14 th Amendment

1. 14th Amendment Basics, Cases Law, and Application

2. What it says: • Section 1 • Naturalized or born in US= citizen of US and state • No state may deprive any PERSON of live, liberty, or property w/o due process • Same as 5th amendment to federal government • Guarantees equal protection of law • Note use of person, not citizen! • Section 2 • apportionment of HOR representation based on total population (minus Native Americans) • Provision allowed Congressional district losing votes if all AA suffrage not guaranteed (never enforced)

3. What it Says, cont • Section 3 • Cannot hold pubic office if have violated oath to uphold the Constitution unless 2/3 vote of Congress approves • Section 4 • Voids debts to the Confederacy or from loss of slaves • Section 5 • Empowers Congress to enact legislation to enforce Amendment APPLIES THE BILL OF RIGHTS TO STATES

4. Due Process • No longer means just punishment • Substantive and procedural • Early cases upheld economic regulation (Slaughterhouse Cases and Munn v. IL) however more recent cases restrain states in legislating economic matters • Procedural Due Process • Procedures used by the government in making, applying, interpreting, and enforcing law must be reasonable and consistent • Substantive Due Process • Government can’t make laws that apply to situations that government has no business interfering; i.e.. The substance or purpose of the law must be constitutional • Prohibits government from interfering in areas they have no right

5. Equal Protection • Originally dealt with only state actions and not private actions • Many African-Americans denied redress from courts for discrimination at the hands of private individuals • Plessy v. Ferguson- “separate but equal” doctrine; held until 1930 • After 1930, court allowed states to make economic legislation regardless if concern was for public interest • Equal protection also could be met if distinctions made upon “reasonable classifications” • States given more power in economic legislation, power to limit personal liberties restricted

6. Equal Protection Clause • 1st Amendment applied to states through substantive due process clause • Clause became main weapon to protect rights of African-Americans • Brown v. BOE (1954) strikes down separate but equal clause • Recently used to protect rights of women; privacy rights, and abortion (Roe v. Wade) • Has not been used to protect all privacy issues; Bowers v. Hardwick (1986) upheld antisodomy laws • Reversed in 2003 and voided all antisodomy laws

7. Important Cases • Strauder v. WV (1880) • Black male convicted of murder by an all-white male jury because WV law barred blacks from jury duty • Court held exclusion of blacks from juries was denial of equal protection • Civil Rights Cases (1883) • Questions constitutionality of Civil Rights Act of 1875 • Court said discrimination was private, actions of innkeepers, theaters owners, etc and thus ok since it was not a state action- it was a “private wrong”

8. Levels of Equal Protection Scrutiny • US v. Carolene Products Co. (1938) • Footnotes include a commerce clause and a substantive due process clause • Called for “more searching judicial inquiry” • Hirabayashi v. US (1943) and Korematsu v. US (1944) • Articulated a “strict scrutiny” principle though term not used until Loving v. VA (1967) • Craig v. Boren (1976) intermediate scrutiny used

9. Levels of Equal Protection Scrutiny • Strict Scrutiny • Used for classifications based on race • Law unconstitutional unless "narrowly tailored" to serve a "compelling" government interest. • Cannot be a "less restrictive" alternative available to achieve that compelling interest • Intermediate Scrutiny • Used for classifications based on sex • Law unconstitutional unless it is "substantially related" to an "important" government interest • Rational-basis Test • Used on classifications other than race and sex • Constitutional as long as it is "reasonably related" to a "legitimate" government interest

10. 4th level? • Some say Justice Ginsburg changed the language of intermediate scrutiny in US v VA • Instead of intermediate scrutiny, demands litigants demonstrate an "exceedingly persuasive" argument to justify gender discrimination QUESTION:In what other instances do we treat people unequally?

11. Intent vs. Disparate Effects • Griggs v. Duke Power Company (1971) • (1) if an employer's policy has disparate racial consequences, and (2) if the employer can't give a reasonable justification for such a policy on grounds of "business necessity," then the employer's policy violates Title VII of Civil Rights Act of 1964 which forbids job discrimination based on sex, race, or religion • “Business necessity" requires the employer to prove that whatever is causing the racial disparity—be it a test, an educational requirement, a hiring practice—has a demonstrable factual relationship to making the company more profitable

12. Intent v. Disparate Effects • Arlington Heights v. Metropolitan Housing Corp. (1977) • Court ruled, "Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause." Disparate impact merely has an evidentiary value; absent a "stark" pattern, "impact is not determinative" • Supporters say • equal protection does not mean equal outcomes, only equal opportunity • therefore, “we shouldn't be concerned with trying to fix every racially disparate effect—we should worry about only intentional bigotry.” • Courts are only enforcing equal protection clause, that the legislature should correct disparate effects with legislation • Critics say • Bigotry is unconscious and the we must remedy disparate effects

13. Suspect Classes • Suspect Class Status • status that makes a law that categorizes on that basis suspect, and therefore deserving of greater judicial scrutiny • Supreme Court only recognizing women and racial minorities • City of Cleburne v. Cleburne Living Center, Inc. (1985) • Refused to make the mentally retarded a suspect class though did examine more harshly than the rational basis test • Lawrence v. Texas (2003) • Struck down a homosexual sodomy law because it only applied to homosexual sodomy and not heterosexual sodomy as well • Court has not extended suspect classification to sexual orientation

14. Suspect Class, cont • Romer v. Evans (1996) • Court ruled the CO Constitutional amendment that would have prevented any city, town or county in the state from taking any legislative, executive, or judicial action to protect homosexual citizens from discrimination on the basis of their sexual orientation was unconstitutional QUESTION:In what other instances do we treat people unequally?

15. Other Substantives Due Process Case Topics • Affirmative Action Cases • Regents of the University of California v. Bakke (1978) • Desegregation Cases • Plessy and Brown • Busing to achieve • Swann v. Charlotte-Mecklenburg BOE (1971) • Milliken v. Bradley (1974) • Voting Rights • Baker v. Carr (1962) 1st to use equal protection clause re: voting rights • Reynolds v. Sims (1964) _ One man, one vote doctrine • Bush v. Gore (2000); different standards for counting ballots across Florida violated Equal Protection clause

16. Procedural Due Process Cases