, dominant race or ruling class. [AA permissible]

    • Rights:

      • Civil: File a law suit, make a contract

      • Political: Right ot vote, run for office

      • Social: Peer-to-peer; marriage, etc.

    • Harlan says ride train is a civil right; Majority says it's a social right.

      • Both agree Social Rights not have to be equal


  • Three flavors

    • Framer’s original intent [Meese]

    • Ratifier’s original understanding

    • Original public meaning/Original Expected Application

      • More Modern.

      • less subjective, more about common usage.

  • Scalia the most important justice of last generation.

    • Flexibility in statehouses, not courthouses.

    • “Living constitution” flexibility is undesirable.

  • Role of Precedent?

    • There are sancrosanct opinions. Scalia, “I’m an originalist, not a nut”

  • Originalism adopted by the Left:

    • Balkin’s “Living Originalism” – “majestic generalities” not “specificities.”

    • Founders not always specific, so delegating to future generations.

  • (See 10/16 lecture for more on Originalism & Liberals)

  • Takeaway: Originalism can be broad or narrow

DC v. Heller (2008)

  • Flowering of originalism. Fought exclusively on originalist terms.

  • Prohibition on handguns in DC unconstitutional.

  • Scalia: Identify operative clause. Some handgun regulations permissible – certain times, places, people.

    • PROF: Is Court’s opinion actually a living constitutionalism one?

  • Stevens dissent: Why is that allowed but not this?

Path to Brown

  • Cumming (1899): Black taxpayers challenging money for their white high school. Black HS closed.

    • Harlan: Wrong kind of remedy requested.

    • [What is the right remedy for EP? Leveling up or down?]

    • Here, plaintiff asked for leveling down (Close the white HS), should’ve asked to reopen the black school.

    • Rare to level down (But see swimming pool case)

  • McCabe v. Atchinson (1914): Sleeper cars on train. Must provide same kinds of facilities if going to be separate.

    • Emphasis on equal accommodations.

  • Gaines v. Canada (1938): Can’t have all white law school without a black law school. Paying for a different state’s tuition not sufficient.

  • Sweatt v. Painter (1950): Law school required to integrate.

    • Schools in Texas NOT equal.

    • Intangibles: Faculty, prestige, alumni, standing in community

    • Can’t match reputation and faculty – inherently unequal.

    • [Plaintiff chosen carefully: Already married, so no suggestion that he’s looking for a white wife…]

  • McLaurin v. Oklahoma (1950): Public School of education can’t restrict Doctorate student (separate cafeteria table, sit outside the classroom)

Common Law Constitutionalism

  • David Strauss: How legal change occurs

  • Court articulates a rule and attempts to apply it, but rule is not satisfactory. Evolves over time, as judges slowly hollow out the rule.

  • PROF:

    • Too anemic a conception of what justices are doing.

    • More aware of what they are doing.

    • Plessy (rational basis) -> By Buchanan, no longer doing reasonableness.

    • Not unconscious, but decisive decisions

Buchanan v. Warley (1917)

  • Residential segregation order impermissible.

  • Viewed as a break in tradition even immediately after the case.

    • Property rights issue not explain everything.

    • How is this not social rights, not civil rights, at play?

    • Trying to distinguish Plessy

Brown v. Board of Education (1954)

  • Common law constitutionalism process of interpretation?

    • Separate but equal been tried and failed

    • PROF: This would be precedent-centric. Not true here!

  • Warren: not an originalist, originalism is inconclusive.

  • Times have...

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