American Constitutionalism in Historical Perspective (packet)

Religion as a suspect class: attempts to demonize on sectarian grounds. Jews regarded as slaves to the Christians. Religious discrimination became racial discrimination, Jews were discriminated against even after they converted.

Express Racial/Ethnic Classification: will not be tolerated unless other reasons for deferential treatment, as in military crisis. (Korematsu).

1. 
   Strauder v. West Virginia (1880): strikes down law restricting jury membership to white males since it includes suspect classification and is both under and overinclusive. If purpose is to have a competent jury, under inclusive b/c excludes those who may be competent but a/n white males, & over inclusive b/c some white males are incompetent (like British ethnic hatred of Irish)
   
2. 
   Taylor v. Illinois: women admitted to juries b/c irrational to exclude them
   
3. 
   Korematsu v. United States, 1944: Ct was deferential to the military internment of Japanese American citizens during WWII. Classification was both over & under inclusive. Purpose to protect vs. disloyal citizens, overinclusive because most Japanese were loyal, underinclusive b/c Germans, Italian, other ethnic groups included disloyal citizens.
   
   1. 
      Suspect classification: based on RACE.
      
   2. 
      History of racial animus: critical because had been prevented from becoming citizens, now lack of citizenship being used as an indicator of disloyalty.
      
   3. 
      Murphy dissent: Britain was being bombed by Germany regularly but it never interned Germans who lived in Britain and they d/n even have a written Constitution. Only difference b/w Germans and Japanese here is RACE
      

Purposeful discrimination

1. 
   Explicit ethnic classification in Strauder, Korematsu, Loving. Should we ever accept express racial classifications? Deep skepticism of this is product of movement from Plessy to Brown. Segregation always in nature was invidious b/c its separating ppl on irrational ground. Only in controversy w/ affirmative action.
   
2. 
   Loving v. Virginia, 1967: p. 681 struck down anti-miscegenation laws that had been discrimin applied to black male/white female couples. Express racial classification w/out adequate ground for state action. Waited 15 yrs to do this b/c society w/n ready for it. History of originalism here that led ppl to believe anti-miscegenation was acceptable. Announced that the anti-discrimination imperative extended to intimate life. Citizens have a substantive DP rt to marriage (Turner v. Safly) any barriers in this area are unconstitutional.
   
   1. 
      Asymmetry: anti-miscegenation laws were targeted at white women w/ black men. Only upset when white women were with black men but not when white men had relations w/ black women. White women are not supposed to have sexual lives and are pure, good and asexual. Deep gender issue at heart of American racism.
      
3. 
   McLaughlin: (1964) p. 683 invalidated a criminal adultery and fornication law targeting interracial unmarried couples. No valid state purpose for this distinction.
   
4. 
   Palmore v. Sidoti, 1984: Overturned custody decision awarding custody to white father when mother married a black man. Gov’t interest must be most strong when there is an express classification. State can never be an agent of perpetuating classifications or stereotypes.
   
5. 
   Anderson v. Martin: struck down law requiring that every candidate’s race appears on the ballot. This induces racial prejudice.
   
6. 
   Tancil v. Woolls and Va. Bd of Elections: invalidated law req sep lists of whites & blacks in voting, tax and property recs but allowed race of husband & wife to be indicated in divorce records for vital statistics purposes
   
7. 
   Lee v. Washington: struck down Alabama laws req racial segregation in prisons. If we allowed public security to override constitutional rts, Brown would never have happened.
   
8. 
   Health cases top of p. 685 Health risks more likely w/ certain racial/ethnic groups: sickle cell anemia, Ty Sachs: genetic grounds not cultural. But worried about use of genetic evidence b/c afraid of pseudo-science. D/n want to use racial markers even when have genetic basis b/c may sustain irrational public policy. Genetic marker idea is unsupported b/c are differences w/in racial/ethnic groups
   

Implied Racial/Ethnic Classification:

1. 
   Statute d/n use racial classification and is neutral on its face but is applied in such a way that has disproportionate impact on racial minority/suspect class (Yick Wo). Given disprop impact needs a non-racist purpose that could justify this impact. Weaker test for D to disprove discrim than under Title 7 (mere disproportionate impact on racial minority is enough to trigger statutory violation). Ct tends to under enforce zoning and employment, unless the discriminatory impact is egregious (Yick Wo) and over enforce voting rights and education (just need disproportionate impact b/c so pivotal in guaranteeing fair rep and undoing racial discrimination)
   
2.