PDP/SDP/EP/2nd Am

Question 1

What is rational basis review?

Answer 1

the governmental action must be rationally related to a legitimate government interest

Question 2

What is intermediate scrutiny?

Answer 2

the governmental action must further an important government interest in a way that is substantially related to that interest

Question 3

What is strict scrutiny?

Answer 3

the governmental action must be narrowly tailored to further a compelling government interest by the least restrictive means

Question 4

What are the critical inquires of PDP?

Answer 4

notice and an opportunity to be heard

Question 5

what constitutes deprivation by the govt in PDP analysis?

Answer 5

purposefully/intentionally depriving a person of a life/liberty/ppty interest constitutes deprivation

Question 6

what constitutes a ppty interest for purposes of PDP? what is required in the case of govt benefits?

Answer 6

a person clearly must have more than an abstract need/desire for it or a unilateral expectation of it – he must, instead, have a legitimate claim of entitlement to it

government benefits can constitute a ppty interest for purposes of DP, but only where the employee had a reasonable expectation (not an abstract need/desire) of receiving the gov’t benefit

Question 7

what constitutes a liberty interest for purposes of PDP? common examples?

Answer 7

a liberty interest may arise from the Constitution itself, by reason of guarantees implicit in the word “liberty,” or it may arise from an expectation/interest created by state law/policies

• common examples
o right to education (Goss)
o right to parental custody (Stanley)
o **any change in legal status

Question 8

what is your PDP analysis?

Answer 8

1) was there a deprivation?
2) did the depravation impact life/liberty/ppty?

3) Mathews: was the process sufficient? Factors:
 (1) the private interest that will be affected by the official action,
 (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards,
 (3) the gov’t’s interest, including the function involved and the fiscal and administrative burdens that the additional/substitute procedural requirement would entail (deference given to the administrative agency)

Question 9

what is the premise of SDP?

Answer 9

the concept that there are unwritten individual rights that should be judicially protected against gov’t invasion – i.e. there is no level of process that is sufficient to have these rights encroached upon

Question 10

what review for SDP of economic rights? what is the only surviving issue and the test?

Answer 10

rational basis

Only surviving - punitive dmg awards
o rule: only when an award can be categorized as grossly excessive in relation to a state’s legitimate interests does it enter the zone of arbitrariness that violates the DPC of the 14th Am

o Gore Guideposts:
 (1) degree of reprehensibility of ∆’s conduct
• i.e. is it purely economic or trickery/deceit/concealment
 (2) ratio of punitive damages to compensatory damages
• few awards exceeding a single-digit ratio between punitive and compensatory damages will satisfy DP (Campbell)
 (3) sanctions for comparable misconduct

Question 11

what are the three areas of SDP still alive today?

Answer 11

o (1) express violations of BOR provisions
o (2) breakdowns in the political process
 those that can ordinarily be expected to bring about repeal of the legislation (like the right to vote, assemble, etc.)
 discriminatory measures directed at discrete and insular minorities
• (3) violations of privacy rights

Question 12

what is your SDP privacy rights analysis? how do we determine fundamental rights?

Answer 12

• (1) courts determine whether a claimed right is a “fundamental right”
o fundamental right: those rights and liberties which are objectively deeply rooted in this Nation’s history and tradition and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed (Washington v Glucksberg)
o **common alternative: sometimes courts will use a “collective conscious” analysis and base their conclusion NOT upon history and tradition, BUT UPON the trend of modern legislation and society (ex – Lawrence v Texas)

• (2) if so – strict scrutiny (i.e. cannot be over/under inclusive); if not – rational basis

Question 13

what are the six protected SPD privacy rights that we know of?

Answer 13

contraceptive use
abortion
family relationships
the right to die
consensual sexual choices
marriage

Question 14

SDP contraceptive use rule

Answer 14

• 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 the decision whether to bear or beget a child (Eisenstadt v Baird)

Question 15

SDP abortion rule

Answer 15

• governing rule: a statute which, while furthering a valid state interest, places a substantial obstacle in the path of a woman’s choice to abort a nonviable fetus cannot be considered a permissible means of serving its legitimate ends (Planned Parenthood v Casey)

o reworks Roe into a simple viability inquiry:
 (1) prior to viability, the State must be pursuing a legitimate state interest (life of the fetus), and in doing so, cannot impose a substantial obstacle in the way of the mother’s right to abort
• i.e. you can set up structural mechanisms to protect the life of the fetus but never at the expense of the mother’s ultimate choice to choose

 (2) subsequent to viability, the State may regulate so long as the abortion is not necessary for the life or health of the mother

Question 16

unconstitutional conditions doctrine

Answer 16

the government may not penalize the exercise of a constitutional right but may refrain from subsidizing the exercise of that right (Maher, Harris) – i.e. no affirmative duty to act/assist

Question 17

SDP family rights rules (4)

Answer 17

• rule: there is a fundamental right for a family to choose to live together (Moore)
o extends beyond the nuclear family to uncles, aunts, cousins, grandparents, grandchildren

• rule: parents have a fundamental right in the care, custody, and control of their children (Troxel)
o so long as the parent is adequately fit, there will normally be no reason for the State to inject itself into the private realm of the family to further question the parent’s decisions about child rearing

• rule: the familial liberty interest is not confined to families with married parents (Stanley v IL)
• rule: where a natural father can establish an existing functional relationship with his children, deprivation of his interest “in the companionship, care, custody, and management of his children” warrants application of strict scrutiny (Stanley v IL)

Question 18

SDP regarding the right to die

Answer 18

• rule: there is a fundamental right to refuse unwanted medical care
o **the decision is personal, so for an incompetent individual, family members do not have a fundamental constitutional right to make the decision on behalf of the incompetent individual

• exception: there is no fundamental right to assisted suicide, whether the patient wants medical assistance to end their own life (Washington v Glucksberg), or whether the patient wants the right to refuse life-saving medical treatment (Vacco)
o i.e. no fundamental “right to die”

Question 19

SDP consensual sexual choices rule

Answer 19

personal sexual choices that are private and between consenting adults are outside the control of govt legislation

Question 20

SDP right to marry (3 rules)

Answer 20

• rule: there is a fundamental right to marry or not marry another person (Loving v VA)
o reasonable regulations that do not significantly interfere with decisions to enter into the marital relationship may legitimately be imposed (Zablocki)

• rule: prison inmates have a right to marry (Turner v Safley)
• rule: the right to marriage extends to same-sex couples (Obergeffel v Hodges)

Question 21

what are the three major categories of EP violations

Answer 21

class-based claims
class of one claims
fundamental rights claims

Question 22

what is the default EP standard of review? what purposes will the court look at

Answer 22

rational basis
• must show:
o (1) that the legislation does not rationally advance a legitimate state objective – i.e. the means fail, OR
o (2) that no matter how well the legislation serves the objective, the objective is not legitimate – i.e. the ends fail

in determining legislative objective, the court may look at stated, actual (Brennan), or even conceivable (Rehnquist) objectives (Fritz)
***so long as legislatures can regulate the area as a whole, they can regulate piecemeal for any conceivable rational purpose (so long as the line is not arbitrarily drawn), without interference from the court

Question 23

how does rational basis with a bite work? where does it apply? what are the unifying qualities of these cases?

Answer 23

while purporting to apply rational basis review, the court appears to only consider the actual purpose of the legislature and invalidating the govt’l action based upon illegitimate govt’l purposes (more strict review of means to ends)
o rule: a bare desire to harm (animus) a politically unpopular group cannot constitute a legitimate governmental interest

applies in Equal Protection Cases

o unifying qualities of these types of cases:
 gov’t acting out of an irrational hostility/animus towards an unpopular group
 depriving members of an important right/interest while obtaining little, if any, actual advancement of legitimate (non-irrational animus) govt’l interests

Question 24

what do you have to show to get strict scrutiny for EP analysis?

Answer 24

for heightened scrutiny to apply, the burden is on the challenger to show that a law is (1) purposefully discriminatory, (2) on the basis of a protected classification

Question 25

what are the three primary methods of purposeful discrimination under EP? what is the key thing to note here?

Answer 25

 (1) Facially Discriminatory Classifications
• ex) Loving v VA (express text of the legislation said no interracial marriage)
• intent is presumed
 (2) Neutral Classifications Applied in a Discriminatory Manner
• ex) Yick Wo v Hopkins (law banning wooden laundromats applied to everyone on its face, but in application, it was only exercised against the Chinese, even though there were plenty of white wooden laundromats)
 (3) Neutral Classifications Motivated by Discrimination that Produce a Discriminatory Effect
• ex) Gomillion v Lightfoot (new map for city excludes African Americans for voting purposes – lines were drawn specifically to cut out minorities)

o note: a mere disproportionate effect is insufficient to trigger strict scrutiny – the invidious quality of the law claimed to be racially discriminatory must ultimately be traced to a racially discriminatory purpose (Washington v Davis)

Question 26

what are the four “discrete and insular minorities” for purposes of EP analysis?

Answer 26

o Race
o Ethnicity
o National Origin
o Lawful Resident Aliens

Question 27

EP: what are the three principles for assessing the constitutionality of race-based classifications by govt in govt contracting/employment? what does the govt ultimately need to show that its program does?

Answer 27

• (1) strict scrutiny should be applied whenever govt’l preferences are based on racial/ethnic criteria

• (2) the standard of protection under the EPC is not dependent on the race of those burdened/benefitted by a particular classification,
o i.e. discriminating to favor minorities gets strict scrutiny as well
AND
• (3) EPC protections apply to States and the fed govt equally
o used to be stricter for the states (Metro Broadcasting)

to utilize a race-conscious AA program, the relevant govt’l entity must identify public or private discrimination w specificity and may only use a race-conscious solution to address the specific established injury (J.A. Cronson Co.)
• **to make a sufficiently specific showing, the govt’l entity cannot rely upon:
o (1) an amorphous claim or generalized assertion of past discrimination
o (2) a disparity btw minority demographic numbers and the relevant number of minority participants (like the number of minority subcontractors in Richmond)
o (3) findings of discrimination in other juris or nationwide by Congress

Question 28

EP: what is the general rule regarding AA in schools? what are the compelling interests in higher education and public schools?

Answer 28

o general rule for AA in all schools: schools are not permitted to engage in “racial balancing for race’s sake” (constitutionally impermissible under Bakke)

 the court has recognized only two compelling interests in this area:
• in higher education: achieving a diverse student body is fundamental for the sharing of knowledge and ideas
• in public schools: remedying the effects of past discriminatory practices in that school district

Question 29

EP: what is the rule for AA programs in higher education? what does this ultimately mean?

Answer 29

 governing rule: in a permissible AA program, race or ethnic background may be deemed as a “plus factor” in a particular applicant’s file, yet it does not insulate the individual from comparison with all other candidates for available seats (Bakke)
• **compelling govt’l interest in achieving a diverse student body (and the benefits that flow from that)

• i.e. race considerations must be mixed in with other factors (grades, leadership potential, work experience) so that the program treats each applicant as an individual in the admissions process

Question 30

EP: what is the rule for AA programs in public schools? what does this ultimately mean?

Answer 30

 governing rule: desegregation of schools requires that the state/local school districts being affected have been a substantial cause of interdistrict segregation (Milliken)
• **compelling govt’l interest in remedying the effects of specific past discrimination in the district

Question 31

EP: governing rule and 3 exceptions for race and the political process

Answer 31

o general rule: voters may restructure the political process to place obstacles in the paths of anyone and everyone who is seeking to secure the benefits of govt’l action

o Exceptions
 you may not deny a politically unpopular group access to the political process (Romer)
 when the political process or decision-making mechanism used to address racially conscious legislation (and only such legislation) is singled out for disadvantageous treatment, the govt’l action plainly rests on distinctions based on race and is therefore invalid (Hunter)
 you may not stack limitations (Schuette)
• rule: strict scrutiny will apply where a political process limitation is imposed that (while facially neutral) …
o (1) moves political decision-making to a higher, more difficult to impact level for minority voters, AND
o (2) when this modification of the political process is (a) designed to, or (b) likely to be used to encourage the infliction of injury by reason of race

Question 32

EP: general rule and exceptions for lawful resident aliens

Answer 32

o general rule: strict scrutiny applies to classifications that distinguish these individuals from other citizens
 **you’ll see this only really applies to the states when they are not legislating on a matter of political function

o however: the court will use rational basis review of laws that distinguish citizens and lawful resident aliens from persons in the US illegally

o federal action exception: strict scrutiny does not apply to federal govt’l action distinguishing between citizens and lawful resident aliens – i.e. use rational basis (Mathews v Diaz)
 exception to the exception: strict scrutiny will be used if an administrative agency is the actor (unless the action was expressly authorized by Congress)

o political function exception: states have broad powers to define their own political community (ex – power to exclude lawful resident aliens from serving on juries or voting)

Question 33

EP: sex-based classifications - what is the SOR and what are the general takeaways?

Answer 33

• rule: intermediate scrutiny
o general conclusions (US v Virginia – military college case):
 if the law discriminates based on a biological difference between men and women, it is likely valid

 if the law discriminates based on a stereotype/generalization of men and women, it is likely invalid

Question 34

EP: classifications on illegitimate children - what is the SOR

Answer 34

• rule: intermediate scrutiny

Question 35

EP: what is the SOR for class of one claims?

Answer 35

rational basis

Question 36

what are the three recognized EP fundamental rights? what level of scrutiny applies?

Answer 36

the right to vote
the right to access the judicial process
the right to interstate migration (now in the 14th Am’s privileges & immunities clause)

STRICT SCRUTINY

Question 37

EP: general rule on denying the fundamental right to vote

Answer 37

• general rule: restrictions on citizenship and residency in voting are not subject to strict scrutiny, BUT restrictions upon voters who are, by citizenship and residency, eligible to vote will be subject to strict scrutiny (Kramer)

Question 38

EP: general rule on voting dilution; SOR; rule on gerrymandering

Answer 38

• rule: EP requires that the seats in both houses of a bicameral state legislature be apportioned on a population basis (Reynolds v Sims)

SOR: per se unconstitutional

• gerrymandering (manipulating the boundaries of voting lines to benefit one’s party/class) is a political question, and thus nonjusticiable (Rucho)
o “packing and cracking”
o however, in racial gerrymandering cases, we rely on a predominant intent inquiry

Question 39

EP: expand on the right to judicial process in criminal cases

Answer 39

• rule: indigent criminal defendants cannot be required to pay a fee for their trial transcript (i.e. discrim based on wealth) which they need in order to appeal – state govts are not required to provide for appeals, but if you do, you cannot add this caveat (Griffin)

Question 40

EP: what is the foundation of the right to judicial process in civil cases

Answer 40

• based heavily on the fundamental rights underlying family relationships and the denial of process to resolve related disputes

Question 41

what is our main rule in 2nd am cases? does it apply to the states?

Answer 41

o majority: the 2nd Am right is the right of individuals to protect their homes and act in self-defense

under Due Process, the framers viewed this as a “fundamental liberty,” so yes, the federal approach has been incorporated against the states