Suchergebnisse

An attempt is made to develop a general theory of the equal protection clause that adequately accounts for the role of social groups in contemporary American life. The theoretical foundations of the prevailing theory--antidiscrimination--are identified, & the prevailing theory is evaluated from the perspective of the claims of equality now being tendered to the courts. Particular attention is paid to the problem of preferential treatment for blacks. To understand the importance of the antidiscrimination principle in Constitutional adjudication, the 2 modes of interpretation are analyzed: literal interpretation of the Constitution & a 'mediating' interpretation poised between the text & the ideal embodied therein. This judicial gloss is open to redefinition in a manner not afforded by a literal interpretation. The antidiscrimination principle is not the Equal Protection Clause; it is a mediating principle that embodies a limited, highly individualistic concept of equality. The group-disadvantaging principle would take wider account of social reality & focus more clearly on issues at the heart of equal protection cases. Modified AA.

This article argues that state action that discriminates on the basis of religion is unconstitutional under the Equal Protection Doctrine even if it does not violate the Establishment Clause or the Free Exercise Clause as incorporated by the Fourteenth Amendment. State action that discriminates on the basis of religion should be subject to strict scrutiny and should almost always be held unconstitutional. We thus challenge the Supreme Court's recent decision in Christian Legal Society v. Martinez in which a 5 to 4 majority of the Court wrongly allowed a California state school to discriminate against a Christian Legal Society chapter on the basis of religion. We defend our argument that the Fourteenth Amendment bans discrimination on the basis of religion as being: 1) consistent with and mandated by the original meaning of the Fourteenth Amendment; 2) as following logically from the seminal logic in United States v. Caroline Products Footnote Four which specifically mentions religion as a suspect classification; 3) as not being precluded by any prior Supreme Court caselaw; 4) as reflecting the fact that religious affiliation is in some faiths hereditary and immutable; and 5) as being consistent with the ban on discrimination on the basis of religion in almost every equal protection clause in every foreign constitution or international human rights document that we have surveyed. We analyze the impact our equal protection argument might have on Establishment Clause and Free Exercise Clause caselaw, and we explain why in our view State constitutional Blaine amendments forbidding government money from going to religious entities violate the Fourteenth Amendment. We conclude, perhaps most strikingly, by arguing that the Fourteenth Amendment's ban on discrimination on the basis of religion renders the current system of funding the public schools unconstitutional. In our view, the Fourteenth Amendment obligates the states to provide students with education vouchers that they can redeem either at a secular or at a ...

This book philosophically explores changing conceptions of race and equality in Supreme Court decisions interpreting the Equal Protection Clause since the enactment of the 14th Amendment. It traces these changing conceptions alongside the gradual elimination of the social equality of racialized persons from the Supreme Court's list of priorities.

The Establishment Clause prohibits the Government from engaging in speech that prefers one religion (or any religion) over another religion. This article explores whether the Equal Protection Clause also prohibits government speech that advances racism.

Cover -- Contents -- Preface: Introducing the Enforcement Power -- Acknowledgments -- Introduction: Why the Enforcement Power, and Why Now? -- PART I. HOW WE GOT HERE: A BRIEF HISTORY OF EQUAL PROTECTION AND THE ENFORCEMENT POWER -- 1. Equal Protection before the Modern Era -- 2. The Rise and Fall of Carolene Products -- 3. A Historical Introduction to the Enforcement Power -- PART II. WHERE WE ARE NOW: THE ENFORCEMENT POWER IN TODAY'S COURT -- 4. The Modern Enforcement Power: Principles and Paradoxes -- 5. Constitutional Law and Legislative Policy -- PART III. WHAT TO DO ABOUT IT: CONSTRUCTING A MODERN ENFORCEMENT POWER -- 6. Refocusing Congruence and Proportionality -- 7. The Deference Question -- 8. An Aside on State Action -- PART IV. APPLYING THE FIX: EQUAL PROTECTION AND BEYOND -- 9. Irrationality, Animus, and Deference -- 10. Beyond Irrationality and Animus: The Enforcement Power in Other Contexts -- Conclusion: An Enforcement Power for a Twenty-First-Century Constitutional Democracy -- Notes -- Bibliography -- Index -- A -- B -- C -- D -- E -- F -- G -- H -- I -- J -- K -- L -- M -- N -- O -- P -- R -- S -- T -- U -- V -- W -- Y -- About the Author.