the equal protection of the laws.”In early interpretations of the 14th Am., the SLAUGHTER-HOUSE CASES (1873), the S.Ct. suggests that EP Clause was only about race. This view is supported by history though – 3/5 compromise (Art. 1 §2 cl. 3), importation clause (Art. 1 § 9), fugitive slave clause (Art. IV). -See also, Dred Scott– freed slave makes way to north, but claim is denied because freed blacks are not deemed citizens for Const. purposes oOriginalist opinionClassification:Scrutiny:Gov Justification & Fit:Race Discrimination andits analoguesStrict ScrutinyCompelling Interest &Narrowly-tailored provision (leastrestrictive means)Gender discriminationIntermediate ScrutinyImportant Interest &Substantially Related provisionSocioeconomic, age,disability, sexual orient.Rational BasisRational relationship tolegitimate endsI.Minimum Rationality Review of Economic Regulation:Economic legislation was first struck down on equal protection grounds in 1897, when the Court relied on equal protection in GULF C. & S. F. RY. V. ELLIS (p. 500) to strike down a regulation requiring railroads (but not other defendants) to pay attorneys’ fees to successful plaintiffs in certain cases. But LOCHNER Court, rarely relied on equal protection to strike down economic laws, relying instead on due process. Post-LOCHNER Court has treated economic laws with deference against both due process and equal protection claims. RAILWAY EXPRESS AGENCY V. NEW YORK(1949):NYC law only allowed truck advertising if truck owner also owned the businessS.Ct. upheld the regulation saying Court was not in a position to determine whether other advertisers would create an additional hazard56
Therefore, if the Court could not say the judgment was not an allowable one, the classification has relation to the purpose for which it is made.oNo EP claim can therefore standNOTE: This sort of under-inclusiveness is permissible under rational basis review because the government “may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind.” (WILLIAMSON V. LEE OPTICAL CO.)II.Race Discrimination:14th Am guarantee of EP was expected by its framers to be enforced primarily by Congress. SLAUGHTER-HOUSE emphasized racial discrimination as a central 14th Am concern -In STRAUDER V. WEST VIRGINIA(1880), the S.Ct. stated that 14th Am was primarily designed to protect blacks, when it struck down a law requiring jurors to be white men. oConcerned about the stigma and stamp of inferiority this would causeoBut this case is about a core civic function-Civil War Amendmentso13th Am. - § 1 prohibits slavery, § 2 allows Congressional enforcemento14th Am – DP and EP, § 5 allows Congressional enforcemento15th Am - § 1 right to vote, § 2 allows Congressional enforcement PLESSY V. FERGUSON(1986): -Court upheld “separate but equal” railway cars in LLouisiana -Distinguishes Strouderas about political rights and this is social rightsoLaw does not stamp either race as inferior unless blacks choose to see it like thato
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