American Constitutionalism in Historical Perspective (packet)

N. Equal Protection

1. Standards of Review: the Weak or Rational Basis Test (pp. 628-662)

   1. Background: Reconstruction congress influenced by views of radical abolitionist movement, which advocated that the problem was not just slavery, but real evil is racism and cultural dehumanization of a class of persons on arbitrary ethnic grounds. Advocated including freedmen in discourse at every level of culture and recognize their basic human rts. Going beyond Lincoln/Jefferson’s view that slaves should be free then allowed to colonize back in Africa. Have to figure out how to incorporate this moral transformation into the culture and turn into law.

1. 
   Rational Basis Test: pp. 640-41 used when DOESN’T include a suspect classification or abridge a fundamental right. Looks for some basis for the legislation, whether real or imagined. The classification may be over and under inclusive, but as long as not suspect, will be allowed in order for the political, democratic process to operate. The court only occupies itself w/ violations of human rights.
   

1. Classification: what’s included or excluded (pp. 644-47) Need conn b/w rational purpose & classification. Underinclusive: classification d/n include other necessary ppl similarly situated Overinclusive: puts burden on wider range of individuals than are included in class at which law aims

2. Purpose: what is the end or purpose.

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      Hypothetical: any rational purpose, regardless of whether the drafters had it in mind--w/n examine the legislative history.
      
   2. 
      Actual: looks at the legislative record to determine the stated purpose of the legislation. This ensures that the legislation is related to the rational purpose discussed in a democratic process. Commentators fear not doing this will result in private interests capturing political process. Purposes should be rationally assigned, d/n want to over attribute state attorney’s rationale. (Ely & Sunstein).
      
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