“In order to get beyond racism, we must
first take account of race. There is no
other way. And in order to treat some
persons equally, we must treat them
differently. We cannot-we dare not-let the
Equal Protection Clause perpetrate racial
supremacy.”
Justice Harry Blackmun, 1978
•The founders believed that
social and economic
inequality was a bi-product
of having a free state
•Therefore they felt that
providing provisions to
protect the “less fortunate”
would encroach on the
rights of others
Section 1:
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.
1. STRICT SCRUTINY TEST – Is there
compelling state interest in a legislative
classification? [Applies to suspect
classifications and fundamental rights]
Suspect Classification = race
Only once has the Supreme Court allowed
the state to regulate based on race – WWII
Japanese Internment Camps
2. EXACTING SCRUTINY OR STRICT
RATIONALITY TEST – Does the legislation
substantially advance a desired end which is
reasonably related to a legitimate state
interest?[Applies to quasi-suspect categories]
Quasi-suspect categories = gender
There may be legitimate reasons to classify
based on the differences between genders
An example would be separate restrooms and
living facilities in State colleges
3. Minimal Scrutiny Rational Basis
Test – Is there a rational basis or reasonable
basis for legislation? [ Applies to economic
regulation and nonsuspect classifications]
Basically every law draws some sort of
classification between people.
i.e. 40 mph speed limits
Which of the tests could be applied
to the following scenario?
A state law stating
that in order to be a
certified carpenter
one must weigh a
minimum of 180 lbs
and have a high
school diploma.
ALL 3:
1. Strict Scrutiny – if it can be proven that the
percentage of African Americans is lower than
Caucasians than you could say it is biased
based on race.
2. Exacting Scrutiny – Since women are less
likely to weigh 180lbs. the law discriminates
against women
3. Minimal Scrutiny – the law is assuming that
people who weigh less than 180lbs. and don’t
have a high school diploma are not good
carpenters.