Equal Protection, Unequal Political Burdens, and the CCRI

Abstract

States certainly have the right to repeal previously enacted race-based affirmative action programs. As Professors Amar and Caminker point out, however, a little-discussed line of Supreme Court authority identifies some federal constitutional limitations on the ways in which repeal may be effected. The lead cases are Hunter v. Erickson and Washington v. Seattle School District. The most coherent and sophisticated reading of this line of cases suggests the following: When a state law not only repeals programs that specially benefit racial minorities, but also entrenches that repeal by making reenactment of those programs in the future particularly difficult, such a law runs afoul of the Equal Protection Clause. Taking these cases as a given, Amar and Caminker apply them to the so-called California Civil Rights Initiative ("CCRI"), which appears as Proposition 209 on this November's California ballot. The authors conclude that these cases, which are presently the law of the land and binding on lower courts, cut against the constitutionality of the CCRI.

JEL Classification: J71, J79, K39