Constitutional Law Ii

CONSTITUTIONAL LAW II
OUTLINE SPRING 2010
Equal Protection
Essay Boiler point format:

1. The 14th Amendment Equal Protection Clause states: No state shall deny any person
equal protection of the laws.
2. The term “state” has been interpreted to include both state and local governments.
3. Heightened protection is awarded to suspect and quasi suspect classifications.
a. Strict Scrutiny: race, ethnicity, alienage, religion, national origin
b. Intermediate Scrutiny: gender and illegitimacy
c. Rational Review: everything else.
4. Identify the classification being discriminated against.
a. On the face of the statute or discriminatory impact if facially neutral
5. Pick the level of scrutiny and go through the appropriate test
6. Decide if constitutional or unconstitutional
IF IT’S A FEDERAL LAW THEN APPLY THE 5TH AMENDMENT’S DUE PROCESS CLAUSE EPC PROVISIONS
Strict Scrutiny
Race, ethnicity (many w/in one race), alienage (non-citizen), religion, national origin (what country
you’re from) (suspect classifications)
>90% chance that the law will be struck down
1) Is there a compelling government interest?

2) Are there non-discriminatory means available to accomplish the compelling government
interest?
Intermediate Scrutiny
Gender and Illegitimacy (quasi-suspect classifications)
1) Is there an important government interest?

2) Are the means chosen to accomplish the interest substantially related to the important
government interest?
Rational Review
Everything else
50/50 chance that the statute will survive
1) Is there a legitimate government interest?

2) Are the means chosen rationally related to furthering the legitimate government interest?
1
3) Explain whether to apply “vanilla” review or “bite” review
RATIONAL REVIEW UNDER EQUAL PROTECTION CLAUSE

 Minimum level of scrutiny
 Strong presumption in favor of upholding the laws
 Must show a legitimate purpose (advancing a traditional 10 th amendment police power – safety,
health, morals (any goals not forbidden by the Constitution)
Will uphold laws if underinclusive or overinclusive.
Underinclusive: doesn’t apply to individuals who are similar to those to whom the law applies
Overinclusive: applies to those who need not be included in order for the government to achieve the
purpose
Laws can be both over and under inclusive at the same time (discuss this in the essay).
2 types of Rational Review

Vanilla Rational Review Rational Review with BITE
 Government  Government – Furthering prejudice, public
scorn, humiliation
Substantial overinclusiveness or
underinclusiveness
RR Express, Beazer Moreno, Cleburne, Romer
Rational Review with Bite Cases
Romer v. Evans
Facts Legitimate Gov’t Rationally Related Upheld?
Interest Means
CO referendum to No. N/A No.
amend CO Const. that CO tries to argue that it Statute does nothing
repeals any state / local puts all people on the but further hatred by
actions that were same level and tries to imposing a broad,
provided to protect allow religious reasons undifferentiated
homosexuals for having landlords disability on a named
denying gays housing group, no rational
Ultimate effect is to means and no showing
prohibit any gov’t body of a legitimate
from adopting government interest
protective standards for
gays- bars No other group was
discrimination singled out to be
protection in public entirely vulnerable to
health, real estate, the state w/ no legal
insurance, employment, regress
etc. Nature of the
discrimination has
comprehensive quality-
2
not sue for just
marriage but no right to
sue for anything at all
Rule: Sustain the law if advance a legitimate government interest even if the law seems unwise / works
to the disadvantage of a particular group or if rational for it seems tenuous- but the desire to harm a
politically unpopular group cannot constitute a legitimate government interest
US Dept. of Agri v. Moreno

Interest Means
Food Stamp Act s3 Gov’t claims that the Means are not No. Classification is
excludes households Act was passed to rationally related b/c imprecise and irrational
from getting prevent hippies from denial to all people for dealing with the
foodstamps that participating in the unrelated isn’t a problem that the
contain an individual foodstamp program and rational effort to deal government suggests
who is unrelated to any to stop fraud – claimed with the concerns exists – furthering
of the household it was more likely to brought by the gov’t  prejudice against
members – makes 2 have abuse of program way to underinclusive hippies and individuals
classes 1) households from those people not and overinclusive who are living with
made of all related related And there is already a others not related to
individuals and 2) (welfare of the people) separate provision to them
individuals who live in deal with fraud
homes with others that Look to see if hatred
are not related evidence
1) Legislative
history of Food
Stamp Act
(fraud
provisions
already existed)
this was an
unnecessary
amendment-
“Haters”
2) Speech in
Congress /
Comments –
overt
statements
Not concerned about
safety but the aura to
the community and
economic prosperity 
image building- snobby
City of Cleburne TX v. Cleburne Living Center

3
Interest Means
TX municipal zoning TX claims not safe for N/A No. Not a proper
ordinance denied them to be near exercise of 10th
special use permit for floodplain (already amendment police
operation of group houses there), will scare powers- discrimination
home for the mentally the old people nearby, based upon the
retarded Jr. HS kids will bully the immutable
kids (school has a characteristic of mental
special ed program in retardation- just
place) – tried to show furthering prejudice by
safety and health but not letting them
didn’t work participate in society
Struck down in this step
It is unfair to those who are in a category when they shouldn’t be or can’t help being in that category
(immutable characteristic – homosexuals and retardation – can’t burden a politically unpopular group
which would’ve been spared if they had enough clout to compel normal attraction to the relevant costs
and benefits
Distinction of “bite” isn’t made concerning culturally outcast groups but rather use it when the
government is trying to advance hatred towards a specific group.
Vanilla Rational Review Cases
US RR Retirement Board v. Fritz

Interest Means
Indiana Statute Legitimate interest of Means were rationally Yes.
repealed a windfall welfare of not related – Court doesn’t
retirement provision bankrupting the state. have to make the
that would eventually legislature actually
bankrupt the SS system. articulate their reasons
Some were allowed to for the statute- a
keep the windfall conceivable legislative
benefits based upon purpose is enough
their experience, time
served, etc.
RR Express Agency v. NY
Interest Means
NY traffic reg says no Discrimination against Related means b/c Yes.
person shall operate in those operating trucks trucks with related
the street any w/ commercial advertising wouldn’t
advertising vehicle that advertising present the same traffic
4
has advertising other problem
than that related to the Interest: Safety – not
business of that truck if causing accidents based
operated in the usual on other drivers’
course of business (i.e. distractions
delivery truck)
P was selling the

surface space of his
trucks for advertising
not related to his
business
NYC Transit Authority v. Beazer

Interest Means
Transit Authority Safety of the people It’s rational to postpone Yes.
refuses to employ those riding in public transit employment for 1 yr
who are using and others on the road- and until the person is
methadone regardless done with the
of whether recreational Beazer claims too methadone
or for rehabilitation overinclusive- and rehabilitation
purposes. methadone users
shouldn’t be included in Rationally related to the
the group of narcotic safety provisions.- safer
users to keep high drivers out
of the transit system
 If degree of
recovery then
still chance they
can relapse
 Show that 75%
will not relapse
is not enough to
strike down the
statute
Mass Board of Retirement v. Murgia (age)

Interest Means
Mass law required Safety of the person Yes- everyone gets old Yes.
uniformed police officer and the public – protect and functions slow
to require upon the public by assuring down-
reaching age 50 and get the physical
annual checks after age preparedness of
5
40 uniformed police -
Mugia passed all tests
and was in excellent
health at 50 but still
told to retire
Look up wealth and sexual orientation discrimination cases
Strict Scrutiny under Equal Protection Clause
Classification will only be upheld if government can meet the heavy burden of demonstrating
discrimination is necessary to achieve a compelling government interest
 Use strict scrutiny when race, ethnicity, alienage, national origin, religion
 Immutable traits are the reason why it is such heightened review
1) Is there a compelling government interest?

2) Are there non-discriminatory means available to further the interest?  “Necessary means”
4 Elements of Strict Scrutiny Suspect Groups:

1> History of discrimination by government
2> Social stigma
3> Discrete and insular minority status
a. Group that has been a “perennial loser” in legislative process- government never pass
laws that they want to get passed
b. Numerical minority
4> Immutability (born into it and can’t be changed)
Race Cases
Korematsu v. US (1944)
Cite this case always for strict scrutiny (first time such review was used)
Facts Compelling Gov’t Non-discriminatory Upheld?
Interest means available
Japanese American P claimed he was No non-discriminatory Yes
convicted of staying in discriminated based on means available: threat
CA contrary to the US race. to the US and short (this case was never
order that excluded amount of time- no used again by the SC to
such people from the Interest: time was of other means of securing allow such
area during the war – the essence to national the compelling discrimination during a
Executive order security government interest- to time of war)
6
mandated a curfew to hard to figure out who
protect against is loyal or not- know
espionage that 5,000 Japanese
Americans have refused
to swear their
allegiance to the US and
against Japan
Dissent: legitimized
racism, and other
means available- GB
interviewed all UK-
German citizens and
imprisoned only those
who were suspicious-
and Naval intelligence
said US-Japanese were
not of a threat
Loving v. VA (1967)
Anti-miscegenation law Interest: “equally” No.
in VA – discriminating against Legislative history –
P convicted of marrying blacks and whites. judge said it was to
in DC to black woman No compelling keep the races separate
and told to leave VA or government purpose and pure-
be arrested for 1 yr but furthering hatred Find it via lower ct
White supremacy is not opinion and elected
a compelling representatives
government interest speeches
Palmore v. Sidoti
State divested custody Court tried to say it was Other means were No.
of child from mother in the best interest of available_ school could There is a constitutional
b/c she married a black the child for the kid not have taken precautions commitment to
man. to be humiliated in to make sure he wasn’t eradicate and not
school b/c of his mom’s teased promote racism.
living choice.  indirect
agent of racism – no
compelling government
interest
Plessy v. Ferguson (1896)

7
LA statute provided for Interest: enforce No. Yes.
the separate RR equality b/w races but
carriages for whites and not abolish all
blacks – separate but distinctions between
equal accommodations colors.
for whites and coloreds
P was 1/8 black and 7/8

white – told to leave
the white carriage –
refused - imprisoned
Brown v. Topeka Board of Edu (1954)

Minors of black race Tried to say welfare- Separate but equal is No.
seek aid to obtain but 14th says right to impermissible in public
admission of public exemption from education Rejects Plessy v.
schools on a non- unfriendly legislation Ferguson
segregated basis against them as
P contends segregation distinctively as colored.
is not and cannot be Education is the most
equal important function of
state government-
Can’t have students
having feelings of
inferiority, limited
education and mental
development,
deprivation of benefits
Washington v. Davis
2 blacks filed suit Interest: safety of the No because the test
against police when population to make was necessary to show
their applications for sure the officers are the skills of the
academy were rejected able to function verbally individuals applying for
when they didn’t pass and have skills needed the jobs.
the written exam- for the job to
claimed the test bore communicate Disparate impact
no relation to future job analysis:
performance and stated No showing that the 1) Particular race
the # of black cops was test had any cultural is adversely
not proportionate to bias, lack of education affected
the black population. not culture was the disproportionat
8
reason they failed ely by the law
exam. (discernable
gap)
Law was facially 2) Main reason
neutral  look to for passing the
disparate impact law was to
analysis discriminate
against the
group claiming
discrimination
(prove by
finding comm)
Yick Wo v. Hopkins (1886)

San Fran statute that Interest: fire protection Yes- could have been No. SC found intent to
anyone who operates a of the city decided based upon the discriminate under
wooden laundry must actual condition of the disparate impact
get license to do so 1) 200 to 1 show laundry and the analysis
200 Chinese immigrants of buildings and not their
applied but all denied disproportionat race
the permit e and adversely
80 whites all got the affected group
permit 2) Discriminatory
 All the buildings intent (really
used by the hard to prove
whites and w/o direct
Chinese were evidence)
the same
Personnel Admin of Mass v. Feeney

MA Vet statute states State: welfare- claims Yes. Law shows
that vets who qualify reward to vets for their preference of vets over
for state civil service services non-vets and not a
positions must be preference of men over
considered before any No show of women
non-vets (claim an discriminatory intent
overwhelming towards women: goes Disparate impact
advantage to males) to “any person” who analysis: women
was a vet- just b/c gov’t disproportionately
took action w/ impacted b/c not
knowledge that it would military (empirical
have discriminatory analysis) – mass passed
consequences is not to go intent to
9
enough to prove intent discrimination – really
hard to prove w/o
direct evidence
Richmond v. JA Croson Co.

Minority Biz Plan Enacted to promote a Denied on the basis of NO.
required prime wider participation by race- the quota of 30%+
contractors working minority owned biz can’t be tied to any
under city contracts to enterprises in injury suffered by a
subK out >30% of the construction of public minority – no strong
dollar amt of the K to 1+ projects basis that this was
Minority Biz Enterprise Trying to eradicate needed- good
effects of private intentions can’t save
discrimination  this statute-
interest in assuring No alternate grounds
public $ doesn’t finance were tried i.e. neutral
private prejudice means to increase
minorities – could give
quota to small firms
instead of basing it on
race-gross
overinclusiveness of
race preference of the
plan, city could punish
those who racially
discriminate
Grutter v. Bollinger
Michigan law school Diversity of the student Critical mass: Yes.
uses race as factor for body- underrepresented
student admissions. minorities are necessary
White Michigan Not racial balancing to further compelling
resident was denied here- considers other gov’t interest in
with 161 / 3.8 – placed factors as well – not securing edu benefits of
on wait list then given a # of a score that the diverse student
rejected- would be awarded(soft body-
variable) – critical mass No use of the quota
thinking- prep for sytem- only considers
diverse work force and race a plus – flex to
citizenship consider all possible
elements of diversity –
“race plus” factor while
10
ensuring each
candidate competes
with all other qualified
individuals- race not
only thing that makes
diversity
Successfully considered
alternatives: lottery
system, decreasing
grade / score emphasis
–
Won’t be let go just b/c

wrong color- put in
place for a number of
years- temporary – not
a permanent policy
Periodically reviewed
Gratz v. Bollinger
2 students denied Diversity of schools No. way too NO.
admission to Michigan overinclusive by not
undergrad because they Not the right way to go looking at other
did not get the up to 20 about it –shouldn’t be diversity factors- not an
points allotted to the allotting points to individualized selection
underrepresented certain people solely process
races. based on “diversity of
Factors considered race”
during admission:
grades, scores, quality
of HS, geo, alumni,
leadership, RACE
Receive points based on
your race-
Alienage Cases
Discrimination based on lack of citizenship
EPC: “No PERSONS” – not limited to just citizens- basic protection to all in US territory
General Rule: Non-federal law that treats non citizens different then subject to strict scrutiny
Exception #1 to the General Rule: If non-citizen is treated differently then subject to rational review if
government can show furtherance of democratic processes or civil liberties or self-government
11
Exception #2 to the General Rule: If FEDERAL discrimination then “vanilla” rational review b/c there is
deference towards the federal government b/c plenary power in the Constitution to regulate
immigration
Graham v. Richardson (1971)

AZ law that denies Welfare: favor citizens Yes. Cannot accomplish No.
welfare to non-citizens when there is a limited the fiscal savings
who have not been in resource (welfare $)- through a distinction
the country for more there is a valid interest b/w classes of
than 15 yrs. of protecting the fiscal citizenship
Richardson was 64 yr integrity of state Could have limited the
old resident alien who progrms amount received by
was not here for the 15 everyone or just raised
yrs – denied benefits taxes
Foley v. Connelie
NY law states that only Interest: safety. Too much chance of Yes  b/c had
citizens of US can apply Trooper authority to abuse by non-citizens democractic process
to be state trooper- execute policy of the US towards citizens b/c reason only had to pass
Foley denied trooper and constitutional may be unfamiliar with rational review
status b/c he was an powers. the US freedoms and
alien rights of citizens
Ambach v. Norwich
NY law denied people Interest: teaching No. Yes.
to be teachers if non- obedience to the Teachers are a
citizen who refused to Constitution and government function
use the invitation to shaping of young minds and furthering of
become a citizen and responsibility of educational goals – only
Norwich was Scottish teaching and promoting needed to pass rational
resident alien and civic duties and review
refused to become a US understanding the
citizen. political process (distinguish elementary
school teaching
obedience and college
professor teaching kids
to challenge the
authority and think as
12
individuals)
Plyler v. Doe
A VERY VULNERABLE GROUP BEING COMPLETELY DENIED A VERY IMPORTANT RIGHT
Note: not a suspect or quasi-suspect group and not a fundamental right will be subject to RR and
struck down
Use this case sparingly when nothing else works on the final
3 ½ of 4 factors being met (not RR b/c no spread of prejudice based on who they are)
TX denied Interest: saving Yes. No.
undocumented school government resources Goal of EPC is to abolish This group met 3 of 4
age children public for those who can barriers presenting requirements for the
education. – argue they prove they are unreasonable barriers suspect classification
are not “persons” w/in “persons”  not to advancement on (not immutability)
the meaning of the EPC showing a compelling basis of individual merit
state interest in denying Children shouldn’t be
children education and punished for their
the ability to improve parents behavior- they
themselves have no control over
whether they come
TX: claims control illegal here w/o papers.
immigration and No show by TX that
resources they aren’t contributing
Court says no b/c to the economy by
helping economy and doing jobs that nobody
providing resources and else wants
no show they are much
of a financial burden on
the state’s edu budget
San Antonio School Dist. V. Rodriguez 1978 (like Plyer v. Doe but not struck down)
Facts Legitimate Gov’t Interest Rationally related Upheld?
2 public school Economic welfare of the Can be over and under Upheld under rational
districts (one rich / school district inclusive and still be review b/c not completely
one poor) and $ rationally related denying a very important
generated by right (education)
property taxes- Parents tried (and failed) to
relatively poor make Plyer v. Doe
kids have bad argument:
teachers / 1) Very vulnerable
atmosphere and group: super poor
13
parents in poor but not illegal
school district sue immigration b/c
the rich school can move to
district for $$ somewhere else in
(claim violation of social structure
EPC) (i.e. can vote to
improve the school
board while illegal
immigrants can’t)
2) Completely denied
a very important
right: not
completely denied,
bad education isn’t
the same as no
education at all
Intermediate Scrutiny of Equal Protection Clause
Gender and Illegitimacy

1) Is there an important government interest?
AND
2) Are the means used to achieve that important government interest substantially related means?
Furthering a gender stereotype either directly or indirectly is never an important government interest
Substantially related means cannot be substantially over or under inclusive
DON’T LOOK FOR GIRLS BEING DISCRIMINATED AGAINST- LOOK FOR GIRLS AND BOYS BEING TREATED
DIFFERENTLY!
Frontiero v. Richardson
Plurality opinion that applied strict scrutiny to gender case
Facts Compelling Non-discriminatory Constitutional?
Government Interest Means available?
Federal statute that Government claims $$ The treatment of Unconstitutional
allows uniformed savings (administrative women in this case is
service men to claim convenience) but court furthering a debilitating Court said strict scrutiny
their wives as says not in this case stereotype of women here b/c of history of
dependants w/o regard because no data to not being able to be the sex discrimination
to whether she is in fact show how much can / breadwinner. towards women
dependant upon him has been saved using (immutable
for any part of support this policy Court says non- characteristic) – sex
but the statute says discriminatory means bears no relation to the
that servicewomen may Gov’t would have to were available to save ability to perform in
14
not claim husbands as show it’s actually money (that gov’t society
dependent unless he is cheaper to grant claims is the real goal)
in fact dependent on increased benefits w/
her for more than ½ of respect to all male Means chosen
his support (women members than it is to perpetuate gender
must show proof of this determine which male stereotype about being
while men don’t have members actually are incapable of being
to) entitled to the benefits financially independent
applied to with the and having a husband
women’s standard as a dependant
- There are
higher values to
women > speed
and efficiency
Stanton v. Stanton
Unconstitutional Utah law that required parents to support their female children until age 18 but male
children to be supported until 21. – Court said this is based upon old notions of social roles and therefore
was struck down.
Craig v. Boren – 1976

“vanilla intermediate review”
1st case that uses intermediate review for gender classifications
ALWAYS CITE THIS CASE FOR GENDER CLASSIFICATIONS
Less than strict scrutiny because society never hated women like they did African Americans (race) –
gender classifications are more like misplaced paternalism
Facts Important Government Substantially related Constitutional?
Interest means
OK law prohibited the Safety and Health are This is a debilitating No.
sale of “near” beer to claimed by the state as stereotype towards
males under the age of being the government women-
th
21 but allowed the beer interests (10
to be sold to girls over amendment police OK claims they are
18. power) rewarding girls for
being more responsible
since said males 10x
more likely to get DUI
 this is not enough
info to survive
intermediate review
Court says: stereotype

that girls are being
driven around by those
boys instead of driving
15
themselves (too wimp
to drink and drive –
cowards)
Wild boys and good
girls (leaders need to be
reckless sometimes so
girls need to be wild
too)
Kirchberg v. Feenstra: Intermediate scrutiny invalidated law that gave husband as head and master of
property that was jointly owned with his wife, the unilateral right to dispose of property without wife’s
consent
US v. VA (VMI)
Intermediate Review with BITE
Interest means
VMI excluded women Safety & welfare: VMI claimed they No. There was no
from their Military producing good citizen disallowed girls for EXCEEDINGLY
Institute. And tried to soldiers and claimed “diversity” and PERSUASIVE
give alternative school that boys were the only “training” of men. JUSTIFI CATION (bite)
choice for girls at the ones that would make Government for the gender
VA Women’s Institute good citizen soldiers perpetuating the classifications
for Leadership –but the because of the stereotype here that
school was too different ‘psychological aspects’ girls are sissy and this is
to be adequate and adversarial training incredibly offensive to
substitute. that girls couldn’t women.
handle emotionally.
VA claim: Way too substantially
1) Single sex edu over and under
contributed to inclusive
diversity and Over: many boys are
important edu overly emotional and
benefits Under: some girls could
2) Unique VMI easily have handled the
method of training. (if 1 can do it
character and 99 can’t then strike
develop and it down says Ginsberg)
leadership
training
3) Created
remedial plan
but didn’t put
the girls in the
position they
would have
occupied
without
16
discrimination
Mississippi University for Women (MUW) v. Hogan

Intermediate Review with BITE
Interest means
MUW limited the State claims they are Means chosen of No. Didn’t give an
enrollment of the RN trying to protect excluding boys aren’t exceedingly persuasive
program to women- women from helping to give equal justification for
Hogan is RN but doesn’t discrimination by giving education opportunities excluding men from
hold BSBN and was them education. – program- only
denied admission to the Claimed they were furthering gender
RN program solely trying to make up for 94% women are nurses stereotype of men and
because he was male. past women at school in state and women’s role in medical
Boys are already discrimination and that 98% are women in the field.
auditing the class but girls were distracted by field.
Hogan still denied boys in the class Discrimination –
entrance to the (already auditing it?). cultural context of
program and closest Claiming equal nursing- Nurses
school for him was 100 education opportunity (sidekick) to doctors
miles away. as important (stars) – good for
government interest- comfort and not their
brains
Gedulding v. Aiello
Facts Important Government Substantially Related Constitutional?
Interest Means
CA disability insurance Maintaining self- Yes. Not discriminating
program gives benefits supportive nature of against women but
to persons in private the insurance program- discriminating against
employment who are allowing pregnancy to certain disabilities- not
not able to work be included would all women are / can
temporarily b/c not bankrupt the system- become pregnant –
covered by workman’s pregnancy isn’t an
comp- CA doesn’t immutable
include disability of characteristic like being
pregnancy in their list of a women- based off
disabilities that would something the women
entitle people to “does”
benefits
Califano v. Webster: 215 of SSA : old age insurance benefits computed on basis of earner’s avg monthly
wage during elapsed years- depending on the sex of the wage earner- more favorable treatment of
women were to redress the longstanding disparate treatment of women- compensate women for prior
economic discrimination
17
Schlesinger v. Ballard: Upheld Navy regulation that required discharge of man after 9yrs w/no promotion
but allowed women to stay 13 yrs w/o promotion- rationally believed that women line officers had less
of an opportunity for promotion than did male counterparts- provide women officers with fair and
equitable career advancement programs.
18
FUNDAMENTAL RIGHTS UNDER DUE PROCESS CLAUSE
(What they do, not who they are)
Under the 14th Amendment Due Process Clause ‘liberty’ interest: No state shall deprive a person of his
life, liberty, or property without due process of law
Fundamental rights include: protecting family autonomy, procreation, sexual activity / orientation,
medical care decisions, travel, voting, access to the courts
Substantive Due Process: gov’t must justify an infringement by showing that its action sufficiently
related to the adequate justification
Procedural Due Process: when taking away life, liberty, property must do so with adequate procedures
ANALYSIS:
1) Is it a fundamental right?
a. If so, where does it come from (in constitution) and what case says so
2) Does the law infringe (as opposed to just regulate) the fundamental right?
a. Infringe = major obstruction to fundamental rights
b. If regulate or not a fundamental right then rational review
c. Look at the directness / substantiality of the interference
3) If yes to #1 and #2 then apply strict scrutiny
a. Compelling government interest
b. Narrowly tailored means (means available that don’t infringe the fundamental right)
4) If no to #1 and/or #2 then apply rational review (vanilla)
Economic Liberties
Constitutional right concerning the ability to enter into & enforce K, pursue trade / profession, acquire,
possess, convey property
Lochner v. NY (1905) Right to K was a fundamental right from 1905-1937

Facts Fundamental Infringing Strict Scrutiny Constitutional?
Right
D convicted of Right to contract Yes – infringing on 1) CGI: health No (overruled by
misdemeanor for (state can prevent the right to K with 2) Narrowly West Coast Hotel)
violating law in his people from employees and tailored – this was seen as
bakery that stated making certain the amount of means: an arbitrary,
that nobody types of K but time no_not unnecessary and
allowed to work > there is a valid narrowly unreasonable
60 hrs/wk or > 10 limit to exercise of tailored interference with
hrs /day unless police powers) (could have the right of the
doing so to work protected individual to enter
less days- health into K in relation
w/tests, to the labor which
facemasks, may seem to him
etc) appropriate /
19
necessary for the
support of
himself / family
Muller v. OR (1908) (upheld Lochner)

Right
OR statute that no Right to K but Yes 1) CGI: protect Yes
female to be liberty interest women
employed in isn’t absolute and (physical
mechanical est for doesn’t extend to characterists
more than 10 all K and state ics, maternal
hrs/day may w/o functions,
conflicting w/ rearing, edu,
provisions of the home life)
14th, restrict in any 2) Less
way the burdensome
individuals power means: No.
of K
Adkins v. Children’s Hospital (1923) (last case that ever cited Lochner for fund right of K)
Right
DC statute that K Yes 1) CGI: Unconstitutional.
fixed minimum safeguard Not serving a valid
wage for women morals police power.
& children 2) Less
burden
means:
Other
means
were
available.
West Coast Hotel v. Parrish (1937) Right to K no longer a fundamental right

Facts Fundamental Infringing Rational Review Constitutional?
Right
WA statute that No fundamental Yes (but doesn’t 1) LGI: Upheld under
fixed min wage right to K matter b/c not a protection rational review
for women and fundamental of women but not a
minors (not men)- The legislation has right) and minors fundamental right
Parrish employed a wide discretion (women can
as chambermaid to protect health, be exploited
in hotel-sued to safety, peace, and
recover diff b/w good working manipulated
min wage fixed by order  protect , economic
state law and the health of welfare, no
20
what she was women and their marketable
being paid protection from skill but
overreaching labor)
employers 2) Rationally
(protection policy related
– of women who means: yes
have lesser pay, b/c some
less bargaining rational
power, taken basis
advantage of)
US v. Carolene Products Co (1938) *upheld West Coast Hotel

Right
Filled Milk Act of No fundamental n/a 1) LGI: health – Yes.
Congress- right to K secure a
prohibits minimum of
shipment in nutrition
interstate and protect
commerce of from
skimmed milk fraudulent
compounded substitute
w/fat or oil that’s 2) Rationally
not milk fat- related: Yes.
Carolene was Act was
shipping “miknut” adopted
a imitation after many
condensed milk- committee
adulterated food meetings
that’s injurious to about safety
public health of sub
products
Economic regulations will be upheld when challenged under DPC so long as they are rationally related
to a legitimate government purpose (purpose =- anything not prohibited by Constitution)
Williamson v. Lee Optical (1955)

Right
OK law made it No – within the No 1) Legitimate Yes (a stupid law
unlawful for any police power to government doesn’t mean an
person not regulate eye purpose: unconstitutional
licensed with exams and this health and law)
medical training requirement is welfare
to fit lenses / also related to the 2) Rationally Rational review in
duplicate frames health and related? Yes fundamental
except upon welfare of the (judge will rights analysis:
21
written Rx people find reasons “everyone plays;
authority of OK even if atty everyone wins”
licensed can’t find
optometrist one
Lee Optical argued
give cheaper price
Rights of the Family
Protection of Family Autonomy (what kind of family you want)

First recognized under Loving v. VA (vital personal right essential to the orderly pursuit of happiness for
free men – necessary to the existence and survival)
CITE LOVING V. VA 1967 FOR THE FUNDMENTAL RIGHT OF MARRIAGE
Loving v. VA didn’t survive strict scrutiny b/c white supremacy is never a compelling government interest
(seen in court decisions, speeches, etc)
Griswold v. CT: Society begins with marital family / family unit to make a clan- to then form a political
society- sacred union to explore the meaning of life (deep intimacy and upkeep of children)  how to
show not fundamental right to homosexual marriage- no reproduction (upkeep of children)
How do define themselves and who they wish to be in the world
Political necessity: marriage is fundamental building block of civilization – clan – community building
blocks
“Prenumbra of privacy” – look at the text of the Constitution
Zablocki v. Redhail 1978

Right
WI statute Marriage (Loving Yes 1) CGI: Unconstitutional
provides dead v. VA) opportunity to
beat dads who counsel and
haven’t paid welfare of
outstanding child children
support may not protected
marry without 2) Other means
getting a court available: Yes-
order allowing there is no
them to do so enforcement
mechanism
for the money
owed to child
support and
marriage may
actually bring
more money
to the
children- get
support from
22
joint incomes
– grossly
underinclusive
and
overinclusive
Moore v. City of E. Cleveland 1977

Right
E Cleveland Familial Yes 1) CGI: Unconstitutional –
ordinance allows autonomy: Right overcrowding, too intrusive into
only the nuclear to keep extended minimizing the regulation of
family to live family together traffic, parking the family
together- Moore is congestion,
grandma having undue
her 2 grandsons financial
living with her burden on
(cousins not public schools
brothers) – 2) Means: family
ordinance only limit only
recognized a few marginally
categories of meets CGI
people as (could limit
constituting a the # of cars
“family” or re-route
traffic)
Rights of the Parents to Control the Upbringing of their Children
Meyer v. NB 1923
Right
P charged with Natural duty of Yes 1) CGI: promote No.
unlawfully the parent to give assimilation
teaching the children an and civic
German language education suitable development
to boy in violation to their station in 2) Means: Extra
of state ordinance life language is
that says no not injurious
person shall teach at all.
any other
language but
English before the
8th grade
p. 969 Quote of Plato’s Republic
Pierce v. Society of the Sisters of the Holy Name of Jesus & Mary
23
Right
Challenged Right of the family Yes Fails No.
Compulsory to define itself 1) CGI: “Fundamental
Education Act (origins of Roe v. Act unreasonably welfare of liberty upon which
requiring every Wade) interferes with the the all governments in
parent to control / liberty of the children the Union repose
custody of parent to direct 2) Means: excludes any
children to send the upbringing of No injury general power of
them to public the children / on the the State to
schools b/w age 8 education under children standardize its
and 16. their control to send children by forcing
them to them to accept
parochial instruction from
schools public teachers
only”
Rights to procreate & abort

Right of the family to define itself
3 aspects of reproductive autonomy

1) Procreate
2) Purchase and use contraceptives
3) Abortion
Buck v. Bell 1927 (skipped in class)

Right
Superintendant of Right to Yes 1) CGI: health of Yes- never actually
Colony of Epileptic procreation patient & overruled but
& Feebleminded welfare of Skinner v. OK does
ordered to society b/c so impliedly by
perform heredity plays declaring
sterilization upon a part in fundamental right
Buck according to disease / to procreate
VA statute. insanity
Claimed Buck was 2) Less
a “social Burdensome
inadequate Means: No.
offspring”
Skinner v. OK 1942 – Fundamental right to procreate

Right
OK statute Right to procreate Yes 1) CGI: No.
deprives certain welfare
24
people of the right and safety
to have offspring of society
under the No proof of
“Habitual Criminal link b/w
Sterilization Act” if biological
2x convicted of inheritance of
felony & criminal
imprisoned for a behavior and
crime of moral could have
turpitude (crimes just put them
poor people in jail / civil
commit- in this penalities to
case stealing prevent more
chickens). crimes. Other
means not
violating
liberty interest
although other
interests may
be violated.
Right to purchase & use contraceptives
Griswold v. CT 1965
Griswold (Exec Director of Planned Parenthood) & Buxton (Doctor and Professor @ Yale)
Broadens the right of familial autonomy
Right
Buxton gave Married persons Yes. 1) CGI: Health No.
advice to married right to purchase and safety
persons on and use -Penumbra of
preventing contraceptives privacy 
pregnancy and intimate
charged a fee for relationship b/w
prescription of H&W w/ Doctor.
contraceptives. -Sacred right of
Statute says “use marriage that
drug, article, precedes political
instrument for society
purpose of -right of familial
preventing autonomy of what
pregnancy fined happens inside
and imprisoned the bedroom of
and if assisting married persons
then punished as if
principal offender)
Griswold & Buxton
found guilty
25
Eisenstadt v. Baird 1972  Expanded Griswold to UNMARRIED persons
Right of unmarried persons to purchase & use contraceptives
Right
Baird convicted of Right to purchase Yes @ best a marginal No.
exhibiting and use relation to purpose
contraceptives in contraceptives of sanctity of Prelude to Roe v.
BU lecture and home, self Wade
giving girl vaginal restraint, virtue,
foam @ end of etc.
lecture. Mass law Underinclusiveness
prohibits giving or of just married is
using invidious.
contraceptives Power of women’s
unless so bodily integrity to
authorized (Rx, decide what type
Dr.) of family
unmarried women
want.
Shift from a family

right to autonomy
to an individual
right.
Right to Abortion
 No real middle ground b/w pro life and pro choice
 Subsections of the right to abortion
o Constitutional protection of right of women to choose to terminate their pregnancies
prior to viability
o Types of permissible abortion state regulations
o Laws that prohibit use of government funds / facilities for abortions
o Laws concerning states requirement of parental notice / consent for an unmarried
minor’s abortion.
Roe v. Wade 1973 Fundamental right to abortion

Abortion cannot be prohibited before the third trimester (6 mo) unless to save the woman’s life
 Not concerning marital intimacy but rather the privacy of the women in relation to the fetus
 TX statute only allows abortions in order to save the woman’s life.
 Traditional methodologies: violative of women’s person if forcing her to have child not wanted
(philosophy) – rights of conscience that can’t be intruded upon
 Strict Scrutiny
o CGI: protection of life at conception
 Court says the CGI of protecting health of the woman and protecting the
potentially human life after the point of viability
 When the fetus can live outside the women’s body (in theory) with
appropriate medical attention
 Key is the trimester system (1973: viable at 6 mo)
26
 Before the point of viability: the state cannot prevent women from
getting an abortion (as before 6 mo the fetus is not a human being)
 Once viable then abortion is considered first degree murder and fetus
has all rights as a person once viable
 ALTHOUGH the state is free to regulate the performer of the abortion, facility,
licensing, etc.
 Court assumes fetus viability as general matter but ultimately determined by
doctor
Months 0-3 Months 3-6 Months 6-9

State regulated right to State can prevent State can prevent
abortion but can’t abortion only to protect abortion to protect the
prohibit it. the life of the woman life of the child
(not the child)
1) CGI of women 1) Save life of the
not the child Strict Scrutiny if to child so law
save fetus’ life will pass strict
1) CGI: to save scrutiny
life of the
child- not
viable so
won’t pass
strict scrutiny
Akron v. Akron Reproduction Services

Right
If women wanted Right to abortion Yes – substantial 24 hour No.
to get an abortion, and direct burden requirement may
must wait 24 cause undue stress
hours from filing and costs on the
the abortion woman, leave
paperwork during work to have
any trimester. procedure, waiting
time, financial
strain on poor,
psychological
stressor
No reversal once
completed.
Planned Parenthood v. Casey 1992

Women have a fundamental right to abortion before the point of viability (whenever that may be
according to medical technology)
27
Certain intimate decisions that can’t be intruded upon (philosophy)
Facts Fundamental Infringing UNDUE BURDEN Constitutional?
Right TEST
PA law states that Right to abortion Yes Does the law Only spousal
any woman who present an undue notification was
wishes to get an burden on the struck down as
abortion must: women’s right to being
 24 hr abort? unconstitutional.
waiting - If yes, the
req. struck
 Spousal down
notificatio - 24 hr is
n (not not an
consent) undue
 Judicial burden,
Bypass for judicial
minors if consent
don’t want not undue
to get burden,
parental receiving
consent lit not
 Receive undue
(not read) burden
literature - Spousal
at clinic Not. Is an
concernin undue
g burden
alternative b/c chance
s to of abuse –
abortion link to
domestic
violence
(psych &
physical)
Planned Parenthood effect on Roe v. Wade decision:

Overruled trimester distinctions in Roe  look instead to “viability”
AND
Overruled the use of strict scrutiny for evaluation of gov’t regulations of abortions
It is less difficult to pass laws under this
Right to Bodily Integrity

 Includes:
o Right to stop life support (Cruzan v. Missouri)
o Right to refuse vaccines when individual interest outweighs government interest
(Jacobson v. Mass 1905  gov’t interest in preventing spread of communicable disease
trumped individual interest)
28
 Doesn’t include
o Assisted suicide
o Self inflicted suicide
Cruzan v. Missouri Dept. of Health 1990

Right
Missouri law says Right to die when Yes b/c clear and
show of clear and in veg state convincing
convincing evidence standard
evidence standard
to turn off life
support. Cruzan
young girl in veg
state and on life
support and
parents want to
turn off the
machines. Offer
evidence of
alleged
conversation b/w
Cruzan and friend
concerning turning
off machines if
ever in the
situation (only
hearsay).
Washington v. Glucksberg 1977

Right b/c not fund right
This person (unlike No fundamental If American (look for states
Cruzan) was fully right to physician tradition there is that have
conscious assisted suicide no celebration of prevented right to
death, but life. X – to see if
Every state has a consistent with
law against American values
suicide. Extreme
depression
doesn’t need
suicide but
medical help
(mental illness)
Suicide people
need help not
death – can
29
recover if treated
Bowers v. Hardwick 1986 (not in book)

Overruled in Lawrence v. TX
Right
Hardwick in No. n/a American Yes.
Atlanta gay bar. tradition and
GA statute that western
prohibits sodomy civilization have
in both homo and prohibited sodomy
hetero sexual with gay men
relationships.
Never really
enforced before.
Both partners
arrested in home
for sodomy.
Lawrence v. TX (2003)

Right (but RR applied
here)
TX law prohibited Yes Yes Claims that No
same sex sodomy colonial sodomy
not sodomy of all One element in prohibited laws Must allow for
persons. the bond that can against all sodomy exploration of
be enduring – not just meaning of life
(this is the big homosexual together as
exception to the couples. homosexual
fundamental couple
rights / strict ? in this case:
scrutiny case) whether the 14th
protects the right
of 2 people to
define themselves
through intimacy
A: ‘Conduct is one
element of the
personal
definition’ – bond
that is enduring 
issue phrasing is
important here.
Ok with Rational
30
Review here b/c
privacy in the
home is a very
important right
like Plyer v. Doe –
quasi-suspect
classification?
(insular minority,
stigma,
immutability,
denial)  Edu is
individual (why
not strict /
fundamental) and
abortion,
homosexual
relations,
contraceptives,
marriage, familial
autonomy all deal
with 2 people 
BOND
Interpretative Methodologies
How to justify the existence of a fundamental right in the “liberty” clause of the 14 th?
 Tradition: Lawrence v. TX, Roe v. Wade
o What did western civilization and America do?
o Protect conscience
 History: Lawrence v. TX, Roe v. Wade
o Protect actions
 Philosophy: Roe, Casey, Griswold
o Right of conscience, intimacy, self definition
 Political Necessity: Griswold (further civility)
 Textual: Griswold (prenumbra of privacy) but see Rehnquist dissent in Roe and Scalia / Thomas
dissent in Casey
On final: try and encompass as many different methodologies as possible – compare and contrast
factually – multifactor analysis
Education is not a fundamental right under the liberty interest of the 14 th amendment
San Antonio Independent School District v. Rodriguez 1973

Compare this case with Plyer v. Doe
Right
Mex Am Parents’ No Yes LGI: Financial Yes.
children attend reasons under 10th This is not like
urban schools that amendment police Plyer v. Doe b/c
31
have low property powers not dealing with
tax base. School who you are
districts impose Rationally Related: (illegal child) but
prop tax to derive Yes (see what you do
local funds for the Williamson v. Lee (poor). Also, you
local fund Optical) as poor can vote
assignment for the to change your
public schools. Historical condition and it’s
Substantial dedication to not illegal to be
disparities public education – poor
between school not explicitly or
districts funding impliedly
amounts protected in
Constitution.
No total denial of
education –
funding didn’t
preclude students
from attending
school
Constitutional Protection of the Right to Travel under the 14th Amendment privileges OR immunities
clause
No state shall deprive any US citizen of any other state their privileges or immunities.
(Right to interstate travel)
Saenz v. Roe 1999

Right
CA statute limited Yes Yes: 1) CGI: No.
welfare benefits Impermissible for inhibiting
available to newly state to enact the
arrived state durational tests to migration
citizens. Limited inhibit the to CA and
the amount if migration of needy protection
resided <12mo to persons into the of state
the amount state funds
previously paid in (econ
prior state. There is no protection
Classification itself relation of welfare police
as out of stater is a and the time spent power)
penalty. in the state 2) Less
discrimina
tory
means:
32
Could tax
or lower
welfare
for
everyone
just not
people
new to the
state
Rights to travel
 1 state to enter / leave another state
 Right to be treated as welcomed visitor and not an unfriendly alien
 If elect to be permanent resident of a new state then treated as if any other resident of that
state
There is no fundamental right to foreign travel (foreign policy objectives)
Fundamental Right to Vote in state elections

Essential to democratic society
Hold office accountable
Rep government
Preservation of all rights
Harper v. VA State Board of Elections

Right
VA poll tax of Yes Yes 1) CGI: No – too
$1.50 for every informed burdensome for
resident over 21 voters something as
to vote and tax 2) Less essential as voting
proceeds go to discrimina
schools and tory
county general means:
purposes Yes
Voter qualification
has no relation to
the wealth or
paying of any
voting tax-
excludes those
financially unable
to vote-
traditionally
disfavored-
“invidious
33
discrimination”
Procedural Due Process

No state shall deprive any person of his life, liberty, or property w/o due process of law
1) Deprivation Definition
2) Is the conduct reckless or intentional? (i.e. not just negligence)
3) Was the conduct by the government?
4) Liberty interest includes reputation
Diff b/w procedural DP and substantive DP is the remedy available:

 Substantive: overturn the law
 Procedural: monetary damages but don’t overturn the law
§1983 action: under §5 of the 14th amendment; any APPROPRIATE legislation to apply the 14 th
amendment
Right to reputation not a substantive defense but can sue for $ under procedural DP
Daniels v. Williams 1986

Facts Deprivation Reckless / Government? Upheld?
Intentional?
D fell on the prison Inmate claims lack of No. Negligence of Yes No procedural violation
staircase when tripped due notice by not prison system is not
on a pillow. Injured his being told that the a procedure for
back and ankle. pillowcase was on compensation
the stairs
This wasn’t reckless
or intentional: didn’t
know of the risk and
acted despite the
knowledge-
Reasonable person
wouldn’t have done
that (was foreseen
or could have been
foreseen)
City of Sacramento v. Lewis 1998

Facts Reckless / Government? Upheld?
Intentional?
High speed chase ends No – negligent at Yes No violation.

with motorcycle crash. best Police are given broad
Boys family files discretion to act during
wrongful death under emergency situations.
1983 Only situations In moments of
where purpose is emergency SC can’t
34
to cause harm secondguess police
unrelated to a officers- lots of leeway to
legitimate object do their jobs.
of arrest will
satisfy the
element of
arbitrary conduct
shocking to
conscience (most
egregious official
conduct)
DeShaney v. Winnebago City Social Services 1989

Facts Deprive Reckless / Government? Upheld?
Intentional?
4 yr old son beaten §1983 filed No. No. It was not the Yes.
by father and DSS against DSS government but the
knew (3 incidents) for father who beat the
about it. Ended up deprivation child.
beating the boy to of safety
permanent under the
retardation. liberty
clause
35

Constitutional Law Ii

Uploaded by

Copyright:

Available Formats

You might also like

Constitutional Law Ii

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Constitutional Law Ii

Uploaded by

Copyright:

Available Formats

CONSTITUTIONAL LAW II

OUTLINE SPRING 2010

Essay Boiler point format:

1) Is there a compelling government interest?

1) Is there an important government interest?

1) Is there a legitimate government interest?

RATIONAL REVIEW UNDER EQUAL PROTECTION CLAUSE

2 types of Rational Review

Rational Review with Bite Cases

US Dept. of Agri v. Moreno

City of Cleburne TX v. Cleburne Living Center

Struck down in this step

Vanilla Rational Review Cases

US RR Retirement Board v. Fritz

P was selling the

NYC Transit Authority v. Beazer

Mass Board of Retirement v. Murgia (age)

Look up wealth and sexual orientation discrimination cases

Strict Scrutiny under Equal Protection Clause

1) Is there a compelling government interest?

4 Elements of Strict Scrutiny Suspect Groups:

Plessy v. Ferguson (1896)

P was 1/8 black and 7/8

Brown v. Topeka Board of Edu (1954)

Yick Wo v. Hopkins (1886)

Personnel Admin of Mass v. Feeney

Richmond v. JA Croson Co.

Won’t be let go just b/c

Graham v. Richardson (1971)

Facts Legitimate Gov’t Interest Rationally related Upheld?

Intermediate Scrutiny of Equal Protection Clause

Gender and Illegitimacy

Substantially related means cannot be substantially over or under inclusive

Craig v. Boren – 1976

Court says: stereotype

Mississippi University for Women (MUW) v. Hogan

Lochner v. NY (1905) Right to K was a fundamental right from 1905-1937

Muller v. OR (1908) (upheld Lochner)

West Coast Hotel v. Parrish (1937) Right to K no longer a fundamental right

US v. Carolene Products Co (1938) *upheld West Coast Hotel

Williamson v. Lee Optical (1955)

Rights of the Family

Protection of Family Autonomy (what kind of family you want)

Zablocki v. Redhail 1978

Moore v. City of E. Cleveland 1977

Rights of the Parents to Control the Upbringing of their Children

Rights to procreate & abort

3 aspects of reproductive autonomy

Buck v. Bell 1927 (skipped in class)

Skinner v. OK 1942 – Fundamental right to procreate

Shift from a family

Roe v. Wade 1973 Fundamental right to abortion

Months 0-3 Months 3-6 Months 6-9

Akron v. Akron Reproduction Services

Planned Parenthood v. Casey 1992

Planned Parenthood effect on Roe v. Wade decision:

Right to Bodily Integrity