Constitutional Law

LLM: Constitutional Law
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Constitutional Law:
Overview
Professor Ryan Williams
Overview
Equal Judicial
Federalism
Protection Review
Federalism
10th Supremacy
Amendment Clause Immunity DCC
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Equal Protection
Rational Facially
Strict Intermediate
Scrutiny Scrutiny Basis Neutral
Review Statute
Judicial Review - RAMPS
Advisory Political
Ripeness Mootness Standing
Opinions Questions
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Constitutional Law:
Equal Protection
Equal Protection
1. Who’s acting? The Feds, the State, a private company?
2. Is Discrimination happening?
If yes, pick appropriate test.
If no, and the Statute is neutral . .
Discriminatory effect: Rational Basis
Discriminatory purpose: Strict/Intermediate Scrutiny
Discriminatory laws –
All you have to do is pick the appropriate test . . .
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Levels of Scrutiny
Strict Scrutiny
Burden on government to show the regulation is necessary to a
compelling government interest “least restrictive means available.”
EX- Race, Alienage, National Origin [Alienage: federal regulation is subject
to rational basis scrutiny---state regulation is subject to strict scrutiny;
except: police, teachers, jury service – traditional gov’t functions].
Intermediate Scrutiny
Burden on government to show the regulation is substantially related to
an important government interest. Or exceedingly persuasive justification.
EX- Gender, Illegitimacy.
Rational Basis Scrutiny

Burden on plaintiff to show that the regulation is not rationally related to a
legitimate government interest.
EX- Poverty, Necessities, Age, Mental Retardation, Social and Economic
Welfare Measures.
Levels of Scrutiny
Strict Scrutiny

Welfare Measures.
Levels of Scrutiny
Strict Scrutiny

Welfare Measures.
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Levels of Scrutiny
Strict Scrutiny

legitimate government interest
Welfare Measures.
Let’s try a few . .

A federal statute provides benefits to workers and their families for job-related
injuries. A train engineer became a quadriplegic when his train collided with a
freight train and derailed. His medical expenses, including physical therapy and
a home health aide, were covered by the statute. Several years later, the
engineer, who breathed with the aid of a ventilator, developed pneumonia and
died. His wife applied for survivors' benefits for herself and the engineer's
children. Prior to the engineer's death, the family consisted of him, his wife,
two children born of the marriage, and a boy who showed up on the family's
doorstep two years before the railway accident claiming that he was the
engineer's natural child. The engineer accepted him as such, and a subsequent
DNA test established paternity.
That boy is now 19 years old. The survivors' benefits regulation under the statute
provides that only legitim ate children of the deceased engineer m ay claim benefits.
W ill the boy prevail if he challenges the regulation as discrim inatory?
Let’s try a few . .

A federal statute provides benefits to workers and their families for job-related
injuries. A train engineer became a quadriplegic when his train collided with a
freight train and derailed. His medical expenses, including physical therapy and
a home health aide, were covered by the statute. Several years later, the
engineer, who breathed with the aid of a ventilator, developed pneumonia and
died. His wife applied for survivors' benefits for herself and the engineer's
children. Prior to the engineer's death, the family consisted of him, his wife,
two children born of the marriage, and a boy who showed up on the family's
doorstep two years before the railway accident claiming that he was the
engineer's natural child. The engineer accepted him as such, and a subsequent
DNA test established paternity.
That boy is now 19 years old. The survivors' benefits regulation under the statute
provides that only legitimate children of the deceased engineer may claim
benefits.
W ill the boy prevail if he challenges the regulation as discrim inatory?
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Levels of Scrutiny
Strict Scrutiny

Welfare Measures.
Levels of Scrutiny
Strict Scrutiny

Welfare Measures.
Will the boy prevail if he challenges the regulation as discriminatory?
(A) Yes, because the regulation is not necessary to further a compelling

state interest.
(B) Yes, because the regulation is not substantially related to an
important state interest.
(C) No, because the federal government has plenary power to
determine the distribution of federal employee benefits.
(D) No, because the federal government may make reasonable
distinctions between legitimate and illegitimate children.
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Will the boy prevail if he challenges the regulation as discriminatory?
(A) Yes, because the regulation is not necessary to further a compelling

state interest.
(B) Yes, because the regulation is not substantially related to an
important state interest.
(C) No, because the federal government has plenary power to determine
the distribution of federal employee benefits.
(D) No, because the federal government may make reasonable
distinctions between legitimate and illegitimate children.
Let’s Try Another One . .
The state of Arizona experienced a rising trend in specialty car companies

selling their automobiles directly to consumers--i.e., without going through
the traditional franchised car lot. At the same time, franchised car dealers
across the state began to suffer a decline in sales. In response to these
dealers' complaints of unfair competition, the Arizona state legislature
enacted a new consumer protection regulation that effectively banned all
direct sales of automobiles within the state. One direct-sale company, a
maker of luxury electric cars, contended that the regulation created a
protected market and refused to comply.
If this company challenges enforcement, should the court uphold the

regulation?
(A) No, if the company shows it lacks a rational connection to a legitimate

government interest.
(B) No, if the company shows it lacks a substantial relation to an important
(C) Yes, if the state shows it is substantially related to a compelling
(D) Yes, if the state shows it is rationally related to a legitimate government
interest.
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regulation?
It will NEVER be B or D . . . Do you see why?
interest.
Levels of Scrutiny
Strict Scrutiny

legitimate government interest
Welfare Measures.

regulation?
It will NEVER be B or D . . . Do you see why?
interest.
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regulation?

government interest. That’s not really a thing.
interest.

regulation?
(A) No, if the company shows it lacks a rational connection to a

interest.
What if the Statute/Law is Neutral?

● Discriminatory effect: Rational Basis
● Discriminatory purpose: Strict/Intermediate Scrutiny
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Constitutional Law:
Federalism
Federalism
10th Supremacy
Immunity DCC
Amendment Clause
What is Federalism?
● The co-existence of the national and state governments.
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10th Amendment
● “The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved to the
states respectively, or to the people.”
● States have the general police power to regulate any health, safety
and welfare interest for the people.
Supremacy Clause
● If Congress enacts legislation with the intention of preempting
state law, the congressional regulation will control.
Let’s Try One . .

In response to growing public concern over the health risks associated with the
consumption of trans fats, Congress passed a comprehensive act addressing the
manufacture of processed foods. One of the act's provisions restricted the amount of
trans fat allowed in margarines and vegetable fat spreads to 5% or less of total fat
content. Subsequently, the state of New Jersey passed a regulation limiting the sale of
dairy products to only those containing a trans fat content of 2% or less of total fat
content. After an expensive reformulation process, one margarine manufacturer based
in Newark, New Jersey reduced the amount of trans fat in its products from 8% to 4% of
total fat content. Despite these efforts, the manufacturer was charged for violating the
New Jersey regulation.
In the manufacturer's subsequent federal suit challenging enforcement, which of the
following is the state's weakest argument?
(A) The regulation is valid due to general police power.
(B) The regulation is valid under the Tenth Amendment.
(C) The regulation is valid in concert with federal police power.
(D) The regulation is valid pursuant to the Supremacy Clause.
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Let’s Try One . .
Let’s Try One . .

Immunity
● The federal government and it’s agencies are immune from
lawsuits by private individuals except where they allow themselves
to be sued.
● The federal government and it’s agencies are immune from state
taxation and regulation.
● 11th Amendment prohibits citizens of one state from suing
another state in federal court, and has been extended to
prohibiting citizens of a state from suing their own state.
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Let’s Try Another one . .
A county legislature passed an ordinance prohibiting its secondary school

teachers from earning additional income through private tutoring. The
majority of the county's teachers belonged to a state-wide educators
organization, whose mission was to advocate for public school teachers. At
the organization's next meeting, many of the county's teachers attested to
a significant loss in personal income due to the ordinance's restriction.
Subsequently, the organization sued the county in federal district court,
challenging the ordinance as a Fourteenth Amendment violation.
Should the federal district court dismiss the case?
(A) Yes, because the organization has not suffered any injury-in-fact itself.
(B) Yes, because an adequate and independent state ground may exist.
(C) No, because sovereign immunity was not unequivocally waived.
(D) No, because the subject matter is germane to the organization's
purpose.

teachers from earning additional income through private tutoring. The
majority of the county's teachers belonged to a state-wide educators
purpose.

teachers from earning additional income through private tutoring. #sad
The majority of the county's teachers belonged to a state-wide educators
purpose.
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Dormant Commerce Clause (DCC)
● The Commerce Clause gives Congress the power to regulate
interstate commerce. Where Congress hasn’t enacted any legislation,
states are free to regulate local transactions that affect interstate
commerce . . . subject to certain limitations. These limitations are
known as the DCC.
● Thus, if a state law discriminates between in state and out of state

economic actors, the state must show that:
1. the regulation serves a compelling state interest and

2. the regulation is narrowly tailored to serve that interest.
#GoodLuck
Last one . .
The legislature of State X passed a law requiring that 75% of all new guitars sold in
the state at retail stores with m ore than 10 em ployees be m anufactured from
m aterials containing at least 50% of a particular kind of rosewood which is only
grown and harvested in State X. A guitar m anufacturer from a neighboring state
filed suit in federal court to enjoin the legislation, arguing that it is
unconstitutional. The governm ent of State X argues that the rosewood provides
the highest quality sound.
Is the state law valid?
(A) Yes, because it is a reasonable exercise of the state's police power to provide
for the health, safety, and welfare of its citizenry.
(B) Yes, because the regulation serves an im portant state interest.
(C) No, because it is an undue burden on interstate com m erce.
(D) No, because it discrim inates on its face between in-state and out-of-state
actors.
Last one . .
for the health, safety, and welfare of its citizenry. Is it?
(B) Yes, because the regulation serves an im portant state interest.
actors.
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Last one . .
filed suit in federal court to enjoin the legislation, arguing that it is unconstitutional.
The governm ent of State X argues that the rosewood provides the highest quality
sound.
(A) Yes, because it is a reasonable exercise of the state's police power to provide for
the health, safety, and welfare of its citizenry. Is it?
(B) Yes, because the regulation serves an im portant state interest. Does it? Um , no
actors.
Last one . .
filed suit in federal court to enjoin the legislation, arguing that it is unconstitutional.
The governm ent of State X argues that the rosewood provides the highest quality
sound.
(A) Yes, because it is a reasonable exercise of the state's police power to provide for
the health, safety, and welfare of its citizenry. Is it?
(B) Yes, because the regulation serves an im portant state interest. Does it? Um , no
actors.
Last one . .
(B) Yes, because the regulation serves an im portant state interest. Does it?
actors. Does it though? And even if it did, it could still technically be ok ..
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DCC
● If a state law discriminates between in state and out of state economic
actors, the state must show that:
1. the regulation serves a compelling state interest and

2. the regulation is narrowly tailored to serve that interest.
Last one . .
(B) Yes, because the regulation serves an im portant state interest. Does it?
(C) No, because it is an undue burden on interstate com m erce. DCC . . .
actors. Does it though? And even if it did, it could still technically be ok ..
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Constitutional Law:
Judicial Review
Judicial Review
Advisory Political
Ripeness Mootness Standing
Opinions Questions
RAMPS
Ripeness
Advisory Opinions
Mootness
Political Questions
Standing
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Ripeness
● Is the lawsuit ripe, i.e., has the law gone into effect yet? If not, you
can’t bring the claim.
Advisory Opinions
● Article III prohibits federal courts from giving advisory opinions
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Mootness
● You cannot bring a claim in federal court if the issue is now m oot.
Political Question Doctrine

● The political question doctrine holds that som e questions, by their nature, are
fundam entally political, and not legal, and as such the court will refuse to hear that
case.
Let’s Try One . .

The President of the United States has broken off diplom atic relations with a dissonant
foreign state due to its m ilitary takeover of a neighboring country. The foreign state is
governed by a repressive totalitarian governm ent. In an appropriate federal court, a
businessm an brings a suit against the president and secretary of state to set aside this
action on the ground that is inconsistent with the principles of our constitutional form
of governm ent. The businessm an had a lucrative contract with the United States
Departm ent of Com m erce to provide com m ercial inform ation about the dissonant
foreign state.
The contract expressly term inates, however, "when the President breaks off diplom atic
relations with the governm ent" of the dissonant foreign state.
W hich of the following is the m ost proper disposition of the businessm an's suit by the
federal court?
(A) Suit dism issed, because the businessm an does not have standing.
(B) Suit dism issed, because there is no adversity between the businessm an and the
defendants.
(C) Suit dism issed, because it presents a non-justiciable political question.
(D) Suit dism issed, because it is not ripe.
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Let’s Try One . .
foreign state.
federal court?
(A) Suit dism issed, because the businessm an does not have standing. No, he totally
does
defendants.
Let’s Try One . .

foreign state.
federal court?
defendants. No, they are like totally adverse.
Let’s Try One . .

foreign state.
federal court?
defendants.
(D) Suit dism issed, because it is not ripe. No, it is. The injury has happened.
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Let’s Try One . .
foreign state.
federal court?
defendants.
Standing
● The plaintiff must have (1) suffered an injury in fact, (2) that is fairly
traceable to the challenged conduct of the defendant, and (3) that
is likely to be redressed by a favorable judicial decision.
A recent ecological study reported that the introduction of Australian carp into
Am erican fish farm s was directly responsible for the endangerm ent of several
native plant and anim al species. To address this threat, Congress enacted a statute
that allocates $800 m illion in federal funding for the rem oval of all invasive anim al
species from national park territories. An activist, who has a passion for anim al
rights, decides he does not want any of his tax dollars going towards the execution
of this law. The activist files suit in federal district court, challenging the statute as
violating the Federal Property and Territory Clause of Article IV.
Should the federal district court hear the activist's case on the m erits?
(A) Yes, because the activist's injury is direct and im m inent.

(B) Yes, because there is a real and substantial dispute.
(C) No, because the activist's cause of action is m oot.
(D) No, because the activist lacks proper standing.
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A recent ecological study reported that the introduction of Australian carp into
Am erican fish farm s was directly responsible for the endangerm ent of several
native plant and anim al species. To address this threat, Congress enacted a statute
that allocates $800 m illion in federal funding for the rem oval of all invasive anim al
species from national park territories. An activist, who has a passion for anim al
rights, decides he does not want any of his tax dollars going towards the execution
of this law. The activist files suit in federal district court, challenging the statute as
violating the Federal Property and Territory Clause of Article IV.
Should the federal district court hear the activist's case on the m erits?
(A) Yes, because the activist's injury is direct and im m inent.

(B) Yes, because there is a real and substantial dispute.
(C) No, because the activist's cause of action is m oot.
(D) No, because the activist lacks proper standing.
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Con Law: First Amendment
For those who prefer shapes . .
Religion Speech
Freedom of Religion
´ Freedom of Religion and Separation of Church and State

´ The 1st Amendment provides that “Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof.”
´ Establishment Clause
´ Rule: Where a law prefers one religion or religious sect over others, strict
scrutiny applies.
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No More Lemon Test
Violation of the establishment clause will be based on

‘reference to historical practices and understandings,’”
with an “analysis focused on original meaning and
history.”
In addition, coercion analysis appears consistent with this

newly defined method as the Court instructs: coercive
religious observance “was among the foremost hallmarks
of religious establishments the framers sought to prohibit
when they adopted the First Amendment.”
Religious Activities Conducted at Public Schools
o Rule: Generally, school prayer is per se unconstitutional.
o Exception: Religious clubs can hold meetings on campus
Government Endorsement of
Religion?
´ If there is a secular purpose, then the activity is

constitutional
´ Exam ples:
´ Activities involving Santa Claus, generally ok
´ Sunday closing laws for the purpose of rest have

been held constitutional because it is a secular
purpose.
´ Placem ent of the Ten Com m andm ents on the walls

of courthouses is unconstitutional (no secular
purpose).
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Free Exercise Clause
• A person’s religious beliefs are absolutely protected. The government

may not punish an individual by denying benefits or imposing burdens
based on religious belief.
o The government may not determine the truth or falsity of a person’s

religious beliefs, but it may determine a person’s sincerity in his or
her claim of religious belief.
• Rule: Where an individual’s conduct is motivated by his religious beliefs,

the state may regulate or prohibit the activity if the regulation is “neutral
in respect to religion and is of general applicability.”
o Example:
§ A state law outlawing polygamy was upheld.
Question
A public school district imposes a very rigid rule expressly forbidding

anything that can be used as a weapon. Bill comes to school the following
day with a very large crucifix with sharp edges around his neck. He is
suspended and wants to challenge the rule on First Amendment grounds.
How will a court likely respond?
The religious claim will lose unless Bill can show that the school
board was trying to burden religion.
Speech
First Amendment: “Congress shall make no law...abridging the freedom of

speech, or of the press; or the right of the people peaceably to assemble,
and to petition the government for a redress of grievances.”
- The 1st Amendment was held applicable to the states through the Due
Process Clause of the 14th Amendment.
Is freedom of speech absolute?
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Example
Maggie, head of the Llama Preservation Society, decided to run an

advertisement in the Washington, D.C. newspapers about the plight
of the llama. She arranged for it to run in the papers on the same
day Congress was debating an animal protection law. The
Washington Daily News refused to run the ad, and Maggie would like
to sue.
Will she successfully force the paper to print the ad?
No. The First Amendment does not apply to private parties.
Con Law Approach

´ Always Ask – who’s acting? The Feds, a State, a Town, a private entity? It m atters
´ Only in rational basis review does the pltf have the burden to show som ething.
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Speech
General principle: The government may not interfere with or distort the
marketplace of ideas, especially with respect to political speech.
Rule: Strict scrutiny applies when the government engages in content-based

discrimination
o Exceptions:
1. Unprotected speech
2. Low Value Speech (Commercial speech)
3. Content-neutral Conduct Regulation
4. Content-neutral Time, Place, and Manner regulation
1. Unprotected Speech
Is subject to Rational Basis Review.

A) Speech that advocates violence or unlawful action
Test: Such advocacy is (1) directed to inciting or producing imminent lawless
action, and (2) is likely to incite or produce such action.
B) Fighting words
Words likely to incite an ordinary citizen to commit acts of immediate physical
retaliation may be punished.
The speech must be more than annoying or offensive; it has to be a direct
personal insult.
Ex. During the Vietnam War, wearing a jacket that says “F*&$ the Draft” on the
back does not constitute fighting words because it is not a personal insult.
C) Obscene speech
Rule—Speech is considered obscene if (3 part test):
• The average person, applying local contemporary community standards,
would find the work, taken as a whole, appeals to the prurient interest;
• The work depicts or describes, in a patently offensive way, sexual conduct
that is specifically defined by state law; and
• The work, taken as a whole, lacks serious literary, artistic, political, or
scientific value.
D) Defamatory Speech of Public Officials

Constitutional restrictions apply to defamatory speech where the plaintiff is
either a public official or public figure.
In short, they have to prove defamation and “actual malice.”
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2. Low Value Speech
Commercial speech
o Protected by the 1st Amendment if it is not false or deceptive, and does
not relate to unlawful activity.
If so, then any government regulation of the speech must:

1. Serve a substantial governmental interest;
2. Directly advance the substantial governmental interest; and
3. Not be more extensive than is necessary to serve that interest.
High Bar.
Let’s Try One
Due to recent studies indicating that over two-thirds of Americans are obese, State B enacted a
law completely banning any advertisement of soft drinks.
A state B soft drink manufacturer now brings an action in federal court to challenge the State B
statute.
Is the statute constitutional?
(A) No, because while regulating soft drinks furthers a substantial government interest, there are
less restrictive means available.
(B) No, because the sale and soft drinks is a lawful activity and the advertising was not
misleading.
(C) Yes, because there are lesser protections provided for vice advertising.
(D) Yes, because the regulation of soft drink advertising serves a substantial government interest.
Commercial speech
o Protected by the 1st Amendment if it is not false or deceptive, and does
not relate to unlawful activity.
If so, then any government regulation of the speech must:

1. Serve a substantial governmental interest;
2. Directly advance the substantial governmental interest; and
3. Not be more extensive than is necessary to serve that interest.
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Let’s Try One
Due to recent studies indicating that over two-thirds of Americans are obese, State B enacted a
law completely banning any advertisement of soft drinks.
A state B soft drink manufacturer now brings an action in federal court to challenge the State B
statute.
Is the statute constitutional?
(A) No, because while regulating soft drinks furthers a substantial governm ent interest,
there are less restrictive m eans available.
(B) No, because the sale and soft drinks is a lawful activity and the advertising was not
misleading.
(C) Yes, because there are lesser protections provided for vice advertising.
(D) Yes, because the regulation of soft drink advertising serves a substantial government interest.
Time Place & Manner
The government may place reasonable restraints on the time, place, and
manner of speech in public areas, such as streets, sidewalks, and parks—
places historically associated with expressive conduct (e.g., picketing,
leafleting, and broadcasting).
We’ll break up the TPM regulations into Public and Non-public forums
■ Public forums
3 Part Test - The regulation must:
1. Be content neutral, as to both subject matter and viewpoint (i.e., the

regulation cannot prefer some messages over others);
2. Be narrowly tailored to serve an important government interest; and
3. Leave open alternative channels of communication.
Examples – Public Forum TPM
Government can:
- Require large gatherings to get a permit to use public property (the

criteria to receive a permit must be defined and content neutral).
Government cannot:
- Require parades or marches to pay for police protection.
- Ban on door-to-door solicitation.
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Non-Public Forums
• Speech-related activities at non-public forums, such as military bases,
jails, government workplaces, and mailboxes can be regulated by
viewpoint-neutral regulations.
• Test: the regulation must be reasonably related to a legitimate
government purpose.
Examples:
Government can:
- Prohibit demonstrations on jailhouse grounds.
- Close military bases to political speeches and leaflet distribution.
- Regulate speech in government workplaces.
Government cannot:
Deny use of public school facilities to religious groups if other public and
private groups are allowed similar access.
Freedom of the Press?
o The press has no greater freedom to speak than an ordinary

member of the public.
A newsperson has no 1st Amendment right to refuse to testify

before a grand jury.
Last but not least . .
Prior Restraint
General rule: The government cannot suppress or restrain speech in

advance of its publication or utterance.
Strong presumption that prior restraints are illegal.
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Levels of Scrutiny
´ Strict Scrutiny
´ Burden on government to show the regulation is necessary to a compelling government
interest. “least restrictive means available.”
´ EX - Race, Alienage, National Origin [Alienage: federal regulation is subject to rational basis
scrutiny---state regulation is subject to strict scrutiny;
´ Except: police, teachers, jury service – traditional gov’t functions].
´ Intermediate Scrutiny
´ Burden on government to show the regulation is substantially related to an important
government interest. Or exceedingly persuasive justification
´ EX - Gender, Illegitimacy.
´ Rational Basis Scrutiny

´ Burden on plaintiff to show that the regulation is not rationally related to a legitimate
´ EX - Poverty, Necessities, Age, Mental Retardation, Social and Economic Welfare Measures.
Levels of Scrutiny
´ Strict Scrutiny
interest. “least restrictive means available.”
government interest. Or exceedingly persuasive justification.

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Levels of Scrutiny
´ Strict Scrutiny
interest “least restrictive means available.”

Levels of Scrutiny
´ Strict Scrutiny

What usually happens?

´ If strict scrutiny applies, who usually wins? Pltf challenging the law or def?
´ If rational basis applies, who usually wins? Is the law going to be ok or not?
´ W hat about interm ediate scrutiny?
´ I'm confidant you'll be able to figure it out . . .
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Question 1
A state passed legislation requiring that all health insurance plans sold in the state offer the
option for insured parents to keep their children on their family insurance plans until the
children are 29 years old if it can be shown that the children makes less than $25,000 a year. In
order to get the legislation passed, the sponsors of the bill bowed to outside pressure groups by
inserting language in the bill limiting this option to be used only to provide coverage to
legitimate children of parents, on the grounds that doing so would honor the sanctity of
marriage. A man who is a 29-year-old resident of the state, and who was born out of wedlock,
brought suit to have the law ruled unconstitutional on the grounds that it violates the equal
protection clause.
W hich of the following best states the burden of persuasion?
So what’s the first question we ask?
(A) the state must show that the classification is rationally related to a state interest.
(B) the state must show that the classification is substantially related to a state interest.
(C) the man must show that the classification is not rationally related to a state interest.
(D) the man must show that the classification is not substantially related to a state interest.
Question 1
protection clause.
The State – so EPC applies.
Levels of Scrutiny
´ Strict Scrutiny
government interest. Or exceedingly persuasive justification.

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Question 1
protection clause.
So just look for that language in the choices . . .
Question 1
protection clause.
W hy can’t it be A or D? It literally will never be those . . . W hy?
Con Law approach

´ Always Ask – who’s acting? The Feds, a State, a Town, a private entity?
´ It m atters
´ Only in rational basis review does the pltf have the burden to show som ething. Every
other level of scrutiny, the state has the burden.
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Question 1
protection clause.
Question 1
protection clause.

So #1 – the state’s acting. #2 – illegitimate kids? Intermediate standard
Affirmative action
´ The only way an AA policy will be upheld on the bar, even one based on race (SS), is if
that com pany discrim inated in the past and is trying to right a wrong.
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Discrimination Based On Alienage
Normally Strict Scrutiny, but 4 primary exceptions to this rule:
1) Where the federal government is discriminating against undocumented

persons,
--rational basis review;
2) State discrimination against undocumented persons regarding the democratic

political process and courts; or involving employees performing traditional public
functions (teachers, police, fire, etc.) or government employees (mayor, town
council);
--rational basis review.
3) Undocumented Persons – rational basis review
4) Children of undocumented persons – intermediate scrutiny
Three types of discrimination

´ Discrim ination on its face
´ Discrim ination in application

´ Discrim ination in effect/Im pact
Facially Neutral but Disparate Impact

Disproportionate impact on a racial group is not enough to trigger
heightened scrutiny if the law/rule is facially neutral. Thus,
Discriminatory intent is also required
´Awareness of the disparate impact is not enough to show

discriminatory intent
´Legislature had to pass the law because of the discriminatory
impact, not in spite of it
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Fundamental rights
Laws that impede the right to vote, travel or privacy?

- Strict Scrutiny
Abortion
´ Old Rule: Prior to Dobbs, a wom an had a protected privacy interest in choosing to have
an abortion before the fetus is viable. Any regulation on a pre-viability abortion was
unconstitutional if it im posed an undue burden on a wom an’s right to choose an
abortion.
´ New Rule: Abortion is no longer considered a fundam ental right.
´ Abortion is now within the purview of the states.
Voting residency exceptions
´ Residency requirement in order to vote? – strict scrutiny

´ On the bar, 30 days or less – that’s fine, passes ss
´ More than 60 days – fails ss, and the law will not be upheld
´ Exam Tip: a one year (or less) residency requirement is sufficient and
legal for in state tuition or a to get a divorce
38
Substantive Due Process
Impact on right to vote, travel, privacy,
Apply Strict scrutiny
Procedural due process
W hen the federal governm ent acts in such a way that denies a citizen of a life, liberty, or
property interest, the person m ust be given notice, the opportunity to be heard,
and a decision by a neutral decisionm aker.
Life, Liberty, Property
´ Take away your life? Ok sure, Trial/opportunity to be heard

´ Liberty? Before we throw you in the joint – ok sure, trial/opportunity to be heard
´ Property interest? W hat counts for that?
1. Right to public education (K-12)

2. Welfare Benefits
3. Continued public employment where termination can only be “for cause”
39
Privileges & immunities clause of article iv
´ Prevents economic discrimination by one state against citizens of
another state
´ Unless a substantial government interest exists.
Bar tip: On the bar the reasoning for the state’s discrimination will be clear
In particular . . .
´ The P & I clause deals with the right to travel between the states, the right to
vote, etc.
´ And yes, those sound familiar, but the P & I clause adds: you can’t pass laws
that treat in state vs. out of state residents differently based on those
fundamental rights
´ For example, a state passes a law that gives a $100 credit for in state people
who vote, but charges $500 for out of state people to vote. Part of that law
arguably does not impede voting at all – it encourages some voting! – but
under the P & I clause, it’s not ok because of the in state vs. out of state
discrimination.
Bill of Attainder
Legislative punishment of a named group or individual

without judicial trial.
Can you do that? Is it ok?
40
Bill of Attainder
Legislative punishment of a named group or individual

without judicial trial.
Bills of Attainder are unlawful
Ex post facto laws

´ Unconstitutional laws that crim inalize conduct that was not a crim e when it was
com m itted.
´ M y non-legal way of thinking about it? – Not ok
41

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LLM: Constitutional Law

Professor Ryan Williams

Judicial Review - RAMPS

Professor Ryan Williams

Rational Basis Scrutiny

Rational Basis Scrutiny

Rational Basis Scrutiny

Rational Basis Scrutiny

Let’s try a few . .

Let’s try a few . .

Rational Basis Scrutiny

Rational Basis Scrutiny

Will the boy prevail if he challenges the regulation as discriminatory?

(A) Yes, because the regulation is not necessary to further a compelling

(A) Yes, because the regulation is not necessary to further a compelling

Let’s Try Another One . .

The state of Arizona experienced a rising trend in specialty car companies

Let’s Try Another One . .

If this company challenges enforcement, should the court uphold the

(A) No, if the company shows it lacks a rational connection to a legitimate

If this company challenges enforcement, should the court uphold the

Rational Basis Scrutiny

Let’s Try Another One . .

If this company challenges enforcement, should the court uphold the

If this company challenges enforcement, should the court uphold the

(A) No, if the company shows it lacks a rational connection to a legitimate

Let’s Try Another One . .

If this company challenges enforcement, should the court uphold the

(A) No, if the company shows it lacks a rational connection to a

What if the Statute/Law is Neutral?

Professor Ryan Williams

Let’s Try One . .

Let’s Try One . .

A county legislature passed an ordinance prohibiting its secondary school

Should the federal district court dismiss the case?

Let’s Try Another one . .

A county legislature passed an ordinance prohibiting its secondary school

Should the federal district court dismiss the case?

Let’s Try Another one . .

A county legislature passed an ordinance prohibiting its secondary school

Should the federal district court dismiss the case?

● Thus, if a state law discriminates between in state and out of state

1. the regulation serves a compelling state interest and

Is the state law valid?

Is the state law valid?

Is the state law valid?

Is the state law valid?

Is the state law valid?

1. the regulation serves a compelling state interest and

Is the state law valid?

Professor Ryan Williams

Political Question Doctrine

Let’s Try One . .

Let’s Try One . .

Let’s Try One . .

Let’s Try Another one . .

(A) Yes, because the activist's injury is direct and im m inent.