Final Exam Flashcards
What does the Constitution generally protect from?
The Constitution generally protects against wrongful conduct by the government, not private parties.
Who does Due Process Clause of 5a apply against?
Federal Government
Who does Due Process Clause of 14a apply against?
The states
Equal protection clause prohibits?
fed & state gov discrimination against individuals who are similarly situated to others
Prerequisite for triggering constitutional protections
State action or federal action
Private parties actions are effectively attributable to the state, such that their actions can be treated as the state’s actions, when:
- Trad’l gov function: When a private party is exercising a traditional gov function
- Gov. Entanglement
How to measure government entanglement?
NEXUS TEST: An action of a private entity will be treated as state action if there is a sufficiently close nexus between the state and the challenged action of the private entity so that the action of the latter may be fairly treated as that of the state itself.
Standards of review under equal protection analysis
Rational basis test
–(rational basis with teeth in rare situations)
Intermediate scrutiny
Strict scrutiny
Rational basis test
o Some legitimate governmental purpose; and
o A rational relationship between the identified purpose and the regulatory means used
Rational basis burden of proof
o Laws are presumed valid under this standard, so the burden is on the challenger to overcome this presumption by establishing that the law is arbitrary or irrational.
Rat’l basis relationship to legislature?
o Extreme deference to the legislature – assume that legislative preferences and expertise should receive wide leeway
Rat’l basis applicability
o The rational basis standard is used in all cases in which one of the higher standards (intermediate or strict scrutiny) does not apply. It is used when a non-suspect class is at issue.
Rat’l basis with teeth?
o Some classifications, although nominally subject to rational basis review, in practice receive heightened scrutiny.
TEST:
1) whether gov interest is truly legitimate
2)whether measure is so grossly over and/or under inclusive that gov must not have had legitimate interest
triggered when court senses irrational prejudice
Rat’l basis with teeth classifications
Sexual orientation
Developmental disability
When gov acts out of Animus
Animus definition
When the government has acted out of animus (a bare desire to harm an unpopular group) toward or fear of a particular group, that action—even if not involving a suspect or a quasi-suspect classification—will be searchingly reviewed and may be struck down even under a rational basis test.
Non suspect classes
Age
Poverty
Sexual orientation
What is needed to trigger strict or intermediate scrutiny?
o To trigger strict or intermediate scrutiny, there must be discriminatory intent on the part of the government.
o The fact that legislation has a disparate effect on people of different races, genders, etc., without intent, is insufficient.
How can discriminatory intent be shown?
o Discriminatory intent can be shown facially, as applied, or when there is a discriminatory motive.
Facial discrimination
- A law that, by its very language, creates distinctions between classes of persons is discriminatory on its face.
- Example: An ordinance states that only males will be considered for a city’s training academy for firefighters.
Discriminatory application
- A law that appears neutral on its face may be applied in a discriminatory fashion. If the challenger can prove that a discriminatory purpose was used when applying the law, then the law will be invalidated.
- Example: A city’s ordinance concerning the police academy says nothing about gender, but in practice only men are considered for admission.
Discriminatory motive
- Proof of discriminatory motive is required to show a violation of the Equal Protection Clause. Arlington Heights
- Establishing a discriminatory purpose among permissible purposes shifts the burden to the defendant to show that the same decision would have resulted absent the impermissible motive.
Intermediate scrutiny
The measure/law must be substantially related to an important governmental interest
Intermediate scrutiny burden of proof
state has the burden to prove an important government objective and that the means used is substantially related to attaining the objective
Intermediate scrutiny applicability
Applies to quasi-suspect classifications
o Gender discrimination: there must be an exceedingly persuasive justification for the classification, which might bring the standard closer to strict scrutiny
o Illegitimate children discrimination
Strict scrutiny test
o Does the government have a compelling interest to justify the measure?
o Is the measure narrowly tailored to achieve that interest? least restrictive means
strict scrutiny burden of proof
• Burden of persuasion is on the government
o In most situations where the government could accomplish its goals without making the classification, the law will be unconstitutional
o No deference to the legislator/rule maker
Strict scrutiny applicability
Suspect classifications: Race Ethnicity National origin Alienage (if the classification is by state law) Affirmative action
Factors to find a suspect class
1) history of discrimination
2) whether characteristic is immutable
3) whether characteristic is relevant to group’s ability to perform or contribute to society
4) whether the group has political power
Race classification analysis steps
• Impact: Show a discriminatory impact against the class
• Intent: Prove discriminatory purpose – Was discrimination a motivating factor?
o Statistical evidence so compelling that no other explanation is possible? (Strong circumstantial evidence may shift the burden of production)
o Proved by the history of the government’s conduct?
o Proved by the legislative history?
• If discrimination was a motivating factor – would the measure have been adopted anyway?
Alienage exception
rational basis scrutiny is appropriate when alienage classifications restrict the right to participate in functions that are central to self-government, such as voting, running for office, or serving on a jury.
Affirmative action Remedial measures analysis
o For a governmental affirmative action program based on race to survive
The government must itself be guilty of specific past discrimination against the group it is seeking to favor
the remedy must be narrowly tailored to end that discrimination and eliminate its effects
Affirmative action permissible/impermissible use of race
o Race may be used as a “plus factor” in determining whether a student should be admitted to a public college or university, as there is a compelling interest in obtaining the educational benefits of a diverse student body.
o Racial quotas or using race as a determinative criterion violates equal protection and is unconstitutional.
Enabling clause
Per section 5 of 14a: congress shall have power to enforce by appropriate legislation, the provisions of 14a
Congress may pass legislation under its powers in §5 of the Fourteenth Amendment provided that the legislation is
(1) an enactment to enforce a provision of the Equal Protection Clause;
(2) plainly adapted to that end; and (3) consistent with the letter and spirit of the Constitution.
o Congress only has remedial power rather than plenary power. City of Boerne v. Flores
Fundamental rights under substantive due process steps of analysis
o Define the right involved in the case
o Is the right a fundamental one? -
-Or just an ordinary liberty interest?
o Substantial impairment? (of the possible rights involved)
o Strict scrutiny applies if it is a fundamental right, lesser scrutiny if something else
o USE – Equal protection OR Substantive Due Process
-EP – one group can enjoy the right but another group cannot (Invidiousness; stereotypes)
-DP – right cannot be enjoyed by anyone
List of fundamental rights
- Right to marriage
a. Loving
b. Zablocki
c. Obergefell - Right to live together as a family
a. Moore - Right to have children
a. Skinner - Right to control children’s upbringing
- Right to contraception
a. Griswold
b. Eisenstadt - Right to refuse medical treatment
a. Cruzan - Right to travel
a. Saenz - Right to vote
- Right to access to the court to protect a fundamental right
a. Boddie
b. MLB
List of important rights
- Right to Abortion
a. Casey - Right to sodomy (including gay sodomy)
a. Lawrence - Right to take pain medication for terminal suffering
a. Glucksberg concurrence
Just liberty interests?
- Education
2. Terminally ill patient to receive assistance in committing suicide
First amendment (applicable clauses)
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press…
First amendment applicability
• Applies only to the actions of governments and government officials, not to the actions of privately owned companies
Free speech clause analysis steps
What does statute/ordinance say?
How does it restrict freedom of expression?
