Con Law II Flashcards
What are the five areas covered in class?
- Scope of Constitutional Coverage
- Equal Protection
- Due Process (Substantive and Procedural)
- Freedom of Speech
- Freedom of Religion
What are the two issues that every case presents for us to address?
Constitutional coverage
Constitutional norm
To what did the Bill of Rights initially to?
To the federal government
How were the constitutional norms applied to state and local governments?
Through the 13th, 14th, and 15th Amendments
What is selective incorporation?
The process by which the Supreme Court began to apply individual provisions of the Bill of Rights to state and local governments.
What are the three steps in selective incorporation methodology?
(1) Does state or local action implicate a provision of the Bill of Rights?
(2) If yes, does the applicable provision in the Bill of Rights reference a fundamental right?
(3) If so, apply the specific provision of the Bill of Rights to the state or local government through the Due Process Clause of the 14th Amendment
How is a fundamental right defined?
A right is fundamental when the right is
fundamental to our scheme of ordered liberty or the right is deeply rooted in our nation’s history and tradition.
Most provisions of the Bill of Rights have been incorporated against state or local governments. Which provisions have not been?
- Third Amendment (right to not have soldiers quartered in a person’s home)
- Fifth Amendment (right to grand jury in criminal cases)
- Seventh Amendment (right to jury trial in civil cases)
What is the Privileges and Immunities Clause of the 14th Am?
No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States
What is the Due Process Clause of the 14th Am?
No state shall deprive any person of life, liberty, or property without due process of law.
What is the Equal Protection Clause of the 14th Am?
No state shall deny to any person the equal protection of the laws.
What are four provisions within the 5th Amendment?
1) Right to grand jury in federal trials
2) No self-incrimination
3) No deprivation of life, liberty and property without due process
4) No private property taken for public use without just compensation
What is the one exception to the fact that the Privileges and Immunities clause of the 14th Am does not offer much constitutional protection?
Saenz v. Roe case where the court held that the Privileges and Immunities Clause of the 14th Am. does protect the third component of the right to travel
right to travel is strict scrutiny
(1) Right to enter and leave a state
(2) Right to be treated as welcome visit while temporarily present in another state
(3) For those travelers who elect to become permanent residents, the right to be treated like other citizens of that State
What is the caveat and downside of the Privileges and Immunities Clause of the 14th Am?
It only applies to U.S. citizens whereas substantive due process and equal protection are applied to all those who live in the U.S.
Hypo: If a state impounds someone’s car for a criminal penalty in addition to other punishments, what claim might the P have?
The P would have a constitutional claim under the 8th Am (excessive fines clause) incorporated against the state through the Due Process Clause of the 14th Am.
Excessive fines clause is fundamental to our scheme of ordered liberty and deeply rooted
What is the general rule for the Bill of Rights?
Generally the Bill of Rights applies to regulate government action and not the actions of private actors.
What are the two policy reasons for the Bill of Rights generally not applying to private actors?
- Preserves an area of individual freedom and autonomy.
- Avoids the imposition of responsibility on public actors for conduct they do not control.
What are the two exceptions to the general rule that the Bill of Rights does not apply to private actors?
1) 13th Am
2) State Action Doctrine
What are the three methods for establishing that a private actor is engaged in state action?
(1) Public Function
(2) Entanglement (i.e., public support)
(3) Entwinement
Define the Public Function test for establishing that a private actor is engaged in state action and thus the Bill of Rights can be applied to the private actor through the DPC clause of the 14th Amendment.
Test: Is the private actor performing a task that has been traditionally and exclusively been done by the government?
b. Examples of Where Public Function Found
- Running a company town
- Maintaining a public park
- Conducting a local election
c. Some Examples Where There is NO Public Function
- Operating public access channels on cable TV
- Providing electrical service
- Operating a shopping mall
Hypos: If a private company owns the whole town (like the streets) and the private company opens up the land to the public, it is engaged in station action (and thus cannot prohibit Jehovah Witness from handing out pamphlets).
Hypo: If a private company that has a monopoly (like an electricity company) cuts off your power with no notice, is the private company subject to a violation of procedural due process under the 14th Am.? No. Status of monopoly is not enough to make you a private actor subject to state action. Even if you are performing a public service, it might not be enough (otherwise would apply to doctors, nurses, etc.).
NOTE: vii. Jackson Balancing Test to determine whether private actor can be subject to constitutional regulation
1. Close Nexus Test
a. Whether there is a sufficiently close nexus between the state and the private action so that the latter may be treated the same
2. Public Function Test
a. A power delegated to it by the state with sovereignty like eminent domain (?)
Hypo:
Employees are barred from picketing in a parking lot of a private shopping mall. May they raise a 14th DPC claim for free speech?
No. There is no public function in a shopping mall. There is a lack of connection between expression and underlying location. No 1st Am. right to enter a mall.
What is the test for the Entanglement method (Public Support) to establish state action of a private actor?
Has the government affirmatively authorized, encouraged, or facilitated private conduct?
- Hypo: If a court enforces a racially restrictive covenant between two private parties, there is a violation of the 14th Am (equal protection clause)
- Hypo: Can a private coffee shop sitting on public land, with a public parking lot built with public funds who denies entry based on race constitute state action under the entanglement/public support method? Yes. Private actor subject to 14th Am.
- Hypo: Where the state gives a liquor license to a private bar and the bar refuses black people to enter, has the bar violated the 14th Am? No. The lodge is very private (private buildings, private property).
What is the test for the Entwinement exception?
Is there extensive interdependence between public and private actors or are the public and private actor in a symbiotic relationship?
NOTE: Private actor is supporting public actor. In entwinement, public and private are interdependent.
NOTE: More than one exception may apply, so reference both.
NOTE: Very fact intensive analysis, analyze all points.
- Hypo: Where a private school sues a private association of schools but the membership is all public schools, the employees are eligible for state benefits, the board members are public school administrators, most coaches need a state license, then there is entwinement.
When is an equal protection question triggered?
Always
Whenever the government draws a distinction between people, equal protection examines whether the government classification is justified
Prof said good attorney can find equal protection claim in an analysis
What are the 3 Constitutional sources for equal protection?
1) 13th Amendment
2) 14th Amendment
3) 5th Amendment
NOTE: There is no equal protection explicitly found in 5th Am but SC has interpreted it to include equal protection
What are the three areas to walk through on any Equal Protection claim?
(1) Is there a classification?
(2) What is the appropriate level of scrutiny?
(3) Does the government’s law meet the designated level of scrutiny?
What are the two ways for a classification exist in an equal protection claim?
(1) Facially, where the class is evident on the face of the law (e.g., only 16 and above can drive), OR
(2) Where law is facially neutral, a class may exist if there is discriminatory intent and a discriminatory impact (only 200 pounds can be firefighter)
NOTE: If there is no classification, there is no equal protection claim.
What are the three types of judicial scrutiny and define each?
- Rationale basis
- Intermediate scrutiny
- Strict scrutiny
- Rationale Basis (challenger carries burden of proving government does not meet test)
o Government pursuing legitimate government interest
o Law is rationally related to that interest
o NOTE: Courts will uphold a law if there is any conceivable government objective that the law promotes, even if the law is a poor fit for the legislature’s goals or was inspired by ulterior motives.
o NOTE: If animus, rationale basis ‘with bite’ - Intermediate Scrutiny (government burden to establish meets test)
o Government pursuing important government interest
o Law is substantially related to that interest
o Law is narrowly tailored to achieve that interest - Strict Scrutiny (government burden to establish meets test)
o Government pursuing compelling government interest
o Law is necessary to achieve that interest
o Law is narrowly tailored to achieve that interest (least restrictive means)
What are the four exceptions to the scrutiny rules?
Define over and under inclusiveness to include on third factor of fit
- A law is overinclusive if it regulates individuals who are not similarly situated. In other words, the law covers more people than it needs in order to accomplish its goals.
- A law is underinclusive if it does NOT regulate individuals who are similarly situated, the law covers less people that it should in order to accomplish its goals.
NOTE: Over or under is NOT fatal in rationale review.
ii. In intermediate depends.
iii. In strict scrutiny, over or under almost certainly results in law being struck down.
What are the two requirements for the rationale basis level of scrutiny?
1) The government is pursuing a legitimate government interest
2) The law is rationally related to that interest
Who carries the burden in a rationale basis level of scrutiny and what is the burden?
The challenger has the burden of showing the government does NOT meet the rationale basis test.
When is a rationale basis level of scrutiny used?
When classification is not based on intermediate or strict scrutiny (i.e., no heightened scrutiny)
In NY City Transit Authority, where a condition for employment was no drug use but some applicants had to use meth and were thus ineligible for employment, what did the government decide?
Rationale basis was used (this group not on the lists for strict or intermediate and no qualities on criteria list) and because in rationale basis both under inclusiveness and over inclusiveness are tolerated, and so government upheld classification.
What are the three cases where the Court applied “rationale basis with bite” and what factor do you look for in these cases?
1) Romer v. Evans where LGBTQ individuals challenged an amendment to Colorado’s constitution prohibiting LGBTQ from being treated as a protected class. There, LGTBQ not on lists or criteria, no heightened scrutiny. Law is informed by animus. Law struck down. Dissent was desire to protect traditional values.
2) Department of Agriculture v. Moreno where the court struck down a law on the basis of equal protection that only allowed food stamps for individuals living in households with relatives. Changes to law were informed by animus toward the hippie community and there is no connection between the Food Stamp Act purpose - addressing hunger and promoting agricultural economy–and the change in law.
3) City of Cleburne v. Living Center where the government struck down a law on the basis of equal protection given the law prohibited those with mental disabilities from obtaining a building permit. The court did not provide heightened scrutiny to those with mental disabilities, but struck down the law because there were negative attitudes and fear toward those with mental disabilities
NOTE: On above 3 cases, common feature is that there is rational basis (with bite) and court struck down law because believes government action informed by animus, prejudice, stereotype. Often referred to as invidious discrimination.
What is the quote used in Romer v. Evans?
If the constitutional conception of equal protection of the laws means anything, it must at the very least mean that a bare desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.
What are the four reasons why mental disability classifications not given heightened protection?
(1) Persons with disabilities have different needs so might warrant disparate treatment.
(2) Gvmt recognized that this class has special needs and needs special accom.
(3) People w/mental disabilities not politically powerless.
(4) If we give them heightened scrutiny, would need to give same to elderly and other similar groups
What four criteria does the Court apply in assessing whether a classification should have heightened scrutiny?
- Existence of an immutable character
- Ability of the targeted group to protect itself against the political process
- History of discrimination against the targeted group
- Existence of prejudice or stereotypes
NOTE: You can make argument that court should have a heightened level of scrutiny based on the additional factors/criteria he gave us but first you better say what the court would do based on the law/categories.
NOTE: In strict scrutiny, general assumption is that government loses.
NOTE: In rationale basis, general assumption is that government wins.
What are the 3 requirements for intermediate scrutiny?
(1) The government is pursuing a significant government interest.
(2) The law is substantially related to that interest.
(3) The law is narrowly tailored (i.e., the least restrictive means) to achieve that interest.
Who carries the burden in an intermediate and strict scrutiny review case?
The government carries the burden of establishing that its action meet the test.
What are four classifications requiring intermediate scrutiny?
- Gender classifications
- Non-marital status of parents (illegitimacy)
- Content-neutral restrictions on speech
- Commercial speech
What are the two equal protection gender classification cases?
- Frontiero v. Richardson where the court struck down a law treating military members different based on gender. Note here the court used strict scrutiny because intermediate was not established until Boren. Also, Frontiero was a plurality opinion and not controlling.
- Craig v. Boren where legal age to buy liquor was different between men and women because men were thought to be more susceptible to drunk driving. Law struck down.
Note this case established the intermediate level of review. Note for every equal protection class, go through the four criteria the Court assesses to determine whether heightened scrutiny is merited.
What are the three requirements for strict scrutiny?
- The government is pursuing a compelling government interest
- The law is necessary to achieve that interest
- The law is narrowly tailored (i.e., least restrictive means) to achieve that interest.
NOTE: The government has the burden of establishing that its actions meet this test.
What five categories of classifications require strict scrutiny?
- Race
- National origin
- Alienage
- Fundamental Rights
- Content-based restrictions on speech
What is the justification for using strict scrutiny in racial classification cases?
- Race is an immutable characteristic
- Racial groups are often unable to protect themselves through the political process.
- The historic purpose of the 14th Am. was to protect the African-American community.
How has California treated the factor of caste in its recent legislation?
California’s SB 403 Law: Senate just passed SB 403, adding caste as a form of ancestry protected under state civil rights law. Bill is awaiting Governor signature.
a. “Caste” means an individual’s perceived position in a system of social stratification on the basis of inherited status.
i. Factors to consider include: inability to alter inherited status, socially enforced restrictions on marriage, private and public segregation, social exclusion based on perceived status.
How did the Court rule in Korematsu v. the United States?
Where President Roosevelt put in place an order excluding Japanese Americans from their homes in order to protect national security and prevent espionage during the war. The court upheld the law even despite the strict scrutiny.
NOTE: On exam, professor said bring up both equal protection (here) and due process (both substantive and procedural).
a. Substantive (government did not have a good enough reason to remove individuals from their homes, liberty not sufficiently protected)
b. Procedural (forced out of homes with no meaningful hearings, no opportunity to respond and defend themselves to claims)
What did the court hold in Loving v. Virginia?
The court struck down a state statute banning interracial marriages and imposing criminal sanctions. Virginia argued no equal protection issue because treating blacks and whites the same
No statute based on race unless exception applies.
What did the court hold in Plessy v. Ferguson?
In 1896, Where Plessy, who was 1/8 black and 7/8 white was denied entry onto an all white train car, and sued under an equal protection claim, the court upheld the law and authorized ‘separate but equal’
NOTE: Professor Key Points:
- Plessy ushered in an era of legal, lawful racial segregation that existed in this country for 60 years
- Court argues distinction between political equality and social equality
- Social equality cannot be legislated
i. Schools are segregated
ii. Inter-marriage is prohibited
iii. Theatres are segregated
- Political equality can be legislated
i. Right to non-segregated jury
What did the Court hold in Brown v. Board of Education in 1954?
Where Mr. Brown after his daughter was denied entry to an all white school sued the Kansas school district for violation of equal protection.
- Holding For Brown.
- Court rejected Plessy specific in the realm of education
- Brown sets stage for what many call the Second Reconstruction
Rationale
- Legal segregation instills a sense of inferiority in Black children
- Other Reasons Courts Could Have Considered
a. Legal segregation also affects White children
b. It affects ability of both groups to engage and interact in adulthood.
c. Disparate treatment based solely on race is wrong.
d. Segregation presumes there are meaningful distinctions between groups.
e. Segregation is contrary to equality and fairness.
Aftermath of Brown
a. Segregation of public beaches unconstitutional (1955)
b. Segregation of public golf courses unconstitutional (1955)
c. Segregation of city bus system unconstitutional (1956)
d. Segregation of public restaurants unconstitutional (1962)
e. Segregation of courtroom seating unconstitutional (1963)
In Bolling v. Sharpe where a federal school in DC denied entry to black student, what did court hold?
Struck down law.
While the 5th Am. lacks an equal protection clause and is a more implicit safeguard against discrimination, the Court stated that “discrimination may be so unjustifiable as to be violative of due process.”
Referencing Brown, the Court held it would be “unthinkable that the same Constitution would impose a lesser duty on the Federal Government.”
NOTE: The same occurred in Alvarez v. Owen where in 1931, Lemon Grove School Board announced plan to segregate children of Mexican ancestry in a separate building; students sent to barn-like building; parents sue under equal protection
What are the two exceptions to where a statute can sustain a strict scrutiny review of a race based classification case?
(1) To remediate specific, identified instances of past discrimination that violated Const or a statute
(2) Public safety in prisons (e.g., race riot) (survives strict scrutiny review)
How should we treat affirmative action?
The court has struck down racial point and quota systems of affirmative action. However, other programs have been allowed if race is a factor of a factor.
Rationale for striking down AA at Harvard
a. Court identifies four problems with these programs
i. Lack of measurable objectives
ii. Employs race in a negative manner
iii. Involve racial stereotyping
iv. Lack meaningful endpoints
Connect the flaws to strict scrutiny analysis
How many sources of due process are there and what are they?
The Fifth Amendment and the 14th Am
(no person shall be deprived of life, liberty or property without due process of the law)
What are two forms of due process?
Substantive Due Process
Procedural Due Process
What is the opening sentence for substantive due process?
Whether the government has an adequate reason for restricting life, liberty, or property.
easier
- Substantive due process looks at whether the state has a legitimate or sufficient reason to infringe on one’s rights.
What is the opening sentence for procedural due process?
Whether the government has followed appropriate procedures before restricting life, liberty, or property.
What are the two categories of rights under substantive due process?
Unenumerated fundamental rights
Unenumerated non-fundamental rights
What are enumerated rights?
Those rights that appear in the text of the Constitution or subsequent amendments.
What are examples of enumerated rights?
Freedom of speech, freedom of religion, right to bear arms, right to jury trial, freedom from cruel and unusual punishment, prohibition against excessive fines
What are unenumerated rights?
Those rights that do not appear in the text of the Constitution or subsequent amendments.
What are the four main categories of unenumerated fundamental rights?
- Right to Family Autonomy
- Right to Reproductive Autonomy
- Right to Travel
- Right to Consensual Sexual Activity
What are the three unenumerated non-fundamental rights?
- Economic Rights - Employment Regulations
- Economic Rights - Punitive Damages
- Non-Economic Rights - Abortion
What are five consequences of providing heightened constitutional protection to an unenumerated right?
- Severely limits the ability of the government to regulate
- Removes the right from the political process
- Empowers Supreme Court to be the final arbiter of the right
- May result in profound social change
- Affects the role of federalism and the role of states as “laboratories of democracy”
What is the relationship between equal protection and due process?
- Both have been used to protect fundamental rights.
- The consequences of a violation of equal protection or due process are different.
Insert Justice Jackson’s concurrence in Railway Express Agency v NY XXXXX
Why are substantive due process claims controversial?
Seek to provide heightened constitutional protection to unenumerated rights
Requires Supreme Court to identify and define the substantive due process right
What are the three steps in a substantive due process claim and the substeps?
- What is the nature of the right?
- Fundamental
- Non-fundamental - Has the right been substantially infringed?
- Directness and substantiality - Does the government action meet the designated level of scrutiny?
- Fundamental right: Strict scrutiny
- Non-fundamental right: Rationale basis
When does a ‘fundamental right’ exist?
When the right is “deeply rooted in our nation’s tradition and history”
- NOTE: How should courts address the “history and tradition” that occurs in the midst of discrimination and repression?
i. Does it matter that women had limited political power?
ii. Does it matter that racial minorities had limited political power?
When was the Lochner era and what characterized it?
Court strikes down government laws and protects the individual right to contract
1900-1937 (before War)
When was the post-Lochner era and what characterized it?
Court upholds government laws and shows great deference to government regulation and applies rationale basis review to all non-fundamental rights
1937-Present
