Equal Protection: Crash Course Government and Politics #29

September 13, 2019 posted by


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.

100 Comments

100 Replies to “Equal Protection: Crash Course Government and Politics #29”

  1. jgyuri says:

    And to think that almost all republican presidential candidates are against the 14th amendment of the constitution! talk about unamerican

  2. d3rrial says:

    I have recently read a book in which the US government reinstated slavery laws, which allow the enslavement of women, but women only. Women make up roughly fifty percent of the population, would that mean that strict scrutiny would not apply for such a law, as they are not a minority group?

  3. Naveen says:

    The Supreme Court allowed all sorts of heinous government policies during the FDR era, though his internment of the Japanese may have been the worst. Once FDR threatened to pack the court w/ his cronies they got scared & began allowing Unconstitutional violations of individual liberties, many of which still stand. It was a dark time

  4. thedondo100 says:

    I love that bit with the eagle it is the reason I tune in.

  5. James Miller says:

    Crash Course Criminology?

  6. Henry Whitmore says:

    The 14th Amendment was passed in order to allow former slaves (and the children thereof) to be classified as U.S. citizens. It is archaic and doesn't really hold up to our modern needs. If a person can come here on vacation and have a child and we are now responsible for that child for life then we have a broken system. The 14th Amendment must be repealed.

  7. I Am Drew says:

    Basically when you're in the majority or share a majority opinion that exists to deny or remove rights from minority groups, chances are the government will not side with you. That's why conservatives will always lose when they try to make things better for the majority while making them worse for the minority.

  8. coconutologist says:

    If liberties exist in a state of "act or acted upon" will we ever reach a static state of liberty? It would seem that, in addition to happiness, liberty is to remain pursuit.

  9. The Squire says:

    5:00 does this imply that the majority of laws passed would be deemed unconstitutional if the supreme court examined them further? Should we really be passing that many unconstitutional laws?

  10. BlankPicketSign says:

    And to think… Donald Trump has said that he wants to Abolish the 14th Amendment…
    The man is a Fucking Tyrant… and should never be given any amount of Power!

  11. Juanita Goliszewski says:

    Hi Craig!

  12. Sedrick Alcantara says:

    In other words Fuck trump with a capital F for being as un-American as it gets without supporting the confederacy.

  13. davidkimlive says:

    Well, this is a nice video, but it will be outdated when President Trump repeals the amendment…

  14. Adrian Duran says:

    How are women a minority?

  15. Patrick O'brian says:

    take that trump

  16. Bastispark says:

    #murrica

  17. Billsthename says:

    Why are there dislikes in videos like this? Is there a couple of guys who subscribe to this channel just to dislike all of their videos out of personal spite?

  18. MagicSteel1 says:

    tell me why we're paying different tax when we're getting same protection…..supposedly

  19. kerrywsmyth says:

    As an expert in ideology, politics, philosophy and the enlightenment period which gave birth to the US Constitution, this entire video sounds like a bunch of gobbledygook.

  20. Collin Bruce says:

    let us not forget the gender minority. so ideally, the clause should read: the religious,… the national,… the ethnical,… and the gender minorities.

  21. Ahmed Musa says:

    I will remember Midzi.. ehh.. intermediate Scrutiny more because his awesome way of teaching ..!!

  22. Colonel Graff says:

    Equal Protection: Ask black people if it actually works…

  23. Ryan Davidson says:

    How does equal protection apply to taxes?

  24. WarblesOnALot says:

    G'day…,

    Yay Team !

    ;-p

    Ciao !

  25. Sapphire Crook says:

    Wow, you brought up the US Concentration Camps.
    A+ for acknowledging that blind spot, and another + for giving me the hope that, even if it failed, there was a lawsuit.
    Because that would've been embarrassing.
    A US citizen not suing someone (especially dat big Bro) over something? That'd be just too weird.

  26. Surreptor says:

    Thanks for the episode! It would have been nice if you could have made the distinction between civil rights and civil liberties a bit clearer…

  27. BDoug says:

    What's confusing and not at all clear from this video is where did these procedures that the Supreme Court appears to follow come from and are they mandatory (could a future court just ignore them). Levels of scrutiny and protected classes–where did these concepts come from? They're not directly in the Constitution nor are they in laws passed by Congress. And those 5 steps that the Supreme Court goes through when applying the highest levels of scrutiny. Who created them? Could they be altered (for instance could new steps be added or some dropped). How would this happen? Does anything compel their use? Why does the Supreme Court follow them? Could future courts just say, to hell with all this, let's just forget about protected classes and levels of scrutiny and the 5-steps procedure?

  28. 2109cory says:

    When I was in the navy we used to always bring up the subject of jousting and prejudice, I cant imagine any buddy besides white people jousting.

  29. Feda says:

    It's more complicated than this…..

  30. Dan Guiana says:

    I can't think of any concept the Founders would have found more abhorrent than the concept of 'protected classes'

  31. Tony Montana says:

    Affirmative Actions is racist.

  32. Adam Borison says:

    Yes! The 14th Amendment is the shit!

  33. Beef Stroganoff says:

    Keep up the good work Craig. You're doing a great job.

  34. mustang6172 says:

    Clearly the supremacy clause is the most important part of the Constitution. Otherwise nothing else in it would matter.

  35. aquinas nabiswa says:

    I like the angle of ur videos…really enlightening esp. from a "global village" perspective..

  36. wholeNwon says:

    Perhaps the best episode so far.

  37. DescendantKnights OfMalta says:

    so if woman aren't a minority, why are they a protected class?

  38. Forrest Rittmann says:

    Great job as always! The 3 amendments passed (plus the 19th) in the wake of the Civil war really shaped the shaped the constitution into what it is today. Before they were passed, complete citizenship was not promised to all, even if it is sometimes just on paper and not in practice.

  39. Anne Kohn says:

    Crash Course British History?

  40. Anne Kohn says:

    Crash Course British History?

  41. erzan says:

    Separate but equal = Boys and Girls schools
    Separate but equal = Religious schools
    Separate but equal = Private schools

  42. Folopolis says:

    Funny how he didn't once mention how civil liberties can be violated when the courts apply strict or intermediary scrutiny to private interactions.

  43. Josh says:

    I'd love to see a section on the politics end dealing with labor relations. Or even an entire crash course series. With the major nlrb ruling, we could see a major union push in the coming year. You guys woukd be on the forefront of policy education.

  44. Matthew Heermann says:

    Weezy, excellent, really excellent. Question though, do you commute from Chicago down to the studio in Indianapolis? I thought my commute was terrible, but that sounds awful.

  45. Solunaqua says:

    Why do you keep on hitting your desk eagle off your desk!?What did he do to you?KAAAAAAW

  46. Will Fellmeth says:

    What group or organization has the blue flag with the two yellow rectangles (equals sign) at time 7:31?

  47. bugsbbunny says:

    Protection…for the rich and powerful

  48. Stephen Furr says:

    What about the rights of eagles, Craig?!

  49. Lawrence Tider says:

    Why not make a law making discrimination illegal?

  50. Tanner Ewalt says:

    Eagle

  51. Tanner Ewalt says:

    Punch

  52. SuperChalm says:

    If "we" (People in the comments) were to write an amendment to the constitution what would it be?

  53. bobbyet1010101 says:

    Crash Course Robotics?
    PLEASE

  54. SDAVID OLUBIYI says:

    Will there ever be a crash course physics?

  55. SDAVID OLUBIYI says:

    Will there ever be a crash course physics?

  56. John Lennon says:

    equal protection? is that when killing a cop is punished as a higher crime than killing a person, but when cops kill people, they get immunity?

  57. Zedek says:

    I don't see any comments for some reason.

  58. Sigal Stein says:

    I didn't know it – but checking one's criminal record or seeing that they are employed for long periods isn't an indication that the person isn't a rapist or a domestic assailant. Judges seal the records so they become invisible. The rapist or assailant, often serial, is allowed to deny the domestic assault. Without crime judges and attorneys can't make money. They necessarily release criminals, encouraging them to go to the next level- perhaps a juicy murder case? They then fill jails with innocent people. They try to get an arrest with each family or probate case. They often use partially recorded contempt of court hearings. The party doesn't have to be in violation of any law. The rulings are fabricated. Judge Angela Arkin has issued a visibly fabricated arrest warrant while jurisdiction was in Appeals Court on 6/28/15. She claimed there was a hearing I didn't attend, but the warrant preceded the hearing – which has no record of being scheduled. Moreover, District Court should not have touched the case due to jurisdiction being with appeals. Now I know that my husband is allowed to deny multiple assaults. If I had known timely I would not have married him. I would have also created timely chain letters with the police report and my x-rays. I only sent those to a few people and didn't request that they forward them. Judges in Colorado delete the DNA samples of rapists before declaring them innocent. They can incarcerate any sheriff of deputy who stands in their money making way. Attorney is the second favorite occupation for sociopaths; surgeon is the second favorite occupation for psychopaths. Attorneys, judges and bankers are unregulated – together they can operate a dictatorship. They are already at it – but occasionally being polite about it. They have not yet replaced all of the police forces with KKK – but are working hard at it. Dictatorships exist elsewhere = Russia, China, Korea – and that's how they operate. Please write congress to disassemble the judicial branch. Please vote NO to Judge Angela Arkin in 2016.

  59. Matthew Abely says:

    Why if Strict Scrutiny is a thing can DAs have majority white and male juries in a murder and rape cases like the one against Daniel Holtzclaw? If the state is accusing a man of abusing social prejudices to do evil, , on behalf of intersectionally marginalized women of color, shouldn't the jury be mostly representative of the minorities, not the privileged?

    See also: how can Congress hold hearings to indite Planned Parenthood, who serves and is (maybe) run by and for mostly women and related (all of whom I assume minority status) and have the hearing committee be mostly (white) men?

    Did I miss something in the video?

  60. Dalton Riser says:

    literacy tests for voting and drivers license was a jim crow law

  61. mackdmara says:

    The hardest part of these cases is that it forces people to think of the other persons rights as if they were their own. Not an easy thing, but something that we must all remember that if you would use the governing bodies to in force your will, we have a duty to ensure that will does not adversely affect or effect your fellow man. Hit the books, and make sure your doing good, not just well.

  62. Lildrummerboy714 says:

    Personally I think the 1st Amendment is the most crucial.

  63. Tavares55 Offical says:

    Your Lame

  64. Tavares55 Offical says:

    jk jk ur very cool

  65. Gary Foster Jr says:

    Episode on the 2nd Amendment coming soon? Gotta bare those bear arms

  66. Alex Atrocity says:

    trump wants to stop the illegal immigration. which is what pretty much all countries except for the US do that.

    The democrats want to abolish the 2nd amendment but people think they're the good guys?

  67. ShadowPlays 1322 says:

    hi

  68. luis diaz says:

    21 more videos 😫 still probably won't be ready for the ap test tomorrow

  69. low-QUALITY crypto says:

    How did this come into play with the 2000 election? Why did the Supreme Court impose this law for counting Flordia votes?

  70. ScotS says:

    The constitution doesn't mean anything – the government is out to screw everyone over and take more power for itself and less rights for citizens.

  71. joseph Geis says:

    Politics is nothing more than organized crime !

  72. Cj R says:

    If the second amendment guarantees a right to bear arms (and to buy them, presumably), and the fourteenth amendment says that "all persons born…in the United States are citizens of the United States and of the state wherein they reside…no state shall make or enforce any law which shall abridge the rights…of citizens of the United States…", isn't it technically unconstitutional for there to be an age requirement for purchasing a gun? If someone under 21 can't purchase a handgun and someone under 18 can't purchase a long gun, aren't their rights as citizens of the United States being abridged? Regardless of what the courts have said, I believe that the right to bear arms (just like the right to free speech) applies to all citizens, regardless of age.

  73. Kelley V says:

    talks way too fast to understand.

  74. Inner G says:

    read the text of the 14th amendment.

  75. khorpulent1 says:

    Slow down, whoadie

  76. WeirdWorld says:

    Why would a president ever want to remove the 14th amendment… oh wait.

  77. Saheed Watson says:

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

  78. Tai Guy says:

    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

  79. Connor Sarkissian says:

    What animal does Craig look like? Discuss…

  80. Anastasia Savelyeva says:

    thank you.

  81. Logan Braveheart says:

    The Fourteenth Amendment is for black people everyone knows that

  82. Pranav Joshi says:

    Rip eagle

  83. Rukus Fan says:

    "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…

  84. Iamsoawesome108 AJ says:

    poor eagle

  85. Jonathan Bonatti says:

    Ole dRumpy and his admin.(clan) need to watch this video.

  86. Jonathan Bonatti says:

    VOTE BLUE 2018!!!!!!!!!!!!!!!!!!!!!!!

  87. edgar reyes says:

    does video have citation

  88. Andrew Stirling says:

    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".

  89. Mental Barf says:

    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.

  90. Konscious Street says:

    You shouldn't talk so damn fast and you would be more understandable.. good info tho

  91. Blake Gibbins says:

    Maybe go slower in future videos? Everything was like one continuous run-on sentence :/.

  92. Mona a-m says:

    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 😉

  93. Sean says:

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

  94. Juanita Falin says:

    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….

  95. zaul camargo says:

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

  96. Günnar Schulke says:

    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.

  97. Russell James says:

    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.

  98. Monica Ahuja says:

    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!

  99. jflores85 says:

    hey! It's the weezy waiter guy

  100. huevona r says:

    THANK YOU CRASH COURSE my thoughts finally are woven nicely together

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