Hamilton - Fall 2002 Con Law II

Hamilton - Fall 2002 Con Law II - Constitutional Law II...

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Constitutional Law II Prof. Marci Hamilton Fall 2002 b No absolute rights except the right to belief. b Circumstances, facts, context drive calculus of rights. I. Equal Protection A. Race and the Constitution Non-abolition of slavery in north - State v. Post (1845) p.423 b Can slavery exist in New Jersey, whose constitution says “ all men shall enjoy . . . ? b Court : Yes, following historical deduction. o if NJ constitution intended to abolish slaver, it would have explicitly done so. o The U.S. Constitution implicitly recognizes slavery. Blacks not citizens - Dred Scott v. Sandford (1857) p.427 b Does a slave become free when entering a state that has abolished slavery? NO b No, blacks are not citizens, thus court had no jurisdiction to hear his case. o Court has no power to confer citizenship on blacks, slavery implicitly accepted by const. o Court has no power to effect social change. b Epilogue : It would take a Civil War and 3 Constitutional Amendments to end slavery and grant citizenship on blacks. 13 th Amendment : No involuntary servitude except as criminal punishment. Cong may enforce by appropriate legislation 14 th Amendment : All persons born or naturalized in U.S. are citizens . 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 law, nor deny any person equal protection of the laws. B Post-14 th 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 (1896) p.437 b Do “separate but equal” railroad cars for blacks and whites violate E.P.C.? NO. b P argues : separation pits one race against the other, drawing an implication of inferiority about blacks. b Court : Separate but equal does not violate E.P.C. o As long as cars are physically equal, “both get where they want to go,” no constitutional violation. o Evidence that separate but equal is constitutional: cong. created segregated schools in D.C. b Harlan’s Dissent : Constitution should be “color-blind” based on “citizenship” of 14 th amend. o Equality must speak to psychological, as well as physical treatment. ( Plessy’s argument) B adopted in Brown . b Baseline of Equality : Functional, Physical equality. Separate but equal is inherently unequal - Brown I (1954) p.446 b Prologue : In Sweat v. Painter , and 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. b Are segregated yet tangibly and physically equal schools constitutional? NO - “Separate educational facilities are inherently unequal” b Stigmatizing, intangible detrimental effects of segregated schools deprives equal opportunities. o
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This note was uploaded on 02/14/2008 for the course LAW 7502 taught by Professor Adams during the Fall '07 term at Yeshiva.

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Hamilton - Fall 2002 Con Law II - Constitutional Law II...

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