Strauss v. Horton, part IV: Why Footnote Four still matters

In a previous post, I asserted that while a fundamental right could be abrogated by constitutional initiative, a constitutional initiative that seeks to legislate against a suspect class would not be valid. I provided little explanation and said all would be explained on Friday. Well, it's Friday, and here's your explanation.

The test for determining whether a constitutional initiative is valid is whether it alters the fundamental structures of government. This not only refers to the allocation of powers between the branches of government and the allocation of powers between federal and state government (to the extent that state constitutional law can determine that—see Raven v. Deukmejian), but also the fundamental principles of republican government. One of these principles is that there should be protection of the rights of the minority against the majority. This protection is necessary to protect the integrity of the democratic process. Its foundational nature is expressed in footnote four of the U.S. Supreme Court's decision in United States v. Carolene Products Co. (footnotes omitted):

There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth.

It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation.

Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious 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.

This footnote set the standard for heightened scrutiny of government legislation in the modern judiciary. The Court identifies three subjects of heightened scrutiny: substantive Constitutional rights, restrictions on the political process, and class legislation dealing with race, religion, or "discrete and insular" minorities that do not have the power to protect themselves through regular political processes. The difference between fundamental rights and suspect class status is the difference between the first paragraph and the third paragraph of Footnote Four. Constitutional rights are the people's substantive guarantees of freedom against oppressive legislation. They apply equally to all people. The Court gave these rights special status because of their inclusion within the Constitution. Suspect class status, on the other hand, is a protection not of a substantive rights, but the very integrity of the political system itself. Professor Jack Balkin explains:

According to the logic of the footnote, certain groups are shut out of the democratic process, relegated to the periphery. They are, to use Professor Brilmayer's expression, "insider-outsiders"—persons subject to the power of the political community yet excluded from participation within it . . . . Stone's very choice of words in the third paragraph—"discreteness and insularity"—connote the sense of being closed off from the political process, and (from a less sympathetic standpoint) excluded as impurities that are falsely believed to threaten a homogeneous body politic. Because the majority seeks to keep itself pure, it excludes the pariah from the political bargaining table, banishes the scapegoat to the periphery.

When a court declares a group to be a suspect class, it isn't saying that the class deserves more substantive rights than another class. Rather the court acknowledges that this is a group entitled to higher procedural protection in the political process. Because this class has outsider status based on their perceived otherness rather than any concrete evidence of relevant difference, they are vulnerable to legislation against them and lack political power to protect their rights through the political process. Therefore, any attempt to legislate against them as a class is subject to a more rigorous procedure: a showing of a compelling government objective and that the legislation is narrowly tailored to accomplish that objective.

Suspect class status is a procedural protection designed to protect the functioning of our republican system of government. Any attempt to legislate against a suspect class by means of constitutional initiative would amount to a change in the fundamental structure of government, and would be invalid.