Fourteenth Amendment Outline INTRODUCTION I.

Section 1 of the 14th Amendment (1868)-- All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. a. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; b. Nor shall any State deprive any person of life, liberty, or property, without due process of law; c. Nor deny to any person within its jurisdiction the equal protection of the laws. II. Theories of Judicial Review (note: some theories may be consistent with one another) a. Originalism Framer s intent. i. It is difficult to determine the intent of the framers because each may have had a different intent as to the meaning of the Constitution b. Textualism interpret the text of the Constitution without historical or contemporary influence or bias i. Due Process and Equal Protection are open textured provisions in the constitution that require interpretation ii. This theory does not work when language is ambiguous c. Judicial Restraint let Congress, the most democratic of the branches of government, make the laws. i. It is not the responsibility of the Court to determine the normative value of the law. Rather, that inquiry belongs to the political department. ii. When the Court uses normative values to interpret a legislative act, it effectively takes away legislative moral accountability d. The Living Constitution--contemporaneous society should be taken into account when interpreting key constitutional phrases e. Representation Reinforcement Involves a malfunction of the political process i. Where majority disadvantages minority at the expense of minority individual rights, the court may intervene ii. Coalitions may be difficult to form because prejudice curtails such forming (unconscious or conscious) f. Normativism what should be done i. Remedying prior injustice may fall into this category ii. See Harlan s concurrence in Griswold III. Social Change via The Constitution (Flow Chart) a. Social Problem b. Constitutional Problem (Finding the Textual Hook) c. Constitutional Violation d. Implementation 1

e. Remedy f. Social/Political Feedback g. Judicial Reconsideration IV. Marbury v. Madison Federalists retreated into Judiciary as they were elected out of office. a. Federalist/Anti-Federalist Debate i. Federalists representative democracy. Best for large Gov. ii. Anti-Federalists Direct democracy. Best for local Gov. b. There is no textual basis in the Constitution for judicial review of the constitutionality of legislative acts. i. From the implied authority to decide cases arising under the Constitution, Marshall rules that the Supreme Court has the power to declare provisions of the law unconstitutional ii. 1789 Judiciary Act expanding original jurisdiction of the Court over writs of mandamus is unconstitutional c. Although a pure textualist reading does not provide for judicial review, relevant documents at the time of framing indicate that judicial review was contemplated by the framers (The Federalist 78) EQUALITY AND THE CONSTITUTION Slavery, Jim Crow, and the Equal Protection Principle I. Slavery and the Constitution a. The original Constitution accommodated slavery in several ways without ever using the word slavery. i. Art. I(2)(3) 3/5 voting provision ii. Art. I (9)(1) migration/importation by states cannot be prohibited by Congress iii. Art. IV(2)(3) crossing state boundary does not render free iv. Art. V No amendment to the constitution until 1808 v. Slavery permitted by the original framers. This undermines the all men created equal in the Declaration of Independence vi. Note: Amendment XIII did not outlaw slavery, but merely required a conviction b. State v. Post P argues that 1844 NJ constitution (stating, inter alia, all men are created equal) abolished slavery. Nevius, J. for NJ S.Ct. i. No Textualism Argument b/c NJ constitution provided all men are created equal. ii. Original Intent: Court determined that if the Framers intended to abolish slavery, the NJ constitution would have stated so explicitly. iii. Judicial Restraint: MA judge that interpreted similar language to abolish slavery in MA was too passionate. 1. Judges must be more than men to always escape the influence of popular opinion. Although it is a difficult task to escape such influence, judges must practice restraint

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c. Dred Scott v. Sandford (1857) Common law emancipates slaves if owner voluntarily transports them to free territory. Sandford claims that MO compromise is unconstitutional b/c it deprives individual of property without due process. This case is an Anti-Precedent i. Taney, J. states that Court does not have jurisdiction to hear the case b/c there is no diversity of citizenship: Blacks are not citizens 1. Just as in Marbury, the court decided it did not have the authortity to decide the case b/c it lacked subject matter jurisdiction, yet proceeded to decide the case. Thus, Dred Scott (and Marbury) is Dicta ii. Taney takes an original intent approach, but he seems to get it wrong The Constitution does not prevent blacks from being citizens 1. Mistaken Textualist Argument: Taney mistakenly states that the right of property in a slave is expressly affirmed in the Constitution. It is not. iii. Eisengruber Property due process v. Liberty due process 1. Taney states that MO compromise that frees slaves when owner crosses boarder deprives individuals of property without due process. What about depriving liberty of slaves without due process? iv. The Fourteenth Amendment overturned Dred Scott Reconstruction and Retreat 14th Amendment (1868) passed to provide a basis for federal legislative action against the states a. Slaughter House Cases (2-tiered approach) When rights of newly freed slaves are at stake, 14th Amendment must be read expansively to provide comprehensive federal protection. However, when race discrimination is not at issue, the protections of federal citizenship are narrower, and the primary recourse of individual rights is the state b. Strauder v. West Virginia Federal protection is available when the states singled out blacks for discriminatory treatment i. Court relied on 14th Amendment to overturn a murder conviction where clacks were excluded from the jury by law c. The Civil Rights Cases (1883) 14th Amendment does not reach purely private conduct. This is still true today i. US v. Harris because the 14th Amendment does not apply to private conduct, Ku Klux Klan Act of 1871, which made lynching a federal crime, is unconstitutional d. Plessy v. Ferguson (1896) Separate but Equal. LA passed law requiring trains to segregate based on race. Conductor, by eye, deems Plessy to be black. Plessy argues that the state cannot confer on a non-state actor the authority to determine race i. Plessy s 14th Amendment Arguments 1. Due Process the law permits a non-state actor to deprive Plessy of property interest (being white) 3

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2. Equal Protection the law subordinates blacks ii. Court states that the object (intent) of the 14th Amendment was to enforce the equality of the two races before the law, but not to abolish distinctions based on race. 1. Laws requiring separation do not necessarily imply inferiority of either race 2. It is not the duty of the court to put the races on the same plane socially, only before the law iii. Both the Majority and Minority have discriminatory solutions. The only correct position is to treat those similarly situated the same 1. Majority treats those similarly situated differently. a. Whites and blacks are both paid the fare 2. Minority treats those differently situated the same a. Sociological factors indicate that blacks and whites are not similarly situated. iv. Problem: is race a formalistic notion? Can it be determined biologically? v. Note: standard of review in Plessy is reasonableness ( every exercise of state police power must be reasonable, and extend only to such laws as are enacted for the public good ). 1. Ct. explicitly states that legislature has a high degree of discretion. e. Cummings v. Board of Education (Group Rights Case) Black parents challenged tax assessment on the ground that the money was utilized to support a high school open only to whites. Separate black high school was closed to free funds for black primary school. i. Court stated that local authorities had substantial discretion in determining allocation of funds. Interference by Feds not justified unless clear disregard of rights secured by Fed laws. ii. No Zero Sum Remedy: Court emphasized that the relief sought (reduce funds to white school or close white school) would take away from white children without providing additional opportunity for black children f. McKabe v. Atchison (Individual Rights Case) White railcar had sleeping and dining. Blacks sue, seeking an injunction on railroads from denying them such services. i. Court rejects argument that minimal black demand for these facilities made it impractical to haul a separate car ii. It is the individual who is entitled to equal protection of the law. The essence of a constitutional right is a personal one. The Attack on Jim Crow a. Gaines v. Canada MO practice of maintaining an all white law school, while agreeing to pay black residents tuition in neighboring states violated equal protection clause

i. Court: question is not whether neighboring schools are as good as MO school, but what opportunities MO furnishes for whites and denies blacks solely on the basis of color b. Sweatt v. Painter UT law school denied admission to black student b/c there was a parallel black school. i. Court: the facility was not equal. Also unequal b/c black students not exposed to race of majority of colleagues. ii. Intangible factors unequal: faculty, alumni, and prestige 1. Law school cannot be effective in isolation c. McClaurin v. Oklahoma State Black student admitted but required to sit in special seat in classroom, could not eat in cafeteria, and given a special seat in the library i. Court: Although facility equal, the restrictions were unconstitutional b/c they impaired ability to study, exchange views with other students, and learn the profession in general d. Brown v. Board of Education (Brown I) (1954) Segregation in public schools is inherently unequal. i. Theories of judicial review at work in Brown: difficult to justify decision with original intent or stare decisis. Perhaps normativism and living constitution were in play 1. Original Intent: Court makes specific mention that original intent of the framers of the post-war amendments is difficult to determine. Specifically difficult to determine how those amendments were intended to affect public education 2. Living Constitution: Court must determine public education in light of full development and present place in American life. Only then can it be determined whether segregation in public schools deprives these plaintiffs of the equal protection of the laws 3. Note: Court does not discuss the reasons for abandoning stare decisis (unlike in Casey, later) ii. The Court emphasizes the importance of education in succeeding in modern society (maybe a reason for not following stare decisis). 1. Also: following Sweatt and McLaurin, the Court emphasizes that separation undermines equality when focusing on intangibles iii. Court states that Separation generates a feeling of inferiority. This is the first time the Court has been sensitive to sociological arguments 1. Post much of the argument is addressed toward the feelings and not the intellect of the Court 2. Plessy feeling of inferiority is not in the language of the law, but in the minds of men

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3. Note: would Justice Thomas on today s court overrule Brown? Psychological injury or benefit is irrelevant to the question of whether state actors have engaged in intentional discrimination the critical inquiry for ascertaining violations of the Equal Protection Clause. MO v. Jenkins (1995) iv. Explicit overruling of Plessy: Separate is not equal (at least in the field of public education). However, there are two points in Brown consistent with Plessy 1. Race determined biologically (not socially) 2. Standard of review for a facial racial law is reasonableness (no heightened scrutiny) v. Court leaves the answer to remedies unanswered: Court does not decide whether school districts are supposed to desegregate or integrate 1. De Jure Segregation vs. De Facto Segregation 2. Also: Gradualism vs. Immediacy a. In Cooper v. Aaron, the Court is far more adamant because federal troops were already enforcing desegregation vi. The fact that the US was becoming an international leader and harbinger of human rights contra the communists may have been a reason for the unanimity. 1. Democracy and human rights go hand in hand 2. Note: the opinion was short and easily accessible. It was meant to be printed in newspapers. e. Bolling v. Sharpe (1954) D.C.C. case decided on the same day as Brown. Because 14th Amendment applies only to state action, the court could not rely on the equal protection clause. i. However, although equal protection and due process are not interchangeable phrases, the Court held that discrimination may be so unjustifiable as to violate the due process clause of the 5th Amendment. ii. Court further noted that it would be unthinkable that the constitution would impose a lesser duty on the Feds than on the states f. Brown II (1955) Answers the question of how relief is to be accorded. It reality, it there was no immediacy: states must end segregation with all deliberate speed. i. States required to make good faith efforts to determine admission of public schools on a non-racial basis. The Meaning of Brown a. Cooper v. Aaron (1958) Ct. ruled that states were bound by Court decisions and could not choose to ignore them. i. Court handed down this decision when Feds were already enforcing desegregation in the south 6

b. Green v. County School Board (1968) geographic division would not segregate. Instead, county had every pupil choose. If no choice, pupil assigned to the school last attended. Result was little integration. i. Court: The freedom of choice plan could not be accepted as a sufficient step to effectuate a transition to a unitary school system. ii. Court emphasized dissatisfaction with the rate of desegregation. iii. Also: this case moves from Brown, which requires desegregation, to affirmatively requiring integration c. Swann v. Charlotte Mecklenberg Board of Education (1971) District Court adopted a plan that took race into account in drawing school zones and bused students between inner-city and suburban schools. i. Court affirmed, holding that mathematical ratios and racial assignment could be a useful starting point in fashioning relief. ii. However, the Court emphasized that the constitutional command to desegregate schools does not mean that every school in every community must always reflect the racial composition of the school zone as a whole. 1. So, absent a constitutional violation, there would be no basis for judicially ordering assignment of students based on race. 2. Thus, integration required only if school board previously violated the constitution d. Keyes v. School District No. 1 (1973) Plaintiffs bore the burden of establishing that segregated schools had been brought about or maintained by intentional state action e. Milliken v. Bradley after white flight in inner-city. Court can provide intra-district relief. However, there is no redress for de facto geographic segregation among the various districts f. Pasedena Board of Education v. Spangler once school district is declared unitary, the Court fully performed duty to provide remedy. Shifts in residential population does not reinvest the court with jurisdiction. Equal Protection Methodology: Rational Basis Review I. Equal Protection Claims Generally a. Equal protection claims involve a challenge to laws that allocate benefits or impose burdens on a defined class of individuals b. In determining whether a challenged classification is permissible, the Court focuses on three basic questions: i. Means: How has the government defined the group being benefitted or burdened? ii. Ends: What is the goal the government is pursuing? iii. Fit/Nexus: Is there a sufficient connection between the means the government is using and the ends it is pursuing?

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c. Rational Basis Review: Is the classification reasonably related to a legitimate government purpose? i. Deference given to Government permits a lot of over/under inclusion. But the importance of the personal interest that is burdened is also considered. ii. Note: legitimate state interests are generally restricted to police powers (health, safety, morals, and general welfare) 1. The more important the goal, the less close of a fit is required d. Relevant Differences Requirement: differences in treatment are justified only by relevant differences between individuals. i. A difference is relevant only if it bears an empirical relationship to the purpose of the rule ii. This is similar to saying that the legislative classifications are valid unless they bear no rational relationship to state objectives (Beazer) NYC Transit v. Beazer (1979) NY Transit prohibits employment of any person using narcotic drugs, including methadone users a. Court ruled that the classification serves a legitimate state interest (safety). Legislative classifications are valid unless they bear no rational relationship to the State s objectives b. There are Over/Under-inclusion arguments. However, Court emphasizes the desire for administrative efficiency and keeping administrative cost low i. Administrative efficiency is a valid argument only when the standard of review is rational basis. c. In Beazer we see the balancing of state interests against individual rights d. Dissent: those who use methadone are no more likely than the average applicant to turn out to be poor employees i. The classification is irrational and invidious ii. Dissent focuses on individual rights under the Equal Protection clause. Limitations on Permissible Government Purpose (Animus Not Permitted) a. USDA v. Moreno Food Stamp Act excluded households containing an unrelated member. Mother and Child requiring special care shared apartment with another living closer to special care center. i. Legislative history revealed that amendment was intended to exclude hippies from food stamp program ii. A congressional desire to harm a politically unpopular group cannot constitute a legitimate government interest b. City of Cleburne v. Cleburne Living Center city ordinance permitted hospitals and nursing homes on lot, but excluded homes for the insane, alcoholics, and mentally retarded. i. Actual Purpose Review Cleburne claimed protection of mentally retarded (from harassment and flood potential) was 8

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V.

the reason for the denial. However, Court finds refusal was based on an irrational prejudice. ii. Note: Court emphasizes that immutable traits of individuals affected. Although court says rational basis review applies, it looks like heighted scrutiny applied de facto 1. Actual Purpose Review is a kind of Rational Basis Review with Bite c. Romer v. Evans CO legislation prohibited local governments from enacting antidiscrimination measures to protect homosexuals. i. Laws of the kind now before us raise the inference that the disadvantage imposed is born of animosity toward class the class of persons affected ii. Rational Basis Review, law struck down iii. Scalia dissent: State has power to show moral disapproval for some conduct Actual Purpose Review (See Cleburne above) a. Minnesota v. Clover Leaf MN bans sale of milk in plastic nonreturnable containers, but paper-board nonreturnable containers are permitted. i. Court reverses state court s actual purpose analysis (boost MN s paperboard industry) and gives deference to legislature s purpose (recycling) b. Positive Aspects of Actual Purpose Review: rational basis review could render any classification valid depending on in purported purpose. Looking to actual purpose circumvents this c. Problems with Actual Purpose Review: a statute should not be held invalid merely because the legislature was not thinking of that purpose when passed. i. Actual Purpose Review discourages Candor and Encourages Boilerplate The Means-Ends Nexus a. Over-Inclusion the permissibility of legislative generalization must turn on the cost of the generalization as compared to the cost of a more individualized judgment i. In Beazer, for example, a no-methadone rule eliminates some unsafe workers, but at the cost of eliminating some safe ones as well. ii. A more individualized criterion would have higher administrative costs b. Under-Inclusion Railway Express Agency v. NY prohibition of advertisements on trucks but permitted company name on trucks doing house calls. Legitimate purpose traffic safety i. Court: it is no requirement of the equal protection that all the evils of the same genus be eradicated all at once ii. Concurrence:

c. Williamson v. Lee Optical Under-inclusion is permitted where legislature is tackling a problem one step at a time. Equal Protection Clause is aimed to curb invidious discrimination. d. Note: determining which standard of review applies will often decide the case i. Why apply strict scrutiny at all, especially in light of actual purpose cases? Equal Protection Methodology: Heightened Scrutiny and the Problem of Race I. The Origins and Rational for Heightened Scrutiny in Race-Specific Classifications that Disadvantage Racial Minorities a. Strauder v. West Virginia (1880) The purpose of the 14th Amendment is to secure to the race recently emancipated all the civil rights that the superior race enjoys b. United States v. Carolene Products, FN4 (1938) Introduced the idea of levels of judicial scrutiny. i. Nor need we inquire whether similar considerations enter into the review of statutes directed at particular religious or national or racial minorities : whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry ii. Discrete: easily identifiable iii. Insular: detached or isolated c. Korematsu v. United States (1944) In time of war, President gives authority to military commander to prescribe areas where people may be excluded. Military commander excluded Japanese from West Coast. Korematsu jailed for remaining in home. i. Black s majority opinion stated that racial classifications are immediately suspect and are subject to the most rigid scrutiny. 1. The first case of strict scrutiny, although it is debated whether strict scrutiny was applied in fact. Black admits to over/under inclusion ii. Legislative classifications that use suspect classifications, such as race, may be justified if they are necessary to achieve a compelling government interest 1. Burden on government 2. Very tight fit required: very littled toleration of under/over-inclusion iii. Racial classifications are not per se unconstitutional. Pressing public necessity may sometimes justify the existence of legal restrictions based on race. iv. Dissenters apply rational basis test, but claim that the military action fails this test

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1. Jackson s dissent: military order is unconstitutional. Court should not have to enforce the order (loaded weapon analogy). Court not required to determine whether military order was reasonable as a military necessity. Court s only duty is to determine whether the order is unconstitutional v. Note: Korematsu is a due Process Case, but strict scrutiny later applied to both due process and equal protection cases. Loving v. Virginia (1967) Virginia law bans interracial marriages i. Equal application among both races drew strict scrutiny. The fact that the law applies to whites and blacks is not enough to remove law from invidious discrimination ii. Strict Scrutiny: Preserving racial integrity is not a legitimate state interest iii. Actual Purpose: Legislation really only meant to preserve integrity of the white race (white supremacy) Justifications for Strict Scrutiny of Racial Classifications i. The original intent of the 14th Amendment was to protect African Americans from discrimination on the basis of race 1. However, the Court developed strict scrutiny in a case that did not involve blacks ii. Racial minorities need representational reinforcement when the political process breaks down. 1. There may be an unconscious prejudice in the political process Impermissible Considerations? i. In Palmore v. Sidoti, a state court awarded custody of a child to father when mother married an African American. The purpose was to prevent stigmatization of the child. However, the court ruled that: Private biases may be outside the reach of the law, but the law cannot directly or indirectly give them effect. (Not a 14th Amendment case, but worth considering) What Counts as Facial Racial Classification? i. Hunter v. Erickson Amendment to Akron city charter by vote provided that ordinances regulating real estate transaction on the basis of race, religion, etc. had to be approved by voters before taking effect. Other ordinances did not require vote 1. Supreme Court held that the amendment violated EPC 2. Case similar to Romer, but because race was involved, Court applied strict scrutiny a. Theory of Judicial Review: Representational Reinforcement 3. So, do all laws that refer to race involve racial classifications?

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ii. James v. Valtierra (1971) CA Constitution required majority of voters to approve state entities to build low-income housing in community. 1. Court held that the provision was not a racial classification, and rational basis review applied 2. A law that is seemingly neutral on its face does not draw strict scrutiny a. Court did not consider that the majority of lowincome persons are racial minorities h. What does the Court mean by Race? i. In Al-Khazraji (1987), the Court stated that discrimination based on the ancestry or ethnic characteristics is racial discrimination, but in a footnote indicated that some but not all scientists have concluded that racial classifications are for the most part sociopolitical rather than biological ii. Rice v. Cayetano only descendents of people inhabiting HW in 1778 may vote for trustees of HW office of affairs. Court determined that merely because a class defined by ancestry does not include all members of the race, that fact alone is not enough to make the classification race neutral iii. Morton v. Mancari hiring preferences given to Indians. Indians were not considered a race in this context Facially Non-Racial Classifications That Disadvantage Racial Minorities a. Generally Laws subject to heightened scrutiny only if a) discriminatory purpose, and b) disproportionate impact b. Washington v. Davis (1976) black applicants to police force disproportionately failed entrance exam. Blacks claimed discrimination. i. Court found that there was no showing of discriminatory purpose (no invidious discrimination), so rational basis review applies 1. Court mistakenly links discriminatory purpose to the school desegregation cases ii. Holding: where the law is facially neutral, claimants must show discriminatory purpose in order to draw strict scrutiny 1. Disproportionate impact of a law alone does not violate EPC, although disproportionate impact may be considered in determining discriminatory intent iii. Stevens concurring intent is nearly impossible to determine. If the statute has a high degree of discriminatory impact, only then look to the wording of statute to determine intent c. MA v. Feeney (1977) gender discrimination case that further elaborated discriminatory purpose i. Discriminatory purpose requires more than intent as volition or intent as awareness of consequences. It requires that the decision maker selected or reaffirmed a particular course of 12

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action at least in part because of, not merely in spite of its adverse effects on an identifiable group Arlington Heights v. MHDC Shifting of Burdens i. Davis does not require that the challenged action rested solely or primarily on racially discriminatory purposes. ii. When it is determined a decision rested in part on a racially discriminatory purpose, the burden shifts to the Government to show that the same decision would have been made had the impermissible intent not been considered Application of Discriminatory Purpose Test i. Again, discriminatory purpose draws strict scrutiny. Discriminatory purpose can still pass the strict scrutiny test 1. Should effects be the only test? ii. Yick Wo (1886) where disproportionate impact alone is so overwhelmingly discriminatory, Court may find discriminatory purpose. (Intent not at issue b/c effects so discriminatory) 1. Note: this case involved a statute delegating discretion to a administration that applied the law in a discriminatory fashion iii. Gamillion v. Lightfoot (1960) gerrymandering in Tuskegee 1. Effect of gerrymandering is mathematically indicative of a discriminatory intent Jury Selection Cases i. Hernandez v. New York D claimed prosecutor used peremptory challenges to exclude Latinos from jury. 1. Court determined that there was no intent to exclude Latinos based on race, but only on their ability to follow the interpreter ii. Castenada to prove EPC violation, D must show that the jury selection procedure resulted in substantial under representation of the race D belongs to. Three step process 1. Show that the group is singled out for different treatment 2. Prove the degree of under-representation by comparing jury to total population 3. Show the selection procedure is subject to abuse 4. Note: if these three are shown, burden shifts to state to rebut the case McKleskey v. Kemp Baldus Study shows that blacks convicted of killing whites in GA are more likely to receive death penalty. According to Arlington Heights, discriminatory purpose can be proved by statistics. Black man appeals death sentence. i. Court holds that in order to show an EPC violation, D must show discriminatory purpose in his case

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h. U.S. v. Armstrong D sought discovery from prosecution to show that prosecution was not prosecuting similarly situated suspects of other races i. Court rule that to establish discriminatory effect in a race case, the claimant must show that similarly situated individuals of a different race were not prosecuted ii. 91% of LSD dealers white/91% of crack dealers black Race-Specific Classifications Designed to Benefit Racial Minorities a. UC v. Bakke (1978) med school reserves 16/100 seats for racial minorities i. Burger 4: the program violated the Civil Rights Act ii. Brennan 4: apply intermediate scrutiny and uphold the program. 1. Intermediate scrutiny requires a showing of an important government interest, using means substantially related to achieving that purpose. Moreover, the statute must not stigmatize any group 2. The purpose of the policy was to remedy to continuing effects of prior discrimination, which is a legitimate and important interest. Also, the policy does not stigmatize iii. Powell: Because race is involved, apply strict scrutiny. Admissions policy fails strict scrutiny 1. However, Powell joins the Brennan 4 in permitting future use of race in admissions: it can be used as a plus for admissions, but no racial quota b. Fullilove (1980) Federal affirmative action program in the context of public contracting. 10% of contracting set aside minorities. First case where we get narrowly tailored language (although Court used close examination instead of strict scrutiny) i. Statute upheld but Court emphasized the narrowness of the holding, noting the limited duration of the program and that no non-minority was harmed c. Croson (1989) 30% of city projects should go to MBEs. Court rules that State and local affirmative action programs should be subject to strict scrutiny. i. O Connor states that the law fails both prongs of strict scrutiny: 1. Remedying past societal discrimination is not a compelling state interest, and 2. Law is not narrowly tailored because it did not consider race-neutral means of achieving the objective, and it was overly broad because it includes groups that may not have suffered past discrimination ii. EPC applies to individuals, not groups iii. Note: Representational Reinforcement does not apply here b/c the majority of the city council was black

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d. Adarand Constructors (1995) Strict Scrutiny should be applied to federally enacted benign racial classifications (and local per Croson) i. We hold that all racial classifications, imposed by federal, state, or local governments, must be analyzed under strict scrutiny. 1. In other words, such classifications are constitutional only if they are narrowly tailored measures that further compelling governmental interests 2. Court tries to dispel the notion that strict scrutiny is strict in scrutiny but fatal in fact ii. Overruled Metro Broadcasting, which provided for intermediate scrutiny of federally enacted benign racial classifications. iii. Like Bolling v. Sharpe, Court reads EP element into Due Process of the 5th Amendment to apply EP to federal statutes iv. Scalia Concurrence: the government can never have a compelling interest in discriminating on the basis of race in order to make up for past racial discrimination in the opposite direction v. Justice Thomas Concurrence: Preferences reinforces stereotypes and ultimately harms racial minorities e. Grutter v. Bollinger (2003) MI law. To receive critical mass (not a quota) of minorities, race was a factor for admission. Strict Scrutiny applies because a racial classification is at issue (although it does not seem like Strict Scrutiny is applied in fact b/c deference given to the law school-Court normally defers when rational basis is applied) i. Holding Student body diversity is a compelling state interest that can justify the use of race in university admission. 1. In order to thrive in business, you need to know how to interact with a diverse group 2. Schools must engage in highly individualized review of applicants file ii. Narrow tailoring does not require exhaustion of every conceivable race-neutral alternative, but does require good faith consideration of workable race neutral alternatives to achieve the compelling interest iii. Note: possible sunset provision in affirmative action? 25 yrs f. Gratz admission to undergrad assigned points to various aspects of an application. Significant number of points given for minority applicants i. Selection with numerical index with regard to race is unconstitutional ii. The less individualized the assessment the more likely the selection system will violate the EPC g. Problem of facially neutral but race-specific voting districts

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i. Voting is different from the problem in Croson and Adarand because it is not about individual rights. In shaping a voting district, the government is dealing with group rights only ii. Gomillion when districts are purposely constructed to reduce the voting power of minorities the plans are unconstitutional. 1. The question is more difficult when legislature draws lines to reflect, rather than reduce, minority voting strength (majority-minority voting districts iii. Shaw v. Reno Redistricting violates EPC when it rationally cannot be understood as anything other than an effort to separate voters into different districts on the basis of race, and the separation lacks sufficient justification 1. Strict Scrutiny applies iv. Bush v. Vera intentional creation of majority-minority voting districts is not enough to draw strict scrutiny. Rather, plaintiffs must prove that other legitimate districting principles were subordinated to race IV. The Synthesis of Brown and Affirmative Action: Parents Involved v. Seattle Dist. No. 1 9th graders choose 1 of 10 public schools. Tie-breaker criteria based on race. Strict scrutiny applies a. To date, two interests that qualify as compelling i. Remedying the effects of past intentional discrimination 1. Here, Seattle public schools (SPS) has not shown they were ever segregated by law and were not subject to court-ordered desegregation decrees ii. Diversity in Higher Education (upheld in Grutter) 1. Must be part of a highly individualized, holistic review b. SPS argument for compelling interest involves reduction of racial concentration so that non-whites have access to the most desirable schools i. Court response: racial balancing alone is not a legitimate state interest (fails even rational basis) c. Moreover, second prong of strict scrutiny is not satisfied because tiebreaker criteria is not a necessary means to the objective i. Factual data shows that the tie-breaker method does not in fact have a significant impact on racial make-up of school enrollment d. Dissent a long line of legal authority tells us that EPC permits local school boards to use race-conscious criteria to achieve positive racerelated goals, even when the constitution does not compel it. i. This case passes strict scrutiny Equal Protection Methodology: Heightened Scrutiny and the Problem of Gender I. Road to Intermediate Scrutiny a. Reed v. Reed (1971) Unanimous Court struck down an intestate law that favored male. Court used rational basis review

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i. Administrative convenience is a legitimate state interest, but the means used to achieve that objective were not rational. (Law unjustified as an arbitrary legislative choice) Frontiero v. Richardson (1973) military provision whereby males could claim spousal benefits automatically, but females had to demonstrate that their spouse was actually dependent. i. Brennan, writing for the plurality, stated that gender classifications, like racial classifications, should be subject to close scrutiny 1. Note: strict scrutiny does not ultimately become the standard of review ii. Note: it is a common S.Ct. practice to justify a heightened level of scrutiny of a particular group with blacks sometimes use immutable characteristic Romantic Paternalism Could discrimination against women result from the view that the stronger gender needs to protect a more feeble and vulnerable group i. Gender classification can be used for legitimate government purposes, but Courts must decide which purposes are legitimate 1. Real Differences vs. Romantic Paternalism ii. Carolene Products FN4 are women a discrete and insular minority? Not in terms of number, but maybe politically iii. Weinberger tax statute characterized as paternalistic and struck down iv. Kahn similar tax statute characterized as benign and remedial (recognizing tough job market for women) was upheld v. The Court is more likely to uphold benign gender classifications when the purpose is to rectify past treatment, but strike down if the purpose is the product of an overbroad generalization that women are the weaker sex Feeney a statute that is facially gender neutral will be subject to rational basis review unless discriminatory purpose (consistent with Washington v. Davis) Geduldig S. Ct. rejected attack on CA s disability insurance program that excluded pregnancy. Rational basis review applied i. Court ruled that pregnancy is not a sex based discriminatory classification. Rather the law divides people into two classes: pregnant women and non-pregnant women. The latter class contains both men and women Craig v. Boren (1976) First time the majority Court applied heightened scrutiny to a gender classification. OK statute allowing women over 18 to purchase 3.2 beer, but denied right to men

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i. Intermediate Scrutiny gender classification must serve an important government objective and must be substantially related to achievement of those objectives 1. State interest highway safety (important) 2. Means not substantially related to interest ii. Stevens dissent still argues EPC should have only one standard of review (rational basis) iii. Rehnquist dissent males are not stigmatized, so heightened scrutiny should apply 1. The history of discrimination was the justification for applying heightened scrutiny in race cases iv. Note: since Craig v. Boren, the Court has not been consistent in the standard of review for gender discrimination cases g. MSU School for Women v. Hogan (1982) Court struck down policy that excluded men from nursing school because it perpetuates the view that nursing is a female profession. i. Although this is a man suing for male discrimination, the Court turns it into a female discrimination case Archaic and Overbroad Generalizations Versus Real Differences a. If a law or policy treats men and women differently, does the difference correspond to a relevant difference between the genders? b. United States v. Virginia (1996) VMI practiced the adversarial method and disallowed women. Remedy of a separate institution for women used of method of support. Remedial school found not to equal VMI based on intangibles i. Exceedingly Persuasive Justification parties that seek to defend gender-based government action must demonstrate an exceedingly persuasive justification for that action. (Rehnquist thinks this language is closer to strict scrutiny than intermediate scrutiny) 1. Justification cannot be based on overbroad generalizations about the different talents or capacities of men and women ii. Intermediate scrutiny: Burden rests entirely on the state to show that the classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives iii. Court points out that inherent differences are no longer accepted as a ground for race or national origin classifications, but physical differences between men and women are enduring iv. This case stands for the proposition that state cannot rely on overbroad gender-based stereo types in creating the law or policy. 1. If an exceptional number of women can perform, the state can t exclude all.

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2. But does this really advance the cause for women. Most women would benefit from a remedial school more accommodating to the interests of a greater majority of women, not just the exceptional few (This is Rehnquist s vision). Is this a better approach or does it suffer from the same criticisms as separate but equal v. Scalia Dissent decision should be left to legislature c. Real Differences and Formal Equality i. Rostker v. Goldberg Court upheld statute requiring men, but not women, to register for the draft. Court deferred to President. Westley thinks this case would be decided differently after Virgina ii. Michael M 17 year old convicted of statutory rape. The statutory rape statute prohibited sexual act with any female under the age of 18. 1. Plurality found that state had a strong interest in preventing illegitimate pregnancies 2. The statute reflects the fact that sexes are not similarly situated d. Nguyen v. INS Facially Discriminatory: INA requires child of USC father born abroad to have paternity order before the age of 18. Child of USC mother automatically becomes USC. Court upholds statute i. Important government objective assuring that the parent and child are biologically related or have a meaningful connection (or at least an opportunity to develop one) ii. Real differences justifies the discrimination because biological mothers will certainly have an opportunity to develop such a relationship based on the physical connection to the child in pregnancy and birth iii. Narrow Tailoring in intermediate scrutiny if we can find a gender-neutral means of achieving the ends, that should be preferred over the discriminatory one iv. Court notes that statute is easily administered v. Dissenters argue that heightened scrutiny was not adequately applied. Modern DNA evidence can adequately show biological relationship e. Califano v. Goldfarb (1977) widow survivor gets benefits based on earnings of husband. Widower gets benefits based on earnings of wife only by showing he received at least support from her i. Court rules that this discriminates against women, by depriving them of protection for their families that men receive as a result of their employment ii. Note: administrative convenience is part of the Court s consideration in many of these cases

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f. Califano v. Webster (1977) Social Security Act provided benefits based on average monthly wage during a certain time. Women were allowed to exclude low income years i. Court upholds statute: rectifies past discrimination ii. Also the Court could argue real differences pregnancy/childrearing years may not have earned as much (But see Geduldig) g. Wengler Workers compensation for widower only if he proves actual dependence on wife s earnings. Widows received workers compensation automatically i. Court invalidates statute because both men and women were being discriminated against (a portion of women s social security was being denied to surviving husband) Equal Protection Methodology: The Problem of Sexual Orientation I. Westley s Argument a. There can be no discrimination based on sexual orientation because sexual orientation boils down to desires b. You can t constitutionally discriminate against people for what they are thinking, you can only punish acts i. Example sodomy laws punish acts, not desires. The gender of the persons involved in the acts are discriminated against, not their orientation. ii. Because gender is involved, intermediate scrutiny should apply c. Don t Ask, Don t Tell: even saying you are gay is an act. i. Queen for a day exception II. Romer v. Evans CO legislation prohibited local governments from enacting antidiscrimination measures to protect homosexuals. a. Highest Ct. in CO applies strict scrutiny and strikes down law. US S.Ct applies rational basis review. Strikes down the law b. Colorado s proposed objectives i. Protect freedom association of landlords and employers who have personal or religious objections to homosexuality ii. Conserve resources to fight discrimination against other groups c. Ct. states that the law demonstrates an animus toward the affected class i. The desire to harm a politically unpopular group cannot constitute a legitimate government interest (Moreno) d. Scalia Dissent: goal of the law is to protect sexual mores and the means is rational i. The area of the law the Court is regulating is delegated to the states (morals) ii. Here, the court is legislating in an area delegated to the States iii. No representational reinforcement at issue here because Homosexuals have more political power than their numbers Equal Protection Methodology: Other Candidates for Heightened Scrutiny I. Alienage 20

II.

a. The Constitution offers different access to the political system based on citizenship of the United States b. Some have advanced the argument that US may owe a greater duty to nationals of States in closer proximity to the US than others c. Sugarman v. Dougall (1973) NY statute excluded aliens from civil service positions filled by competitive examination i. Court applied close scrutiny based on alien status as discrete and insular minority (See Graham v. Richardson where the Court observed aliens are a prime example of discrete and insular minority). 1. Carolene FN4 particularly relevant here because aliens cannot vote, at least at the federal level. Representational Reinforcement ii. State interest: loyalty (legitimate) 1. Means not rational b/c excluded menial laborors iii. Court struck down the law because too much over-inclusion. 1. The statute prohibited employment of a class, not the individual iv. Rehnquist Dissent 1. 14th amendment does not contain language of suspect classifications (texutalist argument) 2. Alien status is not an immutable characteristic b/c alien can naturalize v. Alternative Theory for deciding the case may be preemption. Immigration is an area delegated to the Federal Government 1. There was a preemption argument in Graham 2. Mathew v. Davis congress has plenary power with regard to immigration d. Plyer v. Doe illegal aliens not a suspect classification i. Illegal immigrant children cannot be denied public education. Children should not be punished for parent misconduct e. In Re Griffiths law restricting bar membership to citizens struck down using EPC arguments f. Folely law requiring citizenship for state police force was upheld Wealth Classifications a. In the 50s and 60s the Court repeatedly suggested that classifications based on indigency were suspect. However, in the 1970s the Court rejected the idea that financial need alone identifies a suspect class for purposes of EPC (Maher v. Roe) b. Classification: any time the state premises access to a good or service on the ability to pay for that good or service, there is a wealth classification. However, that does not necessarily mean there is invidious discrimination c. MLB v. SLJ state required record preparation fee to appeal from decisions terminating parental rights. The state argued that the requirement did not involve a facial classification, but merely had a 21

disproportionate impact on the affected class (and Washington v Davis applied) i. The Court rejected the argument that Washington v. Davis applied. State cannot condition appeals on ability to pay d. Summary i. Court protects necessities such as voting rights, criminal trial rights, and public welfare benefits, but denies housing rights III. Short review a. EPC review i. Determine class ii. Determine standard of review iii. Determine the ends/goals iv. Determine the means b. Arguments for heightened review i. Carolene FN4 (discreet and insular minority) ii. Immutable characteristic iii. History of Discrimination IMPLIED FUNDAMENTAL RIGHTS The Privileges and Immunities Clause I. The Slaughter-House Cases (1873) LA passed statute granting corp. monopoly on slaughter-houses in LA. Framers of 14th Amendment probably intended protection of individuals, but S.Ct. gutted that in this case. a. Court: the purpose of the 14th Amendment was to protect the new freed slave race (originalism) i. Although others may be protected by 14th Amendment, it is important to its purpose ii. The purpose was not meant to protect individuals b. Court distinguishes between state citizenship and US citizenship i. The 14th Amendment secures equal treatment among the states, but does not secure protection of rights to citizens of the state II. The original structure of the Constitution was that the feds were suspicious. The Bill of Rights protected individuals from the feds. By the time the 14th Amendment was passed, the states were more likely to infringe on individual liberties. The 14th Amendment was meant to transfer to the feds the responsibility to protect (at least some of) the rights provided in the Constitution a. After the Slaughter-House Cases, the P&I effectively became deadletter law b. P&I would have been a natural avenue for incorporation. However, the Due Process Clause was used instead (Substantive Due Process) The Incorporation Controversy I. Twining v. New Jersey (1908) Federal right against self-incrimination not in state criminal proceedings

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a. Court exemption from self-incrimination is a fundamental principle of liberty and justice which inheres in the very idea of free government and is the inalienable right of a citizen of such government II. Palko v. Connecticut Right of trial by jury and immunity from prosecution except by indictment may have value and importance, but are not of the very essence of ordered liberty. To deny them is not to deny a fundamental principle of justice a. Bill of Rights go beyond de minimus rights III. Adamson v. California (1947) Court upheld Twinning. Case demonstrates Black/Frankfurter Debate. a. Franfurter Concurrence Justice of English speaking world should be used a yard-stick for incorporation b. Black Dissent Total Incorporation IV. Duncan v. Louisiana (1968) right to jury trial incorporated V. Jot-for-Jot incorporation incorporated right applies in the same way as to the states as it does Federally VI. Current Standing of Incorporation a. Selective Incorporation, but Jot-for-Jot b. Language in Palko still important VII. McDonald v. City of Chicago (2010) Chicago ordinance banned handguns and some rifles a. Court held that the right of an individual to "keep and bear arms" protected by the Second Amendment to the United States Constitution is incorporated by the Due Process Clause of the Fourteenth Amendment and applies to the states b. Note: test for determining whether a right is fundamental: scheme of ordered liberty (Palko) or historically rooted in history and traditions (Frankfurter concurrence in Adamson) c. Interestingly, McDonald argued that the Slaughter-House cases should be overturned, and that P&I should apply to the states. Ultimately, the court used DPC and upheld selective incorporation i. Thomas supported overturning Slaughter-House Substantive Due Process: The Protection of Economic Interests and the Question of Redistribution I. Substantive Due Process Generally a. SDP the concept that there are rights so fundamental to our traditions of justice that the government cannot abridge those rights, even if they are not explicitly provided in the Constitution i. Some people view Dred Scott as a SDP case (economic/property) ii. In Slaughter-House, the Court held that the exercise of a trade is not a property right protected by the due process clause of the 14th Amendment b. Munn v. Illinois (1877) State may regulate maximum charges for grain storage 23

II.

i. Where private property is affected with a public interest, that is when a person submits private property for use in the public interest, that person grants the public an interest in that use, and must submit to be controlled for the public good ii. Effected with a Public Interest Test: The critical issue is whether private property is being used for a public interest 1. Note: just compensation still due c. Minnesota Rate Case (1890) First time the court struck down as unconstitutional a state economic regulation i. Note: the Munn test is still valid d. Allgeyer v. Louisiana (1897) Court invalidated a state statute that prohibited any person from issuing insurance on property in the state with companies that had not been admitted to do business in the state i. Liberty in the due process clause is the right of a citizen to be free to live, work, and earn a livelihood. Court also emphasized the right to enter into contracts 1. With this broad interpretation of liberty, the court gives substantive content to the due process clause (effectively creating the concept of substantive due process) ii. Note: this was a blow to the holding in Slaughter-House Lochner v. New York NY statute prohibited bakers from working over 60hrs. per week. a. Court strikes down law as infringing on liberty provisions of the 14th Amendment due process clause(freedom of contract) i. Court classifies the law as a labor law, and not police power of the state b. Holden v. Hardy, involving a statute pertaining to mine workers, is upheld. Court states that the character of the work permitted state regulation i. Here, the safety, morals, or welfare of the public are not affected by the statute. Wholesome bread does not depend on the number of hours a baker works ii. Class legislation to protect the class is okay. Here, bakers not at risk and in no need of protection 1. In Muller State law limiting hours worked by women okay b/c of physical stature of women 2. In Adkins federal minimum wage for women struck down under liberty of DPC (freedom of contract) c. Standard of Review: Rational Basis (like all decisions in this period involving the 14th Amendment) d. Harlan s dissent Harlan finds independent evidence baking is a laborious profession in need of protection e. Note: Con-law stories deem Lochner an anti-canon case. Justices will criticize each others opinion as Lochnerian

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i. Judicial Activism the Court overturns a law that was arrived at through the democratic process. It involves police powers ii. Holmes dissent Court relying on Laizze fair attitudes that the majority of the country does not endorse III. Nebia v. New York (1934) NY statute fixes milk prices to protect dairy producers. Court upholds statute a. Rule: state may pass laws consistent with the DPC if law has a reasonable relation to a proper legislative purpose. i. Law cannot be arbitrary or discriminatory b. The Constitution is not a guarantee of unrestricted privilege to engage in business i. Where a business is affected with a public interest, a state can regulate the industry for the public good IV. West Coast Hotel v. Parrish (1937) Court upheld a state law establishing minimum wage for women, explicitly overruling Adkins a. What is freedom of contract? The Constitution does not speak of freedom of contract. It speaks of liberty and prohibits the deprivation of liberty without due process of law b. Court notes that some classes are in an unequal position with respect to bargaining power in employment contracts i. Court also notes that employment contracts that deny a living wage impose extra burdens on their community for support. ii. What the workers lose in wages the taxpayers are called upon to pay V. End of the Lochner Era a. Carolene Products (1938) Court upholds the Filled Milk Act. Rational basis review. Presumption in favor of the government i. Deference given to State legislature to determine which products are injurious to the public b. Williamson v. Lee Optical i. The day is gone when this Court uses DPC to strike down state laws regulating business and industrial conditions because they may be unwise or out of harmony with a particular school of thought ii. Rational basis applies. 1. Court provides for a high degree of deference to the legislature 2. A hypothetical state of facts (court goes through several) that meet the rational basis test may justify the law. c. Ferguson v. Skrupa (1963) highest degree of deference to legislature. No real inquiry into the reasons for the commercial and economic legislation at all Modern Substantive Due Process: Privacy Personhood and Family I. Meyer v. Nebraska Court invalidates a state law prohibiting teaching of foreign language in grammar school. Court attempts to delineate a one of 25

II.

privacy that is protected by the Liberty protection of the Due Process Clause. States may not interfere a. Court notes that emergency situations may justify interference with the Meyer list The Right of Privacy a. Griswold v. Connecticut (1965) Connecticut statute prohibited any person from using contraception. Physician arrested for providing contraception information to married couple i. Douglas J there are peripheral rights without which the specific rights provided by the constitution would be insecure 1. The various guarantees of the BoR create zones of privacy, that this law infringes upon. 2. The Court mentions the 1st, 4th, 5th, and 9th Amendments, but does not mention the 14th Amendment in order to avoid the charge of engaging in substantive due process decision making 3. The majority opinion has not withstood time, Harlan s concurrence is the opinion that has been upheld ii. Goldberg concurrence The liberty protected by the 5th and 14th Amendment is not restricted to those specifically mentioned in the first eight Amendments. Rather, the 9th Amendment provides for additional liberty protections 1. 9th Amendment: The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people 2. Black s dissent points out that this interpretation of the 9th Amendment is not consistent with the Framers intent. The intent was to protect against the feds, not to strike down state and local law iii. Harlan s Concurrence The 14th Amendment due process reaches beyond those rights enumerated in the first eight Amendments. Rather, it includes those rights, which are fundamental. 1. Fundamental right those rights that belong to citizens of all free governments, the security of which men enter into society 2. Privacy of the home is a fundamental liberty, supported by traditions of this country 3. Where the law restricts a fundamental right, the law is subject to strict scrutiny iv. White s concurrence: protecting against illicit sex is a legitimate state interest, but law too sweeping v. Black s dissent Right to privacy is not in the constitution. Rather, it a concept arising in the law of tort.

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III.

1. Formulations of liberty based on natural justice (traditions?) is dangerous (accuses Court of lochnerian analysis) b. Eisenstadt (1972) MA statute prohibited distribution of any contraceptive drug or device to unmarried persons. Applying rational basis review, the Court found that none of the purported state interests were sufficient to justify the challenged classification. i. Application of EPC rather than DPC: Court held that whatever the rights of the individual may be with regard to contraception, the rights must be the same for married and unmarried alike ii. Court did not determine whether the access to contraception was right inherent in the liberty of the 14th Amendment. Rather, Court struck down the law on the basis of EPC c. Carey v. Population Services Court prohibited sale of contraception. Strict Scrutiny Applies where there is a fundamental right. State interest not compelling i. Read in the light of its progeny, the teaching of Griswold is that the Constitution protects individual decisions in matters of childbearing from unjustified intrusion by the state. Abortion a. Roe v. Wade TX statute criminalizing abortion unless necessary to save mothers life (determined by physician). State interest a) discourage illicit sex, 2) protect health of women b/c abortions are dangerous, 3) protect the fetus i. Although the Constitution does not mention a right to privacy, the Court has recognized a guarantee of zones of privacy in the Constitution. Provided in the 14th Amendment. ii. Were law involves fundamental rights, it is subject to strict scrutiny (compelling state interest, narrowly drawn) 1. Here, there is a constitutional right to privacy, that right is based on the due process clause, and it is broad enough to encompass a woman s decision whether or not to terminate her pregnancy iii. Competing state interests health of the mother vs. protection of the fetus. Court uses the trimester system to show that the state interest in protecting the fetus becomes greater as the pregnancy progresses 1. Physician has complete discretion in the first trimester without interference from the state 2. During the second trimester, the state can regulate abortion in ways that are reasonably related to mothers health 3. In the third trimester, the state may regulate or proscribe abortion except where abortion is necessary to preserve the life or health of the mother 27

b. c.

d.

e. f.

iv. White s dissent The Constitution does not support this new right of privacy v. Rehnquist dissent The right to an abortion is not strongly rooted in the traditions and conscience of the people to be to be ranked as fundamental Doe v. Bolton abortions need not be performed at hospitals Maher v. Roe (1977) Court upholds state law granting Medicaid for childbirth but not abortions that are not medically necessary i. EPC Analysis an indigent woman desiring an abortion does not come within the limited category of suspect classes. 1. Note: this is a narrow construction of the class ii. DPC Roe did not declare an unqualified constitutional right to an abortion. Rather, the right protects the woman only from unduly burdensome interference with her freedom to decide whether to terminate her pregnancy. A state may still make value judgments favoring childbirth over abortion, and to implement that judgment by the allocation of public funds 1. This law does not impinge upon the fundamental right recognized in Roe Harris v. McRae (1980) Hyde Amendment prohibited use of federal Medicaid funds for abortion unless health of mother at stake, incest, or rape. i. Although government may not place obstacles in the path of a woman s exercise of her freedom of choice, it need not remove those not of its own creation. Indigency falls into the latter category Harris and Maher are leaning toward overturning Roe. O Connor states that she would support the undue burdens test in these cases Planned Parenthood v. Casey O Connor writes the plurality, and upholds the essential holding of Roe i. Three parts of Roe upheld 1. The right of women to choose to have an abortion before viability and to obtain it without undue interference from the state a. Before viability the state s interests are not strong enough to support a prohibition or substantial obstacle to the right to choose to have the procedure 2. A state has the power to restrict abortions after fetal viability if the law contains exceptions for pregnancies which endanger a woman s life or health 3. The state has legitimate interest in protecting the health of a woman and the life of the fetus at the outset of the pregnancy ii. Undue Burden Standard is the best way to rectify state interest with constitutionally protected right of the woman 28

IV.

iii. Implied Realm of Personal Liberty: The Due Process clause protects liberties not specifically mentioned in the BoR 1. Griswold fundamental right part of American Traditions iv. The Roe holding is workable v. Reliance people s lives have been affected by the validity of Roe. When people start to depend on a right, Court should be reluctant to take that right away vi. Overturning Stare Decisis (west coast hotel and brown) 1. Factual underpinning of the holding have changed 2. The understanding of the holding has changed in light of other precedent 3. Erosion of a principle upon which the decision was based vii. Overturning Roe would undermine Court Authority viii. Note: the more narrow the description of the right, the more difficult it is to fit into constitutional protections Family and Other Privacy Interests a. Roberts v. U.S. Jaycees (1984) Court upholds statute prohibiting discrimination on the basis of sex in places of public accommodation i. Two facets of constitutionally protected freedom of association 1. Exercise of the 1st Amendment right 2. Freedom of intimate human relationships (part of the liberty protections) b. Bowers v. Hardwick Court upholds sodomy statute (applied to gays and heterosexuals). Overruled in Lawrence c. Lawrence v. Texas (2003) Liberty includes spatial privacy, but also more than that i. The liberty protected by the Constitution allows homosexuals the right to choose to enter upon relationships in the confines of their homes and their own private lives and still retain their dignity as free persons ii. History of sodomy laws was based not on homosexual conduct, but all sexual conduct that was not meant to procreate 1. There has been an emerging awareness over the past 50 years that has provided more liberty on adult persons on how to conduct their private lives. 2. This language used to satisfy the history and traditions test for fundamental rights 3. But, Scalia convincingly points out that an emerging awareness does not establish a fundamental right because it does not show the right is deeply rooted in this nation s history and traditions iii. Stare Decisis is important but not an inexorable command. There is no detrimental reliance on Bowers because Bowers

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did not confer a right on people. It should be easier for the Court to confer a new right than to take one away iv. Note: there is a novel Framer s intent argument 1. had those who drew and ratified the DPC of the Fifth Amendment or 14th Amendment know the components of liberty in its manifold possibilities, they might have been more specific v. Note: the Court does not apply strict scrutiny after finding a fundamental right. The court merely finds a fundamental right and strikes down the statute vi. Note: Court did not apply EPC analysis b/c statute could be changed to not classify either gender

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