Next Week--Nov. 26 & 27

For Mon November 26 we will focus primarily on the following cases and pages:

--Washington v. Davis  p. 756-767
--Kahn v. Shevin  p. 777-781
--Hogan p. 782-786

For Tuesday November 27 we will focus primarily on the following cases and pages:

--Grutter v. Bollinger and Gratz v. Bollinger (read only p. 807-822)

Equal Laws, Not Equal Results

In Feeney, the Court said "the Fourteenth Amendment guarantees equal laws, not equal results." (p. 765)

In other words, equal protection scrutiny is triggered only by intentional or purposeful discrimination on the basis of race or gender, not by neutral laws that result in disproportionate impact. Suppose, for example, data showed that the federal income tax imposes a greater burden on some races than on other races. Or that federal welfare laws disproportionately provide benefits to some races rather than others. Are these laws presumptively unconstitutional and subject to strict scrutiny?  

Feeney says the EPC is triggered only if the plaintiff can demonstrate that the law was enacted "at least in part 'because of,' not merely 'in spite of,' its adverse effects upon an identifiable group." (p. 766) Thus, veterans' preferences for civil service jobs do not trigger gender-based-equal-protection scrutiny, because they are enacted to repay veterans for the sacrifices they have made for their country, not because they disproportionately benefit men over women. Do you agree with Feeney? Why or why not?

Racial Affirmative Action Preferences

Here, I think, is the nub of the debate--one side reasonably believes that the only way to get "beyond race" is to take race into account for a period of time (a generation or two or three); and the other side reasonably believes that the only way to get "beyond race" is to stop using race as a factor in distributing governmental burdens and benefits. There are benefits and costs to both approaches, and perhaps we don't agree on how to weigh the costs and benefits.

Railway Express case: Ms and Ts

Let's practice our Ms and Ts on the Railway Express case on page 641.

Ends =M (mischief): Advertisements on trucks "constitutes a distraction to...drivers and pedestrians"

Means=T (trait or classification drawn): the law prohibited trucks from advertising the products of third persons but not products sold by the owner of the truck

In other words, advertising on A's trucks saying "buy B's widgets" was banned, but A's trucks could contain ads saying "buy My widgets."

Try to draw your M and T diagrams for this scenario.

Ms and Ts

Lets focus on a governmental program intended to provide subsidized housing for economically needy people. The idea is to help only those who need help, so a line will have to be drawn somewhere to decide who gets housing benefits and who does not get housing benefits.

M (Ends or purpose of the law)--To help house needy citizens afford habitable housing

T(Means: the classification made by the law)--To draw a line based upon income (people on one side of the line get benefits, people on the other side of the line do not get benefits)

Obergerfell and the Great Debate

As I said  in class, I want you to read Obergefell not so much for its doctrine concerning same-sex marriage, but rather as the most recent boiling point in the Great Debate between original understanding originalism and the Living Constitution.

Please read the dissenting opinions as carefully as you read the majority opinion, because the dissenting opinions are almost completely focused on the role of the Court in applying vs. making constitutional law.

I will ask a goodly number of you to share your views on Obergefell and whether it is a legitimate judicial application of the Written Constitution.

I want everyone to think through his or her views of whether the definition of marriage is committed by the Written Constitution to the federal judiciary or to democratic self-government by we the people in the several states.

What would have happened with respect to the same-sex marriage issue if the Court had said under the 10th Amendment the states--not the Court-- have the power to define marriage?

Our Focus This Week

Today (Monday Nov 12) we will focus on Roe, Casey and the abortion liberty.

Tomorrow will will focus primarily on Obergefell (SSM case) and I will spend the last half of class introducing you to Equal Protection.

There is no Handout 3

I thought I had deleted Handout 3 from the syllabus. I have now.

There is no handout 3 for you to worry about.

Who is Jane Roe? Who is Mary Doe?

When reading Roe v. Wade, take a look at page 271 of the Paulsen book. The authors give you a short biography of Jane Roe (Norma McCorvey) and her incredible journey from pro-abortion activist to pro-life activist.

The Paulsen book does a nice job discussing Roe v. Wade on pages 270 to 278.

Mary Doe (Sandra Cano), the Plaintiff in Doe v. Bolton, decided not to have an abortion "once she felt her baby kick." She communicated this to her lawyer, but since her case was a class action her lawyer went ahead with the case anyway. See Clark Forsythe's book, Abuse of Discretion at p. 94.

Link to Kermit Gosnell Grand Jury report

I am not assigning it, but I wanted to make sure you have a link to the Gosnell Grand Jury Report (cited in my article). It is sad but fascinating reading about late-term abortions in post-Roe America.

Gosnell Grand Jury Report