Con Law 2 Flashcards
2nd amendment
The regulation, law, or restriction is invalid unless it is the kind of regulation that existed when the second amendment was passed.
* the government MUST demonstrate that the regulation is consistent with this nation’s historical tradition of firearm regulation
The appropriate analysis involves considering whether the challenged regulation is CONSISTENT with the principles that underpin our regulatory tradition
* This standard requires a “historical analogue” between the modern regulation and historical regulations, not a “historical twin
right to keep and bear arms
The Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding
How does a court decide level of scrutiny
Precedent
Frontiero Factors
* Discrete and insular minority
* Immutable characteristics
* political powerlessness
* History of Discrimination, harmful stereotypes
Policy reasons
* How will this impact laws intended to help?
What does the precedent tell us
Strict Scrutiny = compelling governmental interest & narrowly tailored or necessary to achieve that interest
* Race
* Alienage (state) but subject to exception
* National origin (korematsu)
Intermediate Scrutiny = important governmental objective & must substantially relate to the achievement of those objectives
* Gender/Sex
Rational Basis = legitimate government interest & rationally related
* Age
* Disability
* Income/Economic Status
* Alienage (federally)
Equal Protection
Discriminatory intent cases
police comprehension test case
* a discriminatory purpose must be shown before a law race-neutral on its face will be deemed a violation of the equal protection guarantee.
* rejecting the notion that discriminatory impact alone is sufficient
racist death penalty jury case
* Death penalty with statistical data that showed huge disparity not enough to move into strict scrutiny
* where is the evidence to show us that Mr. Mcklensky was individually discriminated against (from the jury, the judge)
* Show us someone in the legislature was hoping writing this law to harm black people
Arlington Heights factors to show discriminatory purpose
* You can make an reasoned assumption based on the sequence of events – Like if it was always R5 which allows it, but then suddenly changed to R3
* Direct evidence – Public comments, memos, etc revealing racial motivations
* Usual procedure – Its the idea that there is this usual procedure which then suddenly changes to not usual
* Legislative history
Yick wo
* No reason whatever, except the will of the supervisors, is assigned why they should not be permitted to carry on
* Two hundred others who have also petitioned, all of whom happen to be Chinese subjects, eighty others, not Chinese subjects, are permitted to carry on the same business under similar conditions.
Equal Protection
Race
Facial
Loving – interracial marriage ban
* we applied it equally to blacks and whites
* The court reasoned that equal application of a statute containing racial classifications is not enough to remove the purpose of the fourteenth amendment’s protection from invidious discrimination.
* purpose of white supremacy is not valid
race separation in prison case
* racial classifications receive close scrutiny even when they may be said to burden or benefit the races equally
* by insisting that inmates be housed only with other inmates of the same race, it is possible that prison officials will breed further hostility among prisoners and reinforce racial and ethnic divisions
Judge Child Custody case
* Courts may not use private racial bias as a justification for official court action
Affirmative Action
black=white hiring equity case survives today likely
* remedy for proven intentional discrimination by the Alabama Public safety dept
* Compelling purpose = remedy proven intentional discrimination by the Alabama Dept of Public safety
* Means = It did not impose an absolute bar to white advancement, was narrowly drawn to include only specific ranks in the dept, and the dept has annoyed the court for a long time with delay
Current law
* The Court has insisted upon some showing of prior discrimination by the gov unit involved before allowing limited use of racial classification in order to remedy such discrimination
* If there is asian remedy you better show asian racism in your unit – dont include intuits for your black affirmative action, where is the evidence for it
generalized assertion that there has been past discrimination in an entire industry provides no guidance for a legislative body to determine the precise scope of the injury it seeks to remedy
* No logical stopping point
* No IDENTIFIED discrimination thus no compelling purpose
Harvard Purpose
* Harvard listed some interests that it viewed as compelling (Better educating it students through diversity)
* But they cannot be subjected to meaningful judicial review – Court thought it was unclear how they are supposed to measure these goals
Harvard means
* upset that Harvard and UNC don’t have very clear, meaningful end points in these affirmative action race conscious consideration
* Harvard’s “endpoints” were unmeasurable
* Harvard cant say ok our endpoints are when we have 20% black, 20% asian, 20%white, 20% persian because already quota’s are a fuck no
* also overbroad – By grouping all asian students, for example, the universities are apparently uninterested in south asians v. east asians
Alienage
State
Alienage that is not in the exception is subject to Strict Scrutiny
* the court held State’s desire to preserve limited welfare benefits for its own citizens is inadequate to justify the exclusion of resident aliens from
receiving a portion of those benefits.
* The court emphasized that the Fourteenth amendment encompassed both lawful citizens and aliens from its protections and it entitles them equal protection of the laws in the state in which they reside.
Exception?
Alienage
State
a state may discriminate against aliens in a democratic process and the execution of public policy
Teacher – Norwick
* Citizenship
* Teacher case where they’re treating people
differently based on whether they took steps to
become citizens (manifested an intent or not)
* Formation and preservation (maybe) of civic
values
Police – Foley
* Citizenship
* Cannot be a state trooper if not citizen 14th EP
* Law enforcement has discretion – there are going to be some community norms and cultural norms and expectations of the community that we want our
state troopers to know and to follow within their discretion
* Aka execution of public policy
if in exception, rational basis.
Alienage
Federally
If the federal government is discriminating based on alienage, the court uses RB.
Example
* Citizenship – legal
* The statute said that you’re denied Medicaid benefits unless you’ve been admitted to be permanent residents.
* Hey if youre here legally – youre contributing to the econ – you are paying taxes
* The federal gov has alot of power in foreign policy, so better left to the legislature and executive branch
Gender Cases
VMI
* All male military school = The purpose of this training was to impart on students a strong moral code and instill physical and mental discipline.
* after trouble with law created parallel women school = many of the features which made VMI (D) such a unique opportunity were absent
* for the gender classification to be substantially related to the government interest/purpose, it cannot create or perpetuate legal, economic or social inferiority of women
Pregnancy case
* the Court makes an implicit distinction between gender-based classifications and gender-related ones
Alabama Divorce statute which provided that husband, not wives, could be required to pay alimony
* gender-based stereotypes may not serve to justify classifications based on sex, even when the classification benefits women.
* interest in providing for spouses left unprepared by marriage or in providing for needy spouses are government interests sufficiently important
* Failed means = poor men get screwed and the statute failed to require financially stable wives to pay alimony
All womens nursing school denied man on basis of sex
* Did not prove that women lacked opportunities in the field of nursing = bad purpose
* policy does not seek to remedy past discrimination, but only to perpetuate the stereotyped view of nursing as a woman’s job.
* bad means = failed to show that the classification substantially furthers the purported interest
* actually permits men to attend classes as auditors
Rational basis with bite
food stamps case
* purpose? Fighting welfare fraud
* Found evidence that they don’t want hippies to receive welfare
* It can never be legitimate to target a politically unpopular group.
Group home for people with retardation case
* They’re trying to get a permit to be in a particular area for this group home but denied. Everyone gets it except them.
* A case will fail rational basis if it random, arbitrary, capricious = sudden change, everyone was getting it except them thus irrational it did not make sense
* Stereotypes that negative attitudes from neighbors can never be a legitimate purpose
Colorado Constitution
* It is an illegitimate purpose to write in a law that disfavors a group and keep them from seeking future relief – Colorado went too far in the last part
* now you cannot harm any group – cannot be your intent
* actually harming not equalizing
Pass rational basis
Officer age case
* Using age as an proxy for those protecting the public and the officers need to do their job physically
* age is not immutable
* means is good = 50 year cutoff is rational
TX property taxes case
* basically richer areas got better schools
* Richness is not immutable, you can vote
* No FR to education
Rule Statement for Unenumerated FR
- No State shall deprive any person of life, liberty, or property, without due process of law. 14. The 5th applies the same standard to Fed law. see Windsor.
- If a right is not expressly in the Constitution, there must be a showing that the right is somehow implicit in the constitutional text. Dobbs.
- In determining whether a right is unenumerated, the court must ask whether it is deeply rooted in our history and tradition and whether it is essential to our Nation’s scheme of ordered liberty. Id.
- The court can consider whether the right is part of a broader entrenched right supported by other precedents. Id; see gay marriage case.
- The court has always been reluctant to expand unenumerated FRs because, to a great extent, the court places it out of the arena of public debate and legislative action. Glucksburg.
Unenumerated FR standards
- If a right in question is held not be a FR, then the Court uses RBR. Dobbs.
- The Gov action must be sustained if it is rationally related to a legitimate state purpose. Id.
- If it is a FR, then the court uses SS. Roe.
- The gov action can only be justified by a compelling interest and that the gov action must be narrowly drawn. Id.
FR cases
Marriage Infringement
- indigent crims pay for divorce case
- Lost benefits case
- Child support case
Boddie (indigent criminals pay)
* Right to marry was infringed because requiring payment from indigent criminals to pay for a divorce violated individuals due process rights.
Califano (lost benefits not enough)
* disabled adults relying on Social Security disability benefits → if they get married, they can lose those benefits.
* Just because YOU feel like you cannot get married → is not really an obstacle because you literally can
* No one is barring you from the application to get married in this benefits case whereas in the divorce case you literally could not get the application
Zablocki (child support not paid case)
* preventing an individual from obtaining a marriage license without court approval if the person has a minor child not in custody for whom there was a court order to pay child support
* SS analysis
* purpose – ensuring child support paid
* Means – by block marriage and STILL have issue of children not getting paid
Obergefell
Gay marriage case
Marriage is essential to the human condition
* but it has not stood in isolation from developments in law and society (continuity and change)
The court reasoned
* the right to marriage is inherent in the concept of individual autonomy – contraception, family relationships, procreation, and childrearing, all of which are protected by the Constitution so why respect privacy with these rights and not the decision to enter these rights through marriage
* all Court precedent supports a two person union
* safeguards childrearing, procreation, and education related to the fundamental right of childrearing
* the Nation’s traditions make it a keystone in social order (ordered liberty!)
Custody
- child of unwed fathers case
- unmarried bio father case
Stanley (unmarried fathers)
* the children of unwed fathers become wards of the State upon the death of the mother
* State said because unwed fathers are presumed unfit to raise their children and it is unnecessary to hold individualized hearings to determine whether particular fathers are unfit
* Overinclusive and not narrowly tailored enough to the states purpose – If the state were truly devoted to ensuring that children have fit parents, it would not automatically presume the unfitness of an unwed father
Michael H.
* A biological father did not have a liberty interest in a relationship with his child because there was no tradition of protecting the father’s rights when the mother is married to someone else. The courts prefer upholding the sanctity of childbirth within a marriage than the potential natural father to assert parental rights.
Family autonomy
- Grandma cant live with grandsons case
- other version case
Grandmother cant live grandsons
* The city suggests that any constitutional right to live together as a family extends only to the nuclear family
* History and tradition analysis – Institution of the family is deeply rooted in this nations history and tradition
* The tradition of uncles aunts cousins and especially grandparents sharing a household along with parents and children has roots deserving of constitutional recognition, especially in times of trouble
* Purpose = overcrowding, min traffic and congestion, financial burden school
* Means = the ordinance permits any family consisting only of husband, wife, and unmarried children to live together, even if the family contains a half dozen licensed drivers
Different holding when unrelated
Child Upbringing
- No german in class case
- Grandma visitation rights case
- Amish hybrid case
Meyer (no german in class)
* criminalized teaching any language other than english
* held that the Constitution does not permit government interference with a parent’s right to make education-related decisions, such as a decision to have a child study a foreign language
Troxel (Grandma visitation rights case)
* Overview: Government can’t make a decision in an area that implicates a fundamental right without heeding the fundamental right subject to exceptions
* The problem with the Washington statute at issue in this case was not that it allowed grandparents to petition for visitation rights, but that it completely disregarded the fundamental right that parents have to make decisions regarding their children.
* Too broad – According to the statute any person may petition the court for visitation rights at any time and all the court has to do is follow the “best interest of the child rule”
* This gives the judge undue ability to overturn decisions of a “fit” parent
* Thus, in effect a washington court can disregard and overturn any decision by a fit custodial parent concerning visitation rights
Yoder (amish rights case) religion and upbringing so SS
* Amish parents have a constitutional right to exempt their 14/15 yo children from compulsory school attendance law because it would threaten their children’s religious beliefs.
* purpose = Whether making sure that children have basic schooling to at least age 16 is a compelling interest that justifies interfering with parents’ choice to terminate formal schooling at an earlier age
* Means = the nature of the amish community shows that additional schooling is unnecessary
Right to Procreate
involuntary sterilization
Skinner (involuntary sterilization case)
* SCOTUS has held that the right to procreate is a fundamental right and therefore any attempt by the government to impose involuntary sterilization has to meet SS
* If a law will forever deprive one of a liberty it will not survive
* Underinclusive because two similarly situated criminal offenses won’t be treated the same under the sterilization criminal law
Right to Purchase and Use Contraceptives
- married people cannot buy contraceptives case
- no contraceptives to unmarried individuals
Griswold (married people cannot buy contraceptives)
* operates directly on an intimate relation of husband and wife
* in forbidding the use of contraceptives rather than regulating their manufacture or sale, seeks to achieve its goals by a means that has a destructive impact upon the marital relationship.
* Right to procreate but also the right of when to procreate
Eisenstadt (no contraceptives to unmarried individuals!)
* If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as a decision whether to bear or beget a child
* EP analysis
* The court said that the prohibition of distributing contraceptive serve no legitimate government purpose
Dobbs
NO HISTORY
The proper legal analysis is History and Tradition
* Many states have a expansive history of criminalizing abortion
* common law described it as criminal
* although authorities differed on the severity of punishment, none endorsed it
* no common law case/authority that suggests a positive right to procure abortion at any stage
* colonial times = illegal
* mostly illegal (states) until roe
* an unbroken tradition of prohibiting abortion with criminal punishment existed until Roe
* no pre-roe history of abortion protection!
Essential part of a broader entrenched right (ordered liberty)
* ordered liberty sets limits and defines the boundry between competing interest
* Roe and Casey each balanced b/w interests of a woman who wants abortion and interests of potential life
* BUT the people in various states may evaluate those interests differently
* some states think right to abortion should be more than roe; others way less
* so how can it be so essential?
The state can have an interest in protecting potential life
* none of the other precedents take this into account
Right to refuse treatment
YES HISTORY
Vegatative coma case
Cruzan (vegatative coma case)
* guardian seeks to discontinue lifesaving medical treatment but state requires clear and convincing evidence of vegetables consent to this
* at common law, the touching of another without consent or legal justification was a battery.
* thus we have informed consent for medical treatment
* The logical corollary of this doctrine is that the patient generally possess a right to not consent, or to refuse treatment
* Thus SS
* purpose = protection/preservation human life
* means = Not all incompetent patients will have loved ones available to serve as surrogate decision-makers, and even where family members are present, there will be unfortunate instances in which family members will not act in the patient’s best interest
Assisted Suicide
NO HISTORY
washington assisted suicide ban
Glucksberg (washington assisted suicide ban)
* It has always been a crime to assist a suicide in the State of Washington.
* In almost every State—indeed, in almost every western democracy—it is a crime to assist a suicide.
* Indeed, opposition to and condemnation of suicide—and, therefore, of assisting suicide—are consistent and enduring themes of our philosophical, legal, and cultural heritages
* voters and legislators continue for the most part to reaffirm their States’ prohibitions on assisting suicide
* RB review
* purpose = protecting ethics med profession and human life
* means = reasonably ensures against risk by banning
Vacco
* Painkilling drugs may hasten a patient’s death but the physicians purpose and intent is or may be only to ease his patients pain
* A doctor who assists a suicide however must necessarily and indubitably INTEND primarily that the patient be made dead
* intent is the issue
Lawrence
YES HISTORY
private consensual homosexual activity case
- Beginning in colonial times there were prohibitions of sodomy derived from the English criminal laws passed in the first instance by the Reformation Parliament of 1533.
- The English prohibition was understood to include relations between men and women as well as relations between men and men.
- Nineteenth-century commentators similarly read American sodomy, buggery, and crime-against-nature statutes as criminalizing certain relations between men and women and between men and men.
- Laws prohibiting sodomy do not seem to have been enforced against consenting adults acting in private.
- A substantial number of sodomy prosecutions and convictions for which there are surviving records were for predatory acts against those who could not or did not consent, as in the case of a minor or the victim of an assault.
We have read the case to say that adult, consensual, private sexual intimacy is a FR and so SS couples can’t be excluded from that right
Rule Statement for Freedom of Speech content-based
Content based v. Content neutral
- Congress shall make no law abridging the freedom of speech. 1st.
- A government has no power to restrict expression because of its message, its ideas, or content. Reed.
- Regulation of speech is content based if a law applies to a particular speech because of the topic, idea or message expressed and will be subject to strict scrutiny. Id.
- Thus, content-based laws are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests. Id.
- Content-neutral laws are those that are agnostic to speech or are time, manner place solely. see Electric billboards case; see chicago teachers picketing case.
- Content-neutral laws are subject to IS, which must be narrowly tailored to serve a significant gov interest. see electric billboards case.
They must also leave open an alternative avenue for speech. Id.
Expressive association and artistic expressive activity receive first amendment protection. 303. Gov cannot compel speech, especially its own preferred messages. id; Barnette.
