Constitutional Law, Professor Brake

1
Constitutional Law, Professor Brake

• M, T, W, 845-1000 am
• Office hours, room 509 M, W, 10-11 am
• Administrative details seating chart, sign-in
  sheet for attendance
• Text Farber, Eskridge Frickey (Thomson/West,
  3d ed.) and the 2005 Supplement

2
Brown as a Case Study of Judicial Review

• Major themes Introduced
• the role of the Court in Constitutional Structure
• Constitutional reasoning and modes of
  interpretation
• Interaction between Constitutional law and social
  movements

3
Starting Point Constitutional Text and Amendments

• What did the original Constitution have to say
  about race? What references to slavery did you
  see in the Constitution?

4
Early Constitutional Challenges to Racial
Inequality

• Dred Scott v. Sanford (1857)
• Plaintiff, Dred Scott, argues that he was freed
  when his former master/slaveholder took him to
  Illinois and the Louisiana Territory, where
  slavery was banned he brings an action for
  trespass against Sanford, who claims he bought
  Dred Scott from his former masters widow. Scott
  invokes diversity jurisdiction.
• Court (1) No jurisdiction, since descendants of
  slaves, free or not, are not citizens. (2)
  Congress lacked the power to outlaw slavery in
  the Missouri Compromise, since due process clause
  protects property rights in slaves.

5
The Reconstruction Amendments

• Civil War, 1861-65
• 13th Amendment (1865) banned slavery, gave
  Congress the power to enforce the 13th Amendment
• 14th Amendment (1868)
• Section 1 citizenship (overrules Dred Scott)
  No State shall make or enforce any law which
  shall abridge the privileges or immunities of
  citizens of the U.S. nor shall any State deprive
  any person of life, liberty, or property, without
  due process of law nor deny to any person within
  its jurisdiction the equal protection of the
  laws. Section 5 Congressional power to
  enforce.
• 15th Amendment (1870)

6
Interpreting the 14th Amendment

• What are privileges and immunities?
• Intended to protect common law rights such as
  making/enforcing contracts, bringing lawsuits,
  owning property, access to legal process and
  legal protections
• The Slaughter House Cases (1873) Supreme Court
  rejects plaintiffs argument that a state law
  granting a single company the right to engage in
  the slaughterhouse business deprives them of
  their property rights and the right to contract.
  The Court reads the Privileges and Immunities
  clause to protect only those privileges and
  immunities that go with national citizenship in
  the United States, such as the right to travel
  interstate.

7
The Turn to Equal Protection

• What is equal protection?
• If intended to protect civil (common law), but
  political or social rights, should that
  matter?
• Strauder v. West Virginia (1879) Court strikes
  down W. Va. Law excluding all but white male
  persons from serving on juries.
• ignores distinction between political rights
  and civil rights
• What is the core meaning of equal protection in
  Strauder? Possibilities
• Formal equality (It ordains that the law in the
  States shall be the same for the black as for the
  white)
• Antisubordination (the law is practically a
  brand upon them, affixed by the law, an assertion
  of their inferiority, and a stimulant to that
  race prejudice which is an impediment to securing
  to individuals of the race that equal justice
  which the law aims to secure to all others.)

8
Plessy v. Ferguson (1896)

• What test does the Court apply here and why does
  the Court uphold this law?
• How does the Court classify the rights at stake
  here? Do you agree?
• What motive does the Court see behind this law?
  Should the states motive matter?
• What does equal protection mean to the Court in
  this case?

9
Harlans Dissent

• Why does Harlan see the states law differently?
• What does equal protection mean to Justice
  Harlan?

10
Possible Meanings of Equal Protection in Harlans
Dissent

• Colorblindness
• the Constitution does not permit any public
  authority to know the race of those entitled to
  be protected in the enjoyment of such rights
• Is Harlans opinion really consistent with
  colorblindness as a principle of Equal
  Protection?

11
Possible Meanings, cont.

• Anti-Subordination
• there is in this country no superior, dominant,
  ruling case of citizens. There is no caste here.
  
• Is Harlans opinion really consistent with an
  anti-caste/anti-subordination principle?

12
The Importance of Social Context

• -How were the opinions in Plessy shaped by
  prevailing societal views about race?

13

• P. 65,
• And so it will be for all time, if it holds fast
  to principles of Constitutional liberty.