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Equal protection

Utility of equal protectionanalysis

t Many of the rights asserted under privacy are better asserted as equality claims (e.g. abortion, gay rights in Bowers v. Hardwick).

t In both cases, it is relevant that these are groups of people who have been historically discriminated against.

t EPC does not have problem of privacy as a right: namely, that people doubt whether such a right exists in USC (e.g. notion that substantive due process does not exist).

t The equal protection rights asserted by women and gays are parasitic on reason why blacks are entitled to equal protection.

Race and the Constitution

t Ambiguous meaning of “discrimination”

n Recall from discussion of Exxon Corp. v. Governor of Marylandand Hunt v. Washington State Apple Advertising Comm’nthat there is ambiguity in the SCt’s understanding of discrimination. Both cases agree that proof of discriminatory impact can be a basis for a claim of discrimination, but differ on whether discrimination has been proven.

n These cases leave doubt as to what “discrimination” means. If it doesn’t mean discriminatory purpose, and it’s not demonstrable simply by discriminatory impact, then what else could it mean?

n There is a similar problem in the race cases.

Slaveryand the Constitution

t Slaveryposes ultimate questions about constitutional interpretation.

n Should we regard USC as a good document, one that deserves our allegiance?

n William Lloyd Garrison famously wrote that, because the USC specifically protected slavery, it was “a covenant with Death and an agreement with Hell.” Was Garrison right?

n John Hart Ely. Slavery was a substantive value protected from ordinary legislative process by the original USC.


Date: 2015-01-02; view: 708


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