Constitutional Law Class Notes 3/11/04


So what was Santorum’s deal?


There are some follow-ups to do in terms of race discrimination.  We don’t need to have detailed knowledge of the reading.  We don’t need cases memorized or anything like that.


Some degree of racial profiling is constitutional in a law enforcement context when you’re combating terrorism.


What if there was an imminent threat of inner-city riots?  We’ve had these before.  What if the local city police department believes that locals are going to engage in mass protests that will result in significant violence?  In face, they suspect that the leaders will encourage this.  Is that situation different from the terrorist hypothetical?  Can race be used as an instrument of law enforcement?  What about the deal about American citizens?  Strict scrutiny is the standard about serving a compelling interest.  Would using race as a factor in terms of issuing wiretaps be necessary to serve a compelling interest?  Would avoiding a riot or a domestic disturbance be compelling compared to the terrorism situation, or does this not rise to the level of “compelling”?  Maybe it’s different if it’s international terrorism.


How could we possibly know what the right answer to this question is???  We can’t find the answer in a book!  Just think of the nature of the question!  How can anyone ever know just what is a compelling interest?  The Constitution says nothing about this.  The Equal Protection Clause has no tools to tell us what counts as a compelling interest.  How do you know when you’ve crossed the line from “important” to “compelling”?  The judges must answer the question and the lawyers will have to make the arguments, but there is no answer to be found “out there”.


The Court sometimes lowers the level of scrutiny in a military context, usually when it has to do with military employment practices and military bases.  But merely mentioning the military doesn’t lower the level of scrutiny in terms of doctrine.


The Court is going to be more careful of how it treats the military than how it treats other institutions, including local police departments.


Justice Stevens couldn’t bring himself to permit flag desecration even though his jurisprudence would lead him to allow it.


Don’t forget “judicial psychology”!


How do you prove that something is a compelling interest?  It’s going to be a factual proof, even if it’s complicated.  The necessity prong is also factual (the connection between the means and ends).


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