Equal Protection under the 14th Amendment The EP clause of the 14th Amend says that no state shall

make or enforce any law which shalldeny to any personthe equal protection of the laws. This clause was enacted shortly after the i!il "ar in order to ensure that e#$sla!es were treated equally as other citi%ens. &owe!er' its (road lan)ua)e has (een interpreted as )enerally restrainin) or placin) limits on )o!ernment*s use of classifications in other areas' such as )ender' nationality' etc. "hile the EP clause does not e#pressly limit the federal )o!ernment' the +P clause of the ,th Amend has (een interpreted to place the same restrictions on the federal )o!ernment as the EP clause places on the states. -ne of the difficulties in interpretin) the EP clause is that while it places restrictions on )o!ernment use of classification' all laws necessarily classify )roups of indi!iduals in order to create incenti!es and disincenti!es in society. Therefore' identifyin) whether a class is to (e protected and the le!el of scrutiny the courts should apply when .ud)in) the necessity of a particular classification is crucial. History of Equal Protection Strauder v. West' decided (y the / in 1001' was one of the first / decisions made a(out EP under the 14th Amendment. /trauder' a (lack man con!icted of murder (y an all$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 14th Amend. The / held that e#clusion of (lacks from .uries for no reason other than race was a !iolation of the EP clause (ecause the 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 1004' 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 1004' the / addressed the constitutionality of the i!il 5i)hts Act of 106,. 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 were licensed under the laws of the state and were therefore su(.ect to EP under the 14th Amend.9 3n Plessy v. Ferguson' decided 14 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 doctrine was 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 the 14th Amend. The / held that an ordinance that interfered with a (lack*s a(ility to e#ercise his property ri)hts was unconstitutional under the +P clause of the 14th 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 was therefore 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 courts 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 ;$1 that de jure 7deli(erate9 racial se)re)ation of pu(lic schools was inherently unequal and was therefore prohi(ited under the 14th Amend EP clause. E!en if the schools were su(stantially equal in tan)i(le factors' the / reasoned that se)re)ation intan)i(ly affected a child*s moti!ation to learn. Therefore' the / held that the separate but equal education was 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 facilities were equal. /ome people ha!e criticized the lo)ic in Brown sayin) that it misinterpreted the 14th Amend. (=c the i!il 5i)hts Act of 106, did not (an se)re)ated schools and the 14th Amendment was meant to )enerali%e the requirements of this Act. >oreo!er' others ha!e said that the ourt*s discussion of social science data and the feelin)s of inferiority and other psycholo)ical harms of se)re)ation were unnecessary and unsound as a le)al analysis. ?or e#ample' in Korematsu v. S' the / wrote that the criteria for e!aluatin) the constitutionality of racial classifications do not depend upon findin)s of psychic harm or social science e!idence. 5ather' the / stated that distinctions amon) citi%ens (ased solely on ancestry are (y their !ery nature odious to a free peoplefounded 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 the earliest possi(le date with the need for a systematic and orderly remo!al of the o(stacles pre!entin) full inte)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 / held that 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 the 1;A1s. Therefore' there were questions a(out what types of remedies courts could use to enforce dese)re)ation when 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 correct se)re)ation' statin) that awareness of racial composition was useful information (ut in shapin) a remedy only limited use of mathematical ratios is allowed. Therefore' each school did not need to reflect the racial composition of the entire school system.

/imilarly' in Keyes v. School 'istrict (o.)' decided in 1;64' the / held that a findin) that school authorities had intentionally se)re)ated a su(stantial portion of the district' there was a presumption that the entire school district was (ein) operated in a se)re)ated way. The !e%innin% of Hei%htened Scrutiny 3n S v. Carolene Products' decided in 1;40' 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!iew mi)ht apply to statutes directed at !articular religious or national or racial minorities. >oreo!er' he ar)ued that stricter re!iew may (e needed for discrete and insular minorities* (ecause they tend to (e so disfa!ored that 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 home in !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$(ased classifications were immediately suspect and su(.ect to a hi)her le!el of scrutiny. This was the first case that defined this concept of heightened scrutiny and that only a narrowly tailored )o!ernment interest can withstand the scrutiny. 3n this case' the war created this e#ception whereas )eneral racial (ias would not. 3n +oving v. ,irginia' decided in 1;A6' a couple married in + returned to 2A where they were con!icted under a statute (annin) interracial marria)e. +espite equal penalties to (oth the (lack and white !iolators' the / o!erturned the con!iction sayin) that marria)e was one of the (asic ci!il ri)hts of man and that to deny the fundamental ri)ht was a !iolation of EP under the 14th Amend. 3t held that the purpose of the 14th Amendment was to eliminate all )o!ernment use of invidious racial discrimination. >oreo!er' it held that racial classifications are su(.ected to the most rigid scrutiny that are not permissi(le unless they are necessary to achie!e a compelling government objective. This decision has (een critici%ed (ecause' .ust like Pace v. Alabama' a literal interpretation of the lan)ua)e su))ests that as lon) as similarly situated people are treated similarly' a law is not unconstitutional. "hile it is possi(le that this statute mi)ht ha!e e!en failed the rational (asis test (ecause the state*s discriminatory purpose 7(enefitin) the white race9 was not a le)itimate state purpose' this was not the / *s lo)ic. Disparate mpact #s$ Discriminatory ntent -ic$ Wo v. .o!$ins& decided in 100A' was the first case in which the / held that a race-neutral law administered that had a disparate impact on racial minorities was a !iolation of the EP clause. 3n -ic$ Wo' a city ordinance placed restrictions on operatin) laundry (usinesses in wooden (uildin)s without a permit. E!ery sin)le hinese$owned laundromat was denied a permit while only one non$ hinese owned (usiness was denied a 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 a le)itimate )o!*t purpose do not !iolate EP .ust (ecause they ha!e a discriminatory impact. 3n Washington v. 'avis' decided in 1;6A' 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 C9 is 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$income tenants in Arlin)ton &ei)hts 7+9. P*s request to re%one the area met with pu(lic criticism from residents concerned a(out ha!in) more (lacks in Arlin)ton &ei)hts and !arious economic impacts. The application was denied and P sued sayin) the decision represented racial discrimination. The / held that there was little e!idence that + was moti!ated (y a discriminatory purpose (=c the area had (een %oned for sin)le$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 (latant such that the facts imply the racismE' C9 3f not' is there e!idence of racial moti!eE' 49 3f there is' would the le)islature ha!e done the same thin) anywayE 3n #cCles$y v. Kem!' decided in 1;06' a (lack man con!icted of murderin) a white man pro!ided statistical studies showin) that a (lack killin) a white was si)nificantly more likely to )et the death penalty. &e ar)ued that this disparate impact under a race$neutral death penalty law was a !iolation of his EP. The / held that since sentencin) requires consideration of many factors specific to the case' an inference of discrimination in his case could not (e pro!en (y general statistics. The statistics were not enou)h to show that the law was applied 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 equal opportunities' 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!e leeway 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)ainst minority )roups (y pro!idin) special considerations compared with the rest of society. These special considerations may include access to .o(s' promotions or admission to uni!ersities. /ome ar)ue that this is merely 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 less qualified 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 (e strictly scrutinized' re)ardless of which race is (urdened or (enefited (y the classification. 3n Croson' 5ichmond required prime contractors to set aside 41G of their su(contracts to minority (usiness enterprises.

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 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 less than 1G of prime contracts despite representin) a(out ,1G 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%e associated administrative burdens of mana)in) these plans. The rule that all racial classifications must (e narrowly tailored to further compelling state interests was e#tended to the ?ederal Ho!ernment in Adarand Constr. v. Pena. 3n Pena' the </ +-T awarded a (id to a su(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 that strict scrutiny applies to all race$(ased actions and that the )o!*t can only attempt to redress past discrimination in ways that are narrowly tailored. People ha!e critici%ed this decision ar)uin) that on)ress is different from state le)islatures (ecause it is less likely to (e influenced (y local pre.udices. &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 this ar)ument. Affirmati#e Action in Schools 3n /rutter v. Bollinger' decided in C114' 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)ally use race as one of many factors in their admissions process. A quota' or other mechanical formula was not considered to (e narrowly tailored to the compellin) interest of maintainin) a di!erse educational system. The main 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' an under)raduate needed 111 points to (e )uaranteed admission. There was a C1$point (onus for (lacks' &ispanics and nati!e Americans. The / (asically deemed the policy a quota system <ni!ersity of >ichi)an*s pointbased 3n 1ohnson v. Cali%ornia' decided in C11,' the / stated that racial classifications recei!e close scrutiny e!en when 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 this classification 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 ma.ority' non-invidious racial classifications aimed at hel!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 (y the )o!ernment' C9 that it is condescendin) and demeanin) (y sayin) that minorities aren*t capa(le of earnin) opportunities on their own merits' 49 cultural differences re)ardin) the importance of education cannot (e remedied (y affirmati!e action' 49 (iolo)ical differences (etween races may e#ist that impact intelli)ence that cannot (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' A9 it reduces the incenti!es of (oth )roups to perform optimally 7qualified minorities can slack off and (orderline ma.ority candidates will think the hard work won*t (e fruitful9' 69 it (reeds resentment (etween the ma.ority 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 that di!ersity impro!es the quality of society' C9 the cultural or (iolo)ical differences are not accurate' and are downplayin) the lar)e impact a lon)$term' sustained oppression of a minority can ha!e on its future )enerations opportunities' 49 they (elie!e that )ettin) rid of affirmati!e action will make the economic di!ide (etween whites 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. 3t held that an 3daho law preferrin) male relati!es in its rules of sur!i!orship !iolated EP. "hile the o(.ecti!e of reducin) the workload of the lower courts was le)itimate' the means used to achie!e that o(.ecti!e were found to (e arbitrary and unconstitutional under EP clause. 3n Frontiero v. Richardson' decided in 1;64' a woman in the Air ?orce sou)ht to claim her hus(and as a dependent 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 for o!er I their support. The court held that classifications based on sex are included amon) those that are inherently 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 govt interest. 3n Craig v. Boren' the / further clarified the standard of re!iew for )ender classifications into what is currently known as Intermediate Scrutiny. A state statute that prohi(ited the sale of (eer to men under the a)e of C1 and to females under 10 was struck down. The ourt held that a gender-based classification must ha!e a substantial 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 that the statistical evidence offered (y the state that men (etween 10 and C1 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 (e manipulated' 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 (etween rational basis and intermediate scrutiny' is that the / looks to the actual purpose of the le)islature rather than simply 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 addressed disparate 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)ainst women' was not unconstitutional (ecause the le)islati!e purpose was not invidious. 3n Personnel' a female who 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$(ased9E' and C9 3f so' does the ad!erse effect on the )roup reflect invidious purposeful discrimination. /ince the statute (enefitin) 2eterans was created in spite of its effect on women rather than (ecause of its effect' it is constitutional. 3n S v. ,irginia' the </ ar)ued that a military colle)e*s policy of only admittin) men was unconstitutional under the EP clause. The / held that pu(lic military schools cannot e#clude women' e!en if they offer separate women$only pro)rams unless there is an exceedingly persuasive justification. ,irginia reaffirms the standard of re!iew for )ender classifications requirin) they (e substantially related to important govt 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 to the .ud)ement of the TA. 0entally -etarded' 3n City o% Cleburne v. Cleburne +iving Center' a city ordinance made it harder for )roup homes for the mentally retarded to )et %onin) permission than other )roup li!in) arran)ements. The / held that mental retardation is not a suspect class. 3n e#plainin) why the mentally retarded should not (e deemed a quasi-suspect class' the / ar)ued that the le)islature needs fle#i(ility to address the unique pro(lems of the mentally 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. Homose1uality' 3n Romer v. &vans' decided in 1;;A' the / failed to e#tend hei)htened scrutiny to homose#uals applyin) somewhat questiona(le lo)ic. &ere' - passed a law that prohi(ited the enforcement of any 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 the law may (e le)itimate. Hi!en that the law classified homose#uals specifically to make them unequal under the law' the / held that this was not a le)itimate )o!*t interest. 3n Scalias dissent' he reco)ni%ed that the / has

held that laws that criminali%e homose#uality are not a crime. Bowers v. .ardic$. >oreo!er' he ar)ues the law merely makes it impossi(le for homose#uals to o(tain !re%erential treatment under the law. Therefore' if it is rational to criminali%e conduct it should (e rational to deny special protections. Aliens' 3n Sugarman v. 'ougall 3)4567' an alien sued o!er a BJ statute that e#cluded aliens from ci!il ser!ice positions. The / held that classifications (ased on alienage are su(.ect to hei)htened scrutiny. "hile states ha!e an interest in limitin) )o!*t positions to those typically considered part of the political community' the BJ law was not narrowly tailored in its application. The / did not hold that an alien could not (e refused employment (ased on non$citi%enship' if there was a le)itimate state interest that related to the qualifications of the particular position. 5ather' it simply prohi(ited a flat ban on the employment of aliens that had little relation to any le)itimate state interest. Therefore' this is a fairly narrow decision that prohi(its general bans rather than more narrow bans. (ealth' p611$1,. 3n the 1;,1s and A1s' 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 (e necessary 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 to appeal criminal con!ictions. 3n many ways' the poor seem to (e a discrete and insular minority. They are suscepti(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 way that 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 deemed constitutional under the +P clause depends on whether the nature of the interest is 19 economic or social' or C9 fundamental person ri)hts. Economic -e%ulations 3n the first part of the C1th century' the / re!iewed the su(stance of le)islation and used the +P clause to in!alidate economic and social re)ulations. The (asic rationale was that the le)islation unreasona(ly interfered with li(erty' property and freedom of contract. &owe!er' these were made (y the personal .ud)ments of the 8ustices 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 work interfered with their freedom to contract and was therefore a !iolation of +P under the 14th Amend. The / (asically felt they had an o(li)ation to protect the free$market system (y readin) +P as a (road protection of li(erty' includin) the freedom to F and other fundamental ri)hts. Therefore' in the +ochner era' +P was (roadly interpreted to protect economic interests as well as non$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 social re)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 a statute prohi(itin) the interstate shipment of skimmed milk that had (een com(ined with certain oils. The effect of this was that pu(lic health and safety measures (ecame effecti!ely immune from a )eneral +ue Process attack. 3n West Coast .otel Co. v. Parrish 71;469' 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 creation of 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 a result' the / has not struck down any economic re)ulation (y state le)islation as a !iolation of su(stanti!e due process since 1;46. 2undamental -i%hts <nder a theory of su(stanti!e +P' the / has protected a person*s fundamental rights that are implicit in ordered liberty. "hile it is sometimes difficult to identify these ri)hts' some include the ri)ht to refuse medical treatment' 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 a compelling interest. Therefore' if the )o!ernment action is o!er$inclusi!e or under$inclusi!e' the rule is typically not considered to (e narrowly tailored. >oreo!er' e!en if the action is not under or o!er$inclusi!e' to (e narrowly tailored there must not (e a less restricti!e means of achie!in) the same end that is equally effecti!e. Parental nterests #eyer and Pierce' are considered to (e the first cases where the / used su(stanti!e due process to protect ci!il li(erties. 3n Pierce' the / e!en allowed the 14th Amend to apply to corporations' rather than .ust indi!iduals. -!er the ne#t half century' a (roadened list of li(erties and ri)hts (ecame protected includin) the ri)ht to marry' the ri)ht to pri!acy' etc. 3n #eyer v. (ebras$a 71;C49' 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 (y the +P clause of the 14th Amendment includes protection for the ri)ht to acquire useful knowled)e and the ri)ht for parents to en)a)e a teacher to instruct their children. The li(erty protected cannot (e interfered with (y le)islati!e action that is arbitrary and lacks a reasonable relation to a state purpose. The American people ha!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 real worry of assimilation and that teachin) lan)ua)e would impede this assimilation. >oreo!er' the / does not draw 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 the ompulsory Education Act that required all normal children from 0$1A to attend pu(lic schools. The / held that 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 were corporations' 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 is too (road' it mi)ht ha!e the practical effect of simply forcin) pri!ate schools to ha!e the e#act same curriculum as pu(lic schools. To what e#tent should the state ha!e a free hand to determine how to approach di!ersity and homo)eneity and to what e#tent are these the ri)hts of the parentsE 3n 2ro;el v. /ranville 7C1119' )randparents were requestin) the ri)ht to !isit their )randchildren a)ainst the will of 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 of marria)e and (earin) and raisin) children ha!e (een considered so fundamental to society that they ha!e (een afforded protection. /ome consider them to (e protected under the ;th Amendment which states that e!en thou)h the constitution enumerates some ri)hts' this should not (e construed to deny or dispara)e others retained (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;A,' 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 ma.ority wrote that while the @ill of 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 the state 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)islation is narrowly tailored. 3n &isenstadt v. Baird& the / struck down a >A statute' holdin) that sin)le people ha!e the ri)ht to possess contracepti!es on the same (asis as married couples. Therefore' the ourt e#tended the pri!acy ri)ht created under /riswold to any procreati!e se#ual acti!ity. This re.ected the common law !iew that se#ual partners had no le)ally enforcea(le ri)hts without a marria)e contract.

Pri#acy' Abortion 3n Roe v. Wade' decided in 1;64' the / esta(lished that most laws a)ainst a(ortion !iolate the constitutional ri)ht to pri!acy. 3n Roe' an unmarried and pre)nant P wanted to pre!ent enforcement of a TK criminal a(ortion statute. 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 49 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 the ri)ht to pri!acy protected under the 14th Amendment +P clause is (road enou)h to include a(ortion. The / held that the states 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 states interest in the health of the mother (ecomes compellin) at appro#imately the end of the first trimester. -nly after this point can the state re)ulate the a(ortion procedure to preser!e maternal health. >oreo!er' the states interest in potential life only (ecomes compellin) at viability. Therefore' a state interested in protectin) fetal life after !ia(ility may proscri(e a(ortion e#cept when necessary to preser!e the life or health of the mother. 3n 5ehnquist*s dissent' he ar)ues that 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 the word. &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 14th Amendment. -pposition to 5oe typically comes from those who !iewed the ourt*s decision as ille)itimate (ecause it strayed too far from the te#t of the onstitution. -thers simply (elie!e that a fetus is a person and should therefore ha!e the same ri)hts. /upport for 5oe comes from those who (elie!e the decision was necessary to maintain 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 an a(ortion. 3t held that stare decisis should (e adhered to (ecause 19 5oe had not pro!en unworka(leL C9 5oe caused reliance (y people' who or)ani%ed relationships (ased in reliance on the a!aila(ility of a(ortion' 49 no new constitutional law de!elopment has made 5oe outdated' 49 while technolo)ical ad!ances ha!e made the time 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) an a(ortion a)ainst the /tate*s interest in the life of the fetus. 3t lowered the standard for analy%in) restrictions of that ri)ht from a strict scrutiny framework to an undue burden test. <nder the undue (urden test' a statute would (e struck down if it had the purpose or effect of placin) a su(stantial o(stacle in the path of a woman seekin) 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 with information a(out the health risks and possi(le complications of an a(ortionL C9 the spousal notification rule that required women to )i!e prior notice to their hus(andsL 49 the parental consent rule requirin) minors to recei!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. 3t upheld the C4$hour waitin) period' informed consent' and parental notification requirements' holdin) that none of them constituted an undue (urden. 3n their dissent' 5ehnquist and /calia ar)ue that 5oe was wron)ly decided and should (e o!erruled. 5ehnquist ar)ues that the ourt is re.ectin) 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 re.ects the trimester framework. &e ar)ues that no portion of Roe need to (e left intact. &e ar)ues that the pluralities ar)ument on stare decisis is (ased on the nation*s psyche and the fact that Roe was so intensely di!isi!e. &e ar)ues that under this principle' once the ourt has ruled on a di!isi!e issue' it is pre!ented from o!errulin) that decision e!en if it was incorrect. &e ar)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 ma.ority 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 (ecause of the intensi!ely di!isi!e nature of the case and the fear that the pu(lic would lose confidence in the le)itimacy of the ourt. This lo)ic has no place in a strictly constitutional analysis of su(stanti!e due process. Scalia was correct in his dissent when he ar)ued that the idea the ourt would decide a case differently in order to show that it can stand firm a)ainst pu(lic disappro!al is fri)htenin). >oreo!er' Scalia is correct in notin) that the undue burden test is as dou(tful in application as it is unprincipled in ori)in and would allow district .ud)es to apply their own personal preferences a(out a(ortion. 3n Stenberg v. Carhart' decided in C111' 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 law holdin) that statutes criminali%in) partial (irth a(ortions !iolated the </ onstitution. The law prohi(ited any form 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$aspiration where a !acuum was inserted in the uterus' +ME where the cer!i# was dilated and the fetus is remo!ed without a !acuum' and +MK which' rather than killin) it in the uterus' e#tracts part of the fetus first (efore killin) it. arhart preferred the +MK procedure (ecause he (elie!ed it to (e safer and in!ol!e fewer risks to the woman (y reducin) the num(er of instruments used and reducin) the risk that harmful fetal tissue would (e left in the uterus. The ourt held the law unconstitutional for two reasonsD 19 it lac"s any exception for the preservation of the mothers health' as required (y Planned Parenthood' and C9 the statutes language is too broad. 3f Be(raska only intended to (an +MK a(ortions' the lan)ua)e is too (road which would cause doctors usin) other methods to fear prosecution. ritics ar)ue that this case shows the unworka(ility of the undue (urden standard adopted in Casey. Each .ud)e or 8ustice can apply this standard in a different way. Each of them decides whether they (elie!e the (urden imposed (y the statute is undue. This creates an inherent !alue .ud)ment' as Scalia noted in his dissent' in an area the ourt does not ha!e sufficient knowled)e to make adequate decisions. Homose1uality 3n Bowers v. .ardwic$' decided in 1;0A' 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 7C1149' 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 to en)a)e in consensual' same$se# sodomy was deeply rooted in this #ations history and tradition$ 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 7C1149' 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!e due 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 ma.orities approach to stare decisis stated that an erroneous decision 7Bowers9 should (e o!erruled if its foundation has (een eroded (y su(sequent decisions and there is a su(stantial and continuin) criticism of the decision' and there has (een no societal reliance on the decision. <nder that description' 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) state interest. &owe!er' the ma.ority 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 (een critici%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 the decision rather than sound le)al support. The -i%ht to Die 3n Cru0an v. 'irector< #issouri 'e!t. o% .ealth 71;;19' in a ,$4 decision' the / held that incompetent people are not a(le to e#ercise the ri)ht to refuse medical treatment under the +P clause. 3n Cru0an' P )ot in a car accident and was (rou)ht to the hospital in an unconscious state. /he remained in a coma in an unconscious' !e)etati!e state. &er parents asked the hospital to terminate the artificial nutrition and hydration procedures and the hospital refused without court appro!al. The / held that a person does have a right to refuse medical treatment' and that a state can require those that want to cease the medical treatment to provide %clear and convincing evidence$ of that persons similar intent (efore permittin) the action. The </ constitution does not for(id the creation of this procedural requirement' particularly )i!en the finality of the decision. The +P clause 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 the quality of life a particular indi!idual may en.oy. 3n Scalia=s concurrence' he ar)ued that the court should ha!e admitted 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 in committin) suicide. P was in a terminal phase of a painful illness and ar)ued that the "A statute denied him li(erty without +P (ecause he was una(le to recei!e assistance in terminatin) his life. &e requested the law (e rewritten to require two qualified physicians to confirm the patient*s dia)nosis and competence' and to require the patient make repeated requests o!er a specified period of time while imposin) criminal penalties for coercion. The ma.ority refused to acknowled)e this fundamental ri)ht ar)uin) that almost e!ery state (ans suicide and that punishment for suicide has (een deeply rooted in the Bation*s history. Therefore' the ri)ht to commit 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 in society' 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 residence requirements that would impair this ri)ht must (e .ustified (y a compelling state interest' at least where they affect the citi%en*s ri)ht to recei!e some !ital )o!ernment (enefit or ser!ice. 3n Crandall v. (evada 710A09' 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 that e!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# a citi%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;A;9' Ps were denied welfare (enefits solely (ecause they had not (een residents of T for a full year prior to their applications. + ar)ued that the waitin) period should (e permissi(le (ecause it 19 protects the fiscal inte)rity of state pu(lic assistance pro)rams' C9 a state should (e a(le to deter indi)ents who would enter the state .ust to )et hi)her (enefits' and 49 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(le burden on the right to travel. The ourt held that states may not withhold welfare benefits from short$term residents who ha!e contri(uted throu)h ta#es any more than they may restrict state ser!ices such as fire and police protection to lon)$term residents. Hi!en that the classification affects the fundamental constitutional ri)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 states create 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!ed in their state of ori)in. Apparently permitted (y on)ress' P challen)ed the constitutionality of the statute. The ourt 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 49 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 4rd element of the ri)ht to tra!el. The citizenship clause e#pressly equates citi%enship with residence and does not allow for degrees 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%en and the Ps had to stop tra!elin) in order to (ecome citi%ens of A. >oreo!er' the dissent ar)ued the ma.ority i)nored the state*s need to assure that only (ona$fide residents recei!e (enefits. >oreo!er' it ar)ued that states are allowed to impose residence requirements prior to )rantin) educational (enefits' the ri)ht to terminate marria)e' and the ri)ht to !ote in primary elections' and fails to see why welfare (enefits should (e any different.

ESSA3' TE4T/A5 S0 6S$ D+.T- 7A5 S0 The role of the /upreme ourt should (e to interpret the onstitution from a te#tualist perspecti!e first' and from a doctrinalist perspecti!e second. A te#tualist understandin) should attempt to understand e#actly what the American people meant when they ratified or amended the onstitution. The onstitution constitutes the supreme 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 of the te#t' and )eneral structure of the te#t in the surroundin) document. The .onstitution is Supreme The first ma.or reason that te#tualism is the most appropriate approach for onstitutional interpretation is that the 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 in the onstitution' is in conflict with a 8ustice*s opinion' they must yield to the people. Superma8oritarian The second ma.or ar)ument in fa!or of a te#tualist approach to constitutional interpretation is that the onstitution represents the superma.oritarian will of the people. Hi!en that it is the supreme law of the land and its influence far$reachin)' it is important that its te#t reflect careful' thorou)h deli(eration. The superma.oritarian process for modifications to the onstitution require the careful deli(eration of millions of people. 3t has checks and (alances that ensure the ratifyin) (odies are separate from the draftin) (odies. >oreo!er' there is e!idence from the )eneral acceptance that the current Amendments are )ood that this process works to effecti!ely represent the will of the people. These self$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!e only quick oral ar)uments prior to !otin)' and ha!e mea)er dialo)ue afterwards to hash out issues. Their opinions are drafted (y ine#perienced law clerks that lack e#pertise and face ma.or time constraints. 9udicial Abuse Another reason to promote a te#tualist understandin) of the onstitution is that it helps check a)ainst .udicial a(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 that lack .udicial humility. 8ustices may (e (iased towards )ainin) more .udicial power and a)ainst the le)itimate claims of power of the other two (ranches of )o!ernment. This is why all (ranches require pled)in) to the onstitution' the sin)le unifyin) focal point' rather than to prior le)al doctrine. >oreo!er' the ourt has historically (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 correctE +emocracy requires thou)htful deli(eration that leads to a sharp 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 to amend as is made clear (y the relati!ely few Amendments that ha!e (een ratified in C11 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(le to keep up' reformation of the le)islati!e (ody can take place in a way proscri(ed (y the people and in accordance with the onstitution. 3f the onstitution is too difficult to amend' makin) te#tualist interpretations outdated' the people can amend the constitution and reduce those (arriers to ensure the document e!ol!es in a more timely manner to the emer)in) trends of modern society. Therefore'

19 Pure te1tualism $ 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 (y them (y the people who enacted them as the supreme law of the land. "hat counts as te#tualist understandin) 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 history' and the )eneral structure. $ !enefits i. onstitution is a holistic document' one of themes. 7e.). separation of powers' checks and (alances9 ii. "ord patterns emer)e P lan)ua)e phrased similarly should (e interpreted similarly iii. Supreme la" P the constitution is supreme law' a(o!e and (eyond statutes enacted (y le)islatures. i!. .onstitution is :in% P .ud)es and officials must pled)e alle)iance to it. 3t is the supreme law (ecause the people made it so. 8ud)es and )o!ernment officials occupy a lower le!el than the people. /ince the people do not decide cases' this is the check to ensure that' in cases of conflict' the 8ustices yield to the People*s pronouncements. !. Amendments P te#tualism allows for e!olution throu)h amendments. +isenfranchisement of (lacks and women' etc. The whims of ; people on the ourt are less democratic than a self$imposed Amendment ratified (y millions of !oters. "hen we do succeed in amendin) the document' after e#tensi!e political con!ersation and mo(ili%ation' aren*t we entitled to insist it (e treated with the utmost respectE /houldn*t the 8ustices ha!e to heed the reasons of the People whene!er the issue came to the ourtE 1. t "or:s' e!ery amendment has made the onstitution (etter. This cannot (e said of e!ery / decision. !i. Deliberation P democracy requires deli(eration. +ecisionmakin) requires thou)htful discussion and sharp crystalli%ation of the issues. The )ap (etween the drafters

7 on)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 oral ar)uments' then they !ote. 49 mea)er dialo)ue afterwards' 49 law clerks ha!e no e#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 quite modest. a. In 1992, the majority in Planned Parenthood v. Casey 184 proclaimed
that "a decision to overrule should rest on some special reason over and above the belief that a prior case was wron ly decided." ! how can this be ri ht"

C. 5ife Tenure' uncertainty who will lea!e and win. 4. 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 written well 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 (iased towards .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 of women'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 and amended the onstitution. "e must look to the le)islati!e history to learn what were meant (y them (y the people who enacted them as the supreme law of the land. "hat counts as te#tualist understandin) 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 shalldeny to any personthe equal protection of the laws. This clause was enacted shortly after the i!il "ar in order to ensure that e#$sla!es were treated equally as other 7white9 citi%ens. &owe!er' its (road lan)ua)e has (een interpreted as )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 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!es and disincenti!es in society. Therefore' identifyin) whether a class is to (e protected and the le!el of scrutiny the 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 are una(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 14th Amendment was enacted in response to the )ross inequalities afforded (lacks compared to whites prior to and immediately followin) the i!il "ar. Therefore' the superma.oritarian will of the people clearly intended that racial minorities (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 cases dealin) with equal protection' Strauder v. West 710019' the / held that e#clusion of (lacks from .uries for no reason other than race was a !iolation of EP (ecause the 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. &owe!er' the / did not always interpret the clause in a way that fa!ored inte)ration of (lacks into the )eneral community. 3n Pace v. Alabama 3)>>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 710049' 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;A9' the / upheld the separate but equal doctrine' holdin) that ar(itrary separation (ased on race did not constitute a (ad)e of ser!itude. Therefore' despite the intention of the 14th Amendment EP clause that similarly situated people of all races (e treated 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 superma.ority post$ i!il "ar. Hi!en this (ackdrop' the / noted in a footnote 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 EP clause 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 application e!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 was e#panded in +oving v. ,irginia' where the ourt declared that it would apply ri)id scrutiny to racial classifications' 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 racially neutral 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 simple to in!ent some non$discriminatory purpose 7e.). economic .ustifications' etc.9 for race$neutral le)islation that has discriminatory impact' ourts should ha!e e!en more leeway to pre!ent equal outcomes to remedy these situations. 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 treated equally under the law. The prescient footnote to Carolene Products pa!ed the way for this )roup to o(tain hei)htened scrutiny. 3n the early 1;61s' the / (e)an to acknowled)e this need in!alidatin) its first state law discriminatin) on the (asis of )ender in Reed v. Reed 71;619 followed closely (y Frontiero v. Richardson 71;649. ?inally' in Craig v. Boren' the / clarified the standard of re!iew for )ender classifications into what is currently 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 the need to scrutini%e these classifications must (e (alanced a)ainst !alid state interests that may require these classifications. &owe!er' the Carolene Products claim that discrete and insular minorities are the only )roups that 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 ma.orities can also e#ist. ?or e#ample' as discussed in his :aw 5e!iew article' Bruce Ac$erman pro!ides a hypothetical e#ample of a (lack ma.ority 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 should recei!e a hi)her le!el of .udicial scrutiny would co!er this situation as well. /econd' it is under$inclusi!e (ecause it fails to reco)ni%e that in many cases' .ud)es should protect )roups that are the opposite of discrete and insular. Hroups that are discrete and insular )ain political ad!anta)e (y (ein) close to)ether ena(lin) them to form well$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$participation in the political lo((yin) process will (e more apparent and there will (e more pressure to participate. -n the other hand' in diffuse and anonymous )roups there are lar)er pro(lems of free$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 others9 means that they ha!e less incenti!e to push their political a)endas. &omose#uals are a perfect e#ample of a diffuse )roup whose indi!iduals can' if desired' remain anonymous. As a result' they are less likely to form influential lo((yin) )roups to ensure they are adequately protected (y the political process than discrete and insular )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 an appropriate le!el of democratic influence such that a .udicial check is necessary to ensure they are treated equally under the law. "hile pro!idin) protections for discrete and insular )roups like racial minorities' and discrete=diffuse )roups like )ender is a step in the ri)ht direction' it is not enou)h. The equal protection clause must also protect diffuse and anonymous )roups such as homose#uality with a hi)her le!el of .udicial scrutiny as well.

ESSA3' A22 -0AT 6E 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. These special 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 that effecti!ely e#cludes more qualified indi!iduals (ased on their race and !iolates the ma.orities EP under the law. -thers ar)ue that the country has a compellin) interest in remedyin) past discrimination and promotin) a di!erse culture that impro!es the quality of society. They would further ar)ue that since the EP clause was meant to protect minorities from (ein) treated worse than the ma.ority' non$in!idious racial classifications aimed at hel!ing minorities' includin) affirmati!e action' should not (e prohi(ited. The issue' then' is findin) the appropriate (alance (etween these competin) opinions as a )uide to determine when affirmati!e action is appropriate. The .orrect !alance "here!er this (alance lies' the startin) point is to ensure that when affirmati!e action is used' it is actually effecti!e in achie!in) its dual aim of remedyin) past discrimination and promotin) )eneral di!ersity. 3ts application must not (e o!er$inclusi!e such that it helps mem(ers of a minority )roup that may not need the help' 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 action must not (e used in ways where it reduces the incenti!es of the outperformin) ma.ority to perform optimally (y feelin) 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 must not (e applied in a way that (reeds resentment (etween the ma.ority that may (e outperformin) without the special treatment. Hi!en these concerns' affirmati!e action must (e strictly scrutini%ed to ensure that the means used are narrowly tailored 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)ram that 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 less than 1G of prime contracts despite representin) a(out ,1G 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%e associated administrative burdens of mana)in) these plans. This rule that all racial classifications must (e narrowly tailored to further compelling state interests was e#tended to the ?ederal Ho!ernment in Adarand Constr. v. Pena. 3n Pena' the </ +-T awarded a (id to a su(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 that strict scrutiny applies to all race$(ased actions and that the )o!*t can only attempt to redress past discrimination in ways that are narrowly tailored. "hile critics may ar)ue that on)ress is different from state le)islatures (ecause it is less likely to (e influenced (y local pre.udices' these two decisions represent )ood policy. 3n a (usiness conte#t' affirmati!e action is not typically a(out promotin) )eneral di!ersity for the (enefit of society. 3t is a(out remedyin) past discrimination. &owe!er' the ourt accurately reco)ni%es that pro!idin) special considerations to minority$ owned (usinesses is not narrowly tailored to achie!e this )oal. Therefore' the ourt was correct in holdin) that set$aside pro)rams for minorities are unconstitutional when there is no e!idence of discrimination. >oreo!er' it is not narrowly tailored (ecause .ust (ecause a (usiness is owned (y a mem(er of a minority class does not mean that the proceeds and (enefits of the company are )oin) to (enefit the minority )roup. A company made up of entirely white employees could simply hire a minority owner as a fi)urehead to (e a(le to take ad!anta)e of the special opportunities afforded to this special classification. Additionally' this strict scrutiny ensures that (usinesses are properly incented to perform optimally and does not (reed resentment that underperformin) companies will (e afforded (etter opportunities (ased on the race of its owners. Therefore' the / was ri)ht to strike down these statutes (ecause the purpose of affirmati!e action in a (usiness settin) is primarily to redress past discrimination' and affordin) minority$owned (usinesses special ad!anta)es is 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 which minority )roups were not afforded the same access to education as whites. /econd' it is used to promote a di!erse culture in the education system to (enefit society as a whole. 3n /rutter v. Bollinger' decided in C114' 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)ally use race as one of many factors in their admissions process. A quota' or other mechanical formula was not considered 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 111 points to (e )uaranteed admission. There was a C1$point (onus for (lacks' &ispanics and nati!e Americans. The / (asically deemed the policy a quota system. ritics of /rutter and /rat0 say that while the / claims to use a strict scrutiny analysis' it actually is not (ecause the desire for racial di!ersity is not a compellin) state interest. &owe!er' the EP clause is supposed to (e a .udicial check that ensures )roups that ha!e (een unconstitutionally depri!ed of an appropriate le!el of democratic influence are treated equally under the law. Therefore' it is for the 8ustices to decide' as part of this .udicial check' what is a compellin) state interest. >oreo!er' the /upreme ourt reached a )ood (alance in these decisions. Prohi(itin) quotas and other mechanical formulas is )ood (ecause those systems often suffer from the o!er$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$performin) indi!iduals in the ma.ority (ecause it is harder to find clear e#amples of re!erse discrimination. ?urthermore' (y upholdin) usin) racial classification as one of many factors in the admissions process' it pro!ides the schools an a!enue for pursuin) the )oal of creatin) a di!erse educational e#perience for its students. 3t also pro!ides some leeway to redress specific instances of discrimination where they are warranted. The Supreme .ourt *oes Too 2ar 3n 1ohnson v. Cali%ornia' decided in C11,' the / stated that racial classifications recei!e close scrutiny e!en when the classifications are meant to benefit the races equally. &ere' a prison used race to determine which prisoners to pair up in cells due to ma.or pro(lems with racially$(ased' )an)$related !iolence. The / held that the standard of re!iew should (e strict scrutiny and that this classification was immediately suspect' e!en if it was intended to (enefit (oth of the races. Althou)h the / remanded the case (ack to the lower courts' it is likely that their decision will force alifornia to alter its practice of se)re)atin) (y race. 3n situations where the racial$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$(ased classifications used in affirmati!e action (enefit one race at the e#pense of another' they should (e strictly scrutini%ed and narrowly tailored towards the compellin) )oals of promotin) di!ersity in society and redressin) past discrimination. "hen race$(ased classifications (enefit (oth races equally' the / should use a lower le!el of .udicial scrutiny.

Smith=s se1 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!ention of !iolent crime a)ainst prisoners is clearly an important state interest. /o the issue of constitutionality comes down 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 11$1, times more likely to en)a)e in drunk dri!in) than women of similar a)e. &owe!er' there are three key differences (etween the 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 always leads to death or in.ury9. /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) 4.CG (eer9. Third' the prison en!ironment is one where se# se)re)ation has lon) (een used to protect pri!acy and minimi%e !iolence. The rule of hirin) only female )uards mi)ht potentially (e .ustified on the same )rounds as that of se)re)atin) female inmates from male ones. @$ Smith=s se1 discrimination la"suit , Administrati#e con#enience >A points;$

The state*s ar)ument that psycholo)ical screenin) of )uards 7which studies indicate would reduce the incidence of male )uard !iolence si)nificantly9 should not (e required (ecause too costly would (e re.ected (y courts. <nder Reed and Frontiero' administrati!e con!enience is not enou)h to .ustify se# discrimination. A$ Smith=s se1 discrimination la"suit , final resolution$

&owe!er' e!en after psycholo)ical screenin)' male )uards are a(out C, times more likely to assault female inmates than female ones would (e. Thus' the statute is still su(stantially related to the achie!ement of an important 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 (e narrowly tailored to the ad!ancement of a compellin) state interest. 3n Croson and Adarand' the /upreme ourt held 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!e action pro)ram. This could potentially (e a compellin) state interest. &owe!er' since the discrimination ended some 4, 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' (ut there 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.

/uperficially' this seems like the di!ersity interest upheld in /rutter< (ut /rutter is specifically limited to the hi)her education settin). E!en if there is a compellin) interest here' the pro)ram is definitely not narrowly tailored. The 11G tar)et is a thinly !eiled quota' which is for(idden in Croson' amon) other cases. 3n addition' the a(solute preference for African$American applicants who score a(o!e a minimum score on the PHET is a much more (latant preference than the C1 point (onus for (lacks and &ispanics in!alidated in /rat0. ?$ The P*ET A$ &avis issue >A points;$ The ourt held in Washington v. 'avis that the mere fact that a facially neutral qualification test has a hi)hly disparate impact on one racial )roup does not create an equal protection !iolation. Therefore' the hi)h proportion of African$American applicants failin) the PHET cannot in itself in!alidate the use of the test. The fact that the PHET (ears little or no relation to performance as a prison )uard does not chan)e the result. :ittle relationship is still enou)h to pass the rational (asis test that would apply. >oreo!er' as we discussed in class' e!en a test whose actual content is unrelated to .o( performance mi)ht ser!e a useful role in com(atin) nepotism and cronyism. !$ 'rlington (eights issue >4 points;$ omplicatin) the issue is the fact that there may (e racist moti!ation (ehind the use of the PHET. &owe!er' under Arlington .eights< it must (e shown that such moti!ation was a (ut for cause of a facially neutral statute with a disparate impact. &ere' only , of 1C1 state le)islators had racist moti!ations. E!en if all fi!e had !oted the other way' the statute would still ha!e passed (y A4$,6. >oreo!er' it*s not clear whether e!en the fi!e racist le)islators would ha!e !oted differently in the a(sence of a racial issue 7they admitted only that their !otes were in part moti!ated (y race9. C$ Sarah Thomas= refusal of treatment >4 points;$

3n Cru0an and /luc$sberg< the ourt stron)ly implies' thou)h doesn*t quite hold' that competent adults ha!e a su(stanti!e due process ri)ht to refuse medical treatment' e!en if doin) so will lead to their deaths. Thomas clearly falls into this cate)ory. &er (ein) in prison does not chan)e this. 2ery cle!erly' some of you pointed out that the situation mi)ht (e complicated (y her (ein) pre)nant. The ourt has not addressed the interaction (etween a(ortion ri)hts and the ri)ht to refuse treatment. &owe!er' it seems lo)ical 7under current doctrine9 that if a woman can a(ort a fetus 7killin) it directly9' she also has the ri)ht to terminate its life throu)h the !ery indirect means of refusin) medical treatment that would prolon) the mother*s own life lon) enou)h for the child to (e (orn. B$ Alle#iation of pain >@ points;$

This is the one issue that almost e!eryone missed. 3n /luc$sberg< , /upreme ourt .ustices indicated that the case for assisted suicide would (e )reatly stren)thened in a situation where the patient was sufferin) from e#treme pain. Thomas is constantly in pain' and this surely stren)thens her ar)ument for refusin) medical

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

As the !ast ma.ority of you reco)ni%ed' the state*s refusal to )i!e Thomas painkillers on the )round that she had not li!ed in 2ir)inia lon) enou)h is similar to the conditionin) of welfare (enefits on duration of residency in Sha!iro v. 2hom!son. This is for(idden under the ourt*s ri)ht to tra!el .urisprudence. E$ 2ather notification >4 points;$

3n Casey< the ourt struck down a hus(and notification requirement as an undue (urden on the ri)ht to a(ortion. &ere' there is a requirement that any father (e notified' e!en if he and the pre)nant woman are not married. >oreo!er' unlike the statute in Casey< this law does not contain any e#ceptions for situations of a(use or 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 a much stron)er interest in protectin) fetal life. &owe!er' due to the sweepin) nature of the father notification statute 7see a(o!e9' it is still likely to (e struck down. 3n particular' the lack of an e#ception for protectin) the life and health of the mother )oes a)ainst the ourt*s decision in Stenberg v. Carhart< which o!erruled a (an on late$term partial (irth a(ortions.