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"(1) Was federal reconstruction legislation race-conscious or race-neutral? Congress adopted many social welfare laws after the Civil War that seem to expressly benefits blacks only. e.g., the 1865 Freedmen’s Act created a bank for “persons heretofore held in slavery in the United States, or their descendants.”

Note: Affirmative Action and Original Intention


"(2) Did federal reconstruction law even take the 14th Amendment into account?The 14th Amendment applies to the states, not the federal government. Hypothetically, if the P&I clause were substantive (it’s not—Slaughterhouse), then all “citizens” have certain privileges and immunities, and under the 14th Amendment, all persons born in the U.S. are citizens—equally. So, if every citizen of the U.S. has equal rights, then that would forbid classifications by state and federal government. "

Note: Affirmative Action and Original Intention


"(3) Did the Framers subscribe to “color-blindness”?Total non-discrimination was actually considered too radical, because that would have provided no basis for keeping blacks out of the voting booth. The Framers instead used open-ended phrases of civil equality, like “privileges and immunities” and “equal protection.” The framers of the 14th Amendment plainly didn’t expect that blacks were to be made socially and politically equal to whites (there were way too many race-conscious laws that cut against that kind of equality). *If the framers intended only for civil equality before the law, then should an “originalist” fight against any classification that promotes social (e.g., education, welfare) or political (e.g., voting, running for office) equality before the law?"

Note: Affirmative Action and Original Intention


"Conclusion: Judicial recognition of race-based behavior should instead arise from an inquiry into the behavior's "cultural meaning"—how the behavior is viewed by the culture. Is the action viewed as a symbolic message to which the culture attaches racial significance? Example: a wall constructed between a white and a black community. Even if the intent is to reduce traffic (not just black traffic), the cultural meaning of the wall will have significant racial undertones and thus perpetuate the power structure courts seek to counter. A narrow inquiry into intent would not (and did not, since this was a real case from 1981) recognize race-based behavior. This will have the added benefit of removing the stigma people attach to violators of prohibitions on discriminatory practices. Courts will condemn the effect, not the offender, so there's less cause for hard feelings. "

Commentaries: Lawrence


"Courts should employ an “anti-subordination” perspective. “This approach seeks to eliminate the power disparities between men and women, and between whites and non-whites, through the development of laws and policies that directly redress those disparities.” This approach provides a substantive explanation for why we tolerate some classifications (intelligence, age, ability, etc.) and not others (race, sex, etc). “Anti-subordination proponents therefore advocate the use of race- or sex-specific policies, such as affirmative action, when those policies redress the subordination of racial minorities or women.” "

Colker, Anti-Subordination Above All: Sex, Race, and Equal Protection


"Reasons for the “suspect classification” doctrine: Preventing “first degree prejudice”—harming and vilifying a group for no reason other than to disadvantage its members. Preventing “second degree prejudice”—harm that results from attempts to promote some legitimate social goal by the use of “a generalization whose incidence of counterexample is significantly higher than the legislative authority appears to have thought it was.” Identifying second degree prejudice is difficult and involves “balancing the increase in fairness that greater individualization will produce against the added costs it will entail.” One sign of too-costly generalizations might be when the generalizations serve the interests of the decision makers, for example by supporting positive myths, like whites are smarter or men are more stable emotionally. "

Ely, Democracy and Distrust


"Sexual identity is a crucially relevant category within our culture—arguably even more important than race. We live in a patriarchal society in which it matters enormously whether a person is male or female. But to be female, unlike being black, is to be regarded as different but not necessarily a creature of less worth. Women are both put on a pedestal and deemed not fully developed persons—they are idealized and their admiration is highly sought after. Because sexism is so complicated, it is hard to identify and eradicate—some people would even openly admit to being sexist while no one would openly admit to being a racist. Thus, sexism is deeply imbedded in our culture and institutions. "

Wasserstrom, Racism, Sexism, and Preferential Treatment


"Status - race as an indicator of social status (usually stereotypically negative)Formal - skin color alone

What is ‘Race’ for Purposes of the Equal Protection Clause?


"Stereotypes about women have been around forever and have cost women dearly, even if they may be rooted in a sort of good humor and protectionism. However, it must also be recognized that women are out in the open (unlike homosexuals) and are technically not even a minority. But despite this, it seems right to claim that women have been operating at an unfair disadvantage in the political process. Although it’s hard to pinpoint why. Have women for a long time chosen that diminished participation, accepting their role as given?The persistence of this disparity is further complicated by the fact that a sufficiently pervasive prejudice can block its own correction by not only keeping its victims in the closet, but also convincing even them of its correctness."

Ely, Democracy and Distrust


"The 14th Amendment rejected all reasons for treating blacks differently, no matter how “reasonable” (Plessy). It is laughable to suggest that “equality” can be achieved under segregation—we all know how ridiculous it is to say that it is “better” for blacks to be separated. "

Charles Black, The Lawfulness of the Segregation Decisions


"The anti-discrimination principle guards against harmful results. Race-based decisions are based on assumptions of intrinsic worth and selective indifference, which inflicts psychological injury by stigmatizing victims as inferior. See Strauder (14th Amendment protects blacks from “legal discriminations, implying their inferiority in civil society) and Harlan Dissent from Plessy (separation placed a “badge of servitude” on blacks, implying that they are “inferior and degraded”). Since race is immutable, victims of racial generalizations feel they have been unfairly judged without regard to their actual behavior or character. The harmful effects tend to be cumulative—being denied one opportunity deprives a person of other opportunities later on, so the harm multiplies. "

Brest: In Defense of the Antidiscrimination Principle


"Viewing discrimination from the lens of social cognition theory:Stereotyping is something everyone does—it is simply a process of categorization. Stereotyping is a cognitive process, rather than motivational. It operates before the moment of decision and affects the unconscious thought process. This, stereotypes "sneak up" on the decision maker, distorting bit by bit each piece of data analyzed in the decision process. Viewed from this lense, it's clear that discrimination is automatic—it does not result from a motive or intent to discriminate. It's an unwelcome byproduct of otherwise adaptive cognitive processes. Even the most "color-blind" decision maker will fall prey to these biases. Conclusion: causality is the better inquiry—not intent. "

Commentaries: Krieger


“First, the equal protection clause of the fourteenth amendment should be read as saying that the Negro race, as such, is not to be significantly disadvantaged by the laws of the states. Secondly, segregation is a massive intentional disadvantaging of the Negro race, as such, by state law. No subtlety at all.”

Charles Black, The Lawfulness of the Segregation Decisions


Most differences between men and women, like differences between blacks and whites, are statistical—they are generally true in the aggregate but not always true regarding certain individuals. Reproductive capacity is one of the very few actual differences between men and women.

Sylvia Law, Rethinking Sex and the Constitution


Much of the ERA movement focused on removing sex “classifications” period, excluding all of the ways sex-neutral state policies have subjugated women for centuries. e.g. abortion, rape laws, prostitution, pornography, and battery are all sex equality issues, and have provided vehicles for men to promote their interests over the interests of women. What if we called this “state action” in the sex equality area?

Mackinnon, Unthinking ERA Thinking


Original intent has to include what the public would have thought was meant by the words at the time. “[The framers] wrote a clause that does not say anything about separation. They wrote a clause that says ‘equal protection of the laws.’ I think it may well be true . . . that they had an assumption . . . that equality could be achieved with separation. Over the years it became clear that that assumption would not be borne out in reality ever. Separation would never produce equality.”

Judge Bork confirmation hearings


Rape laws present a problem for feminists: on the one hand, they protect women and girls; on the other hand, they limit girls’ sexual freedom (under CA’s statutory rape law, a girl can’t have sex until she’s 18) and also rely on outdated, paternalistic stereotypes (men as aggressors, women as passive victims). For men, sex is an accomplishment, for women, sex entails giving something up. Thus, young girls who have sex as either victims or whores.

Frances Olsen, “Statutory Rape: A Feminist Critique of Rights Analysis


Segregation is not a choice in freedom of association (freedom to associate away from blacks). Blacks are “citizens” and I can’t imagine that a citizen’s status can be achieved without other people having to associate with them from time to time.

Charles Black, The Lawfulness of the Segregation Decisions


The 14th Amendment as originally understood was not meant to apply to jury service, suffrage, anti miscegenation statutes, or segregation. But it did adopt language that left open that possibility through statutes and enactments under the law. The Congress specifically rejected the more narrow “civil rights formula” that would have gone no further than the Civil Rights Act of 1866 (applied only to right to sue, contract, inherit property, etc.) in favor of broader language capable of broader interpretation later. This was necessary because the more clearly broad language wouldn’t have passed the ratification stage.

Bickel, The Original Understanding and the Segregation Decision


The 14th Amendment did apply to segregation, as is clear from several desegregation actions taken by the Congress shortly after. Some of them didn’t make it but others did. The intent of the ratifiers might have felt otherwise, but it is the intent of the framers that matters.

McConnell, Note: Originalism and the Desegregation Decisions


The answer to sex inequality is to recognize that difference between men and women has created a hierarchy that people are not aware of. As long as laws focus only on removing the differentiation, the hierarchy will still persist. Laws should instead focus on removing actual inequality in the power structure.

Mackinnon, Toward a Feminist Theory of the State


The anti-discrimination principle guards against defects in process. Race-dependent decisions are irrational insofar as they reflect the assumption that members of one race are less worthy than other people.

Brest: In Defense of the Antidiscrimination Principle