Equal Protection: Crash Course Government and Politics #29
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Equal Protection: Crash Course Government and Politics #29

October 15, 2019


Hi I’m Craig and this is Crash Course Government
and Politics, and today we’re going to finally get into why many people, including me, think
that the Fourteenth Amendment is the most important part of the Constitution. At the
same time, we will attempt – successfully, I hope – to unravel the difference between
civil liberties and civil rights, and also try to figure out how the Supreme Court actually
looks at civil rights and civil liberties cases. So that’s a lot. Let’s get this
out of the way because we’re not gonna have time later. Let’s get started. [Theme Music] So we’ve been talking a lot in the past
few episodes about civil liberties, the protections that citizens have against the government
interfering in their lives. Civil rights are different in that they are primarily about
the ways that citizens, often through laws, can treat other groups of citizens differently,
which usually means unfairly. Civil Rights protections grow out of the “equal protection”
clause of the Fourteenth Amendment, which reads: “No State shall make or enforce any law
which shall … deny to any person within its jurisdiction the equal protection of the
laws.” This may seem straightforward, and in some
of the landmark cases that we’ll get to like Brown v. Board of Education, it is, but
when you think about it, unequal treatment of specific groups is usually done by private
citizens or institutions – like your employer or your landlord, and most people, believe
it or not, are NOT employed by the government, either federal or state and they don’t live
in government housing. And initially the Supreme Court interpreted
the clause to apply only to the state government, not to private discrimination. In the Civil
Rights Cases, the Court ruled that the law, “could not have been intended to abolish
distinctions based on color, or to enforce social, as distinguished from political equality,”
and they confirmed that as long as the state provided equal accommodations for people of
different races, segregation was fine. This is the infamous “separate but equal” doctrine
that was formulated in the case Plessey v. Ferguson. The distinction between social and political
equality is an important one, and it provides a principle for looking at discrimination
that the courts still use. Unfortunately, it’s pretty complicated and it means we
have to look at something that’s kind of confusing, levels of scrutiny and protected
classes. And we’ll start with protected classes because they are easier to understand.
Let’s go to the Thought Bubble. So when state law or executive action mentions
a protected class, the Supreme Court will almost automatically become suspicious. So what are
protected classes? Broadly speaking they are what we might think of as “minorities” and this is an important
way to conceptualize them. The Court defined protected classes in one of the most important footnotes
in their jurisprudence. Here’s the relevant passage: “Nor need we enquire whether similar considerations
enter into the review of statutes directed at particular religious … or national, …, or
racial minorities,… whether prejudice against discrete and insular minorities may be a special
condition, which tends seriously to curtail the operation of those political processes
ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more
searching judicial inquiry.” So here it lays out the categories where the
Court is going to pay special attention: when a statute deals with “discrete and insular
minorities,” such as religious, or national or racial minorities. It’s automatically suspect
and the courts are going to look at it closely. Why? Well this is in the footnote too. It’s
because minorities, by definition, are at a huge disadvantage in the democratic political
process – their numbers are too small to pass laws that might favor them, and it is
easy for groups in the majority to pass laws that will disadvantage groups that are not
in the majority. And this gets at the heart of the distinction between civil liberties,
which deal with government actions, and civil rights, which deal with majority groups making
life hard for minority groups. You may not like this distinction, but it
does have the virtue of being based on a principle. Basically the courts will step in to protect
groups that are unable to protect themselves in the legislative process because it will
be too hard for them to pass laws in their favor. The way politics works in the U.S.
will complicate this, as we’ll see, but as a principle it does make some sense. Thanks,
Thought Bubble. That footnote above talks about situations
that call for a “more searching judicial inquiry.” This is known as the level of
scrutiny that the courts will apply, and it’s not strictly limited to equal protection cases,
but this is where I’m going to try to make sense of it. So the highest level of scrutiny is called
strict scrutiny. I’d call it super scrutiny or mega-monster scrutiny, but they didn’t
ask me today. And this means that the government will have a heavy burden to prove that the
law or action in question is allowable. When government action concerns a protected class,
strict scrutiny kicks in. There’s a five-step process that the courts go through in examining
what the government has done. First they look to see if there’s a protected
liberty at stake. Sometimes this is easy, as with religious freedom, but other times it’s hard,
as with certain property rights or privacy issues. Second they look at whether the liberty is
fundamental, which again can be complicated or not, depending on what the government is
doing. Freedom from incarceration is a fundamental liberty, actually, it’s basically what we
mean by liberty, so a law that specifically incarcerated one group based on nationality
would get strict scrutiny. Unfortunately this did happen, during World War II when Japanese
Americans were interned, but it’s a bad example of strict scrutiny since in that case the court, ruling in the case
of Korematsu v. US let the government’s action stand. Third, they look at whether the law or executive
action places an undue burden on the person or group in question. Let’s say a state requires
literacy tests for voting which can be burdensome or not, depending on the test and how it is
administered. Fourth, assuming that the first three qualifications
are met, the courts look to see if the law in question furthers a compelling government
interest. In the literacy test example, the government interest might be seen as creating
an educated pool of voters, although I’m not sure this would qualify as compelling. Fifth, if the court finds that the law meets
all the other criteria, it looks to see if the government action in question follows
the least restrictive means of achieving the government’s interest. In other words, is
there a less burdensome way that the government could accomplish what it says the law accomplishes?
If the answer is yes, then the law is struck down. So you can see, this five-part test is pretty,
well, strict, and it’s hard for the government to pass it. In practice, this means that if
the Court applies strict scrutiny, it means that the governmental action or law in question
is probably going to be deemed unconstitutional. So that’s strict scrutiny — not mega-monster
scrutiny — but what about those cases where the government isn’t dealing with a protected
class, which is much of the time? Usually the Court applies what is called the “rational
basis” standard for review. This is the lowest level of court scrutiny, and what it
means is that if the government can show that it has a rational basis for its actions, the
courts will say they are ok. As you might expect, this gives the government a lot of
leeway with its laws. In between strict scrutiny and rational basis
review is something called midzi scrutiny — NOPE — intermediate scrutiny. It’s a
harder standard to meet than rational basis, but it doesn’t mean that the government
usually loses, like with strict scrutiny. Why doesn’t the government consult me about
naming things? Ok, so now we have a sense of what civil rights
are, and why the courts look at civil rights cases in the way that they do. It seems like a good
time for an example to help make sense of all this. And there’s no better example than the famous decision
in Brown v. Board of Education of Topeka Kansas. Although it was not the first case to take
on the issue of discrimination in education, Brown v. Board is the most important, because
it dealt with public schools. The issue was that Topeka had separate schools for black
students and white students. Linda Brown was black and her parents wanted her to attend
the white school because it was closer to where they lived and because it was better.
The schools were supposed to be equal in quality under the “separate but equal” doctrine,
but they weren’t. So after all I’ve told you about how the
court decides cases where protected classes are involved – in this case black people
who certainly qualify as a discrete and insular minority – the interesting thing about Brown
v. Board of Education is that the Court pretty much ignored all of it. Their reasoning wasn’t
legal or historical, it was sociological, based on the idea that separate facilities
are inherently unequal because they make the minority group feel inferior to the majority
group. Although the case didn’t immediately bring
about the end of segregated schools – many states engaged in what they called “massive
resistance” to prevent school integration, Brown v. Board of Education is still a landmark
Civil Rights case. It showed that the federal government could intervene in something as
local as public education when racial discrimination was involved, and, more important, it showed
that states couldn’t use race as a criterion for setting up public schools. It was the
legal basis of what we know as the American civil rights movement, and provided the foundation
for the federal civil rights legislation of the 1960s. So I got a little into the history there,
sorry about that. I know this is Crash Course Government and not Crash Course History. But
with civil rights it’s kind of hard not to. That’s because, unlike with civil liberties
which are pretty much defined by the bill of rights, the question of civil rights comes
out of the Fourteenth Amendment equal protection clause, which itself came about because of
the Civil War and from the very beginning was a contested concept, and one whose meaning
has changed over time. Because civil rights and equal protection
almost by definition involve political activity and protection of minority rights, what constitutes
civil rights changes over time. That’s why, in 2015 people talk about same sex marriage
as a defining civil rights issue when 30 years earlier it was hardly mentioned. What’s
really important is that we understand that civil rights, and their denial, have as much,
if not more, to do with us and how we treat each other, as they have to do with how the government acts.
Thanks for watching, I’ll see you next time. Crash Course Government and Politics is produced
in association with PBS Digital Studios. Support for Crash Course US Government comes from
Voqal. Voqal supports non-profits that use technology and media to advance social equity.
Learn more about their mission and initiatives at voqal.org. Crash Course was made with the help of
these mega-monster scrutineers. Thanks for watching.

Only registered users can comment.

  1. Crash Course can you please slow down when it comes to you talking … very hard to understand !!! 🙂

  2. The thing I hate about crash course, they speak a little too fast. I can't even understand what he is saying. Thanks for giving me a 0% on my 27 Amendments Test

  3. "ability to pass laws that favor them" is not a justification for discrimination based or race or ethnicity – THE ABILITY TO ADVOCATE to our fellow citizens to change the laws to favor the minority is the correct path…

  4. The first amendment is infinitely more important than the fourteenth amendment. Individual liberty is more important than anything that the government provides via "civil rights".

  5. I'm watching this for my gov class, and it's really weird. I keep expecting a clone to stumble in, or banjo face, or a terrible pun to be made. But Craig is being a (mostly) serious. It's…weird.

  6. Hi, I really like your videos. But could you PLEASE try to speak slowly, because I am french and it is going to fast for me. Thank you 😉

  7. I will be a paralegal because of this very specific video and only this video!!!! Litigation and adjudication here I cometh!!

  8. Notice Thier no right to Privacy..Hint Mass surveillance.. license plate reader's,MZ catcher's. Etc. Every police department in America now has MZ catcher that are fake cell towers or base station they can listen to your calls and see every action on your cellphone in active mode steal your calls ,text email ,sms messages and watch you thru your phone and up to 60,000 phone just with one base station…No way of tracking it either…so they could use it without a warrant you Never know….

  9. "The reasoning wasn't legal or historical"… see Mendez v. Westminster, a desegregation case in California in 1947.

  10. I wish this would have mentioned the Freedom of Association which is the most controversial part of the 14th. It's bizarre to me that you can purport to teach about the amendments but fail to mention a huge clashing aspect of the 14th against the 11th. This is the most important part of our constitution; explaining why we let certain amendments override others.

  11. The US Constitution was not meant to protect minorities from the majority. It was enacted to protect the majority from a very specific minority — the ruling elites.

  12. Thank you so much! Currently preparing for the Bar exam as a foreign-educated student (UK) and these crash courses are so helpful in getting my head around a completely different judicial system!

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