Individual Rights

Question 1

When evaluating a substantive due process claim, what standard of review does a court apply to a state or federal law abridging a fundamental right?

Answer 1

The court applies strict scrutiny to a state or federal law that deprives someone of a fundamental right. Under this standard, the government may only deprive individuals of their fundamental rights when the interference is necessary and narrowly tailored (using the least restrictive means) to achieve a compelling government interest. The law is presumed to be invalid, and the government has the burden of proof. Government action is almost always struck down under strict scrutiny. Roe v. Wade, 410 U.S. 113 (1973).

Question 2

What is the Bill of Rights?

Answer 2

The Bill of Rights refers to the first 10 amendments to the Constitution that protect individual rights from governmental interference. James Madison drafted these amendments in response to calls from various ratifying states for more constitutional protections for individual liberties. The amendments were ratified in 1791 and cover such rights as freedom of expression, due process, and freedom from unreasonable searches and seizures.

Question 3

What is the state-action doctrine?

Answer 3

Under the state-action doctrine, the Constitution generally protects individual rights against infringement by state actors and not private actors. Congress’s powers to enforce constitutional amendments (and the amendments themselves) generally apply only to government entities. The Civil Rights Cases, 109 U.S. 3 (1883).

Question 4

Which constitutional amendment protects against actions by private entities?

Answer 4

The Thirteenth Amendment’s prohibition against slavery applies equally to government and private actors. When Congress exercises its authority to enforce the amendment’s prohibition against slavery, it can regulate both government and private entities. The amendment is one of the major exceptions to the state-action doctrine.

Question 5

What is the public-function exception to the state-action doctrine?

Answer 5

Under the public-function exception to the state-action doctrine, the Constitution may bar action by private entities that perform a public function involving the exercise of powers traditionally and exclusively reserved to the government. However, the mere fact that a private entity performs a function that serves the public or that provides a public benefit does not render the public-function exception applicable.

In general, the exception encompasses a narrow category of functions, such as selecting candidates for general election.

Question 6

If a state commands private action, does that serve as state action for constitutional purposes?

Answer 6

Yes. When private action is compelled by the state, such that the private actor has no choice but to engage in the challenged conduct, that suffices to show state action for constitutional purposes. The key question is whether the private entity had a choice in acting.
Shelley v. Kramer, 334 U.S. 1 (1948)

Question 7

What is the Due Process Clause of the Fourteenth Amendment?

Answer 7

The Due Process Clause of the Fourteenth Amendment forbids the government from taking a person’s life, liberty, or property without due process of law.

The Due Process Clause has been the main vehicle by which the Supreme Court has concluded that the Bill of Rights limits action not only by the federal government, but also by the state governments.

Question 8

What are the two main components of the Due Process Clause of the Fourteenth Amendment?

Answer 8

There are two components of due process: substantive due process and procedural due process.

Substantive due process protects individual constitutional freedoms from government intrusion. The doctrine defines a spectrum of standards of review for government action based upon the individual rights with which it interferes.

Procedural due process is the requirement that the government not deprive a person of life, liberty, or property without, at minimum, notice and an opportunity to be heard.

Question 9

What is the incorporation doctrine?

Answer 9

The incorporation doctrine is the doctrine through which certain substantive protections of the Constitution are applicable not only to the federal government, but also to the states.

The first eight amendments in the Bill of Rights generally bar the federal government from infringing upon individual rights. After the ratification of the Fourteenth Amendment, the Supreme Court has held that certain provisions of those first eight amendments also apply to state governments under the Due Process Clause.

States may be sued directly under the Due Process Clause of the Fourteenth Amendment for the violation of any provision of the Bill of Rights that has been incorporated against the states. Congress also has the power to pass laws aimed at ensuring states do not violate incorporated provisions of the Bill of Rights under its enforcement authority in Section 5 of the Fourteenth Amendment.

Question 10

What is total incorporation?

Answer 10

The total incorporation doctrine provides that all individual rights in the first eight amendments are protected from infringement by the states. This doctrine has never been the majority view of the Supreme Court.

Question 11

What is selective incorporation?

Answer 11

The selective incorporation doctrine provides that only certain individual rights in the first eight amendments are protected from infringement by the states.

Question 12

What rights does the Second Amendment protect?

Answer 12

The Second Amendment protects the people’s right to keep and bear arms by prohibiting infringements of those rights. The Amendment explains that such rights are necessary to keeping a well regulated militia, which is also necessary to maintain the security of a free state.

When the Constitution was ratified, the states were concerned about centralizing military power in one federal government. In part, the drafters relied on the Second Amendment and the preservation of an armed citizenry as a check against a central federal military power.

Question 13

Are citizens protected from infringements of their Second Amendment rights made by the states?

Answer 13

Yes. The Supreme Court has fully incorporated the protections of the Second Amendment. State governments, as well as federal, may not infringe any rights protected by the Second Amendment.

Question 14

Which amendments has the Supreme Court fully incorporated as applicable to the states?

Answer 14

The Supreme Court has fully incorporated the protections of the First, Second, and Fourth Amendments. Any right named in these amendments is protected from infringement by both the federal and state governments.

Question 15

Which amendments has the Supreme Court selectively incorporated as applicable to the states?

Answer 15

The Supreme Court has selectively incorporated the protections of the Fifth, Sixth, and Eighth Amendments. Specifically, the Supreme Court has not incorporated:

*the right to a grand jury from the Fifth Amendment,
*the right to a jury selected from the crime location from the Sixth Amendment,
*the right to a unanimous verdict in a criminal trial, as interpreted as part of the Sixth Amendment,
*the right to a twelve-person jury in a criminal trial, as interpreted as part of the Sixth Amendment, and
*the prohibition against excessive fines in the Eighth Amendment.

The remaining rights in those amendments are protected from infringement by not only the federal but also the state governments.

Question 16

What amendments has the Supreme Court not incorporated, rendering them inapplicable to the states?

Answer 16

The Supreme Court has not incorporated the protections of the Third and Seventh Amendments. In the case of the Third Amendment, this is likely because the Court has never heard a case implicating the protection against the quartering of soldiers in private homes. The Seventh Amendment’s requirement that civil cases involving amounts over twenty dollars be heard by a jury is not applicable to the states.

Question 17

Does the Fourteenth Amendment to the U.S. Constitution extend or incorporate the entire Bill of Rights to actions by states?

Answer 17

No. The Fourteenth Amendment’s Due Process Clause does not extend or incorporate the entire Bill of Rights to actions by states. Rather, only fundamental rights in the Bill of Rights have been incorporated against the states. This is referred to as the selective-incorporation doctrine. The First, Second, and Fourth Amendments protect fundamental rights and, therefore, fully apply to state actions. However, provisions of the Bill of Rights that do not apply to the states include the Third Amendment (quartering of troops), the Fifth Amendment (grand jury trial), and the Seventh Amendment (civil jury trial). Duncan v. Louisiana, 391 U.S. 145 (1968); Palko v. Connecticut, 302 U.S. 319 (1937).

Question 18

What is substantive due process?

Answer 18

Under the principle of substantive due process, the government requires substantively valid justifications in order to deprive individuals of life, liberty, or property. The Supreme Court has concluded that the liberty protected by substantive due process is not only freedom from physical restraint, but also protection from governmental interference with certain rights and liberty interests.

Substantive due process rights are guaranteed to citizens through the Fifth and Fourteenth Amendments. The Fifth Amendment protects against incursions by the federal government, whereas the Fourteenth Amendment protects against incursions by the states.
Washington v. Glucksberg, 521 U.S. 702, 720 (1997).

Question 19

What is a fundamental right, for purposes of substantive due process?

Answer 19

Fundamental rights include rights expressly enumerated in the Bill of Rights, as well as a limited number of implied rights typically involving privacy or autonomy interests. Implied fundamental rights include the right to marry, the right to purchase and use contraception, the right to have and raise children, the right to control a child’s education, the right to refuse medical treatment, the right to vote, and the right to interstate travel.

These implied fundamental rights are not expressly enumerated in the Constitution; rather, the Supreme Court has inferred their existence in its interpretation of the Fourteenth Amendment’s guarantees of substantive due process and the Bill of Rights.

Washington v. Glucksberg, 521 U.S. 702, 719-20 (1997).

Question 20

Are all fundamental rights expressly enumerated in the Constitution?

Answer 20

No. Rights need not be expressly enumerated in the Constitution in order to be deemed fundamental. Rather, the Supreme Court has inferred the existence of a limited number of implied fundamental rights in its interpretation of the guarantees of the Fourteenth Amendment’s Due Process Clause and the Bill of Rights.

The Court has concluded that the specific guarantees in the Bill of Rights have penumbras creating a zone of privacy. These express constitutional guarantees center around a fundamental principle of personal autonomy or right to privacy, within which the government cannot intrude absent a compelling justification.

Washington v. Glucksberg, 521 U.S. 702, 719-20 (1997); Griswold v. Connecticut, 381 U.S. 479, 484-86 (1965).

Question 21

For purposes of substantive due process, what is a fundamental right?

Answer 21

For purposes of substantive due process, a fundamental right is one that is implicit in the scope of ordered liberty, such that liberty and justice would not exist without the right. Usually, these are rights that are objectively rooted in the history and traditions of the United States. However, if an important right has historically been denied to a certain class of people (e.g., the right to marry for same-sex couples), it may be deemed fundamental even though it is not rooted in history and tradition. Aside from these general principles, the Supreme Court has not laid down any firm rules governing what rights are or are not fundamental, nor has the Court applied these principles consistently across cases. For these reasons, substantive due-process litigation tends to be politically charged and highly controversial.
Obergefell v. Hodges, 135 S. Ct. 2584, 2598 (2015); Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997).

Question 22

What is the test for determining if an interest is a constitutionally protected fundamental right or liberty interest?

Answer 22

An interest is a fundamental right or liberty interest if it is:

*fundamental to the American scheme of ordered liberty or
*deeply rooted in the nation’s history and tradition.

Fundamental rights and liberty interests are protected by the Due Process Clauses of the Fifth and Fourteenth Amendments to the U.S. Constitution. Fundamental rights typically involve privacy or autonomy interests. Some accepted fundamental rights include the right to privacy, the right to marry, the right to purchase and use contraception, the right to have and raise children, the right to refuse medical treatment, the right to vote, and the right to interstate travel.

McDonald v. City of Chicago, 561 U.S. 742 (2010); Washington v. Glucksberg, 521 U.S. 702 (1997); Michael H. v. Gerald D., 491 U.S. 110 (1989)

Question 23

Is the right to use contraceptives protected by the Due Process Clauses of the Fifth and Fourteenth Amendments?

Answer 23

Yes. The Supreme Court has interpreted Due Process to include a fundamental right of privacy, which gives individuals a right to be free of unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to have a child. The government may not intrude on this fundamental right. The Due Process Clauses incidentally prevent the government from interfering with an individual’s use of contraception, such as by criminalizing that use. This protection applies to all individuals, including minors, regardless of marital status. Eisenstadt v. Baird, 405 U.S. 438 (1972).

Question 24

A state passed a law placing restrictions on the sale of birth control to minors. A pharmaceutical company sued to invalidate the law, claiming it placed an unconstitutional burden on a fundamental right.

Under the U.S. Constitution, do individuals less than 18 years old have a fundamental right to access birth control?

Answer 24

Yes. Individuals less than 18 years old have a fundamental right to access birth control. An interest is a fundamental right or liberty interest if it is:

*fundamental to the American scheme of ordered liberty or
*deeply rooted in the nation’s history and tradition.

Here, the constitutional right of privacy is deeply rooted in our nation’s history and tradition. The right of privacy gives individuals a right to be free of unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to have a child. The fundamental right to determine whether to become a parent includes the right to lawfully obtain and use birth control. This fundamental right belongs to all individuals, including minors. Thus, individuals less than 18 years old have a fundamental right to obtain and use birth control.

Eisenstadt v. Baird, 405 U.S. 438 (1972).

Question 25

When evaluating a substantive due process claim, what standard of review does a court apply to a state or federal law abridging a fundamental right?

Answer 25

The court applies strict scrutiny to a state or federal law that deprives someone of a fundamental right. Under this standard, the government may only deprive individuals of their fundamental rights when the interference is necessary and narrowly tailored (using the least restrictive means) to achieve a compelling government interest. The law is presumed to be invalid, and the government has the burden of proof. Government action is almost always struck down under strict scrutiny. Roe v. Wade, 410 U.S. 113 (1973).

Question 26

Generally, what standard of review applies to a law that potentially burdens a fundamental right or liberty interest?

Answer 26

In general, if a law potentially burdens a fundamental right or a liberty interest, then the standard of judicial review is strict scrutiny. For a law to survive strict-scrutiny review, the government must show that the challenged law:

*advances a compelling government interest and
*is narrowly tailored to directly advance that interest and to be the least restrictive means of achieving it.

However, government regulations of the fundamental right to terminate a pregnancy are subject to the undue-burden standard of review.

Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016); Gonzalez v. Carhart, 550 U.S. 124 (2007); Loving v. Virginia, 388 U.S. 1 (1967); Pierce v. Society of Sisters, 268 U.S. 510 (1925).

Question 27

A state passed a law that allowed the termination of an unmarried biological father’s parental rights without notice or an opportunity for a hearing. A biological mother wished to place her nine-month-old son up for adoption and signed an agreement with a state adoption agency terminating her parental rights. Under the law, the agency terminated the father’s rights without giving him any notice or an opportunity to contest the termination. The father provided regular financial support and had regular contact with the child since its birth. The father sued, claiming that the state law invalidly deprived him of his right to be a parent.

What standard of review should be applied to review this claim?

Answer 27

Strict-scrutiny review should be applied to review this claim. A state law that burdens a fundamental right or liberty interest must pass strict scrutiny to be valid. An interest is a fundamental right or liberty interest if it is:

*fundamental to the American scheme of ordered liberty or
*deeply rooted in the nation’s history and tradition.

Two accepted fundamental rights are the right to privacy and the right to have and raise children.

Here, this law burdens the right to raise children and be a parent. Derived from the right to privacy, the right be a parent is a fundamental right. A biological father who has provided financial support and has an established relationship with his child has a fundamental right to maintain and continue that private, parental relationship. Because this law burdens the fundamental right to be a parent, strict-scrutiny review applies.

Question 28

Does a person have a constitutional right to obtain an abortion?

Answer 28

No. Prior to 2022, the Supreme Court treated abortion as a fundamental right. The Court had held that before the point of fetal viability, states could not issue regulations on a woman’s right to an abortion if those regulations posed an undue burden on the right. The Court had further held that after the point of fetal viability, states were free to restrict abortions when acting on their legitimate interests in preserving the life of the fetus, so long as exceptions existed for pregnancies endangering a woman’s life or health. In 2022, in Dobbs v. Jackson Women’s Health Organization, the Court overruled these previous decisions and held that there is no constitutional right to an abortion. Accordingly, states may ban or otherwise regulate abortion subject only to rational-basis review.

Dobbs v. Jackson Women’s Health Organization, 142 S.Ct. 2228 (2022); Planned Parenthood v. Casey, 505 U.S. 933 (1992); Roe v. Wade 410 U.S. 113 (1973).

Question 29

What standard of review applies to a law restricting abortion?

Answer 29

Following the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, laws restricting abortion are subject to rational-basis review. Under this standard, a law will be upheld if it bears a rational relationship to a legitimate state interest, including the preservation of fetal life.

Question 30

Does any person, regardless of that person’s competency, have a fundamental right to refuse life-saving treatment?

Answer 30

No. The Supreme Court has observed in dicta that competent persons have a fundamental right to refuse unwanted, life-sustaining medical treatment. The Court reasoned that historically, American law had treated unwanted touching, including unwanted medical treatment, as a kind of battery. A competent individual’s right to choose and consent to medical treatment is inherent in the concept of personal autonomy. Cruzan v. Missouri, 497 U.S. 261, 269-79 (1990).

Question 31

A state legislature enacted a law that prohibited a person from refusing reasonable and cost-effective medical efforts to protect that person’s life or health. The law’s purpose was to immunize medical-care professionals who do not obtain informed consent before performing a medical procedure or administering a drug. A citizen objected to all forms of medicine as a matter of deeply held personal belief, including the use of antibiotics. This citizen was seriously injured at work and was taken to a local hospital for treatment. Over the citizen’s objections, medical personnel administered antibiotics to prevent infection. The citizen sues the hospital and staff for battery. The hospital raised the state law as a defense. However, the citizen argued that the law was an unconstitutional burden on his right to refuse unwanted medical treatment.

Is the citizen correct?

Answer 31

Yes. The citizen is correct. If a fundamental right is at issue, strict scrutiny applies and the law must: (1) advance a compelling state interest and (2) be narrowly tailored to advance that interest. If a right is deeply rooted in the nation’s history, traditions, and practices, then it is a fundamental right.

Here, the right of a mentally competent adult to refuse unwanted medical treatment is a deeply rooted, fundamental right. Thus, strict scrutiny applies. Even if the state has a compelling interest to protect life that justifies intruding on this right, this law is not narrowly tailored to achieve that interest. The law provides a license for medical professionals to conduct unwanted medical procedures. The only two limits, reasonableness and cost, do not reduce this law’s burden on the fundamental right to refuse treatment. Thus, the citizen is correct and the law is invalid.

Washington v. Glucksberg, 521 U.S. 702 (1997); Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 (1990).

Question 32

What are non-fundamental rights?

Answer 32

Non-fundamental rights often involve economic interests and include the right to welfare, the right to inherit property, and the right to international travel.

Question 33

When evaluating a substantive due process claim, what standard of review does a court apply to a law abridging a non-fundamental right?

Answer 33

The court will apply a standard of rational-basis review to a governmental deprivation of non-fundamental rights. Under the rational basis standard, the government may deprive individuals of their non-fundamental rights in order to further a legitimate government interest, as long as the deprivation is not unfair, irrational, or arbitrary. Generally, any rational basis will satisfy this standard (even if it was not the government actor’s real reason for taking the action), and government action is almost always upheld under rational-basis review.

Williamson v. Lee Optical Inc., 348 U.S. 483 (1955); W. Coast Hotel Co. v. Parrish, 300 U.S. 79 (1937).

Question 34

What is the standard of review for potential substantive-due-process violations of non-fundamental rights?

Answer 34

The standard of review for potential substantive-due-process violations of non-fundamental rights is rational-basis review. To survive rational-basis review, the law needs to:

*further a legitimate state interest and
*further that interest in a rational way.

Under rational-basis review, the burden is not on the government to justify or defend its law. Rather, the federal courts broadly presume the law’s constitutional validity. Accordingly, the burden is on the party seeking to invalidate the law to show that the challenged law is wholly irrational, meaning that it lacks a rational relationship to a legitimate state interest.

Washington v. Glucksberg, 521 U.S. 702 (1997); Williamson v. Lee Optical, 348 U.S. 483 (1955).

Question 35

To encourage citizens to visit a dentist, the state legislature enacted a law banning the sale of teeth-whitening products by any business other than a licensed dentist’s office. Under the new law, only dentists could sell these over-the-counter teeth whitening products within the state. A store sought to invalidate the law on substantive-due-process grounds. The store argued that the law was an unnecessary regulation of teeth-whitening products.

Can this law survive the store’s challenge?

Answer 35

Yes. This law can survive the store’s challenge. For non-fundamental rights, substantive-due-process challenges are reviewed under the rational-basis standard. Under rational-basis, the burden is not on the government to justify or defend its law. Rather, the federal courts broadly presume the law’s constitutional validity. To prevail, the challenger must prove that a state law is wholly irrational, meaning it lacks a rational relationship to any conceivable legitimate state interest.

Here, the ability to sell teeth-whitening products is not a fundamental right. Thus, this law should be reviewed under the rational-basis test. It is unlikely the store could meet its burden of proof that the law is wholly irrational. This law encourages dental visits and has a rational relationship to a legitimate state interest in encouraging dental health. Thus, this law could survive the store’s challenge. Williamson v. Lee Optical, 348 U.S. 483 (1955).

Question 36

Does an incompetent person have a fundamental right to refuse life-sustaining medical treatment?

Answer 36

No. Unlike competent persons, incompetent persons are unable to make a choice for themselves about desired medical care. The Court had tied its observations about competent persons having a fundamental right to refuse medical care to the competent persons’ ability to make an autonomous choice. That same rationale is inapplicable to incompetent persons.

The state has legitimate interests in preserving life and also in protecting all individuals’ deeply personal choices about medical care. Therefore, a state may require guardians to provide clear and convincing evidence that the incompetent person does not want the life-sustaining medical treatment. A state may also institute other evidentiary procedures to ensure that the guardian is accurately representing an incompetent person’s wishes. Such procedures are rationally related to the states’ interests in preserving life and protecting all individuals’ personal choices about medical care.

Cruzan v. Missouri, 497 U.S. 261, 281-84 (1990).

Question 37

Does a person have a fundamental right to end his own life through assisted suicide?

Answer 37

No. The Supreme Court has concluded that assisted suicide is not a fundamental right protected by the substantive-due-process guarantees of the Fourteenth Amendment. The Court found that throughout history, both suicide and assisted suicide were crimes. While social attitudes towards suicide may have changed, the laws consistently condemned it. Given this history, the Court could not say that assisted suicide was deeply rooted in the history and traditions of the country. Therefore, the right to assisted suicide was not fundamental.

This means that laws regulating assisted suicide will be subject to rational-basis review in the courts. In other words, such laws will be upheld if they are rationally related to a legitimate government interest (for example, the interest in preserving life).

Washington v. Glucksberg, 521 U.S. 702 (1997).

Question 38

If a plaintiff claims that a non-legislative government action violates general substantive-due-process rights, without reference to any more specific right or constitutional provision, what elements must the plaintiff prove?

Answer 38

To show that a non-legislative government action (e.g., a government official’s action) violates substantive due process, the plaintiff must show that the official’s action is deliberate and shocks the conscience and violates the decencies of civilized conduct. However, a plaintiff need not show that a law shocks the conscience to prove that the non-legislative government action violates substantive due process.

Question 39

Are the same rights deemed fundamental under both the Substantive Due Process Clause and the Equal Protection Clause?

Answer 39

Not necessarily. The U.S. Supreme Court has observed that, while profoundly connected, the Fourteenth Amendment’s Due Process and Equal Protection Clauses set forth independent principles. Rights implicit in liberty (and therefore fundamental under the Due Process Clause) and rights secured by equal protection “may rest on different precepts and are not always co-extensive.” In fact, in some instances the rights protected under each clause may be instructive as to the meaning and reach of the other. For example, the reasons that marriage was a fundamental right for substantive-due-process purposes became clearer to the Court when it evaluated, under the Equal Protection Clause, the harms that resulted from denying that right on the basis of race in Loving v. Virginia.

Obergefell v. Hodges, 576 U.S. 135 S. Ct. 2584, 2602-03 (2015).

Question 40

Concerned about unpaid child support, the state government enacted a law prohibiting the issuance of a marriage license to anyone who owed more than $5,000 in unpaid and outstanding child-support payments. A man owed $10,000 in unpaid child support. The man sought a license to marry, but he was not allowed to get a marriage license because of his unpaid and outstanding child-support payments. The man sued to invalidate the state law, arguing that it unreasonably restricted his fundamental right to marry in violation of the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution.

Is the man correct?

Answer 40

Yes. The man is correct. If a law discriminates against a group to deny a fundamental right under the Equal Protection Clause, then the law must be strictly scrutinized. To be valid, the law must:

*further a compelling government interest and
*use the least restrictive means available to achieve that interest.

Here, the right to marry is a fundamental right and strict scrutiny applies. The state has a compelling interest in both making sure children are supported financially and making a child’s legal parent provide that support. However, this law does not use the least restrictive means available to achieve these interests. The state could use more direct methods to achieve these compelling interests that would place fewer restrictions on the fundamental right to marry. The law violates the Equal Protection Clause and is invalid. Thus, the man is correct.

Obergefell v. Hodges, 135 S. Ct. 2584 (2015); Zablocki v. Redhail, 434 U.S. 374 (1978).

Question 41

What is a suspect classification for purposes of the Equal Protection Clauses?

Answer 41

Suspect classifications are those based on race, national origin, alienage, and religion. These classifications involve historically disadvantaged groups, or groups that have long suffered prejudice or discrimination; groups of discrete or insular minorities that have generally been unable to safeguard their interests by the political process; and groups defined by characteristics of birth, such as race or ethnicity.

Question 42

What standard of review do courts use under equal-protection analysis when a challenged law denies a fundamental right to a certain class of individuals?

Answer 42

Courts use strict scrutiny to evaluate laws that deny a fundamental right to a certain class. Under this standard, the government may intentionally deny a fundamental right to a certain class of individuals only if the law is narrowly tailored (using the least restrictive means) to further a compelling government interest.

The U.S. Supreme Court has reasoned that the searching judicial review required under strict scrutiny is the best way to ferret out whether a government’s true purpose in enacting a discriminatory law is constitutionally permissible, or whether the law was actually motivated by illegitimate notions about the superiority or inferiority of a given class. Discriminatory laws are almost always struck down under strict scrutiny.

Question 43

What does the Privileges and Immunities Clause of Article IV provide?

Answer 43

The Privileges and Immunities Clause of Article IV, also known as the Comity Clause, provides that citizens of each state are entitled to all of the privileges and immunities of citizens in the remaining states. This clause prohibits states from discriminating against out-of-state citizens without a constitutionally valid justification.

Question 44

What is a fundamental right under the Privileges and Immunities Clause of Article IV?

Answer 44

For purposes of the Privileges and Immunities Clause of Article IV, fundamental rights typically involve civil or commercial liberties, such as the right to conduct business within a state, the right to own private property within a state, and the right to access a state’s courts. In contrast, the U.S. Supreme Court has held that there is no fundamental right to engage in a recreational activity.

Question 45

Under what circumstances may a state deprive out-of-state residents a fundamental right under the Privileges and Immunities Clause of Article IV?

Answer 45

States denying out-of-state citizens fundamental rights must offer a substantial reason for the discrimination under Article IV’s Privileges and Immunities Clause. The substantial reason must go beyond the mere fact that the subjects of the discrimination are from another state. Instead, a discriminating state must show that nonresidents are a peculiar source of the evil the challenged law seeks to remedy. Once it has advanced this substantial justification, the state must then show a reasonable relationship between the evil that is exacerbated or caused by the nonresidents and the discrimination the challenged law imposes upon them.

Question 46

What does the Privileges and Immunities Clause of the Fourteenth Amendment prohibit?

Answer 46

The Privileges and Immunities Clause of the Fourteenth Amendment prohibits state governments from unreasonably interfering with the rights of national citizenship. The clause is interpreted narrowly to protect only a handful of rights, such as the right to interstate travel and the right to reside in any state. Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873).

Question 47

In an attempt to discourage people who need welfare benefits from moving to the state, a state adopted a law that limited the social-welfare benefits available to new residents. For the first 12 months in the state, a new resident could only collect half the welfare benefits available to longer-term residents. After the 12-month waiting period, new state residents became eligible to receive full social-welfare benefits. A new state resident filed a complaint arguing that the state’s policy of temporarily restricting state welfare benefits for new residents violated the Privileges and Immunities Clause of the Fourteenth Amendment to the U.S. Constitution.

Is the new resident correct?

Answer 47

Yes. The new resident is correct. The Privileges and Immunities Clause protects the fundamental right to travel. The right to travel includes the right to move to a new state and be treated the same as longer-term residents. U.S. citizens may choose their state of residence; states do not get to choose their citizens. Because state laws that disfavor new state residents impact a fundamental right (the right to travel), these laws are reviewed under the strict scrutiny standard. To be valid, the law must:

*advance a compelling state interest and
*be narrowly tailored to directly advance that interest.

Here, the law’s purpose is to try to deter certain citizens from moving to the state. This cannot be a compelling state interest that justifies impairing the fundamental right to travel. Thus, the new resident is correct that this law violates the Privileges and Immunities Clause. Saenz v. Roe, 526 U.S. 489 (1999); Edwards v. California, 314 U.S. 160 (1941).

Question 48

Is race a suspect class under the Equal Protection Clause?

Answer 48

Yes. Race is a suspect class under the Equal Protection Clause. This means that laws that classify persons based on race are subject to strict scrutiny. The racial classification must be necessary (narrowly tailored) to the accomplishment of a compelling government interest. This strict scrutiny applies to any law that draws a racial classification, even if the law applies equally to persons of all races, such as the laws forbidding interracial marriage struck down as unconstitutional in Loving v. Virginia.

Question 49

What does it mean to challenge a law facially under the Equal Protection Clauses?

Answer 49

A facial challenge asserts that a law discriminates on its face; that is, the very text of the law draws a distinction between similarly situated persons.

Question 50

Does the Equal Protection Clause of the Fourteenth Amendment prohibit a state from denying equal protection of the law to any person in its jurisdiction?

Answer 50

Yes. The Equal Protection Clause of the Fourteenth Amendment prohibits a state from denying the law’s equal protection to any person in its jurisdiction. The federal government must also guarantee equal protection of the laws under the Due Process Clause of the Fifth Amendment. These clauses prohibit federal, state, and local governments from treating similarly situated individuals or classes differently without sufficient justification.

The Equal Protection Clause may be implicated any time the government treats those who are similarly situated differently. In other words, the Equal Protection Clause is triggered only when the government classifies people.

Question 51

What does it mean to challenge a law as applied under the Equal Protection Clauses?

Answer 51

An as-applied challenge under the Equal Protection Clauses asserts that in practice, the challenged law is being administered in an unconstitutional way, even though its actual text appears neutral.