hate crimes weirdness

JKSCHW at aol.com JKSCHW at aol.com
Mon Feb 28 19:33:24 PST 2000


In a message dated 00-02-28 21:59:42 EST, you write:

<< Hasn't the 14th Amendment been used 95% of the time to protect corporate rights

and 5% of the time to protect the rights of Black people? I read somewhere that

after the adoption of the 14th amendment it was only used 6 times by the Supreme

Court in the first 60 years of its existence to protect the civil rights of

Black people.

>>

That's old hat. Basically, from the 1890s to 1937, during what was called the Lochner era, after a case where the S.Ct struck down wage and hour laws for violating the 14A (and Holmes wrote a famous dissent), the courts regularly used the due process clause of the 14A to attack social and economic legislation regulating business. In the mid 1930s this changed, and after a key series of cases in the 1930s, the S.Ct decided that it had been wrong and the due process clause could not really be used to invalidate social and economic legislation. It has not invalidated a piece of such legislation on those grounds since 1937.

In a famous footnote to a case called Carolene Products, the Court said that individual rights cases involving discrimination woulld get real consideration under the 14A, but ordinary economic and social legislation would not. Starting in the 1950s, with cases like Brown, the Court started to put this doctrine to work. So basically, the 14A is mainly used today to protect individual rights. If you bring a substantive due process or equal protection challenge to a piece of legislation that is merely economic or social today, and does not involve an individual rights claim of discrimination or free speech or something like that, you will lose. You may even be sanctioned for bringing an obviously nonmeritorious case.

--jks



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