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18 Cards in this Set

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  • Back
li. Congress’s power under the post-Civil War Amendments (CB 207-22)
Which amendment incorporates the BILL OF RIGHTS?
lii. The 14th Amendment incorporates the Bill of Rights—first ten amendments—against the States.
Which section of the 14th amendment incorporates the concepts of due process and equal protection?
Section 5 of the 14th amendment.
What is a quick restatement of Due Process?
DUE PROCESS: No life, liberty, property depravation w/o due process
What is the equal protection standard for Race?
liii. Equal Protection: not necessarily entitled to identical treatment as someone else. 1. Race – Strict Scrutiny (“narrowly tailored” to serve “compelling interest”) a. If a statute racially discriminates, it has to be narrowly tailored to serve a compelling interest. i. Michigan Law School: having a diverse student body was the compelling interest and it was narrowly tailored b/c it was looking at the individual applicants. ii. Michigan undergrad did not meet the test b/c quotas were impermissible.
What is the equal protection standard for Gender?
2. Gender – Intermediate Scrutiny (“substantially related” to “important interest”) a. A state may have more legitimate reasons for discriminating on the basis of gender. The state law must be substantially related to an important state interest. b. Some law would be upheld under this while not under strict scrutiny.
What is the equal protection standard for all non Race and Gender things?
3. All else – Rational Basis (“rationally related” to “legislative interest”) a. Almost everything constitutes this to be a legitimate interest. It is very deferential.
What are the Buzzwords for Race Equal Protection?
(“narrowly tailored” to serve “compelling interest”) Strict Scrutiny
What are the Buzzwords for Gender Equal Protection?
(“substantially related” to “important interest”) Intermediate Scrutiny
What are the Buzzwords for all non Race and Gender Equal Protection?
(“rationally related” to “legislative interest”) Rational Basis
How did US v. Morrision example Article 14 section 5 ability to regulate State Conduct?
1. §5 only permits Congress to regulate and prohibit State government discrimination, but not private discrimination, and allow individuals to seek remedy. Virgina Tech is a State institution.
How could this view of redefining rights or expanding the scope of those rights by Congress may violate JR?
But this view of redefining rights or expanding the scope of those rights by Congress may violate JR b/c Congress can disagree w/ the Court’s interpretation of the Constitution.
how does Katzenbach v. Morgan prescribe what it means to Enforce by Appropriate Legislation?
Under §5 of the 14th, Congress has the right to expand rights or redefine rights beyond what the Court could find to be a violation, but not diminish those rights—setting a floor and not a ceiling. FACTS: 1. Congress says you cant bar franchise in Puerto rico school in which the language of instruction was not English. NY had passed the law to prevent Puerto Ricans from voting. a. Citing McCulloch v. Maryland, maybe Congress can pass appropriate legislation that is Necessary and Proper, it being convenient, that is not perfectly suited to the 14th Amendment—beyond what the Court would think of as violating this Amendment. i. It uses rational basis if Congress were to pass legislation that is convenient, as understood under the Necessary and Proper Clause, and plainly adapted to the clauses of the 14th Amendment. ii. Is this particular legislation “plainly adapted” pursuant to the 14th Amendment? 1. Yes, b/c it helps weed out State discrimination in N.Y. against Puerto Ricans. 3. A narrower view is that legislation may only be remedial legislation. Congress is just trying to ameliorate the political process by assuring Puerto Ricans have a right to the ballot box; and prevent other future violations. 4. Prophylactic Legislation: Court--katzebach is consistant with Burnie, for example, but what it is really doing is preventing other violations. This is passing “profolatic” violations.
What does Prophylactic Legislation do?
Try to prevent some future violations.
What is the article 5 power limited to?
§5 power a. Can only be used against states b. Can only “enforce” (and must be “proportionate and congruent”) i. Remedial ii. Propholatic
For Remedial or Prophylactic legislation, the remedy has to be _______ and _______ to its objective. o Usually satisfied if leg is narrowly tailored to remedy those 14th Amend violations. • Not worried about widespread leg.
proportional and congruent
So why does the court say you can provide preventive legislation?
Maybe the Courts wanted Congress to go beyond providing a remedy. The Court knows that the States might violate constitutional rights. And when Congress passes a remedial statute, it will be imperfectly enforced. People are going to have a tough time proving those violations. So maybe we should give those individuals a bit of leeway. Congress can say instead you don’t have to prove a constitutional violation but a statutory claim. So Congress can pass legislation that goes beyond the 14th Amendment.
How may Congress may try to weed out discrimination by passing preventative legislation?
a. We saw this in Katzenbach. Maybe by attacking that activity, you prevent other constitutional violations. So you need to give Congress a bit of leeway. b. The Necessary and Proper clause let’s Congress attack violations that are not 14th Amendment violations.