American Constitutionalism in Historical Perspective (packet)

Brennan: Congress is delegating power unfairly to interest groups (unions/industry). Only way to stop this is to look at actual purposes. Lobbying process i/n fairly rep b/c just rep their grps. By holding Congress to its responsibility, ensuring that democratically rep. This i/n Lochnerizing.

1. 
   Probs w/ Brennan’s view: Danger of post-hoc rationalizations of Congress to make record that would show legit actual purpose. Always going to be a constructive element of figuring out actual purpose. Blurs separation of the branches b/c imposes process on Congress.
   

Tax case struck down b/c so wholly irrational: Allegheny Pittsburgh Coal (p. 661

The Strict Test: Race as the Paradigm Case of a Suspect Classification (pp. 662-671, 749-771)

1. 
   Theory of fact: Moral Reciprocity Equal protection based on idea that if ppl serve the nation and bear burdens of citizen, they are fully owed all the rts we have. Structural vs. substantive ground
   
   1. 
      Structural guarantees protect against infringements of rts (federalism, sep of powers). Madison hoped that limiting democratic power would control factions but it d/n control superfactions (minorities that are minorities at both fed and state levels—leads to racism and Anti-Semitism)
      
   2. 
      Substantive rts (religious liberty, free speech) state s/n exercise power in this are
      
2. 
   Religious liberty is basic rt, only alright if compelling reason, religion as suspect b/c not justifiable
   
3. 
   American slavery
   

1. 
   Abridgement of basic rights (speech, religion, intimate life, work)
   
2. 
   Rationalized by stereotypes so perpetuated
   
3. 
   Racism is confusion of unjust cultural degradation w/ natural facts.
   

America	Europe
1. Slavery/colonize/apartheid/anti- miscegenation	Slavery (of Christians) Expulsion (of Jews) Segregation/ anti-miscegenation (Jews)
2. Religious discrimination  ethnic discrimination	Religious discrimination  ethnic discrimination
3. Pseudo-science	Pseudo-science
4. Defeat (South, Civil War), political racism	Defeat (Germany, WWI), political racism
5. Basis to unify illegitimate regime through hatred of one group	Tsarist regime, Dreyfus affair
6. Cultural construction of ethnic hatred	Cultural construction of ethnic hatred

Purposeful Discrimination