Rights and Liberties/ Limits on Gov Power

Question 1

Reconstruction Amendments: 13

Answer 1

– criminalizing slavery, overturned Dred Scott
* Only provision that applies to private individuals

Question 2

Reconstruction Amendments: 14: Citizenship Clause

Answer 2

“All persons born or naturalized in the U.S. are citizens of the U.S. & State
within they reside (citizenship clause)

Question 3

Reconstruction Amendments: 14: P & I clause

Answer 3

No State … Shall abridge the privileges or immunities of Citizens of the U.S.
(privileges or immunities clause)

Question 4

Reconstruction Amendments: 14: Due Process Clause

Answer 4

nor shall any state deprive any person of life, liberty, or property without due
process of the law (Due Process Clause)

Question 5

Reconstruction Amendments: 14: Equal Protection Clause

Answer 5

nor deny to any person within jurisdiction equal protection of laws (Equal
Protection Clause).

Question 6

Reconstruction Amendments: 15

Answer 6

Right of citizens of the U.S. shall not be denied or abridged by the U.S. or any
State on account of race, color, or previous condition of servitude

Question 7

Historical Due Process/ Lochner Era: Slaughterhouse Cases

Answer 7

• Basically, eradicated chance for privileges and immunities clause to have any
  independent meaning b/c applies only to things conferred as US citizen under the US government (does not mean states)

P&I will never be answer if about state issue

Question 8

Historical Due Process/ Lochner: Economic Substantive Due Process

Answer 8

• Plaintiffs began using the Due Process Clause to enforce constitutional rights against the states = Lochner Era (1897-1937)
• Idea of liberty limited to fundamental rights such as:
• Freedom of contract
• Pursue an occupation
• Autonomy (parental rights)
• Used Direct and Substantial Test to see if regulation was constitutional (OLD LAW,
  not used in modern analysis)
• Does the law have a direct and substantial relationship to the police power (regulation of health, safety, welfare, morality of citizens)?

Demise of Economic Substantive Due Process
Lochner Era / Beginnings of EPC
Demise of Economic Substantive Due Process
* Govt. realized needed to be able to control economic activities of the states after
the Great Depression
* Started using rational basis test for any rights violations having to do with economic
purposes i.e., contract, occupation, business etc.
* As long as the challenged regulation is “reasonable,” rather than arbitrary or discriminatory, it does
not run afoul of the Constitution
* If you’re challenging a law under “rational basis,” you have to show there is NO rational reason for the
law

Question 9

Early Beginnings of Equal Protection

Answer 9

• Protection against gov’t creation of invidious classifications/fundamental rights
• Strict scrutiny
• Skinner v. Oklahoma = Right to procreate is fundamental right
• Korematsu – even fundamental rights can be substantially interfered with if there is a compelling govt. interest (national security, national health vaccinations etc.)
• Brown v. Board of Education – Segregation in education unconstitutional

Question 10

Return to Due Process

Answer 10

Griswold v. Connecticut
* Used “penumbra of privacy” as a way to return to the DPC to enforce the
Constitutional rights against the states
* Privacy itself in modern analysis is NOT a fundamental right
* Held right to use contraceptive within marriage is a fundamental right
Meyer v. Nebraska
* Parents’ right choose children’s upbringing
Loving v. Virginia
* Right to marriage is a fundamental right
* Interracial Marriage restrictions is unconstitutional under the EPC and DPC
Duncan v. Louisiana
* Right to trial by jury in all criminal cases = fundamental right

Question 11

Three Aspects of Due Process

Answer 11

1.** Incorporation: constitutionally protected rights not textually applicable to that
sovereign are encompassed within the substantive “liberty” protected against federal
or state deprivations
2. Substantive due process: protections for nontextual, yet “fundamental rights” or
constitutionally protected “liberties,” from arbitrary government interference
(autonomy rights)
3. Procedural due process:** ensures that government actions depriving persons of life,
liberty, or property have appropriate safeguards to limit the likelihood of an erroneous
deprivation.

Question 12

Incorporation

Answer 12

• The process by which the original Bill of Rights in the Constitution have
  been incorporated into the 14th amendment to apply to the states
• Ask whether the right guaranteed is fundamental (not necessarily ever application)
  NOT Fundamental Rights
  o NO jury right in civil cases (7th Amendment)
  o NO right to quartering soldiers in peacetime (3rd Amendment, just because not any cases in SC)
  o NO right to grand jury indictments (5th Amendment)
  Fundamental Rights
  o Right to free speech / religion / association (1st Amendment)
  o Right to self defense of home using handguns (2nd Amendment) (Heller)
  o Right to no unreasonable search and seizures (4th Amendment)
  o Right to jury in criminal trials (6th Amendment)
  o Right to no excessive fines / bails, cruel/unusual punishment (8th Amendment) (Timbs)

Question 13

Substantial Due Process Steps for non-textual rights

Answer 13

**1. Define Liberty at Stake **

**2. Determine whether the asserted liberty is fundamental or otherwise subject to heightened scrutiny

**3. Consider whether the asserted liberty has been infringed or substantially impaired by the government **

**4. Apply the appropriate level of scrutiny **

Question 14

SDP Reproductive Autonomy

Answer 14

• Right to use contraceptives = fundamental (Griswold extended
  outside marriage)
• Right to procreate = fundamental (Skinner even though basis was
  Equal Protection when decided)
• Right to an abortion =
• Roe – fundamental right – trimester framework
• Casey – fundamental – undue burden test
• Dobbs- Not fundamental so now abortion regulations gets a rational basis test
• created new test for “fundamental” rights
• Deeply rooted in history/trad or integral part of broader right

Question 15

SDP Medical Autonomy

Answer 15

• Right to refuse unwanted medical treatment = fundamental right
  (Cruzan)
• EXCEPTION
• person is in a coma, basically only supported by machines and cannot give
  directive to doctors about wishes
• Use Balancing scrutiny test
• Right to refuse hydration / nutrition = fundamental (Glucksberg)
• Right to physician assisted suicide = NOT fundamental
  (Glucksberg)
• Right to Bodily Integrity = fundamental (4th amendment, “right of
  people to be secure in their persons…)

Question 16

SDP: Family and Intimate Relationship Autonomy

Answer 16

• Right to Marry = Fundamental (Loving)
• Right to Marital Privacy = fundamental (Griswold/Obergefell)
• Right to control upbringing of children = fundamental (Meyer)
• Right to Custody of One’s Own Kids = fundamental (Michael H)
• Right of relationship with child = fundamental (Michael H)
• Possible exception = natural adulterous father (Michael H)
• Rational basis
• Right of Choice in extended family living arrangements = Balanced scrutiny (Moore v.
  Cleveland)
• Right of self-autonomy w/r/t intimate relationships = appears to be fundamental
  but SC has not explicitly stated it (Lawrence)
• Balancing scrutiny
• Indicated possibly fundamental in Lawrence but did not hold fundamental
• Lawrence only rejected TX legitimate moral interest for invasion and intrusion into personal and
  private life of consenting individuals

Question 17

SDP Pre and Post Dobbs Fundamental Rights Analysis

Answer 17

**Pre Dobbs: **looked at :

precedent (Skinner, Loving, Griswold) or

history and traditions or

ethical principles of ordered liberty (reasonable judgment)

**Post Dobbs: **

Deeply rooted in history and tradition & essential to concept of ordered liberty or

Integral part of a broader entrenched right supported by other precedents

Is looking around year of 1868 (usually)

Question 18

Strict Scrutiny

Answer 18

Requirement:

Must be for some **compelling government interest/purpose **

**Necessary (is the means) (synonyms: narrowly tailored, least resistant means) **

• Ex: winning war, protecting life, safeguarding welfare of children, public health, Remedying prior discrimination

Question 19

Rational Basis

Answer 19

the law will be unconstitutional only if the challenger establishes that there is no basis to conclude that the law has any conceivable rational relationship to any possible legitimate government interest.

As long as law has some kind of rational relationship to **leg. Government purpose **

Question 20

Considerations in Overruling Precedent

Answer 20

Nature of the court’s error

They could have messed up interpretation before (like Plessy)

**Quality of the reasoning **

**Workability **

Precedents rules were not understandable and risk inconsistent decisions in the future

**Effect on other areas of the law **

Like standing (but the person who brought it was a third party lol)

**Reliance **

Question 21

Procedural Due Process

Answer 21

Provides procedural safeguards against
government actions
* Govt. can deprive individuals of life, liberty or
property if individual is afforded due process of
law
* This guarantee ensures the state has adopted
adequate procedural safeguards against
erroneous deprivations
* Typical remedy is using additional safeguards
regarding notice and opportunity to be heard
* NOT prohibiting action to occur BUT
* Will order NOT to take place until additional
safeguards implemented

Does not define new rights, simply refers to
the procedure that the government must
follow before it deprives your life, liberty,
property.
PL seeks to have a government action
declared unconstitutional because of the lack
of safeguards

Question 22

Procedural Due Process Framework Steps

Answer 22

(1) What “life, liberty, or property” interests are protected?
(2) Has the interest been deprived by government action?
(3) What procedural safeguards are required?

Question 23

(1) What “life, liberty, or property” interests are protected? pdp

Answer 23

Life- common sense
* Liberty- freedom from physical restraint; all fundamental rights from
substantive due process (marriage, etc), all rights listed in Meyer case
(occupation, contract, etc.)
* Does not include a particular job
* Property - personal and real property, money, intangibles; any
government benefit that you have a legit claim of entitlement to.
* NO entitlement: govt is giving out benefits at its own discretion
* ENTITLEMENT: may take many forms: welfare, government licenses, even govt jobs
* If you currently enjoy the benefit, and
* Under the law if the govt says that you can keep it unless
good cause shown or unless you don’t meet the
requirements
* Look at source of entitlement (contract, state statute)
1. If govt job: if the government sets up the job in a way
that you can remain unless good cause, then
entitlement. If at-will, just an expectancy and you can be
summarily fired

Question 24

(2) Has the interest been deprived by government action? pdp

Answer 24

This requires a deliberate action by the government, rather than mere negligence or even recklessness.

Moreover, the deprivation must be through the action of the government, or at least through a private entity that has been deemed so closely interconnected with the government that it is a “state actor” for certain purposes

• administrative, executive, or adjudicative acts
  (not against legislature)
• Deprived by fed gov- use the 5th
• Deprived by states- use the 14th

Question 25

(3) What procedural safeguards are required? Matthews Balancing pdp

Answer 25

1. Private interest
2. Risk of erroneous deprivation & benefit of additional procedures
3. Government Interest (includes fiscal)

notice and opportunity to be heard must be given

Question 26

Equal Protection Clause

Answer 26

1)EPC of the 14th provide “No State shall…deny to any person within its jurisdiction
the equal protection of the laws
2)No comparable clause applying to the Federal government, the S.C. has held that
the “liberty” aspect of the Fifth’s DPC “reverse incorporates” the equal protection
guarantee under the federal government
3)Overriding purpose of the EPC is to prevent invidious discrimination, that is
discrimination based upon prejudice
a) ONLY when discrimination is invidious can the equal protection guarantee be
violated
b)Usually arises when the
i) classification is made on an illegitimate, “suspect” basis (race, national
origin, alienage, gender etc.) OR
ii) When the classification infringes on certain fundamental rights (ones
specific to EPC addressed later in PowerPoint)

Question 27

EPC framework steps

Answer 27

• 1) Identify the Classification
• 2) Determine whether the classification is
  “suspect” or “quasi suspect”
• 3) Apply the appropriate scrutiny level

Question 28

1) Identifying the Classification epc

Answer 28

*Identify the classification
* Text/face
* Purpose & effect
* Impact
* -historical background
* -sequence of events
* -procedural departures
* -substantive departures
* legislative or administrative history
* “because of” the discriminatory purpose/outcome

Question 29

1a) Identifying the
Classification: Text/Face

Answer 29

• is it general economic factors or is it one of the suspect classes?
• Race, ethnicity, national origin
• Citizenship
• Fundamental rights
• Sex
• Non-marital children
• Age, disability, wealth, economic matters, non-citizens

Question 30

1b) Identifying the
Classification: Purpose/Effect

Answer 30

o How to Determine Proof of discriminatory purpose/intent:
* Impact of the official action (Washington)
* Have to establish a “bad” purpose
* Applied with purpose to discriminate? SUSPECT
* If neutrally written AND applied, with disproportionate effect on suspect
class? NOT suspect & use rational basis
* Washington v. Davis
* Disproportionate impact alone does not trigger the rule that the
classifications are subject to strict scrutiny
* Proof of discriminatory intent or purpose is required to show a EPC violation
* Sometimes clear pattern, unexplainable on any other grounds than
discrimination
* Absent pattern go on to next factors
* Historical Background of the decision for the regulation (Village Ar. Hgt)
* Sequence of events leading up to decision
* Departures from normal procedural sequence (ex: changes in rules & regulations)
* Substantive departures (ex: changes in demographic make-up)
* Legislative or Administrative History
* Contemporary statements by members of decision-making body
* Meeting minutes or reports
* Even if the original purpose for a regulation is very old, still look to that purpose when
assessing if there is a discriminatory purpose in the law
* “Because of” the discriminatory purpose/outcome (Feeney)
* Discriminatory purpose implies more than intent as volition or as awareness of consequences
* Requires:
1. More than mere awareness or knowledge of consequences
2. Govt MUST desire these consequences, selecting course of action at least partially
“because of” its effects on a clearly identifiable group
EPC prohibits challenging potential jurors solely on race, gender or ethnicity

Question 31

Step 2. Determine whether a classification is
SUSPECT or QUASI-SUSPECT epc

Answer 31

• Determine whether a classification is SUSPECT or QUASI-SUSPECT
• Classifications based on Precedent
  *** Race, ethnicity, national origin – STRICT
• Citizenship – STRICT (usually)
• Exceptions – (use rational basis)**
• Political rights & political functions (discrimination from jobs that are intimately
  connected with representative democracy)
• If the classification is made by president or Congress, rather than a state
• Unlawful entry into US – state CAN discriminate against undocumented
  individuals (exception to exception: children of undocumented individuals are
  entitled to a public education – Plyler)
• Precedent (continued)
  * Fundamental Rights: implicitly or explicitly protected by the
  constitution/ related to substantive due process (STRICT –suspect)
  * Right to vote & participate in political process
• Dilution of votes
• Limitation on voting outside age, residency, citizenship
• Poll taxes – 24thA
• Balance the burden on the right to vote against the state interest asserted
  * Right to interstate travel
• Right to travel from state to state
• Right to be treated as a welcome visitor (Article IV priv/imm)
• Right to become a citizen of a new state & treated as a citizen – durational residency
  requirements that kept people from getting state benefits – like welfare (14A priv/imm)
  * Right to court access to protect fundamental interests
  * Sex: QUASI-SUSPECT (Intermediate)
  *Non marital children: quasi suspect (intermediate)

**Age, disability, wealth, economic
matters,education, non-citizens – RATIONAL
BASIS
**

Question 32

3) Apply Appropriate Level of
Scrutiny epc

Answer 32

* Strict Scrutiny
* the classification must be necessary or the least restrictive means to
serve a compelling govt. interest
* Intermediate scrutiny:
* Requires there be a “substantial” relationship between the
classification
and an “important” governmental interest
* Rational basis:
* Classification rationally related to achieving a legitimate governmental
purpose
* Rational basis w/ a bite:
* Similar to rational but little more strict due to animus against a group

Question 33

Factor test for epc if no precedent

Answer 33

History of Discrimination

Political power

Immutable

Validity or legitimacy in general of classification

Question 34

Strict Scrutiny EPC

Answer 34

* Suspect classifications
* Race/Ethnicity
* National Origin
* Alienage (unless political position exception)
* Infringes SDP fundamental rights
* NO presumption of constitutionality – burden is on the
government to prove it ISN’T unconstitutional
* First: determine purpose sought by classification (is it a
compelling govt interest?)
* Second: is it a necessary/least restrictive/narrowly tailored
means to achive that end
* Purpose sought by classification (compelling govt interest)
* Affirmative action: To remedy past intentional government discrimination or
racial balancing
* Imminent racial violence (to prevent)
* NOT LEGIT: racial balancing, societal (as opposed to governmental)l
discrimination
* (formerly) educational benefits from a diverse student body
* Necessary/least restrictive/narrowly tailored means to achieve that
end
* need for racial considerations/alternatives/over- or under-inclusive
* Flexibility
* Duration
* impact on innocent third parties
* quota considerations

Question 35

Strict Scrutiny Dispirate Impact EPC

Answer 35

• If a law is neutral on its face, it will not be
  invalidated solely on the ground that it
  has a disparate impact or effect on
  certain racial or ethnic
  groups. (Washington)
• However, even if a law is facially neutral,
  it is invalid if it has both:
• (1) a disparate impact on certain racial or
  ethnic groups and
• (2) a discriminatory intent.

Question 36

Strict Scrutiny – Racial
Balancing/Societal Discrimination epc

Answer 36

• Remedying societal/private discrimination NOT compelling
• Disproportionate impact alone does not justify use of racial
  affirmative action remedies
• Evidence of racial discrimination in other similar cities,
  standing alone, is not enough to justify affirmative action
  regulation
• Evidence of a lower % of a race vs. an average % of that same
  race in an industry is NOT a compelling purpose
• A generalized assertion that there has been past discrimination gives no
  way for Court to see if the regulation is narrowly tailored
• Government cannot use quotas in remedying past discrimination = racial
  balancing

Question 37

Strict Scrutiny – Race Outside
University Admissions epc

Answer 37

• The govt. can NOT make laws that treat people
  differently based solely on their race
• However the govt. does have a compelling interest to:
• Remedy past and present purposeful government discrimination
• Formerly: Achieve the educational benefits that flow from a diverse
  student body
  * Factors (outside university admissions) in deciding if race
  conscious remedies are appropriate:
• Necessity for relief and efficacy of alternative remedies
• Flexibility of relief including waiver provisions
• Duration of relief (can not go on forever)
• Impact of relief on rights of third parties
• Applicable quota rule

Question 38

Strict Scrutiny – University Racial Affirmative Action epc

Answer 38

*Students for Fair Admissions v. Harvard
*Harvard and UNC admissions programs cannot be reconciled with the guarantees of the Equal Protection
Clause. Both programs lack sufficiently focused and measurable objectives warranting the use of race,
unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points
*nothing in this opinion should be construed as prohibiting universities from considering an applicant’s
discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise. But
[universities] may not simply establish through application essays or other means the regime we hold
unlawful today
*Students for Fair Admissions (SFFA) did not explicitly overrule the Court’s earlier holdings in Grutter and
Fisher II upholding the admissions programs considering race at the University of Michigan’s law school and
the University of Texas, respectively – (Rhodes Comment: The Court makes clear that, in the future,
universities wishing to discriminate based on race in admissions must articulate and justify a compelling
and measurable state interest based on concrete evidence. Given the strictures set out by the Court, I
highly doubt any will be able to do so)

Question 39

Strict Scrutiny – Alienage epc

Answer 39

o Frequently subject to strict scrutiny = for lawfully admitted residental aliens
o Non-citizens: EPC protects persons, not citizens (at local/state govt), unless a primarily political
dimension (voting, serving on juries, certain govt jobs)
o If over- or under-inclusive, will undercut legit govt purpose
o Even if suff tailored, can only apply to those who participate directly in the formulation,
execution, or review of broad public policy at the heart of representative government
o Protecting limited financial resources is NOT a compelling interest
o Exceptions to Strict Scrutiny (gets rational basis)
1. Can be excluded from voting, holding public office, or serving on juries, and can
be excluded from certain jobs or positions closely related to process of
democratic self government
o Cops
o School teacher s
o High political positions
2. Undocumented aliens (adults)
3. Undocumented alien children (hints at intermediate scrutiny)

Question 40

Strict Scrutiny – Fundamental
EPC Rights

Answer 40

 Right to vote
 Deny
 Substantially interfere with or
 Dilute weight of votes
 Requires a State make an honest and good faith effort to construct districts, in both
houses, as nearly of equal population as is practicable
 States have power to impose reasonable citizenship, age, and residency
requirements on availability of the ballot
* Distinguished evenhanded restrictions that protect integrity and reliability of
electoral process
o IF state’s voting restrictions are supported by a legitimate state interest (e.g.
preventing fraud, safeguarding public confidence), Court will
 NOT apply strict scrutiny
 Balance burden on the right to vote vs. state’s asserted interests
 Right to Interstate Travel
 Any classification which serves to penalize right of people to move from one state to another and
inhibiting migration is subject to strict scrutiny
 States cannot impose a waiting period to qualify for public assistance, voting eligibility, or free medical
care
 NOT compelling Interest
 Financial integrity IF of state public assistance to discourage poor from moving
 Discouraging poor from moving state solely for benefits
 Period appropriately distinguished between new and old residents based on tax contributions
 Tailoring upheld if risk benefits are portable and benefits are not irretrievably closed
 Waiting period for divorce
 Waiting period for in-state tuition rates
 Waiting period for political party registration voting in primaries
 Privileges and Immunities Clause of the 14th protects the permanent residence component of the right
to interstate travel (only time use P/I 14th as answer on exam)
 does not provide for nor allow degrees of citizenship based on length of residence
 does NOT tolerate subclasses within a state based on prior residence
 right to be treated equally in new state of residence

Right to Court Access
 EPC and PDP concerns when economic barriers preclude court access
to assert fundamental rights
 To have constitutional requirement to waive fees, case has to
implicate fundamental rights
 Balanced scrutiny
 Individual interest v. state’s justification for demanding costs
 Divorce, parental custody/rights where state terminating right
 criminal cases, cannot use economic barrier

Question 41

Intermediate Scrutiny epc

Answer 41

NO presumption of constitutionality – government has
burden to show it ISN’T unconstitutional
Must be substantially related to an
important/substantial/significant government interest
 Sex: “real differences”
i. Affirmative action: cannot rely on broad stereotypic
notions about men/women
 Non-marital children: cannot put the sins of the parent on
the child

Question 42

Intermediate Scruitny- gender epc

Answer 42

 Classifications in laws based on gender discrimination get intermediate scrutiny
 Government MUST prove that the classification is substantially related to a
significant or substantial government interest
 Intermediate scrutiny applies to discrimination against men as well as women
 If the objective in the classification is to exclude or protect members of one
gender based on a presumption that the gender suffers an inherent handicap
the classification in the regulation is illegitimate
 Courts upheld gender discrimination as permissible when the regulation is
based on inherent, immutable physical differences between gender that are
basis of law
* Justification cannot rely on overbroad generalization that reinforce archaic
stereotypes about the different genders

 Substantial Interests
 Remedy past societal discrimination in area law is trying to address
* Compensate genders for economic disabilities they have suffered
* Promote equal employment opportunities
* Advance full development of talent and capacities of Nation’s
people
* Single sex education offers some educational benefits and can
possibly offer diversity among institutions in the state
o Must show that there are similar offerings, methods of education
and quality of other institutions (U.S. v. Virginia)

Question 43

Intermediate Scrutiny – Non-
Marital Children epc

Answer 43

Classifications in regulations based on
illegitimacy must pass intermediate scrutiny
* Clark v. Jeter
 Invalidated statute requiring child-support actions
for out-of-wedlock children be brought before
child turns six years old

Question 44

Rational basis epc

Answer 44

 The classification must be rationally related to a legitimate
government purpose
 Types
 Age
 Wealth
 Disabilities
 Sexual Orientation
 Socioeconomic Schemes that do NOT affect fundamental rights
 regulation of business/industry
 laws restricting availability of employment opportunities and
 welfare programs
Law is presumed constitutional; Burden is on the challenger to prove
no legit purpose
Must be rationally related to a legitimate government purpose
Can’t be discrimination or prejudice (not legit to be invidious)
Can be overinclusive (adding more things than it needs to in order to
achieve purpose)
Can be Underinclusive: doesn’t cover everything it should to achieve
objectives

Question 45

Rational Basis with bite epc

Answer 45

 The classification must be rationally related to a legitimate
government purpose, but cannot set out to harm a specific
politically unpopular group (LGBTQ, Handicap)
* A bare congressional desire to harm a politically unpopular group can
NOT constitute a legitimate government interest
o A law can NOT, directly or indirectly, give private biases effect
o Irrational prejudice can never be a legitimate government interest
* Law declaring that in general it shall be more difficult for one group of citizens than
for all others to seek aid from the government is itself a denial of equal protection of
the laws (Romers)