The Subjective 14th Amendment

In Goluboff's Constitutional Law class we are about to wrap up our segment concerning the Equal Protection Clause and its meaning in modern interpretation. The text of the clause is simple enough: "no state shall ... deny to any person within its jurisdiction the equal protection of the laws." Unfortunately, the Supreme Court's treatment of the language has rendered its meaning into a foggy mist of uncertainty. Two weeks of hypotheticals and case law has convinced me that SCOTUS needs to start anew.

Basically, as it stands now, the level of protection anyone gets is determined by how the law is classifying you.  If a law is distinguishing among citizens based on race, the Supreme Court has determined that they will use "strict scrutiny" in evaluating the law's constitutionality.  If the law has a "compelling interest" in its ends and its means are "narrowly tailored," then the racial classifications are just fine. No matter that those standards leave room for subjectivity to run rampant ... but more on that later. 

If you are being classified on the basis of sex or gender - which apparently is less invidious - you only get "intermediate scrutiny."  If the law has an "important interest" and its means are "substantially related" to the ends, then it passes muster. Ginsburg - she is a wily one - upped the ante and required that there be a "exceedingly persuasive justification;" which I guess is harder to meet than an "important interest." Anyone understanding the differences between qualitative and quantitative measurements is probably laughing at this point. 

And finally, if you are distinguished from your fellow citizens on other grounds - lets say mental retardation - you get "rational basis review." If the state can show a rationale for the law, and its means are somehow related, they'll be fine.

Now, this all sounds well thought out and fine, until you realize that the words used in defining the tiers of scrutiny have to be applied by human beings who are inherently subjective observers. This is not math, and all the talk about "compelling interests" vs. "important interests" is completely meaningless. Here is a somewhat crude analogy:  

Let's say a young man goes to an engineering school for his undergraduate education - Georgia Tech would be a good example. His identical twin brother somehow became interested in history and decided to take a different path in his educational career which led him to The University of Georgia. Now, hopefully any objective observer would agree that the selection of possible women for companionship at the respective schools is both qualitatively and quantitatively different.  No offense to Georgia Tech, but the girl to guy ratio is miserable for men, while the opposite is true at UGA. I'm not going to comment on the qualitative difference, but wink wink, nudge nudge to everyone who is familiar with those schools. Hypothetically, the brothers have the same taste in the fairer sex, but the choices for the engineer are abysmal. He manages to get a girlfriend though, as well as his brother. While home for Thanksgiving their good friend asks them how their love life is turning out and they both claim to have snagged an 8. But when their friend visits them he judges the GTech brother to have only snagged a 6 and the UGA brother to have reeled in a 10. I'm not going to belabor the point I'm trying to make ... 

This exact phenomenon showed up in Supreme Court doctrine concerning the "compelling interest" standard for race based discrimination. In Korematsu v. United States, the Supreme Court (6-3) struggled with the question of whether evacuation of all citizens of Japanese descent from the Western United States during WWII was a "compelling interest."  Compare this to the finding (5-4) of a "compelling interest" in Michigan having a "elite law school" thereby allowing the admissions board to distinguish between students on the basis of race.

So lets get this straight: during one of the most trying times in our nation's history, after an imperial attack and under possible invasion of the western seaboard, our Supreme Court allowed a law to take race into account - with three dissents.  Then, 50 some odd years later, the Supreme Court found a similarly "compelling interest" in a state having an elite law school? Never mind the fact that racial diversity may not even be an aspect in many people's minds of an "elite" school? Never mind the fact that some states don't even have law schools? A "compelling interest" is a pretty broad concept apparently. Subjectivity run amok.

Why gender gets less protection is similarly confusing. Rehnquist claimed that it was because women received less invidious discrimination in the past, and therefore we needn't be as on guard as when dealing with race. There are plenty who would disagree: after all, the 19th Amendment came a bit later than the 13th and 14th. There is an original intent argument concerning the 14th Amendment, but I won't bore you with that. The real frustration in all of this is that the Court applies these "standards" in a calls 'em as they sees 'em way that, in truth, makes a mockery of constitutional interpretation - such things should be left to bloggers. The meaning of the "tiers" changes each time the Senate confirms a new justice. But there is a way to fix it.

Strike down every law that makes any type of distinction between "citizens." Call me crazy but the Equal Protection Clause would be served mightily if our nation took this proposal up. Clarence Thomas advocates it all by his lonesome whenever Equal Protection comes up, and Kennedy seems to loathe the tier system even though he never joins Thomas' dissents.  I'm not alone.

Problems? These are a few always advocated:

1. How to deal with Affirmative Action

2. Prisons

3. Military

4. Restrooms and Gender Segregated Facilities

5. Hopefully the comment section will fill up with more making me feel like an idiot.

Answers:

1. Don't (A post on this in the coming week)

2. They are already in jail and have had most of their freedoms taken away so who cares if we segregate them.

3. If a woman can lift a 200 pound Marine after his legs have been shot then let her in ... on the other hand the military is quasi removed from constitutional law anyway, so its not really a problem (a post on this later in the week)

4. Make it optional and I promise they'll stay segregated ... besides, homosexuals have made it a non issue anyway ... as well as some universities that insist on coed showers and restrooms.