Constitutional
Law Class Notes
Mr.
Foley goes to
The Equal Protection Clause
Let’s
get the basics first because there are a lot of details and complications.
·
Only intentional discrimination
by the government or its agents
violates the Equal Protection Clause of the Fourteenth Amendment.
·
The Equal Protection Clause of the Fourteenth Amendment applies to
state and local governments.
·
There is no Equal Protection Clause applicable to the federal
government, so the Supreme Court invented one.
The Due Process Clause of the Fifth Amendment had an equal protection
component added by the Court.
·
The Clause does not apply to private actors, including public corporations. Under some
circumstances, conduct by private entities can be imputed to be government conduct.
We’ll come back to this later, but don’t worry about it for now.
·
With respect to statutory discrimination laws, it may be possible to win even without the presence of intentional discrimination. A practice that has a discriminatory result may be found to be counter to,
for example, Title VII of the Civil Rights Act.
But disparate impact does not, by
itself, establish a discriminatory motive.
This is important in constitutional law because you can’t merely allege
an equal protection violation by demonstrating disparate impact. You must show that the government intends to discriminate.
·
Not all forms of intentional discrimination violate the Constitution. The challenge is to find out just which kinds are unconstitutional.
·
There are two forms of discrimination by the government that, if wrongful, can serve as the basis for
showing an equal protection violation: facial
discrimination and discriminatory
motive.
·
Facial discrimination is when a statute or rule on its face discriminates against a certain group of persons. The Equal Protection Clause applies to all forms of improper discrimination. This is different from, for example, the
Fifteenth Amendment, which says that states cannot restrict voting rights on
the basis of race.
·
Note that there is some facial discrimination that is absolutely not unconstitutional:
“No one under the age of 18 can vote.”
Or, “no one who is blind can get an airplane pilot’s license.” Just
because you find discrimination in a government policy doesn’t mean that it’s constitutional. The key question is whether the discrimination
is justified or unjustified.
·
On the other hand, government agents may be motivated by an animus
against a certain group. For example,
imagine a government official will not declare anyone who is gay “morally fit”
to practice law. We could call this a discriminatory
animus or discriminatory motive that gets you within the equal protection
analysis. Or consider police officers
who desire to pull over black drivers for speeding more often than white
drivers. But what if the police officers
are unaware of why they’re doing what they’re doing? What if they have a subconscious bias? What if,
on the other hand, they are applying objective criteria with the result being a
discriminatory impact?
Levels of scrutiny
There
are three levels of scrutiny that the Court employs to evaluate intentional discrimination
(either facial discrimination or discriminatory motive): (1) strict scrutiny,
(2) intermediate scrutiny, and (3) low-level scrutiny.
This
should remind us of Justice Jackson’s three categories. These too are artificial boxes. Some justices want to blur the lines and look
at a spectrum of scrutiny instead of
discrete boxes. But for the sake of
simplicity to start out, let’s assume that there exist these three well-defined
boxes.
What
approach will the Court take with respect to a particular kind of discrimination? How hard are they going to be on the government
initially? Some discriminations are
wrong and unjustified, while others are justified and permissible. But what is our initial presumption?
The
choice of the level of scrutiny is a predictor
of whether the discrimination will be found to be proper.
For
example, racial discrimination falls into the category of strict scrutiny. Other forms
of discrimination don’t get that kind of presumption of hostility. For example, when the government discriminates
between optometrists, opticians, and ophthalmologists, it seems reasonable to
think there is a valid reason. Someone
attacking such a rule, though it is discriminatory, will face an initial
presumption against them. Each choice of
the level of scrutiny is an indicator of the judicial mindset as to the type of
discrimination at hand.
If
you’re in the zone of strict scrutiny, the discriminatory law must serve a compelling interest and the law must be necessary. For example, in
Notice
the totally different definition of
necessary here than in the Necessary and Proper Clause. “Necessary” is much more like
“rational” in the Necessary and Proper Clause than here. In equal protection jurisprudence, necessary really means necessary.
So
how does this play out in real life? The Court doesn’t always follow its own
doctrine! Consider Korematsu v. United States, where the Court
claimed that the internment of Japanese-Americans during World War II demanded strict
scrutiny. In practice, the Court seemed
to only use the rational basis test.
If
the government defends a discriminatory classification in more than one way,
you must analyze each interest under
the appropriate level of scrutiny. Is
the classification appropriately related to each
of the asserted interests? The government
wins if it can defend its classification under any interest. The government
wins if it can assert an interest that meets the relevant test and show that
the law is sufficiently related to that interest. Thus, there is a kind of asymmetry here that
works in the government’s favor. What
about aggregation of interests? That’s a
tough question.
Also,
the government can be defeated one of two ways: either by showing that the
interest isn’t good enough, or the connection between the means and ends isn’t good
enough.
Under-inclusiveness versus
over-inclusiveness
Let’s
say the government wants to stop unsafe driving. People who are legally blind do not fit the
definition of safe drivers. If the government
only banned legally blind people from driving, that would be “woefully”
under-inclusive. If you want to go after
unsafe drivers, picking out blind drivers in particular is unfair. Why not go after drunk drivers? Why not go after speeding drivers?
As
an example of over-inclusiveness, what if the government passed a law saying
that no one over the age of 80 can drive?
This might be over-inclusive, because unsafe drivers only form some
proposition of older drivers. Not all
older drivers are unsafe! So targeting all old people and saying they can’t
drive just because you are concerned about some
of them who are unsafe represents a case of
over-inclusiveness.
You
can also have laws that are under- and
over-inclusive at the same time.
What
if the regulated category is “people driving over the speed limit”? You might get some safe drivers going over the speed limit (e.g. at 66 mph), plus you
might miss some unsafe drivers who are going under
the speed limit (e.g. swerving wildly between lanes at 45 mph or crawling at 5
mph in the middle of the highway).
In
reality, most laws are over-inclusive
and under-inclusive to some
extent. The government will always regulate
with some degree of imperfection.
How
good is the fit between the group actually regulated and the group meant to be
regulated? If the fit is “pretty good”,
the law in question is more likely to be upheld. Foley thinks that Korematsu is an example of a “loose
fit”. Strict scrutiny normally requires
an extremely tight fit to pass muster
under the Equal Protection Clause. In
that case, the group the government wanted
to regulate was “disloyal Americans”.
Instead, the government actually
regulated all Japanese-Americans. But
there were many people who were disloyal to the country in World War II, but weren’t Japanese-Americans. That particular law was somewhat under-inclusive, but hugely
over-inclusive.
“No
fit” is an extreme where there is no connection at all between the
categories. The purest way to understand
the rational basis test is that the case the government would lose would be in
this case of “no fit at all”. If there
was a total disconnect between the
law the government adopts and the goal in adopting the law,
that would be totally irrational
and would fail the rational basis test.
Note
that virtually all laws will pass the
rational basis test because there is almost always some overlap between what the law is doing
and what the law is trying to accomplish.
But the Court isn’t always complete pure with
respect to this test.