Constitutional
Law Class Notes
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).