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Constitutional Law Outline

31/03/2010 18:59:00

Judicial Power
The Supreme Courts Authority and Role
Marbury v. Madison (1803) Where the Constitution of the United States, as interpreted by the Supreme Court, conflicts with laws enacted by Congress, the Supreme Court may declare such laws unconstitutional and invalid Justice MARSHALL o Constitution itself gives the judiciary jurisdiction over all cases arising under the Constitution The INSTRUMENTAL APPROACH The purpose of exercising judicial review is for protecting the broader notion of protecting the constitution judges are best able to do so because they are independent, they have the correct temperament, etc. Martin v. Hunters Lessee (1816) The United States Supreme Court is the singular revising authority to control discordant state court judgments and harmonize them into uniformity, or the laws, treaties, Constitution of the United States could be applied differently in different states Justice STORY o Granting appellate power over state courts to the SCOTUS does not infringe on the independence of state court judges Cooper v. Aaron (1958) The constitutional right of children not to be discriminated against in school admission on the basis of race, as establish by the Supreme Court in Brown v. Board of Education, cannot be nullified by states Justice WARREN o Interpretation of the Fourteenth Amendment makes Supreme Court decisions Supreme law of land because it interprets the constitution o Article VI makes it binding on the states

Baker v. Carr (1962) The Guaranty Clause may not be used as a source of constitutional standard for invalidating state action, but an equal protection claim may be so used where it does not implicate a political question Justice BRENNAN o TEST POLITICAL v. LEGAL QUESTIONS: In any case involving a political question is found 1) a constitutionally assigned duty or power to a branch of government OR 2) a lack of judicially manageable standards for resolving that question o If NONE of these issues are present case should not be dismissed on the ground that it is a political question

National Legislative Powers


The Nation and the States in the Federal System
McCulloch v. Maryland (1869) The States have no power to burden the operation of federal laws designed to execute powers vested in the federal government by the Constitution Limitations against federal power o Plainly adaptive o Prohibitive o Pretext Big powers do not imply all little powers o Only imply those things that will help you implement big powers Test for Existence of Federal Power o Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional

U.S. Term Limits v. Thornton (1995) Allowing a state to set term limits for its federal representative is contrary to the democratic maxim that the people should choose whom they please to govern them, and is inconsistent with the Framers vision of a uniform national legislature Federalism in favor of an allocation of power between the federal government and state governments The state cant do something or exercise power they never possessed

The Commerce Power and its Federalism-based Limits


Introduction and Early Developments Gibbons v. Ogden (1824) The Commerce Power may be exercised to the utmost extent and is limited only by the constitution Commerce among the several states means intermingled must concern more than one state Hammer v. Dagenhart (1918) The commerce power includes the power to regulate by prohibiting the use of the facilities of interstate commerce to effect an intended evil, but it is not a means to prohibit the evil itself, if that evil occurs within the confines of a state LATER OVERRULED The Commerce Power after the New Deal NLRB v. Jones & Laughlin Steel Corp. (1937) Congressional power to protect interstate commerce is not limited to transactions which are an essential part of the flow of interstate commerce, and may be used to reach activities that are deemed to merely burden or obstruct interstate commerce Even a slight commerce-related effect could potentially give rise to congressional authority to intervene and regulate United States v. Darby (1941)

The motive and purpose of congressional regulation of commerce are matters for the judgment of the Legislature, and the Court cannot prescribe limitations on the exercise of its acknowledged power Overturned Hammer Congress also has the power to inhibit and prohibit commerce if it sees fit Tenth Amendment does not inhibit congress in this case Heart of Atlanta Motel v. United States (1964) Court upheld the application of the Act (Title II) in evaluating the law and its application the only questions are o Whether congress had a rational basis for finding that racial discrimination by motels affected commerce o If it had such a basis, whether the means it selected to eliminate that evil are reasonable and appropriate The Rehnquist Courts Revival of Internal Limits on the Commerce Power United States v. Lopez (1995) Congressional authority based on the Commerce Clause extends to activities that implicate o 1) the channels of interstate commerce o 2) the instrumentalities of interstate commerce o 3) activities having a substantial relationship to interstate commerce Rational Basis Review o A test whereby a court will uphold a congressional action if it bears a reasonable and rational relationship to the attainment of an appropriate government end Congress cannot become this ultimate policing authority and this act blurs the lines of power between state and federal government o Could ultimately lower accountability for both governments, damaging the nation as a whole Congress could regulate just about anything with the reasoning it has presented, if the court would allow the most tenuous chain of events

United States v. Morrison (2000) Congress does not have the power to regulate gender-motivated violence under the Commerce Clause Congress can exercise commerce power if it is regulating an economic or commercial matter Gonzalez v. Raich (2005) The commerce power includes the power to regulate local activities that are part of an economic class of activities that have a substantial effect on interstate commerce Can regulate if the practice would manipulate the national supply and demand/market conditions for the goods in question Test o Congress, under the commerce clause, may regulate The channels of interstate commerce The instrumentalities of interstate commerce and persons or things in interstate commerce Activities which have a substantial effect on interstate commerce HOUSE THAT JACK BUILT ARGUMENT - REHNQUIST External Limits on the Commerce Power: State Autonomy and Immunity

New York v. United States (1992) Congress may not commandeer state government by forcing them to regulate according to federal guidelines Commerce clause allows congress to regulate interstate commerce directly, it does not authorize congress to regulate state governments

Accountability is diminished when, due to federal coercion, elected state officials cannot regulate in accordance with the views of the local electorate in matters not preempted by federal regulation Morrison Case Same thing as Lopez, even if Congress makes a lot of findings it is an actual rational basis review Just saying a reason wont get you home Key to Tenth Amendment is that congress can encourage but not compel

Other National Powers: Taxing, Spending, War, Treaties and Foreign Affairs
TAX Bailey v. Drexel Furniture Co. (1922) (Child Labor Tax Case) The presence of extensive penalizing features, indicating a primary purpose to regulate, may render a tax statute constitutionally invalid Allowing Congress to collect this tax would make taxes so powerful a weapon and tool that it would utterly destroy the sovereignty of the states McCray case noted (referring to that Court may not look to motive decide validity of tax) o The taxing power conferred by the Constitution knows no limits except those expressly stated in that instrument, it must follow, if a tax be within the lawful power, the exertion of that power may not be judicially restrained because of the results that arise from its exercise United States v. Kahriger (1953) Unless there is a penalty provision extraneous to any tax need, the courts are without authority to limit it SPENDING United States v. Butler (1936) The taxing power may not be used to raise funds to purchase compliance in an area that Congress is powerless to command

The power to tax is not unlimited, its confines are set in the clause which confers it, and not in those of section 8 which bestow and define the legislative powers of the Congress

South Dakota v. Dole (1987) The constitutional limitations on Congress when exercising its spending power are less than the limits on its authority to regulate directly, and thus through the spending power Congress may indirectly achieve objectives that it could not attempt to achieve directly Limits on spending power o First limit derived from the language of the Constitution itself the exercise of the spending power must be in pursuit of the general welfare o Second we have required that if Congress desires to condition the States receipt of federal funds, it must do so unambiguously enabling the states to exercise their choice knowingly, cognizant of the consequences of their participation o Third our cases have suggested that conditions on federal grants might be illegitimate if they are unrelated to the federal interest in particular national projects or programs o Lastly we have noted that other constitutional provisions may provide an independent bar to the conditional grant of federal funds Woods v. Cloyd W. Miller Co. (1948) The war power does not necessarily end after an official declaration of the end of hostilities Missouri v. Holland (1920) A congressional statute that would otherwise be invalid may be upheld if created in pursuance of a treaty By Article IV, treaties made under the authority of the USA are declared the supreme law of the land If the treaty is valid, a statute made in pursuance of the treaty is valid under the Necessary and Proper Clause

Federal Limits on State Regulation of Interstate Commerce


Dormant Commerce Clause

Early Developments Gibbons v. Ogden (1824) Federal commerce statutes nullify any competing state statutes or licenses When a state proceeds to regulate commerce, it is exercising the very power that is granted to congress, and is doing the very thing which congress is authorized to do It has been contended by counsel for the appellant that as the word to regulate implies in its nature, full power over the things to be regulated, it excludes necessarily the action of all others that would perform the same operation on the same thing License Cases It appears to be very clear, that the mere grant of power to the general government cannot be construed to be an absolute prohibition to the exercise of any power over the same subject by the states Cooley v. Board of Wardens (1851) The Selective Exclusiveness Test o If the subject is a purely local concern, then the state may regulate it without violating the Commerce Clause, provided there are no competing federal regulation The Commerce Clause does not block state regulations of local subject matter, but blocks any state commercial regulation dealing with national subject matter Three lines of challenges have merged for Dormant Commerce Clause First, Courts have generally invalidated state laws that FACIALLY DISCRIMINATE against out of state commerce Second, the court has likewise invalidated even apparently facially neutral laws that in fact favor local economic interests at the expense of out of state competitors o Invalidates facially neutral laws if they have an impermissibly protectionist purpose or effect o PROTECTIONIST Third, court sometimes strikes down facially neutral laws that have disproportionate adverse effect on interstate commerce applying a balancing approach

Facial Discrimination

Philadelphia v. New Jersey (1978) The Commerce Clause protects other States from efforts by one State to isolate itself in the stream of interstate commerce from a problem shared by all Where a law involves simple economic protectionism, the law is per se invalid Pike Test Is there a way of doing this without effecting interstate commerce Is this really necessary to achieve a legitimate environmental concern Is this hoarding of resources for you own states citizens Home Processing Requirements Dean Milk Co. v. Madison (1951) A health and safety ordinance that discriminates against interstate commerce will be invalid if reasonable and adequate non-discriminatory alternatives are available Allowing for the city of Madison to enforce such a discriminatory law it would destroy the very purpose of the commerce clause LEAST RESTRICTIVE MEANS o A standard that requires the government to use the least restrictive means available. o The least restrict means standard is primarily associated with the freedom of expression C&A Carbone Inc. v. Clarkstown (1994) An ordinance that discriminates against interstate commerce in favor of local business or investment is per se invalid, unless the municipality can demonstrate, under rigorous scrutiny, that it has no other means to advance a legitimate local interest DORMANT COMMERCE CLAUSE o The constitutional principle that the Commerce Clause prevents state regulations of interstate commercial activity even when Congress has not acted under its Commerce Clause power to regulate that activity

United Haulers Assn v. Oneida-Herkimer Solid Waste Management Authority (2007) Limiting of Carbones effects Laws that favor the government in waste management activities but treat all private enterprises, whether local or non-local, the same do not discriminate against interstate commerce under the Commerce Clause Market Participant Exception South-Central Timber Development, Inc. v. Wunnicke (1984) Although state-owned businesses may favor resident purchasers, they may not attach conditions to the sale of products that will burden interstate commerce MARKET PARTICIPATION DOCTRINE o If the state is acting as a market participant (e.g. selling products) instead of as a regulator, it may favor its own citizens over others (and its activities are not limited by the Commerce Clause) Protectionist Purpose and Effect Baldwin v. GAF Seelig (1935) Barriers to commercial traffic between states, whether direct or indirect, violate the Commerce Clause when the purpose and effect of such barriers is to suppress or mitigate the consequences of competition between states Constitution framed upon the philosophy that the states must sink or swim together, and that in the long run prosperity lies in union and not in division H.P. Hood & Sons v. DuMond (1949) Laws limited access to in-state resources will be invalidated unless the state identifies a valid, nonprotectionist purpose for the law that cannot be achieved through less discriminatory means Pike v. Church (US 1970) Balancing Test

o Where the statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities. Balancing Benefits and Burdens Kassel v. Consolidated Freightways Corp. (1981) State regulations touching upon highway safety have a strong presumption of validity, but where the regulations further safety purposes so marginally, or burden commerce so substantially, they may yet be invalidated SENSTIVE CONSIDERATION o A (relatively meaningless, as this case shows) term of art used to describe the close scrutiny given to whether a particular statutes purported benefits outweigh its burden on interstate commerce The Privileges and Immunities Clause of Article IV United Building and Construction Trades v. Camden (1984) The privilege and immunities clause limits a States ability to discriminate against out of state residents with their ability to seek employment in the State Privileges and Immunities Clause may only be used in cases where the local law discriminates against out of state residents Corporations and foreigners cannot sue under the P&I Clause, that right is reserved for citizens Congressional approval may excuse a statute in violation of the Commerce Clause, but cannot excuse a law that violates the P&I clause Federal Preemption and Consent Pacific Gas & Electric Co. v. State Energy Resources (1983)

A state law inconsistent with federal laws will be preempted, but whether a state law is inconsistent with federal law often depends on the courts characterization of the laws TEST OF PREEMPTION o Whether the matter on which the state asserts the right to act is in any way regulated by the federal government Congress may Preempt o Express statement o Implied preclusion of conflicting state regulations o Implied regulation of a regulatory field o Frustration

Separation of Powers
Separation of Powers
Executive Violation of the Separation of Powers

Youngstown Sheet & Tube Co. v. Sawyer The Constitution does not permit the president to seize private property to prevent the consequences of a labor dispute Jacksons Concurrence Categories of Executive Action o 1) Acts pursuant to express or implied authorization of Congress o 2) Acts on which Congress is silent or there is concurrence authority o 3) Acts incompatible with the express or implied will of Congress Dames & Moore v. Regan (1981) The President has the power to suspend pending claims against foreign governments where such action is necessary to the resolution of a major foreign policy dispute and where Congress has acquiesced

Executive Discretion in Time of War and Terrorism Ex Parte Quirin (1942) Unlawful enemy combatants may be denied the right to a jury trial before civilian

courts and instead be subject to trial before military tribunals Hamdi v. Rumsfeld (2004) The government may detain citizens as enemy combatants, but due process demands that they be afforded a meaningful opportunity to contest the factual basis for the detention before a neutral decision maker Threshold Question/Issue o Whether the Executive has the authority to detain citizens who qualify as enemy combatants o Even in cases in which detention of enemy combatants is legally authorized, there remains the question of what process is constitutionally due to a citizen who disputes his enemy-combatant status The parties agree that absent suspension, the writ of habeus corpus remains available to every individual detained within the United States Hamdan v. Rumsfeld (2006) Military commissions may be used instead of court in three contexts o 1) They may be substituted for civilian courts when martial law has been declared o 2) They may be established to try civilians as part of a temporary military government over occupied enemy territory or territory regained from an enemy where civilian government cannot and does not function o 3) They may be convened as an incident to the conduct of war, when there is a need to seize the subject to disciplinary measures those enemies who, in an attempt to thwart our military efforts, have violated the law of war Kennedys Concurrence Raises Separation of Power Issues of Highest Order o The proper framework for assessing whether the Executive actions are authorized is the three part scheme used by Justice Jackson in his opinion in Youngstown Boumidiene Test Citizenship and status of detainee Nature of sights where apprehension took place Practical obstacles

Congressional Violation of the Separation of Powers INS v. Chadha (1983) A House of Congress may not act alone if its act is an exercise of legislative power and does not fall within one of the specific exceptions stated in the Constitution The Presentment Clauses o Requirement that all legislation be presented to the President before becoming law Clinton v. New York (1998) The line item veto violates the constitutional procedure by which a bill becomes a law There is no statute provision in the Constitution that authorizes the President to enact, to amend, or to repeal statutes although he may initiate and influence legislative proposals o Congress job, not presidents job Court emphasized this was a narrow holding Bowsher v. Synar (1986) It is a violation of separation of powers for Congress to impose executive functions on an officer over whom Congress has the power of removal Morrison v. Olson (1988) The Ethics in Government Act of 1978 does not violate separation of powers, as it gives the executive branch sufficient control over independent counsel to render the president able to perform his constitutional duty to ensure faithful execution of the law Executive Privilege and Immunities U.S. v. Nixon (1974) The president does not enjoy an absolute generalized privilege which would allow him to shield all communications from a subpoena in a criminal proceeding

Clinton v. Jones (1997) A sitting President does not enjoy temporary immunity from all civil lawsuits based on his UNOFFICIAL acts Breyers Concurrence o President should have the burden of presenting to the Court its need for a postponement in cases like this one

Interpreting the Bill of Rights


The Bill of Rights and the States Barron v. Mayor and City Council of Baltimore (1833) The just compensation provision of the Fifth Amendment does not apply to the states Slaughter-House Cases (1873) The 13th and 14th Amendments are to be read narrowly and apply only to former slaves and African Americans Saenz v. Roe (1999) A State must provide the same privileges and immunities to new residents as it does to its other citizens Fourteenth Amendment does not provide for, and des not allow for, degrees of citizenship based on length of residence Duncan v. Louisiana (1968) The Sixth Amendments right to jury trial is fundamental and applicable to states in prosecutions involving crimes punishable by two years in prison

Due Process of Law

Substantive Due Process and Economic Liberties

Lochner v. New York (1905) A law that infringes on freedom in the marketplace and freedom of contract is unconstitutional if it does not bear a reasonable relation to a legitimate governmental purpose Nebbia v. New York (1934) Price controls that are nondiscriminatory and bear a reasonable relation to a proper legislative purpose are constitutional The use of property and the making of contracts are normally matters of private and not public concern o The general rule is that both shall be free from governmental interference Equally fundamental with the private right is that of the public to regulate it in the common interest Test o The guaranty of due process demands only that the law shall not be unreasonable, arbitrary or capricious, and that the means selected shall have a real and substantial relation to the objects sought to be attained Carolene Laws used to impinge the rights of minorities or appear to violate the constitution on its face are not given deference and subject to strict scrutiny Williamson v. Lee Optical Co. (1955) States are free to regulate economic relations, and the court will not overturn such laws unless there is no conceivable justification for the legislation The mere fact that some valid, rational purpose for the law could be found was enough to uphold its constitutionality The day is gone when this court uses the Due Process Clause to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought States are free to regulate economic relations, and the court will not overturn such laws unless there is no conceivable justification for the legislation Gore Case Grossly excessive test punitive damages are far greater than the compensatory damages

Textual Guarantees of Economic Liberties: The Takings Clause and the Contracts Berman v. Parker (US 1954) After condemnation, the government could lease or sell that property to private developers, who were required to conform to redevelopment plans adopted by a D.C. agency The concept of the public welfare is broad and inclusive. The values it represents are spiritual as well as physical, aesthetic as well as monetary Dolan Central nexus there has relationship between the objectives of the taking and the means of the taking Hawaii Housing Authority v. Midkiff (US 1984) Where the exercise of the eminent domain power is rationally related to a conceivable public purpose, the court has never held a compensated taking to be proscribed by the Public Use Clause The mere fact that property taken outright by eminent domain is transferred in the first instance to private beneficiaries does not condemn that taking as having only a private purpose Kelo v. City of New London (2005) Taking of private property for use by other private citizens pursuant to a carefully considered economic development plan intended for a public purpose are valid under the Fifth Amendment The mere fact that ones property is taken and given to another private citizen does not render the taking invalid, so long as the taking s for the future use by the public The public use does not require that the property be intended only for use by the public; rather, the taking must be for public purpose Taking o The governments actual or effective acquisition of private property either by ousting the owner and claiming title or by destroying the property or severely impairing its utility Pennsylvania Coal v. Mahon (1992) A regulation that severely restricts land use rights can constitute a taking, which is unconstitutional unless just compensation is paid by the government Lucas v. South Carolina Coastal Council (US 1992)

Where the state seeks to sustain regulation that deprives land of all economically beneficial use, we think it may resist compensation only if the logically antecedent inquiry into the nature of the owners estate shows that the proscribed use interests were not part of the title to begin with

4 Questions Takings Clause Is there property involved? Has it been taken? Has it been taken for public use? Have you gotten just compensation? Home Building Loan Association v. Blaisdell (1934) States can legislatively alter remedies for the collection of debts if the legislation reasonably relates to a public purpose and protects the basic value of creditor claims To determine whether provision exceeds power of state by reason of Contracts clause must consider: o Relation of emergency to constitutional power o The historical setting of the clause o The development of the jurisprudence of this Court in the construction of that clause o The principles of construction which we may consider to be established Contracts Clause o Mandates that no state may pass any law impairing the obligation of contracts, was included in the Constitution to prevent states from enacting debtor relief laws E.g. laws canceling debts, postponing payments of debts, or authorizing payments in installments Substantive Due Process and Privacy Skinner v. Oklahoma (1942) Oklahoma passed law requiring the sterilization of any man after he was convicted for the third time of a crime of moral turpitude

Court found this unconstitutional saying we advert to them merely in emphasis of our view that strict scrutiny of the classification which a State makes in a sterilization law is essential, lest unwittingly, or otherwise, invidious discriminations are made against groups or types of individuals in violation of the constitutional guaranty of just and equal laws.

Contraception Griswold v. Connecticut (1965) A right of personal privacy emanates from the penumbras of the Bill of Rights, and it cannot be invaded absent a showing that the legislation is necessary to accomplish a compelling state interest Concurrence even explores novel application of 9th Amendment basically allows Court to protect any rights which it feels should be protected Present case concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. Eisenstadt v. Baird (1972) Purported to decide case as a violation of equal protection under a minimum rationality standard, even though its review was more searching than that standard usually entails If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusions into matters so fundamentally affecting a person as the decision whether to bear or beget a child Abortion Roe v. Wade (1973) The 14th Amendment supplies a broad right of privacy and personal autonomy, entitling a pregnant woman to terminate her pregnancy but also enabling state regulation of abortion at various states of the pregnancy The right of privacy is fundamental, stemming from the 14th Amendments concept of personal liberty Planned Parenthood v. Casey (1992) The essential holding of Roe v. Wade remains valid, although the trimester framework and strict scrutiny approach are replaced by an undue burden test o An undue burden exists if the laws purpose or effect to place a substantial obstacle o Appears to be an unclear standard Second part is what is the role of stare decisis?

o There appears to be a multi part test adopted to make this determination 1) Whether the principle is workable 2) Whether its caused a reliance on people 3) Whether there was another law that overtook the current principle 4) Technological advances that make abortion safer Gonzales v. Carhart (2007) A law limiting abortions is not invalid on its face when there is uncertainty over whether the barred procedure is even necessary to preserve a womans health, given the availability of other abortion procedures that are considered to be safer alternatives Facial Challenge o A claim that a statute is unconstitutional on its face that is, that it always operates unconstitutionally Marriage Zablocki v. Randall (1978) Where a law interferes substantially and directly with the right to marry, it cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate only these interests Turner v. Safley (1987) Extended Zablocki OConnor right to marry is subject to substantial restrictions as a result of incarceration o Many important attributes remain however, after taking into account the limitations imposed by prison life Spiritual reasons, reasons for support, many governmental benefits can only be obtained via being married (i.e. social security, medical insurance, etc.), property rights Moore v. East Cleveland (1977) Invalidated a zoning ordinance limiting occupancy of a dwelling to members of a single family, narrowly defined, as applied to a grandmother who shared her home with two grandsons who were first cousins rather than siblings o This relationship found not close enough to be a family under the ordinance Powells plurality opinion cited substantive due process as the reason for striking the ordinance suggesting that a scrutiny stricter than deferential rationality review was appropriate Whites Dissent

o The interest in residing with more than one set of grandchildren is not one that calls for any heightened protection. What the deeply rooted traditions of the country are is arguable; which of them deserves the protection of the Due Process Clause is even more debatable Belle Terre v. Boraas (1974) Douglas majority opinion found no privacy rights involved in a family-oriented zoning restriction excluding most unrelated groups from a village Troxel v. Granville (2000) Court found that allowing grandparents of this right violated substantive due process rights of the parents So long as a parent adequately cares for his child, there will normally be no reason for the state to inject itself into the private realm of the family (including parents decisions over their children) The Due Process Clause does not permit a state to infringe on the fundamental right of parents to make childrearing decisions simply because a state judge believes a better decision could be made Michael H. v. Gerald D (1989) At what level do you define tradition? If you define it more broadly as the right of a parent to see his child then it is seen as far more positive We have to be a more embracing and accepting culture o Facilitating and pluralistic society Liberty must include the freedom not to conform Sexuality Lawrence v. Texas (2003) Texas sodomy statute, as applied to two adults who engaged in private, consensual sexual conduct, violated their right to liberty under the Due Process Clause OConnor Concurrence o Failed rational basis review on Equal Protection grounds Death

Washington v. Glucksberg (1997) A ban on assisted suicide is not unconstitutional, either on its face or as applied to a competent, terminally ill adults who wish to hasten their deaths by obtaining medication prescribed by their doctors A state may infringe upon even protected liberty interests if the states own interest are sufficiently compelling Method of Due Process Analysis has 2 features o First, we have regularly observed that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively deeply rooted in this nations history and tradition and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed o Second, we have required in substantive due process cases a careful description of the asserted fundamental liberty interest

Equal Protection of the Laws


Race Discrimination Racial Segregation Brown v. Board of Education Separate facilities in public education are inherently unequal and therefore violate equal protection Theories of Brown v. Board o Color-blindness Race is never permissible basis on which to distribute public benefits or burdens o Caste Race is never permissible basis.when it has the social and psychological effect of stigmatizing or subordinating a racial group Prohibits the imposition of a racial hierarchy or caste o White Supremacy

Would all black schools be permitted if created by predominantly black political bodies? o Integration Integration is a desirable social policy that is likely to increase social welfare? Loving v. Virginia (1967) Laws that classify on the basis of race are reviewed under equal protection with strict scrutiny and will not be upheld unless they are necessary to accomplish some permissible state objective Equal Application o Where a statute makes otherwise acceptable behavior criminal only because the participants are of different races, it is a violation of equal protection, even if the participants are punished equally There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification Racially Discriminatory Purpose and Effect Washington v. Davis (1976) An otherwise neutral official action is not unconstitutional merely because it has a disproportionate racial impact Disproportionate Impact o A law that affects members of one race more than members of another race without further proof of discriminatory purpose in enacting a law, will not be considered a racial classification that triggers strict scrutiny Invidious Racial Discrimination o Discrimination that is born of animus or the sheer desire to harm on the basis of race will trigger strict scrutiny Affirmative Action and Race Preferences Regents of Univ. of California v. Bakke (1978) The admissions programs of state schools may achieve diversity in the student body by considering the race of its applicants among other factors; however, race may be not be the only factor used to measure diversity Racial Quota System

o Rigid quotas for members of a certain race will fail strict scrutiny because they cannot be the most narrowly tailored means of achieving some legislative goal Remedial Measures o It may be permissible for a state or local government to classify on the basis of race if there is a clear showing that the classification is done in order to remedy its own past discrimination Wygant v. Jackson Board of Ed (1986) Held unconstitutional a minority preference in teacher layoffs Powell Majority o This court has never held that societal discrimination is sufficient to justify a racial classification o Rather, the court has insisted upon some showing of prior discrimination by the governmental unit involved before allowing limited use of racial classification in order to remedy such discrimination o The role model theory employed by district court has no logical stopping point Adarand Constructors v. Pena (1995) All racial classifications must be NARROWLY TAILORED to further a compelling governmental interest 14th Amendment requires strict scrutiny of all race-based action by state and local governments Cases through Croson establish three general propositions when it comes to race based classifications o Skepticism We should be skeptical of race based classifications and subject them to a most searching examination o Consistency All racial classifications reviewable under equal protection must be strictly scrutinized regardless of the race of those who are burdened or benefited by the classification o Congruence Equal protection in the 5th Amendment is the same as that under the 14th Amendment Grutter v. Bollinger (2003) The Equal Protection Clause does not prohibit a law school from using race or ethnicity as a plus-factor in admissions

Affirmative Action = Strict Scrutiny Today we endorse Justice Powells view that the student body diversity is a compelling state interest that can justify the use of race in university admissions Strict Scrutiny o Classifications are only constitutional if they are narrowly tailored to further the compelling government interests o Not strict in theory, but fatal in fact Gratz v. Bollinger (2003) The Equal Protection Clause prohibits a universitys race preference policy of awarding a set amount of points to racial minorities applying for admission because the policy does not provide for sufficiently individualized consideration Racial Diversity in Public Education Parents v. Seattle School District (2007) The Fourteenth Amendment prevents states from according differential treatment to American children on the basis of their race Grutter factors in considering constitutionality of race-based systems o Individualized consideration o The absence of quotas o Consideration of race-neutral alternatives o No undue harm to races o An ending point Compelling State Interest Test o A method for determining the constitutional validity of a law, whereby the governments interest in the law and its purpose is balanced against an individuals constitutional right that is affected by the law. o Only if the governments interest is strong enough will the law be upheld. o The CSI Test is used, e.g., in equal protection analysis when the disputed law requires strict scrutiny

Strict Scrutiny o The standard applied to suspect classifications (such as race) in equal-protection analysis and to fundamental rights (such as voting rights) in due process analysis o Under strict scrutiny, the state must establish that it has a compelling interest that justifies and necessitates the law in question

Race Preferences in Electoral Districting Shaw v. Reno (1993) If a states race-conscious redistricting plan fails under strict scrutiny the plan constitutes racial gerrymandering and violates equal protection [Weird district shapes] reinforce the perception that members of the same racial group regardless of their age, education, economic status, or the community in which they live think alike, share the same political interests, and will prefer the same candidate at the polls

Other Arguably Suspect Classifications


Sex Discrimination Craig v. Boren (1976) Statutes which discriminate based upon ones sex violate equal protection if they create a gender-based classification that is not substantially related to an important governmental objective Established Intermediate Scrutiny for gender discrimination cases Intermediate Scrutiny o Gender-based classifications are examined by intermediate scrutiny, where the classification must be substantially related to achieving an important governmental function United States v. Virginia (1996) A state may not discriminate based on gender unless it has an exceedingly persuasive justification for doing so State must show that the classification is substantially related to the achievement of important governmental objectives Skeptical Scrutiny

o The Court here says that gender-based classifications are viewed with skeptical scrutiny, and though it claims to apply intermediate scrutiny to the classifications in this case, may have in fact applied something higher Alienage: Various Cases, Disability, Age, Poverty Cleburne v. Cleburne Living Center, Inc. (1985) The mentally retarded are not a quasi-suspect classification and therefore an ordinance related to the mentally retarded will be reviewed using rational-basis review o Quasi-suspect classifications require intermediate scrutiny o These classifications include gender, illegitimacy, alienage

Sexual Orientation Romer v. Evans (1996) A law which nullifies all other laws which protect homosexuals could not possibly have been adopted for any purpose except the bare desire to discriminate against homosexuals, and therefore does not pass a rational-basis equal protection review The Court rests on its argument that classification in Amendment 2 deems an entire class of people to be a stranger to its laws Purpose of equal protection scrutiny is to protect individuals who may be unfairly discriminated against and to let the legislature know when and why it is being discriminative o Loving + Romer + Lawrence With these cases on the books, are there any justifiable or reasonable arguments left to deny same sex marriage?

Minimum Rationality Review of Economic Regulations


Railway Express Agency v. New York (1949) A statute that regulates economic activity will survive an equal protection challenge if there is a rational relation between the challenged classification and the purpose of the statute US Railroad Retirement Board v. Fritz (1980)

Equal protection is not offended if there are plausible reasons that Congress could have had for enacting social or economic regulations

The Fundamental Interests Branch of Equal Protection: Voting, Access to Courts, Necessities of Life
Voting Harper v. Virginia Board of Elections (1966) Voter wealth or any fee cannot be made a precondition for voting Wealth, like race, creed, or color, is not germane to ones ability to participate intelligently in the electoral process. Lines drawn on the basis of wealth or property, like those of race, are traditionally disfavored o To introduce wealth or payment of a fee as a measure of a voters qualifications is to introduce a capricious or irrelevant factor Ruling based on two modes of analysis: o Fundamental Rights o Suspect Classifications Its not that you have the right to vote, its more that if you do have the right to vote, then that vote is a fundamental interest, and exclusionary classifications are going to get scrutinized Kramer v. Union Free School District No. 15 (1969) It is a violation of equal protection to restrict the voting in school district elections to parents and property owners or lessors Once the right to vote in an election has been granted to the public, states may not regulate eligibility for the vote in ways that are inconsistent with equal protection It might become difficult to determine who gets to decide what would make you an interested voter and exclude/include you on that basis Reynolds v. Sims (1964) A state must structure its elections and its legislature so that its citizens are equally represented according to population Diluting the weight of votes because of place of residence impairs basic constitutional rights under the 14th amendment just as much as invidious discrimination based upon factors such as race or economic status Equal protection requires that a state make an honest and good faith effort to construct districts, in both houses of its legislatures, as nearly of equal population as is practicable

Davis v. Bandemer (1986) Courts will review gerrymandering controversies o In order to prove-up violation of equal protection both intentional discrimination against an identifiable political group and an actual discriminatory effect on that group must be proved Unconstitutional discrimination occurs only when the electoral system is arranged in a manner that will CONSISTENTLY degrade a voters or a group of voters influence on the political process as a whole o One election not enough to prove this Political Question Doctrine o Issues which should be left to (and/or if taken up by the judiciary would be an encroachment upon the authority of) the executive or legislative branches of government because of the unique political character of the issue Access to Courts M.L.B. v. S.L.J (1996) Equal protection prohibits states from denying an appeal to a party whose parental rights are terminated just because she cannot afford to pay for the required trial transcript, and in fact, requires states to provide the transcript so that the indigent party may appeal There is no constitutional guarantee to of the right to appellate review o However, once a state affords that right, Griffin held that the state may not bolt the door to equal justice Necessities of Life San Antonio Independent School Dist. v. Rodriguez (1973) Even though the system of financing education by collecting taxes on property in the school district leads to some disparity in spending per pupil across districts, it is not an irrational way for a state to fund education Fundamental Right o A right so important that it is explicitly or implicitly guaranteed by the Constitution Implicit Guarantee o A right is implicitly guaranteed by the Constitution if it is so closely related to some right that is explicitly guaranteed by the Constitution that the implicit right must be protected in order to preserve the explicit constitutional guarantee

o For example, the right to a criminal appeal is necessary in order to protect the constitutional guarantee of due process

The Restoration Amendments: State Action and Congressional Power to Enforce Civil Rights
Introduction and Requirement of State Action Civil Rights Cases (1883) Congress may not prohibit individual acts of racial discrimination by private citizens If one individual interferes with the exercise of anothers Constitutional rights, the aggrieved partys civil rights have not been violated unless the other party acted under the shield of state authority Shelley v. Kraemer (1948) Court action in enforcing a discriminatory private contractual agreement is a state action for the purposes of the Fourteenth Amendment Burton v. Wilmington Parking Authority (1961) 1. Restaurant in partnership with government parking lot 2. Building was dedicated to public uses according to court; mutual benefits; interdependence 3. When race discrimination, pressure on Court to find state action at its highest Jackson v. Metropolitan Edison Co. (1974) Before state action may be found in private partys action, there must be a sufficient connection between the state and the challenged action, something more than just a connection between the state and private party The inquiry is whether there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the entity may be treated as the action of the state itself Public Function o When a state relegates to a private person a job that the government would normally do (i.e. build roads, run an election), then the action of the private person in carrying out the job may be considered a state action

Congressional Power to Reach Private Interference with Constitutional Rights

United States v. Guest (1966) The congress may enact appropriate Equal Protection legislation under 5 of the Fourteenth Amendment to punish state officers and agents and those they conspire with to prevent individuals from exercising their constitutional rights, and may also be able to punish private actors who conspire to violate individuals civil rights This case suggests that Congress has extensive powers to enforce the Fourteenth Amendment Jones v. Alfred H. Mayer Co. (1968) The Thirteenth Amendment gives Congress the power to prohibit racial discrimination by private parties

Congressional Power to Enforce Civil Rights under Section 5 of the 14th Amendment Katzenbach v. Morgan (1966) Congress may override a state law if it could find a reasonable basis to perceive that the law is violating equal protection Court emphasizes the deference that is due to Congress Under the separation of powers doctrine, the specific duty of the Court is to determine whether Congress did or did not follow the Constitution City of Boerne v. Flores (1997) Congress may take strong remedial measures to prohibit violations of the Constitution, but this does not give Congress the substantive power to interpret the meaning of constitutional provisions To prevent legislation from becoming a substantive change, rather than a remedial enforcement, there must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end United States v. Morrison (2000) Under the Fourteenth Amendment, Congress does not have the power to remedy the bias against victims of gender-motivated violence The case here involved prosecuting private individuals, not the state o Not proportional

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31/03/2010 18:59:00