Equal Protection, Unequal Political Burdens, and the CCRI

40 Pages Posted: 23 Oct 1996 Last revised: 13 Oct 2011

Vikram D. Amar

University of California, Davis - School of Law

Evan Caminker

University of Michigan Law School

Date Written: 1996

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

Suggested Citation

Amar, Vikram D. and Caminker, Evan, Equal Protection, Unequal Political Burdens, and the CCRI (1996). Hastings Constitutional Law Quarterly, Vol. 23, No. 4, p. 1019, 1996. Available at SSRN: https://ssrn.com/abstract=10178

Vikram D. Amar (Contact Author)

University of California, Davis - School of Law ( email )

Martin Luther King, Jr. Hall
Davis, CA CA 95616-5201
United States

Evan H. Caminker

University of Michigan Law School ( email )

625 South State Street
Ann Arbor, MI 48109-1215
United States
734-763-5695 (Phone)
734-763-9375 (Fax)

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