It is difficult to write a statute without overinclusivity or underinclusivity O and U are not a problem for RR, but are for SS Important questions to consider… Why are racial classifications automatically suspect? Should all governmental uses of race be looked at with the same suspicion? SCRICT SCRUTINY AND THE PROBLEM OF RACE The best established case for heightened review is for classification on race. Racial classifications that expressly disadvantage racial minorities… (1880) Strauder Court finds right to jury unconstitutional What is Justice Strong’s interpretative strategy here? Says that the purpose of EPC is inextricably tied to the protection of former slaves Where is he getting this from? His understanding of the relative positions of the races Strong believes that blacks are inferior to whites and need to be in order to have their newly attained “protected” rights guarded Blacks are abject, ignorant, and childish Strong may appear somewhat progressive as he seems to speak in the past tense Strong’s rhetoric appears racist However, he was a racial progressive in his time He may have used disconcerting rhetoric, but he came out on the progressive side Remember not to engage in presentism Rather than placing a premium on equality, the focus seems to be on the social construction of blacks as victims Even if J. Strong does not buy into the social constructs of the day, he cannot divorce himself fully from the prejudices of the time because he must use them to persuade in his arguments Why was jury exclusion under unconstitutional? Strauder Exclusion acted as a brand of inferiority Strong seems to be using common sense here Similar to his knowledge of the relative position of the races after Reconstruction How would the court have reacted to a law designed to help, rather than subjugate, blacks? Hypothetically, what if we required two blacks on juries in cases with blacks defendants Strong’s contextual reading of the 14th may suggest that the Court would be less critical of legislation designed to help Here, the Court was skeptical of legislation designed to hurt
It is difficult to write a statute without overinclusivity or underinclusivity O and U are not a problem for RR, but are for SS Important questions to consider… Why are racial classifications automatically suspect? Should all governmental uses of race be looked at with the same suspicion? SCRICT SCRUTINY AND THE PROBLEM OF RACE The best established case for heightened review is for classification on race. Racial classifications that expressly disadvantage racial minorities… Strauder (1880) Court finds right to jury unconstitutional What is Justice Strong’s interpretative strategy here? Says that the purpose of EPC is inextricably tied to the protection of former slaves Where is he getting this from? His understanding of the relative positions of the races Strong believes that blacks are inferior to whites and need to be “protected” in order to have their newly attained rights guarded Blacks are abject, ignorant, and childish Strong may appear somewhat progressive as he seems to speak in the past tense Strong’s rhetoric appears racist However, he was a racial progressive in his time He may have used disconcerting rhetoric, but he came out on the progressive side Remember not to engage in presentism Rather than placing a premium on equality, the focus seems to be on the social construction of blacks as victims Even if J. Strong does not buy into the social constructs of the day, he cannot divorce himself fully from the prejudices of the time because he must use them to persuade in his arguments Why was jury exclusion under Strauder unconstitutional? Exclusion acted as a brand of inferiority Strong seems to be using common sense here Similar to his knowledge of the relative position of the races after Reconstruction How would the court have reacted to a law designed to help, rather than subjugate, blacks? Hypothetically, what if we required two blacks on juries in cases with blacks defendants Strong’s contextual reading of the 14th may suggest that the Court would be less critical of legislation designed to help Here, the Court was skeptical of legislation designed to hurt
Constitutional%20Law%20II%20-%20Bracey%20-%202011.docx