Constitutional Law II
Prof. Marci Hamilton
No absolute rights except the right to belief.
Circumstances, facts, context drive calculus of rights.
I. Equal Protection
Race and the Constitution
Non-abolition of slavery in north
- State v. Post
Can slavery exist in New Jersey, whose constitution says “
shall enjoy . . . ?
: Yes, following historical deduction.
if NJ constitution intended to abolish slaver, it would have explicitly done so.
The U.S. Constitution implicitly recognizes slavery.
Blacks not citizens
Dred Scott v. Sandford
Does a slave become free when entering a state that has abolished slavery?
No, blacks are not citizens, thus court had no jurisdiction to hear his case.
Court has no power to confer citizenship on blacks, slavery implicitly accepted by const.
Court has no power to effect social change.
: It would take a Civil War and 3 Constitutional Amendments to end slavery and grant citizenship on blacks.
No involuntary servitude except as criminal punishment.
Cong may enforce by appropriate legislation
All persons born or naturalized in U.S. are
No state shall
make a law that shall abridge the
privileges or immunities of citizens, nor shall any State deprive any person of life, liberty, or property, w/o due process of
deny any person equal protection of the laws.
amendment, minorities are w/in “universe of equality” b/c of inclusion of word “citizens”, so
court can go on to use strict scrutiny.
Separate but equal does not violate E.P.C
Plessy v. Ferguson
Do “separate but equal” railroad cars for blacks and whites violate E.P.C.?
: separation pits one race against the other, drawing an implication of inferiority about blacks.
: Separate but equal does not violate E.P.C.
As long as cars are physically equal, “both get where they want to go,” no constitutional violation.
Evidence that separate but equal is constitutional: cong. created segregated schools in D.C.
Constitution should be “color-blind” based on “citizenship” of 14
Equality must speak to psychological, as well as physical treatment. (
Baseline of Equality
: Functional, Physical equality.
Separate but equal is inherently unequal
I (1954) p.446
Sweat v. Painter
McLaurin v. Okla
., the Court required the admission of a black student to a white
school because of physical inequalities
and intangible inequalities
between black and white schools.
Are segregated yet tangibly and physically equal schools constitutional?
NO - “Separate educational facilities are
Stigmatizing, intangible detrimental effects of segregated schools deprives equal opportunities.