CONSTITUTIONAL LAW
W.B. Fisch, Winter 2006
Assignment #29

[Chapter 10. THE EQUAL PROTECTION CLAUSE AND THE REVIEW OF THE REASONABLENESS OF LEGISLATION]

3. Suspect Classifications

A. Classifications disadvantaging racial minorities

  • Early applications of the Equal Protection Clause
    • Strauder v. West Virginia (1879) (no reading assigned): what rights are covered by EP?
      • state law excluding African-Americans from jury duty, challenged by black defendant convicted by all-white jury
      • held unconstitutional, violation of equal protection
      • Compare Slaughterhouse I and Civil Rights Act of 1866: discrimination against former slave race in respect of essential civil right to fair trial
    • Yick Wo v. Hopkins (1886), p. 722
      • Is the government in fact classifying persons on the basis of race?
        • ordinance neutral
        • how does the Court know that the administration of the ordinance was purposefully discriminatory against Chinese?
      • Are these plaintiffs intended beneficiaries of the Equal Protection clause?
  • The modern standard for intentional racial classifications
    • Hirabayashi/Korematsu/Endo, pp. 719-721 (1943-4)
      • what regulations are being challenged, and what was their purpose?
      • is the government's classification based on race? on nationality? is there a difference?
      • what standard of review/burden of justification is applied?
      • does the government meet the burden? should it have been found to do so?
    • LOVING V. VIRGINIA, p. 712 (1967): anti-miscegenation law
      • in what sense is the law "facially neutral"?
      • what standard of review did the Court apply?
      • would a prohibition against all interracial marriage have passed?
    • PALMORE V. SIDOTI, p. 716 (1984)
      • what regulation is challenged, and what was its purpose?
      • what standard did the Court apply?
      • does the state have a compelling interest in placing the child in the most favorable environment? was this ruling necessary to protect that interest?
      • would the decision have been different, if there had been evidence of actual hostility toward or harassment of the child because of her mother's interracial marriage?