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In recent years, the U.S. Supreme Court revived the long-dormant equal sovereignty doctrine, which states that the federal government cannot enact legislation that renders states unequal in power, dignity, and authority. Although the doctrine historically applied only in the context of states entering the Union, in the 2013 case Shelby County v. Holder, the Supreme Court broadened the doctrine's scope, holding that the doctrine applied to all disparate treatment of states. As such, the revived equal sovereignty doctrine leaves federal statutes—such as the Professional and Amateur Sports Protection Act ("PASPA"), which prohibits state-sanctioned casino sports gambling in all states except for Nevada—on uncertain constitutional grounds. Contrary to a recent Third Circuit holding, this Note argues that PASPA's disparate treatment of states violates the equal sovereignty doctrine. Under an approach developed by this Note, which requires Congress to demonstrate that disparate treatment of states is sufficiently related to the problem that the statute seeks to address, this Note contends that PASPA violates the equal sovereignty doctrine because the exemption of Nevada is not reasonably related to the national problem of sports gambling, which PASPA seeks to address. Importantly, adopting this approach would harmonize the Supreme Court's Commerce Clause jurisprudence with its recently expanded equal sovereignty doctrine analysis.

This Essay is the third in a series of pieces assessing Equal Protection Doctrine and jurisprudence. Here, we endeavor to do two things: (1) to utilize constitutional structure, text, and history to interrogate the concept of equality protected under the Fourteenth Amendment; and (2) to critique the Supreme Court's present approach to adjudicating constitutional discrimination claims. With regard to the meaning of equality, we assert that if the text of the Reconstruction Amendments and the stated goals of Reconstruction are used to inform constitutional analysis, then equality should be understood as a substantive rather than formalist concept. Reconstruction, however, was actually a period where political equality for freed slaves was espoused alongside social norms and laws-as evinced by the Black Codes and Plessy v. Ferguson-designed to maintain segregation. Hence, we ultimately advocate for an antisubordination-i.e., focus on the ways that specific persons or groups are harmed based on difference-rather than an anticlassification-i.e., treat everyone the same-understanding of equality. We justify this position by arguing for what equality would have meant, if the country had been truly interested in the full integration of Blacks, post-slavery. Next we assess how any understanding of equality is currently obscured by the Court's insistence on using a tiered-system of analysis for suspect classification discrimination claims and its requirement of the presence of purposeful government discrimination-rather than mere disparate impact-for constitutional discrimination claims. Together, these two approaches have foreclosed all but a very narrow scope of discrimination claims. We conclude by suggesting ways the Court might alter these standards in service to a notion of equality capable of responding to the myriad forms of stigmatizing and subordinating treatment suffered by certain individuals within society.

Presents position of the pro-separatist government, which calls for its people to be recognized as a sovereign nation distinct from, but linked with the rest of Canada.

Referenda effect basic constitutional objectives by allowing individuals to participate equally in the governing process. The Supreme Court recently relied on the equal protection clause of the fourteenth amendment' to invalidate a referendum procedure in Washington v. Seattle School District No. 1. A state initiative,which received support from a majority of the voting electorate,effectively forbade local school boards from implementing mandatory student reassignment programs aimed at eliminating de facto racial imbalance in state schools unless the electorate approved the proposed program. In finding an equal protection violation, the Court for the first time relied on a doctrine that it developed thirteen years earlier in Hunter v. Erickson. The Hunter doctrine provides that if state action reallocates governing power concerning a racial issue to place unique procedural burdens on minority interests, then the action embodies an explicitly racial classification, receives heightened judicial scrutiny, and must meet a heavy burden of justification. Ironically, the state school board in Seattle School District,acting under its authority to formulate educational policy, could have adopted the referendum result as a board policy without running afoul of the fourteenth amendment. Thus, the electorate decision not to bus students for racial purposes alone did not contravene the United States Constitution. Rather, the requirement of approval by referendum produced the constitutional violation. The Court's reaffirmation and extension of the Hunter doctrine in Seattle School District raises serious questions about the scope of the doctrine. This Note analyzes the. theoretical bases of the Hunter doctrine and concludes that the Court has constructed a theory by which it can usurp without constitutional authority the most fundamental of state democratic powers: the referendum.Part II of this Note briefly discusses relevant equal protection theory. Part III sets forth the Hunter doctrine and examines subsequent Supreme ...