Equal protection clause

This 2014 essay discussed the issue of same-sex marriage in the context of judicial review principles.  Although the U.S. Supreme Court held that same-sex marriage was a constitutional right in 2015, the reflections in the paper on judicial review were not modified by that decision.

We systematically gather and analyze the 45th president’s public discourse to formally describe his narrative about unauthorized immigrants. We definitely demonstrate that he publicly articulates racist statements about immigrants and Latinos in general. Beyond a formal statement, we offer partial explanations based on cognitive science and history why his public discourse resonates so well with a sizeable portion of the US electorate. We developed this report to resist his administration’s efforts to rescind DACA, because we believe his executive action is a violation of the Equal Protection Clause of the US Constitution, even though we believe that the Supreme Court is likely to ignore the public discourse of the nation’s highest elected official, thus separating his public discourse as president from his presidential actions.

The principle and ideal developed in Brown v. Board of Education and its successor cases lie at the heart of the rationale for affirmative action in higher education.  The principle of the school desegregation cases is that racial segregation is an injustice that demands remediation.  The ideal of the school desegregation cases is that racial integration is a positive good, without which "the dream of one Nation, indivisible"  cannot be realized.  Both the principle and the ideal make racial integration a compelling interest.  The Supreme Court recognized these claims in Grutter v. Bollinger.  However, it failed to take full advantage of them.  It thereby failed to answer crucial questions that must be answered by policies subject to strict scrutiny.  I display the links tying Grutter to Brown, discuss the vulnerabilities of Grutter in the absence of an explicit grounding in Brown, and demonstrate how the affirmative action policy upheld in Grutter, when explicitly grounded in Brown, survives strict scrutiny.

Modern Fourteenth Amendment doctrine is difficult to square with constitutional text. The text of the Equal Protection Clause, for example, makes no distinction between racial classifications and other discriminatory practices; it requires equal protection of the laws for every "person" within a state's jurisdiction. Nor does the text require equal treatment or equal rights; it requires equality only in the "protection of the laws." Yet the Supreme Court assumes that the Equal Protection Clause is implicated whenever a state treats people differently—without pausing to ask whether the state has withheld the equal "protection of the laws." And the Court has created a textually unsupportable distinction between racial discrimination, which it subjects to "strict scrutiny," and other discriminatory practices that receive "rational basis review."

Yet textualism has been enjoying a resurgence in both constitutional and statutory interpretation. This resurgence raises two questions for the Court's equality doctrines. The first is whether those who embrace textualism must reject the Court's equality jurisprudence as textually illegitimate. The second is whether those who embrace the Supreme Court's landmark equality pronouncements must reject textualism as incompatible with those rulings. The answer to both questions is no. Almost all of the Supreme Court's canonical racial-equality decisions have a firm textual foundation in congressional civil rights legislation—a fact that the Supreme Court has all but ignored by insisting on grounding its equality pronouncements exclusively in the Equal Protection Clause. And Congress enacted most of these civil rights statutes before the Supreme Court invoked the Equal Protection Clause to declare a discriminatory practice unconstitutional. So these civil rights statutes can and should be used to supply textual support for the Court’s decisions and doctrines, especially in cases where the Equal Protection Clause and other constitutional provisions are textually ill suited for the task.

The main aim of the article is to reconstruct the essence and distinctive features of the
principle of non-discrimination in the European law, jurisprudence and legal doctrine.
In turn, the main research problem lies in the fact that the scope and entities of legal protection of non-discrimination along with the principle of equal treatment differ depending on the interpretation of these legal principles within the legal framework of the European Union (EU) and the Council of Europe. Therefore, the question arises: in which
legal order the principle of non-discrimination is more protected in practice, what kind
of interaction exists between the European Union and the Council of Europe, and what
mechanism of protection of human rights in this respect should be applied?
On the basis of a comparative analysis, it should be concluded that the principle of
non-discrimination is more broadly protected n in the law of the Council of Europe, in
particular by the case-law of the ECtHR. On the other hand, recently it can be observed
that the CJEU is increasingly referring to the principle of equality, in particular as regards
extending its content and the scope of application. At the moment, as long as the European Union has not acceded to the European Convention on Human Rights (ECHR),
natural persons (EU citizens) can not complain about violation of the ECHR by the EU
directly before the ECtHR.
Keywords: principle of non-discrimination, direct discrimination, indirect discrimination,
discrimination by association, harassment, incitement to discrimination, legally protected
grounds of discrimination, equal protection clauses, proportionality.

As equal protection law develops, the Supreme Court’s concept of race moves from sociocultural/sociohistorical to biological. Concurrently, (1) the academic concept of race moves in the opposite direction, (2) the Court’s understanding of why racial discrimination is problematic changes from how racial discrimination reinforces the badges of slavery to the idea that racial discrimination is problematic per se, and (3) whites begin to become successful at using equal protection law to protect them from “racial discrimination.” One explanation is that this is another example of the divestiture of the rights of blacks since the end of the civil rights movement.

Certificate of attendance of the V. Tagung für Praktische Philosophie, held at the Universität Salzburg, Salzburg, Unipark, 16 & 17 November 2017. I gave two talks at the Tagung. The title of the first talk, held on 16 November 2017, was: "Freiheit, Entwicklung, Gerechtigkeit: Anmerkungen zu Amartya Sen". The title of the second talk, held on 17 November 2017, was: "Ist Multikulturalismus schlecht für Frauen?".

Intervista all'Avv. Pietro Insolera a cura di Francesco d'Errico (presidente associazione Extrema Ratio) Il fenomeno della police brutality, l'estensione eccessiva della qualified immunity dei pubblici ufficiali per le azioni commesse nell'esercizio delle funzioni nell'interpretazione della Suprema Corte, l'approccio discriminatorio degli agenti nei confronti della comunità afroamericana e quella dei latinos. Questi alcuni dei temi affrontati, insieme al tema della mass incarceration e delle condizioni degli istituti penitenziari, oltreché delle possibili opzioni di riforma, anche in relazione alle posizioni politiche del momento, della giustizia penale americana. Un'intervista per comprendere, dal punto di vista giuridico, le ragioni della brutalità poliziesca e delle proteste di questi giorni a seguito dell'omicidio di George Floyd avvenuto a Minneapolis, città più conosciuta e popolosa dello stato del Minnesota.

Why affirmative action in academia is hurting those its supposed to help, how the Court contradicts itself in upholding its use in academic decisions, why reverse discrimination and discrimination are not distinguishable, discrimination is discrimination, and why the Public Education system in America is the culprit behind it all.

Equal protection must prohibit arbitrary governmental classifications or differentiation.  The Supreme Court is a unique authority because of its power to create constitutional law and because of its symbolic position in this society as a bearer of the Constitution as aegis. The Fourteenth Amendment, which is derived from the Equal Protection Clause, is one of the most important areas of constitutional law.

Governmental decisionmakers must consider equal protection doctrine since they are frequently required to discriminate among those arguably qualified in order to determine who should bear the burden of governmental action or receive the benefits of governmental largess.  A decision to discriminate is often the result of political compromise, limited objectives, limited resources, prejudice, or a blend of these reasons.  This failure to treat equally all those who are arguably similarly situated regarding these burdens or benefits prompts challenges in the application of the Equal Protection Clause.  The Supreme Court has provided inadequate guidelines for determining such challenges.

The history of equal protection is a history of the constitutional erosion of the government’s power to rule without reason, to treat similarly qualified persons differently because of what officials think of them, to lump people together for group treatment without regard for their individual merit or ability, and to treat people unequally so as to serve the personal interests of the decisionmakers rather than the interests of the public.  It must be admitted that, in acting upon its own sense of fairness and equality, the Supreme Court has not developed a formal process of analysis that narrowly channels its discretion.  Hopefully, with conscious development, the process will become better defined and standardized, but discretion must be used as long as the Court possesses, at least in part, the power to adjudicate while making constitutional law.