Foundation of anti-classification jurisprudence (Thomas especially) Undermines affirmative action as unconstitutional Historical Race Race as a thick attribute a phenomenon that creates difference – – through contingent historical practice Foundation of anti-subordination remedial jurisprudence Remediation has an inherent time limit Cultural Race Race as community, and consciousness” – “culture, Foundation of principle positive effects associated with race “diversity” – Badges and Incidents of Slavery Narrow close to subjugation/involuntary labor Civil Rights Cases – (1968) Expands to racially restrictive covenants Jones v. Mayer – Congress has under 13th Am. rationally to determine what are the badges and incidents of slavery and authority to translate that into legislation Traditional Breakdown of Rights Political, and Social Rights Political Social to hold property Right to sue Right to vote Right to associate Right to contract to hold office Right to marry Right to travel Prohibitions in 13.1 and 14.1 Public Actors Private Actors Prohibition of Badges and Incidents of Slavery 13.1/14.1 13.1 Prohibition of Equal Protection Violations beyond B&I of Slavery 14.1 Neither Cases (1880) Strauder v. West Virginia convicted by jury where African Americans were excluded Δ Holding has a right to jury of his peers, no right to AA on the jury but has a have Δ right to them excluded based on race not have Statute excluding AAs from the jury is discrimination of potential jurors Note standing issue: Since no potential juror would ever challenge the law, court allows to challenge (also constructs injury through exclusion argument) Δ Dissent argues this is a political right, points to 15th Am. right to vote separate Consider: Jurors anti-classification, anti-subordination interest in having AAs Δ’s on the jury both cut the same way here Remaining issue of how far EPC should extend Intentionalist: 13th and 14th are only about slavery/race Textual: 13th specifically refers to race, 14th is broader (1873) The Slaughterhouse Cases LA law moving animal slaughter below NOLA and granting monopoly to the Slaughter House Company is challenged by butchers under 13/14th Am. 13th Am. claim is dismissed exclusion from practice is not slavery – EPC claim dismissed does not recognize occupational distinctions – DPC claim dismissed no substantive element only procedural – PorI of 14th Am. Analysis Three interpretations –
Foundation of anti-classification jurisprudence (Thomas especially) Undermines affirmative action as unconstitutional Historical Race – Race as a thick attribute – a phenomenon that creates difference through contingent historical practice Foundation of anti-subordination remedial jurisprudence Remediation has an inherent time limit Cultural Race – Race as “culture, community, and consciousness” Foundation of “diversity” principle – positive effects associated with race Badges and Incidents of Slavery Civil Rights Cases – Narrow close to subjugation/involuntary labor Jones v. Mayer (1968) – Expands to racially restrictive covenants Congress has under 13th Am. rationally to determine what are the badges and incidents of slavery and authority to translate that into legislation Traditional Breakdown of Rights Political, and Social Rights Political Social to hold property Right to sue Right to contract Right to travel Right to vote to hold office Right to associate Right to marry Prohibitions in 13.1 and 14.1 Public Actors Private Actors Prohibition of Badges and Incidents of Slavery 13.1/14.1 13.1 Prohibition of Equal Protection Violations beyond B&I of Slavery 14.1 Neither Cases Strauder v. West Virginia (1880) Δ convicted by jury where African Americans were excluded Holding Δ has a right to jury of his peers, no right to have AA on the jury but has a right to not have them excluded based on race Statute excluding AAs from the jury is discrimination of potential jurors Note standing issue: Since no potential juror would ever challenge the law, court allows Δ to challenge (also constructs injury through exclusion argument) Dissent argues this is a political right, points to 15th Am. right to vote separate Consider: Jurors anti-classification, Δ’s anti-subordination interest in having AAs on the jury both cut the same way here Remaining issue of how far EPC should extend Intentionalist: 13th and 14th are only about slavery/race Textual: 13th specifically refers to race, 14th is broader The Slaughterhouse Cases (1873) LA law moving animal slaughter below NOLA and granting monopoly to the Slaughter House Company is challenged by butchers under 13/14th Am. 13th Am. claim is dismissed – exclusion from practice is not slavery EPC claim dismissed – does not recognize occupational distinctions DPC claim dismissed – no substantive element only procedural PorI of 14th Am. Analysis – Three interpretations
Constitutional%20Law%20Yoshino%20Spring%202013.docx