Constitutional Law

STANDARDS OF REVIEW

à Rational Basis: requires a legitimate gov’t objective with a minimally rational relation between the means and the ends (use for substantive due process when not a fundamental right – e.g. economic regulations, or for equal protection if no suspect classification or fundamental right. Rational basis is the default level of review).

à Middle-level (heightened scrutiny): requires an important gov’t objective using substantially related means (use for the quasi-suspect classes of gender and illegitimacy).

à Strict Scrutiny: requires a compelling gov’t objective and a necessary means (use for due process fundamental rights – e.g. marriage, child-bearing, child-rearing, or for equal protection suspect classification or fundamental right – e.g. race, national origin for suspect classification or voting, interstate travel for fundamental rights.)

STATE ACTION

Overview: the Bill of Rights protects only against government action. The Bill of Rights does not directly apply to the states; however, the 14^th A Due Process Clause makes nearly all of the Bill of Rights (1^st 10 amendments) incorporated and applicable to the States. This is called selective incorporation. Always ask if the gov’t is taking away life, liberty, or property. The nexus theory looks at government involvement, encouragement, or benefits in relation to the private actor, which may invoke the state action doctrine.

Shelly v. Kraemer: once a racially discriminatory private covenant is brought to the court (the government), the judicial enforcement of the racially discriminatory private covenant would become state action that would violate equal protection.

Moose Lodge: merely granting a liquor license to a private club which engages in discriminatory practices is not sufficient state action to invoke the 14^th A. The state was not significantly involved with the invidious discrimination to be liable.

Burton v. Wilmington Parking Authority: a symbiotic relationship may exist if a private party pays for a lease (mutually beneficial) to a governmental agency; then that private party will become a state actor subject to equal protection, and will have to serve blacks at its restaurant.

Edmonson v. Leesville Concrete: a party in a civil action may not exercise peremptory challenges on the basis of race because private parties are held to be state actors if the right of the privilege exercises has its source in state power and the private party can fairly be described as a state actor. This uses the joint participation analysis.

EQUAL PROTECTION – (QUASI) SUSPECT CLASSES

RACE – STRICT SCRUTINY:

Plessy v. Ferguson: statute requiring segregation of blacks and whites on railway was not a violation of equal protection because it was reasonable (rational) based on the established custom, usage, and traditions of the people in the state, and it was equal but separate accommodations for whites and coloreds.

Brown v. Board of Education: segregation in school is inherently unequal and violates the equal protection clause of the 14^th A using strict scrutiny. Reason: the separation caused feelings of inferiority.

Loving v. Virginia: statute prohibiting interracial marriage (miscegenation), which is race on its face, is subject to strict scrutiny (compelling / necessary) and is therefore unconstitutional under the equal protection clause AND under the due process clause (liberty to marry).

Yick Wo v. Hopkins: a law that is fair on its face (requiring compliance with fire regulations) but is applied in a discriminatory manner (discriminatory effect is to deny the Chinese licenses) with a discriminatory purpose (intent) is invidious discrimination subject to strict scrutiny and will violate equal protection.

Washington v. Davis: a governmental test that scored verbal abilities and which had a disproportionate effect of failing blacks than failing whites is not subject to strict scrutiny unless the government had a discriminatory intent.

Wartime Exception – Korematsu: during wartime, all persons of Japanese descent (including U.S. citizens) were held based on public necessity rather than racial antagonism. Law was justified because of national security interests.

Hirabashi: used rational basis review to uphold discrimination during WWII.

RACE & AFFIRMATIVE ACTION – STRICT SCRUTINY

City of Richmond v. Croson: even a benign use of racial classifications, like trying to help a race that faced past discrimination, is presumed unconstitutional and is subject to strict scrutiny (compelling/necessary). De facto societal discrimination (in contrast to de jure / mandated by law) is not enough to justify race-conscious measures, and therefore almost all race-based quotas will be struck down.

Adarand Constructors v. Pena: all racial classifications, including minority preferences imposed by federal, state, or local gov’t actor, must be analyzed under strict scrutiny - narrowly tailored to further a compelling state interest. Adarand employed skepticism (race on its face is suspect), consistency (doesn’t depend on race burdened), and congruence (5^th A is the same as 14^th A).

Grutter v. Bollinger: race-conscious admissions measures will receive strict scrutiny, and thus must be narrowly tailored to achieve a compelling objective; the pursuit of diversity in the student body can be a compelling objective; Here, the law school used an individualized, non-mechanical evaluation of each applicant which satisfies the narrowly tailored means.

Gratz v. Bollinger: mechanical approaches resembling quotas (automatically awarding points based on race to U MI undergraduate admissions) is not narrowly tailored and violates equal protection.

SEX / GENDER – QUASI-SUSPECT – INTERMEDIATE SCRUTINY

Craig v. Boren: state forbade sale of alcohol to males under 21 and to females under 18; held, this classification violated the equal protection rights of males aged 18 to 20 because intentional discriminations against members of a quasi-suspect class unless they are substantially related to an important gov’t objective.

U.S. v. Virginia (VMI): if law classifies sex based on stereotypes, it will not survive mid-level review. An all male military school violates equal protection under mid-level review because it stems from traditional ways of thinking about gender roles. Mid-level scrutiny of gender requires an exceedingly persuasive justification.

EQUAL PROTECTION – FUNDAMENTAL RIGHTS

Note: This approach asks if there is a fundamental right impinged by a classification as an alternative to the fundamental rights protected under due process approach (below).

Approach:

(1) Is the gov’t discriminating in a manner that deters, penalizes, chills, or unduly burdens the exercise of a fundamental right?

(2) If yes, presumed unconstitutional unless it is necessary or narrowly tailored to promote a compelling gov’t interest.

MARRIAGE:

Zablocki v. Redhail: the right to marry is fundamental, so a state may not forbid anyone from remarrying even if he is not current on all child support payments from his prior marriage. The state needs a means that’s a less restrictive collection device (not overbroad – stronger connection toward goal). This was similar to Casey’s undue burdens test.

EDUCATION:

San Antonio School v. Rodriguez: there is no constitutional right to a particular quality of education. Thus, a state may finance schools based on property values because it’s rational. Contrast Plyler v. Doe, where the illegal immigrant schoolchildren had no access at all to any school, thereby implicating heightened scrutiny (important state goal) for these innocent children to receive an education.

TRAVEL:

Saenz v. Roe: there is a right to enter and leave another state, a right to be treated equally while visiting in a state, and the right of a newly arrived citizen of a state to be treated the same as other citizens of the state. Citizenship is residence plus intent to remain indefinitely. States cannot discriminate between classes of citizens.

Memorial Hospital v. Maricopa County:

the waiting period for non-emergency medical care was held to deprive people of their right to travel by penalizing them after having exercised their right of interstate migration and was therefore subjected to strict scrutiny.

Contrast Sosna v. Iowa, where the waiting period for divorce was constitutional because a divorce is not a “necessity of life” in the same sense as welfare or medical care. There is not a total deprivation, but only delay.

Shapiro v. Thompson: a one year residency requirement to qualify for public welfare is unconstitutional because (1) money is not compelling, and (2) deterring poor from entering the state, or limiting welfare to taxpayers are constitutionally impermissible objectives. Note that current residency requirements are constitutional, whereas durational requirements are not. Welfare involves an immediate and pressing need for the preservation of life and health.

EQUAL ACCESS TO THE COURTS:

Note: This area uses not just substantive due process or equal protection, but a hybrid of both. Look out for the poor being unable to utilize the courts, and then use strict scrutiny.

RIGHT TO EQUAL VOTE:

Bush v. Gore: there is an EP right to have votes counted according to uniform standards. There is a minimum requirement for non-arbitrary treatment of voters necessary to secure the fundamental right to vote.

SUBSTANTIVE DUE PROCESS –
FUNDAMENTAL UNENUMERATED RIGHTS

LOCHNERIZING:

Lochner v. New York: state cannot limit baker’s workweek to 60 hours a week for health and safety reasons because of the fundamental Constitutional right to enter into contract. This economic fundamental right was very controversial. There is no longer heightened scrutiny used for economic rights after the decline of Lochnerizing.

BIRTH CONTROL:

Griswold v. Connecticut: state cannot prohibit supplying birth control to single or married people who want them, as this is a fundamental unenumerated right of intimate association and privacy subject to strict scrutiny. The Bill of Rights gives of certain penumbras, emanations, or mists, suggesting that there are unenumerated rights.

Eisenstadt v. Baird: state cannot prohibit birth control sales to unmarried persons, as this is an EP violation, failing the rational basis test.

ABORTION:

Roe v. Wade, Planned Parenthood v. Casey: Roe made the right to an abortion a fundamental right (in the first trimester). Casey cut back on that fundamental right by saying that the state does not have the right to ban all pre-viability abortions, but the state can regulate abortion so long as it does not place an undue burden on a woman’s right to choose a pre-viability abortion. In other words, abortion is no longer automatically subject to strict scrutiny, but an undue burdens test. An undue burden places a substantial obstacle in the path of a woman seeking a pre-viability abortion. Undue burdens include spousal consent, and complete prohibition of partial birth abortions.

Casey reaffirmed the essential holding of Roe:

1) right to abortion, 2) state power to restrict after viability, and 3) state’s interest in protecting health of the woman and life of the fetus.

Burdens that are not undue are informed consent provisions (24-hr. wait period), and parental consent if under 18 an unemancipated. No public funding is required by the state for an abortion procedure.

Stenberg v. Carhart: the state can’t ban partial birth abortions unless it gives an exception for the health or safety of the mother.

FAMILY RELATIONS:

Moore v. East Cleveland: a city may not enact a zoning ordinance that prevents members of a family (e.g. cousins) – even a non-nuclear family – to live together, for that right is fundamental and any state interference will be strictly scrutinized. Blood relatives have a fundamental right to live together.

Troxel v. Granville: a parent has a fundamental interest in deciding who will spend time with their child. Therefore, a state may not award visitation rights to a child’s grandparents over the objection of the child’s fit custodial parent, unless the state first gives special weight to the parent’s wishes. There is a 14^th amend right of a parent to control the care and custody of their child. Also, the child’s interests are an important factor.

Michael H v. Gerald D: although an unwed father’s biological link to his child does not, in and of itself, guarantee him a constitutional stake in the relationship, such a link combined with a substantial parent-child relationship will do so.

Pierce v. Society of Sisters: the state may not require parents to send their children to public schools, as parents have a fundamental right to determine how their children will be educated. There is a liberty of parents to direct the upbringing of their children – including sending their children to private schools.

Prince v. Massachusetts: child labor law in the state prohibited a child from handing out materials promoting Jehovah’s Witnesses in the street. Held, this is constitutional because parents are free to become martyrs themselves, but not free to make martyrs of their children before thy have reached the age when they can make that choice for themselves.

Wisconsin v. Yoder: a state’s interest in education is not free from a balancing process when it impinges on fundamental rights. Therefore, Amish parents may refuse to send their children (14 and 15) to school based on their religious beliefs.

Meyer v. Nebraska: state may not prohibit the teaching foreign languages to children. The court used a rational basis test to strike down the statute as having no reasonable relation to any end within the competency of the state.

Skinner v. Oklahoma: state statute that required the sterilization of persons convicted three times of felonies of moral turpitude, including grand larceny. This did not include embezzlement, and therefore discriminated between grand larceny and embezzlement, violating equal protection. It strictly scrutinized the discrimination because “marriage and procreation are fundamental to the very existence and survival of the race.” There is a fundamental right to have offspring.

Boddie v. Connecticut: unconstitutional to make poor people pay court fees to get a divorce. This is a due process violation because it conditions the right of marriage on economic status.

Roberts v. United States Jaycees: the right of privacy does not protect the right of a large and unselective organization to exclude women from full membership because there is no right of intimate association in a large and unselective group.

SEXUAL ACTIVITY:

Overview: there is no fundamental right to engage in adult consensual sexual activity, therefore the court will use the “mere-rationality” test. However, most restrictions are struck down on the grounds that it interferes with people’s sexual autonomy and privacy under the “rational review with bite” test.

Lawrence v. Texas: the court struck down all state laws that criminalize homosexual sodomy on the grounds that it demeans the lives of homosexual persons and thus violates their substantive due process rights. The court said it was using the “rational basis test”.

This case overruled Bowers v. Hardwick. There is a liberty to choose consensual private sexual conduct within the home.

BODILY INTEGRITY & RIGHT TO DIE:

Washington v. Glucksberg: terminally-ill patients do not have a general liberty interest in committing suicide. Nor do they have the right to recruit a third person to help them commit suicide. Therefore, the states are allowed to make this illegal under the rational basis test. There are slippery slope concerns.

Jacobson v. Massachusetts: using the balancing test, the court concluded that mandatory vaccinations were constitutional because they were not arbitrary or unreasonable (rational basis).

Rochin v. California: there is a liberty interest in bodily integrity, therefore a mandatory pumping of the stomach to retrieve evidence is unconstitutional, as it shocks the conscience.

Youngberg v. Romero: confinement of the retarded is subject to a balancing test under substantive due process. Factors include freedom from bodily restraint, reasonably safe conditions, minimally adequate training, adequate food, shelter, medical care and clothing.

RIGHT TO TRAVEL:

Shapiro v. Thompson: one year durational residency requirements for welfare is unconstitutional because it puts a restriction on the right to travel. This violates equal protection without a compelling state interest.

Saenz v. Roe: CA gave welfare benefits to new residents during their first year at the same rate as their original state. This violated the privileges and immunities clause of the 14^th A.

PROCEDURAL DUE PROCESS

APPROACH:

(1) Did the gov’t deprive person of life, liberty, or property?

(2) If gov’t action requires a factual determination, analyze using the Matthews v. Eldridge balancing test by considering the following three factors:

(a) nature of private interest affected

(b) risk of error, and whether additional procedural safeguards may reduce risk

In other words, a procedure is required if the cost is less than the likelihood times the magnitude. (C < L * M)

TAKINGS (EMINENT DOMAIN) AND JUST COMPENSATION

APPROACH:

(1) Has the gov’t taken property by regulation or permanent physical occupation?

(2) Is it for public use? If not, it must be returned and paid for the time it was taken.

(3) Was just compensation (fair market value) paid?

Mahon: gov’t regulations may go too far and become tantamount to a physical taking, requiring just compensation under the 5^th Amendment.

Penn Central: analyzes several factors before finding a taking requiring just compensation:

(1) economic impact of the regulation

(2) extent of interference with investment-backed expectations

(3) character of the gov’t action

Every test focuses on the severity of the burden that gov’t imposes upon private property rights.

PER SE TAKINGS:

Loretto: permanent physical invasions of property require just compensation.

Lucas: regulations that deprive an owner of all economically beneficial use of property (100% wipeout) is a per se taking.

OTHER:

Lingle v. Chevron USA: the substantially advances a legitimate state interest test is struck down as inappropriate for takings analysis.

There is no conceptual severance.