September 18, 2008 Constitutional Law II Page 1 of 2
January 14, 2003
Prof. Stickgold, Room 2201, Office Hours sometime before class (Tuesday).
See Oyez-oyez.com for NWU for Supreme Court info, or the Supreme Court site for new
opinions. All new opinions to last day of class are subject to analysis on the final exam.
Review of Rules.
Review of Remedies.
First Amendment Protections
Final Exam: Essay, short answer, multiple choice, not open book.
The Fourteenth Amendment
Passed by Congress June 13, 1866. Ratified July 9, 1868.
Note: Article I, section 2, of the Constitution was modified by section 2 of the 14th amendment.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are
citizens of the United States and of the State wherein they reside.
No State shall make or enforce any law which shall abridge the privileges or immunities of
citizens of the United States; nor shall any State deprive any person of life, liberty, or property,
without due process of law; nor deny to any person within its jurisdiction the equal protection
of the laws.
Scrutiny levels on the due process clause: rational basis or strict?
Equal protection clause modification over time.
Race relations modifications: 3/5th’s rule initially use for census purposes.
Dred Scott will not be reviewed here.
Strauder v. West Virginia, Facial juror discrimination by an official source, state law. The law
required people of non-white races to be kept off jurors (race and gender discrimination.)
Discrimination is a term of description of the impact an law on two to more groups of people Not
all discrimination is illegal. Some age discrimination is permissible (age for getting a driver’s
Why is discrimination wrong?
(1) Since treating people differently may be on the basis of unreasonable negative connotations.
(2) Subjecting people to punishment to maintaining stereotypical/religious roles.
Classifier - what is it about the people being regulated that is the law is using to make its
distinction, age, race, gender, ability/disability.
September 18, 2008 Constitutional Law II Page 2 of 2
The 14th amendment passed to correct flaws in the treatment of people by race.
Strauder says that when race is used on the face of the law as the primary classifer to
disadvanatge one race under another, then the law is illegal. The 14th Amendment does not
mention race, but the 13th and 15th Amendments do.
The concept of national origin was closely related to race. While the first Africans brought to the
United States started in the 1600’s, by the 1800’s there sufficient numbers of blacks being born
into slavery in the United States that the slave trade had diminished greatly.
The 14th amendment protected on the basis of national origin, so the Court used the Celtic
Irishman analogy as an example since many European whites were immigrating to the United
States at the time.
Page 630 Footnote 2, Yick Wo v. Hopkins, (1886)
San Francisco ordinance about building a wood laundry building requiring a permit.
Classifer - the material from which a building was made. The law is not facially discriminatory,
it is facially neutral. However, the impact of the law may still be partisan but the impact upon the
wealth of the people. Strauder is not applicable since it was about facially discriminatory cases.
In fact, only white received permits to build from wood. Other races were not issued permits (1
in 200 Chinese applicants while all whites received permits.). Therefore the law was
discriminatory in its application by the administrators of the law. The law’s purpose was to
prevent fires. Yick Wo says that a facially neutral law may be applied in a discriminatory manner
as shown by the statistics of its use (see pages 713/714).
Other cases are complicated, with “wink and nod” discrimination that were difficult to challenge.
Korematsu v. United States (1944) - Classifer - national origin discrimination only. The Court
said that race and national origin are not different enough to matter, this was a case on racial
discrimination. Since this was a facially discrimintory law, strict scrutiny applied. The Court
sustained the law on the basis of a compelling state interest.
Requirement of constitutionality: The law must have a compelling purpose, tailored to the most
narrow means possible. Strict scrutiny will be used to analysis all facially discriminatory laws
(5th and 14th amendments) equal protection not withstanding.
Current events: INS is requiring all Arab men of specific ages to register so the INS may follow
their activites. During WWII, Britain did not follw the United States example, but instead took
specific suspects into custody.
Are such laws ever justified: Strauder said no, Korematsu said yes in strict scrutiny with a vary
Loving v. Virginia (1967)