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Constitutional Law II
Paul Bender
Fall 2000
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God is Good All the Time
Table of Contents
I.
A.
GENERAL ..................................................................................................... 9
Standards of Review ................................................................................................. 9
1. Mere Rationality ................................................................................................... 9
2. Strict Scrutiny ..................................................................................................... 10
3. Intermediate Level Scrutiny: ............................................................................. 12
B.
1.
2.
3.
II.
THE BILL OF RIGHTS AND FOURTEENTH AMENDMENT ...................... 14
A.
1.
B.
Rights ....................................................................................................................... 12
Constitutional Rights: ........................................................................................... 12
Statutory Rights: ................................................................................................... 13
Judicial Enforcement of Rights:............................................................................ 13
Text of the Fourteenth Amendment ...................................................................... 14
Three major rights: ................................................................................................ 14
Pre-Civil War Background .................................................................................... 14
Article IV Privileges and Immunities ................................................................... 14
Fifth Amendment .................................................................................................. 15
a) Barron v. Baltimore (1833). [p. 463] ............................................................... 15
b) Murray’s Lessee v. Hoboken Land & Improvement Co. (1856) [p. 465] ........ 15
c) Dred Scott v. Sandford (1857) [p. 466] ............................................................ 15
3. Slaughter House Cases (Louisiana butchers) ........................................................ 15
a) Privileges and Immunities Clause of the Fourteenth Amendment ................... 16
(1)
Madden v. Kentucky (1940) ..................................................................... 16
b) Due Process and Fair Procedure ....................................................................... 16
(1)
Hagar v. Reclamation District (1884) ....................................................... 16
c) Due Process and Jurisdiction ............................................................................ 17
d) Fourteenth Amendment and Citizenship [p. 479]............................................. 17
4. Application of Fourteenth Amendment to Private Conduct ................................. 17
a) Civil Rights Cases ............................................................................................. 17
1.
2.
C.
Application of the Bill of Rights to the States....................................................... 18
1. Twining v. New Jersey (1908) [p. 481] ................................................................ 18
2. Palko v. Connecticut (1937) [p. 482].................................................................... 18
3. Adamson v. California (1947) [p. 485] ................................................................ 18
4. Duncan v. Lousiana (1968) [p. 490] ..................................................................... 18
5. In re Winship (1970) [p. 498] .............................................................................. 18
6. Current Scope of Incorporation [p. 501]............................................................... 18
7. Selective Incorporation: ........................................................................................ 18
8. Exceptions to incorporation: ................................................................................. 18
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III.
DUE PROCESS ....................................................................................... 19
A.
Generally .................................................................................................................. 19
IV.
SUBSTANTIVE DUE PROCESS ............................................................. 20
A.
B.
Short Outline ........................................................................................................... 20
1. Is it a Due Process Question?................................................................................ 20
2. Does this concern economic regulation or social welfare? ................................... 20
3. Does this concern personal liberties? .................................................................... 20
Economic Regulatory Legislation .......................................................................... 21
Due Process as a Restraint on the Substance of Legislation ................................. 21
a) Slaughter-House Cases (1873) [p. 466]. ........................................................... 21
2. Mugler v. Kansas (1887)....................................................................................... 21
3. Allgeyer v. Louisiana (1897) ................................................................................ 21
4. Lochner v. New York (1905) ................................................................................ 21
5. Nebbia v. New York (1934).................................................................................. 22
6. U.S. v. Carolene Products (1938) ......................................................................... 22
7. Williamson v. Lee Optical (1955) ........................................................................ 22
8. Ferguson v. Skrupa (1963) .................................................................................... 22
9. Modern Approach ................................................................................................. 23
1.
C.
Privacy and Personal Autonomy ........................................................................... 23
Family and Marital Relationships ......................................................................... 23
a) Moore v. City of East Cleveland (1977) ........................................................... 23
b) Zablocki v. Redhail (1978) ............................................................................... 23
c) Michael H. v. Gerald D. (1989) ........................................................................ 23
d) Troxel v. Granville (2000) ................................................................................ 24
2. Personal Autonomy............................................................................................... 24
a) Griswold v. Connecticut (1965) ........................................................................ 24
b) Eisenstadt v. Baird (1972) Right to use contraception extended to unmarried
persons. ..................................................................................................................... 25
c) Roe v. Wade (1973) .......................................................................................... 25
d) Planned Parenthood v. Casey (1992) ................................................................ 25
e) Stenberg v. Carhart (2000) ................................................................................ 26
3. Restrictions on Private Consensual Sexual Behavior ........................................... 27
a) Bowers v. Hardwick (1986) .............................................................................. 27
b) Romer v. Evans (1996) ..................................................................................... 28
4. Right to Die/Assisted Suicide ............................................................................... 28
a) Washington v. Glucksberg (1997) .................................................................... 28
1.
V.
EQUAL PROTECTION ................................................................................ 28
A.
1.
Generally .................................................................................................................. 28
Two potential reasons of the Equal Protection Clause: ........................................ 29
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B.
The Original Understanding .................................................................................. 29
1. Slaughter-House Cases (Louisiana butchers) ....................................................... 29
2. Strauder v. West (1980) ........................................................................................ 29
3. Gulf, Colorado & Santa Fe Railroad v. Ellis (1897)............................................. 29
4. The Standard of Review........................................................................................ 30
C.
1.
2.
3.
4.
5.
Social and Economic Regulatory Legislation ....................................................... 30
Railway Express Agency v. New York (1949) ..................................................... 30
Williamson v. Lee Optical (1955) ........................................................................ 30
FCC v. Beach Communications (1993) ................................................................ 31
Heller v. Doe (1993) ............................................................................................. 31
Modern Rational Basis Review ............................................................................ 31
D.
Classifications .......................................................................................................... 31
Higly Suspect ................................................................................................................ 31
Semi-Suspect................................................................................................................. 31
Non-Suspect .................................................................................................................. 31
Race, Alienage, Nationality .......................................................................................... 31
Gender, Illegitimacy ..................................................................................................... 31
Age, Height, Weight, Mental Retardation/Illness, Homosexuality .............................. 31
(History of Oppression) ................................................................................................ 31
(Tradition of Oppression & Exclusion) ........................................................................ 31
E.
Highly Suspect Classifications ............................................................................... 31
1. Classifications Disadvantaging Racial Minorities ................................................ 31
a) Loving v. Virginia (1967) ................................................................................. 31
b) Palmore v. Sidoti............................................................................................... 31
2. Nationality............................................................................................................. 32
a) Hirabayashi v. U.S. ........................................................................................... 32
b) Korematsu v. U.S. ............................................................................................. 32
3. Racial Segregation in Schools and other Public Facilities.................................... 32
a) Plessy v. Ferguson ............................................................................................ 32
b) Brown v. Board of Education of Topeka .......................................................... 33
4. Alienage ................................................................................................................ 33
F.
Semi-Suspect ............................................................................................................ 33
1. Classification Based on Gender ............................................................................ 33
a) Generally ........................................................................................................... 33
(1)
Micheal M. v. Superior Court (statutory rape) ......................................... 33
(2)
Rostker v. Goldberg (drafting of men only) ............................................. 34
(3)
Miller v. Albright (citizenship requirements dependent on gender of parent
who is a citizen) .................................................................................................... 34
(4)
Geduldig v. Aiello (pregnancy not included in health insurance coverage)
34
(5)
Reed v. Reed (probate administrator) ....................................................... 34
(6)
Frontiero v. Richardson (benefits for military dependents) ...................... 34
(7)
Craig v. Boren (sale of 3.2 beer) ............................................................... 34
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(8)
(9)
Virginia v. U.S. (Virginia Military Institute integration).......................... 34
Mississippi University for Women v. Hogan (women only nursing school)
34
(10) J.E.B. v. Alabama (gender based jury strikes) .......................................... 34
b) Reed v. Reed (1971) ......................................................................................... 35
c) Frontiero v. Richardson (1973) ......................................................................... 35
d) Craig v. Boren (1976) ....................................................................................... 36
e) Michael M. v. Superior Court (1981) ............................................................... 36
f) Virginia v. U.S. (1996) ..................................................................................... 37
g) Mississippi University for Women v. Hogan ................................................... 37
h) J.E.B. v. Alabama ............................................................................................. 37
i) Rostker v. Goldberg .......................................................................................... 37
j) Miller v. Albright .............................................................................................. 38
k) Geduldig v. Aiello ............................................................................................. 38
G.
1.
2.
3.
4.
Discriminatory Impact ....................................................................................... 38
Washington v. Davis (1976) ................................................................................. 38
Arlington Heights v. Metropolitan Housing (1977) ............................................. 39
Personal Administrator of Massachusetts v. Feeney (1979) ................................. 39
Castenada v. Partida (1977) .................................................................................. 40
H.
1.
2.
Voting ................................................................................................................... 40
Rogers v. Lodge (1982) ........................................................................................ 40
Hunter v. Underwood (1985) ................................................................................ 40
I.
Benign Discrimination ............................................................................................ 40
1. Classifications Advantaging Females ................................................................... 40
a) Kahn v. Shevin (1974) ...................................................................................... 40
b) Califano v. Webster (1977) ............................................................................... 40
c) Mississippi University for Women v. Hogan (1982) ........................................ 41
2. Classifications Advantaging Racial Minorities .................................................... 41
a) Regents v. Bakke (1978) Medical School admission. ...................................... 41
b) Richmond v. J.A. Crossen & Co. (1989) Minority Contractors – strict scrutiny
41
c) Adarand Constructors v. Pena (1995) ............................................................... 41
d) Miller v. Johnson ( ) Congressional redistricting disadvantaging minorities.
41
3. Classifications Disadvantaging Aliens ................................................................. 41
a) Graham v. Richardson (1971) Aliens denied welfare benefits in Arizona. ...... 41
b) Bernal v. Fainter (1984) Texas law preventing aliens from becoming notaries.
41
c) Mathews v. Diaz (1976) .................................................................................... 41
4. Classifications Based on Illegitimacy ................................................................... 42
a) Lalli v. Lalli (1978) ........................................................................................... 42
b) Clark v. Jeter (1988) ......................................................................................... 42
5. Classifications Disadvantaging Non-Suspect Groups .......................................... 42
a) Cleburne v. Cleburne Living Center (1985) ..................................................... 42
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b)
c)
Heller v. Doe (1993) ......................................................................................... 42
Romer v. Evans (1996) ..................................................................................... 42
6. Legislative Districting ........................................................................................... 43
a) Reynolds v. Sims (1964) See notes................................................................... 43
b) Davis v. Bandemer (1986) ................................................................................ 43
c) Miller v. Johnson (1995) ................................................................................... 43
d) Harper v. Virginia State Board of Elections (1966) ......................................... 43
e) Shapiro v. Thompson (1969) ............................................................................ 43
f) Dunn v. Blumstein (1972) Long residency requirements for voting. ............... 43
7. Length of State Residence Distinctions ................................................................ 43
a) Zobel v. Williams (1982) Alaska tax rebate distribution plan unconstitutional.
43
8. Court Access, Welfare and the Poor ..................................................................... 44
a) Boddie v. Connecticut (1971) Court filing fees. ............................................... 44
b) U.S. v. Kras (1973) Filing fees for bankruptcy................................................. 44
c) Harris v. McRae (1980) Hyde Amendment. No public funding of abortion
except. . . ................................................................................................................... 44
9. Education .............................................................................................................. 44
a) San Antonio ISD v. Rodriguez (1973) Poor, minority/majority school districts.
44
b) Plyler v. Doe (1982) .......................................................................................... 44
VI.
1.
REGULATION OF PRIVATE CONDUCT UNDER 13TH AMENDMENT. 44
Jones v. Alfred H. Mayer Co. (1968).................................................................... 44
VII.
FREEDOM OF EXPRESSION ................................................................. 45
A.
Content-Based ......................................................................................................... 45
Advocacy of Illegal Action ................................................................................... 45
a) Masses v. Publishing Co. v. Patten (SDNY 1917) ........................................... 45
2. Clear and Present Danger Test .............................................................................. 45
a) Schenck v. U.S. (1919) ..................................................................................... 45
b) Abrams v. U.S. (1919) ...................................................................................... 45
c) Gitlow v. New York (1925) .............................................................................. 45
d) Whitney v. California (1927) ............................................................................ 45
e) DeJonge v. Oregon (1937) ................................................................................ 46
f) Dennis v. U.S. (1951) Smith Act makes speech per se a crime. ....................... 46
g) Brandenberg v. Ohio (1969) ............................................................................. 46
3. Defamation ............................................................................................................ 47
a) Beauharnais v. Illinois (1952) ........................................................................... 47
b) New York Times Co. v. Sullivan (1964) .......................................................... 47
c) Gertz v. Robert Welch, Inc. (1974)................................................................... 47
d) Dunn and Bradstreet, Inc. v. Greenmoss Builders, Inc. .................................... 47
e) The Florida Star v. B.J.F. (1989) ...................................................................... 47
4. Obscenity and Pornography .................................................................................. 47
a) Paris Adult Theatre I v. Slaton (1973) .............................................................. 47
1.
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b)
c)
d)
e)
f)
Miller v. California (1973) ................................................................................ 47
Jenkins v. Georgia (1974) ................................................................................. 47
New York v. Ferber (1982) ............................................................................... 47
Osborne v. Ohio (1990) .................................................................................... 47
Reno v. ACLU (1997) Internet oscenity ........................................................... 47
5. “Fighting Words” .................................................................................................. 47
a) Cantwell v. Connecticut (1940) ........................................................................ 47
b) Chaplinsky v. New Hampshire (1942).............................................................. 47
c) Cohen v. California (1971) ............................................................................... 47
d) City of Houson v. Hill (1987) ........................................................................... 47
6. Hate Speech .......................................................................................................... 47
a) R.A.V. v. City of St. Paul (1992) ...................................................................... 47
7. Commercial Speech .............................................................................................. 47
a) Virginia State Board of Pharmacy v. VCCC (1976)......................................... 47
b) Central Hudson Gas & Electric v. PSC (1980) ................................................ 47
c) 44 Liquormart, Inc. v. Rhode Island (1996) ..................................................... 48
B.
Content-neutral time, place, and manner regulations ......................................... 48
1. Public Forum ......................................................................................................... 48
a) Scneider v. New Jersey (1939) ......................................................................... 48
b) Frisby v. Schultz (1988) .................................................................................... 48
2. Non-Traditional Public Fora ................................................................................. 48
a) Adderley v. Florida (1966) Jail demonstration. ................................................ 48
b) International Society for Krishna Consciousness v. Lee (1992) Airport
solicitation ................................................................................................................. 48
3. Private Premises .................................................................................................... 48
a) City of Ladue v. Gilleo (1994) .......................................................................... 48
b) City of Renton v. Playtime Theatres, Inc. (1986) ............................................. 48
c) Consolidated Edison Co. v. PSC (1980) Controversial material in bill stuffers.
48
VIII.
A.
PENUMBRAL FIRST AMENDMENT RIGHTS ........................................ 49
Symbolic Speech ...................................................................................................... 49
1. U.S. v. O’Brien (1968) Draft card buring ............................................................. 49
2. Texas v. Johnson (1989) Flag burning .................................................................. 49
3. U.S. v. Eichman (1990) Anti-Flag Burning Act unconstitutional. ....................... 49
IX.
FREEDOM OF RELIGION ....................................................................... 50
A.
Establishment Clause.............................................................................................. 50
Everson v. Board of Education (1947) ................................................................. 50
Lamb’s Chapel v. Center Moriches Union Free School District (1993) .............. 50
Rosenberger v. Rector and Visitors of U. of Virginia (1995) ............................... 50
Santa Fe ISD v. Doe (2000) Prayer at football games. ......................................... 50
Agostini v. Felton (1997) ...................................................................................... 50
1.
2.
3.
4.
5.
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6.
Mitchell v. Holmes (2000) .................................................................................... 50
1.
2.
3.
4.
Free Exercise ........................................................................................................... 50
Sherbert v. Verner (1963) Sabatarians .................................................................. 50
Wisconsin v. Yoder (1972) ................................................................................... 50
Employment Division v. Smith (1990) Peyote case. ............................................ 50
Church of the Lukumi Babalu Aye v. City of Hialeah (1993) Animal sacrifice. . 50
B.
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I.
General
A.
Standards of Review
1.
Mere Rationality
Court will uphold government action when it meets two requirements:
Legitimate state objective
Very broad concept.
Practically any type of health, safety or general welfare
goal will be found to be legitimate.
Rational Relation:
There must be a minimally rational relation between the
means chosen by the government and the state objective
Only if the government has acted in a completely arbitrary
and irrational way will a rational link between means and
purpose not be found.
Burden of proof is on the person who is trying to persuade the
court that the action is unconstitutional.
Government usually wins.
Used in
Substantive due process cases where no fundamental right
is involved.
Equal protection cases
No suspect or quasi-suspect classification is involved
No fundamental right is being impaired
Almost all economic regulations
Some classifications based on alienage
Rights that are not fundamental, such as food, housing, free
public education.
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2.
Strict Scrutiny
Court will uphold government action only if two requirements are met:
Government must have a compelling objective or interest.
The means chosen by the government must be necessary to achieve
the compelling interest (fit between the means and end must be
extremely tight. Must use least restrictive means possible.
Must not be a less restrictive means of accomplishing the
compelling state objective.
Burden of proof is on the government whose act is being
attacked.
Government usually loses.
Used in
Substantive due process cases
Involving fundamental rights; and
Where the plaintiff is basing his claim on
substantive due process.
Examples: Privacy, including marriage, childbearing, child-rearing
Equal protection
Suspect classifications
Race
National Origin
Alienage (sometimes)
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Substantive Due Process
Fundamental rights
Voting
To be a candidate
Access to courts
Travel interstate
Freedom of Expression
Impaired in a content-based way
Free association
Freedom of Religion/Free Exercise Clause
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3.
Intermediate Level Scrutiny:
Government must have an important objective (between
legitimate and compelling)
Means chosen must be substantially related to the important
government objective.
Burden of proof is usually on the government, though it may be
assigned elsewhere by the court.
Fifty-fifty chance that government action will be struck down.
Used in
Equal protection
Semi-suspect classifications
Gender
Illegitimacy
Free expression
Non-content-based issues.
B.
Rights
1.
Constitutional Rights:
Cannot be changed by Congress.
Anti-democratic - not subject to change by simple majority of the
Congress or the people.
Between the government and the governed.
Affects the rights the states can provide for their citizens.
Limitation on government behavior rather than affirmative
entitlements.
Except Thirteenth Amendment abolition of slavery, rights don’t
apply globally, just to government. They are not limitations on
private action.
Congress has the power to enforce constitutional provisions
through appropriate legislation.
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Bill of Rights is not directly applicable to the States. Due process
clause of Fourteenth Amendment has been interpreted to
incorporate nearly all Bill of Rights guarantees.
Constitutional amendments have increased rights, but have never,
so far, taken away rights.
2.
Statutory Rights:
Proceed from federal or state statutes.
Can be taken away or changed by legislature.
3.
Judicial Enforcement of Rights:
Judicially enforceable. Without judicial enforcement, rights would
be almost impossible to enforce.
Possibility of non-textual constitutional restraints stemming from
principles of natural justice invoked and elaborated by courts
raised in Calder v. Bull (1798). [p. 459]
If the states pass legislation that violates constitutional rights, the
court can strike down the state action, either offensively or
defensively.
The Court is the final arbiter of legislation and the constitution.
Constitutional cases get brought either as defenses to criminal or
administrative proceedings against violators or through declaratory
judgment actions raised by those who say their liberty is restricted
thereby.
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II.
The Bill of Rights and Fourteenth Amendment
A.
Text of the Fourteenth Amendment
All persons born or naturalized in the United States, and subject to the
jurisdiction hereof, are citizens of the United States and of the State
wherein they reside. No State shall make or enforce any law which shall
abridge the privileges and immunities of citizens of the United States; nor
shall any State deprive any person of life, liberty, or property, without due
process of law; nor deny to any person within its jurisdiction the equal
protection of the laws.
1.
Three major rights:
Due process
Equal protection
Privileges and immunities of national citizenship
B.
Pre-Civil War Background
1.
Article IV Privileges and Immunities
There are certain fundamental rights that states cannot take away
even from their own citizens. These include the right to property,
contract, marriage, to practice a trade, [p. 462] and are more
property-type rights, than the rights guaranteed by the Bill of
Rights. Corfield v. Coryell (1823) (Pennsylvania citizen
challenging New Jersey statute of 1820 making it unlawful for any
person who was not an actual inhabitant and resident of the state to
rake or gather clams, oyster, or shells in any of the rivers, bays or
waters of the state.)
Privileges and Immunities of citizenship in one state are not
enforceable when the citizen is in another state. Paul v. Virginia
(1868). Extra burdens imposed on out-of-state insurance
companies upheld because corporate citizenship was not a
privilege and immunity in all states. If the company had the
privilege in the insurance company’s home state, it would have to
be enjoyed at home. [p. 462]
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2.
Fifth Amendment
Applies to actions of the Federal, not State government.
a)
Barron v. Baltimore (1833). [p. 463]
In an action against the City of Baltimore by a wharf owner for the build
up under his wharf of silt caused by a city street building project, Supreme
Court reversed the award of damages for “taking” of wharf owner’s
property, saying that the Fifth Amendment protection from taking without
compensation did not apply to action by States.
Court does not say it will not do something about violations of
constitutional rights by Federal government, but Constitution did not
protect citizens from State action until the enactment of the Fourteenth
Amendment.
b)
Murray’s Lessee v. Hoboken Land & Improvement Co.
(1856) [p. 465]
Court upheld Treasury Department’s summary lien against property of
Customs official found to have embezzled U.S. funds because the
procedure was consistent with procedures used in the common law of
England and imported to the U.S. and therefore a process that was due.
c)
Dred Scott v. Sandford (1857) [p. 466]
Missouri Compromise could not require that slave owner be deprived of
property rights in slave by virtue of having brought the slave into a nonslave state. “[A]n Act of Congress which deprives a citizen of the United
States of his liberty or property, merely because he came himself or
brought his property into a particular Territory of the United States, and
who had committed no offense against the laws, could hardly be dignified
with the name of due process of law.” The Initial Interpretation of the
Civil War Amendments
3.
Slaughter House Cases (Louisiana butchers)
Primary purpose of the post-Civil War amendments was to prevent the
southern states from continuing, in fact, the slavery that had been
abolished by law and to give full citizenship to freed slaves.
Thirteenth Amendment applicable only to slavery and not any other forms
of “servitude.” [p. 469]
Fourteenth Amendment
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Not applicable to situations other than those involving race
discrimination. [p. 470]
Did not give Congress the right to prevent private discrimination.
Privileges and Immunities was rendered pretty much meaningless
and has remained so. Court drew a distinction between privileges
and immunities of U.S. citizens and privileges and immunities of
State citizens. If state takes away the rights of its own citizens and
treats out of staters the same way, it is within the Fourteenth
Amendment. [p. 470-473]
Privileges of national citizenship were said by majority to include
free access to seaports,
federal protection when on the high seas or within
jurisdiction of foreign countries.
Dissent rejected majority’s limited reading of Privileges and
Immunities Clause. Privileges and Immunities already protected
against state action by Supremacy Clause. Fourteenth Amendment
Privileges and Immunities intended to protect fundamental rights
of all citizens of free governments from infringement by states,
including Other Fourteenth Amendment Privileges and Immunities
Cases
a)
Privileges and Immunities Clause of the Fourteenth
Amendment
(1)
Madden v. Kentucky (1940)
Unsuccessful challenge to state tax requiring residents to
pay higher tax rates on deposits in banks located out of
state than in local banks. “[T]he privileges and immunities
clause protects all citizens from abridgement by states of
rights of national citizenship as distinct from the
fundamental or natural rights inherent in state citizenship. .
. . We think it quite clear that the right to carry out an
incident to trade, business or calling such as the deposit of
money in banks is not a privilege of national citizenship.”
[p. 478].
b)
Due Process and Fair Procedure
(1)
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“Undoubtedly, were life and liberty are involved, due
process requires that there be a regular course of judicial
proceedings, which imply that the party to be affected shall
have notice and an opportunity to be heard; so, also, where
title or possession of property is involved.
c)
Due Process and Jurisdiction
Baldwin v. Hale (1864); Pennoyer v. Neff (1877). [p. 478]
Insolvency laws of one state cannot discharge the contracts
of citizens of other states, because they have no
extraterritorial operation, and consequently, the tribunal
sitting under them, unless in cases where a citizen of such
other state voluntarily becomes a party to the proceedings,
has not jurisdiction in the case. Legal notice cannot be
given and, consequently, there can be no obligation to
appear, and of course, there can be no legal default.
d)
4.
Fourteenth Amendment and Citizenship [p. 479]
Application of Fourteenth Amendment to Private Conduct
a)
Civil Rights Cases
Indictments for refusing hotel, inn, railway or theater
accommodations to persons of color.
Issue is constitutionality of Civil Rights Act of 1875.
Civil Rights guaranteed by the constitution are guarantees against
state action. Violation must be sanctioned in some way by the
state or done under state authority. The Fourteenth Amendment
does not apply to private activity except in cases where Congress is
clothed with plenary power of legislation over the whole subject
[p. 1103]
No countenance of authority for the passage of the law in question
can be found in either the thirteenth or fourteenth amendment of
the constitution and no other ground for its passage being
suggested, it must necessarily be declared void, at least so far as its
operation in the several states is concerned.
Harlan’s dissent [p. 1106]
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C.
Application of the Bill of Rights to the States
Bill of Rights guarantees individually made applicable to the States
through Fourteenth Amendment due process clause.
Nearly all guarantees have been interpreted by the Supreme Court as being
so important that when a state denies them, it is deemed to have taken
away some aspect of liberty. (Fifth Amendment due process clause
applies to federal government.)
1.
Twining v. New Jersey (1908) [p. 481]
2.
Palko v. Connecticut (1937) [p. 482]
3.
Adamson v. California (1947) [p. 485]
4.
Duncan v. Lousiana (1968) [p. 490]
5.
In re Winship (1970) [p. 498]
6.
Current Scope of Incorporation [p. 501]
7.
Selective Incorporation:
Rights incorporated individually through interpretation of the
Fourteenth Amendment.
Once incorporated, the right is the same as to the States as it would
be to the federal government.
8.
Exceptions to incorporation:
Fifth Amendment right not to be subject to criminal trial without a
grand jury indictment.
Seventh Amendment right to jury trial in civil cases.
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III.
Due Process
A.
Generally
Due process imposes procedural requirements on governments when they
impair life, liberty or property.
Due process limits the substantive power of the States to regulate certain
areas of life.
Derives mainly from Court’s interpretation of “Liberty.” State limits on
human life cannot unreasonably interfere with liberty.
Substantive and procedural due process considerations are separate
questions.
Fundamental v. Non-Fundamental Rights – main analysis in substantive
due process, because it determines the standard of review.
Fundamental Rights require application of Strict Scrutiny
Legislation regulating marriage, sex, child-bearing, child-rearing
(right to privacy or autonomy) and right to practice a profession or
calling (not always).
Non-Fundamental Rights need meet only Mere Rationality test.
Nearly all economic and social welfare legislation falls into this
category and thus is likely to be upheld. (Court has not struck
down an economic regulation since 1937.
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IV.
Substantive Due Process
A.
Short Outline
1.
Is it a Due Process Question?
Is the government taking away some thing or value that could be
considered life, liberty or property?
Has government by carrying out this taking violated the individual’s
substantive interest in life, liberty or property?
2.
Does this concern economic regulation or social welfare?
Mere rationality standard
Legitimate state interest under police power
Rational relationship between means and end
3.
Does this concern personal liberties?
What kind of liberty is protected?
Non-Fundamental
Mere rationality standard
Fundamental
Strict scrutiny standard. State bears the burden of
defending its regulation.
Right of autonomy
General right to privacy
Sex
Marriage
Child bearing
Child rearing
Right to decline medical treatment
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B.
Economic Regulatory Legislation
1.
Due Process as a Restraint on the Substance of Legislation
a)
Slaughter-House Cases (1873) [p. 466].
5-4 decision holding that Louisiana’s grant of a monopoly
in the slaughter house business, depriving other butchers of
the opportunity to practice their trade was not a violation of
the Fourteenth Amendment. The Court stated:
Due Process was not violated by Louisiana monopoly.
Due process seen only as protection from procedural
unfairness.
2.
Mugler v. Kansas (1887)
Upheld state law prohibiting manufacture and sale of alcoholic
beverages, but said not every regulatory statute is to be accepted as
a legitimate exertion of the police powers of the state. Courts are
at liberty to and are under a solemn duty to look at the substance of
things, whenever they enter upon the inquiry whether the
Legislature has transcended the limits of its authority.
3.
Allgeyer v. Louisiana (1897)
Overturned law prohibiting residents from contracting through the
mails with New York insurance companies, not licensed to do
business in Louisiana for shipments from Louisiana to Europe. It
deprived defendants of their liberty without due process of law
because it was inconsistent with the provisions of the Constitution.
4.
Lochner v. New York (1905)
Reasonableness of purpose and reasonableness of relationship of
restrictions to purpose.
Judicial activism: Substantive Due Process is the Court’s
own creation without constitutional foundation. They
invented the rule out of nothing. Could have based it on
P&I clause, but that had been interpreted away in the
Slaughter-House cases. The rule gives the court enormous
power and discretion to strike down legislation they don’t
like and to impose their own value judgments on the states.
Judges just took upon themselves the right to strike down
things that were against what they saw as right. They say
that there has got to be something in the Constitution that
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applies to these situations, i.e., free speech and freedom of
religion.
Politically controversial at the time because legislators
were favoring better conditions for labor and the court was
seen to be favoring big business.
5.
Nebbia v. New York (1934)
Kansas statute prohibiting debt adjustment by non-lawyers.
Court required a substantial means-end relationship, like Lockner,
but didn’t impost on legislatures the court’s views about correct
economic policy.
6.
U.S. v. Carolene Products (1938)
Filled milk case (skimmed milk mixed with non-milk fats)
A presumption of constitutionality will be applied in the case of
economic regulation subjected to due process attack.
Even in the absence of explicit legislative findings, the Court held
the existence of facts supporting the legislative judgment is to be
presumed, for regulatory legislation affecting ordinary commercial
transactions is not to be pronounced unconstitutional unless it is of
such a character as to preclude the assumption that it rests upon
some rational basis within the knowledge and experience of the
legislators.
Minimum rationality scrutiny coupled with a presumption of
constitutionality.
7.
Williamson v. Lee Optical (1955)
Even the relatively mild scrutiny of Carolene Products is
abandoned. Court is willing to hypothesize reasons that would
support the legislature’s action, even though there is no evidence
that these reasons in fact motivated the lawmakers.
8.
Ferguson v. Skrupa (1963)
Court abandoned the use of the vague contours of the Due Process
Clause to nullify laws which a majority of the Court believed to be
economically unwise. It refuses to sit as a superlegislature to
weigh the wisdom of legislation.
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9.
Modern Approach
The Court hasn’t struck down economic legislation on Due Process
grounds since 1937.
Court has withdrawn almost completely from the business of
reviewing state legislative economic regulation for substantive due
process violations.
Object of the legislature of an economic regulation must fall within
the state’s police power (health and welfare).
Minimal rationality standard. There need only be a rational
relationship between the means used and the end sought.
Will only overturn if it is arbitrary and unreasonable.
C.
Privacy and Personal Autonomy
1.
Family and Marital Relationships
a)
Moore v. City of East Cleveland (1977)
Fundamental right of relatives to live together, even if family is
extended beyond the nuclear family.
Plurality. More than mere rationality scrutiny applied.
Intermediate level or strict scrutiny. Use of tradition to determine
which rights are fundamental. No similar protection for unrelated
co-residents.
b)
Zablocki v. Redhail (1978)
A person who was behind on his child support could not remarry.
Right to marry is fundamental. Substantial interferences with that
right will therefore not be sustained merely because they are
rational. Strict scrutiny applies.
Not the least restrictive means of collecting child support.
Penalizing those who want to remarry, instead of all who owe
support makes this statute grossly under-inclusive.
c)
Michael H. v. Gerald D. (1989)
Right to be recognized as the father of a child born while the
mother was married to someone else is not a generally
acknowledged liberty interest. To be protected, the liberty must be
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fundamental and one rooted in history and traditionally protected
in our society.
There is a good fit between the State’s purpose and the means
chosen to accomplish it. State has an overriding social interest in
the integrity of the family.
d)
Troxel v. Granville (2000)
Grandparents of children of deceased son sued for increased
visitation under Oregon statute permitting any third party to statecourt review of any decision by the parent regarding visitation.
Statute interferes impermissibly with a parent’s fundamental right
to control her child’s upbringing. It leaves the decision in the
judge’s hands, based on the best interests of the child. The state
shouldn’t interfere with a fit parent. There is a presumption that fit
parents act in the best interests of their children. Precise scope of
this right is not known. Non-parental visitation statutes are not per
se unconstitutional
2.
Personal Autonomy
a)
Griswold v. Connecticut (1965)
Contraceptive ban case. Griswold and the doctor originally went
to the court and asked for declaratory judgment. Went all the way
to the Supreme Court and was declared a non-justiciable
controversy and dismissed the case Poe v. Ullman, saying that the
law hadn’t been enforced in 100 years and wouldn’t be enforced
now. Griswold violated the law and the instant case followed.
Right to Privacy – What does the right cover? Is it an absolute
right? Can the government overcome the right only with a really
good reason? Can the government overcome the right for pretty
much any reason?
Rights are put into constitution because there is a need to restrict
democracy so that the majority can’t dictate to the minority in
certain areas. Do we need privacy even though to take it from one
group is to take it all? Does who is effected make a difference?
Clearly in the presence of the development of a new constitutional
right. Nothing in the Constitution gives this right. Substantive due
process as in Lochner would have required that the legislation
serve a legitimate government interest.
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Griswold takes a new approach by focusing on the liberty interest
of people to privacy within marriage. The liberty right of privacy
is more highly protected by the Constitution than the liberty
interests at stake in Lochner.
Is Griswold an anomaly?
b)
Eisenstadt v. Baird (1972) Right to use contraception
extended to unmarried persons.
c)
Roe v. Wade (1973)
Practical holding is that a woman has a right to terminate her
pregnancy without governmental interference. The state has no
compelling interest in the woman’s decision during the first
trimester. The state has a compelling interest in the health and
safety of the woman at all times and that interest outweighs the
woman’s liberty interest after the first trimester. The state has an
interest in potential life. The state’s interest in potential life
outweighs the woman’s liberty interest at viability.
d)
Planned Parenthood v. Casey (1992)
Reaffirmed Roe v. Wade. Affirms state’s power to restrict
abortion after fetal viability if the law contains exceptions for life
and health of mother. State has legitimate interests in protecting
the health of the woman and fetus from the beginning of the
pregnancy.
Right to define the concept of existence is person and not to be
compelled by the state.
Abortion is a unique act, fraught with consequences. Liberty of
the woman is at stake. Historical dominance of idea of women’s
role is overcome by the liberty interest of the woman.
Stare decisis. R v. W is not unworkable. No fact changes or
weakening of precedent that would allow the court to overrule R v.
W. A terrible price would have to be paid for overruling R v. W.
Essential holding of R v. W is affirmed.
Liberty must not be extinguished for want of a line that is clear.
Viability is the line. Trimester framework is not part of the
essential holding of R v. W. It undervalues the state’s interest in
the potential life within the woman.
Undue Burden Test
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The fact that a law which serves a valid purpose, one not
designed to strike at the right itself, has the incidental effect
of making it more difficult or more expensive to procure an
abortion cannot be enough to invalidate it. Only where
state regulation imposes an undue burden on a woman’s
ability to make this decision does the power of the State
reach into the heart of the liberty protected by the Due
Process Clause. Not all government intrusion is of
necessity unwarranted. Undue burden = conclusion that
a state regulation has the purpose or effect of placing a
substantial obstacle in the path of a woman seeking an
abortion of a nonviable fetus. Means chosen by the
state to further the interest in potential life must be
calculated to inform the woman’s free choice, not to
hinder it.
Medical emergency language is okay, though it could be
construed in an unconstitutional manner.
Okay to require woman’s informed consent. Information
must be truthful and not misleading about risks and
probably gestational age of child. Can require doctors to
give information on effect on fetus. Information is not a
substantial barrier to abortion, hence not an undue burden.
24-hour delay in the absence of a medical emergency is
okay in theory. It may in practice create a barrier, but not
to such a degree as would constitute a substantial barrier.
There is no constitutional right to abortion on demand
under R v. W. Right is to decide to terminate a pregnancy
free of undue interference by the state. Informed consent
facilitates the wise exercise of that right.
Spousal notification is an undue burden. The proper focus
of constitutional inquiry is the group for whom the law is a
restriction, not the group for whom the law is irrelevant.
Constitutionality of parental notification laws is based on
reasonable belief that minors will benefit from consultation
with their parents.
Recordkeeping: Information gathering is okay except with
regard to spousal consent, which places an undue burden on
the womans’ right to choose.
e)
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Stenberg v. Carhart (2000)
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Partial birth abortion statute unconstitutional.
Constitution offers basic protection to the woman’s right to choose.
Before viability, woman has right to terminate pregnancy.
A law designed to further the State’s interest in fetal life
which imposes an undue burden on the woman’s decision
before fetal viability is unconstitutional.
Subsequent to viability, the State in promoting its interest
in the potentiality of human life may, if it chooses, regulate,
and even proscribe, abortion except where it is necessary,
in appropriate medical judgment, for the preservation of the
life or health of the mother.
Law lacks any exception for the preservation of the health
of the mother.
Law requires a health exception because in some
circumstances the method to be banned is the safer method.
Imposes an undue burden on a woman’s ability to choose a
D&X abortion, thereby unduly burdening her right to
choose abortion itself.
Statute applies both pre- and post-viability.
Statute does not directly further a state interest in the
potentiality of human life by saving the fetus from
destruction as it regulates only a method of abortion. State
may promote, but not endanger a woman’s health when it
regulates methods of abortion. D&X method is less risky.
3.
Restrictions on Private Consensual Sexual Behavior
a)
Bowers v. Hardwick (1986)
Georgia law prohibiting sodomy, but enforced only against
homosexual practitioners.
Statute upheld because homosexuals had no fundamental
right to engage in sodomy. Privacy rights pertinent to
marriage, family and procreation had no relation to
sodomy. Not implicit in the concept of ordered liberty or
rooted in our nation’s history. Reluctant to recognize a
new right.
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b)
Romer v. Evans (1996)
Colorado constitutional amendment prohibiting protection
of homosexuals from discrimination.
Struck down. Flunked mere rationality review. No
legitimate state interest and means were not rationally
related to state end. Amendment singled out gays for
worse treatment than everyone else.
4.
Right to Die/Assisted Suicide
a)
Washington v. Glucksberg (1997)
Right to assist in suicide is not a fundamental right.
The threshold of fundamental rights avoids the need for a
balancing test.
The right to commit suicide with the assistance of another
may be just as personal and profound as the decision to
refuse unwanted medical treatment, but it has never
enjoyed similar legal protection.
Not all important, intimate and personal decisions are
protected the way abortion rights are protected under
Casey. The state has a legitimate interest in protecting life.
There is a real risk of subtle coercion and undue influence
at the end of life.
V.
Equal Protection
A.
Generally
No law doesn’t treat someone unequally, either on its face or by effect.
The question is whether those inequalities are unconstitutional.
Like due process, some liberty is more important than other liberties. The
rules applicable to restrictions on fundamental liberties require compelling
interest, while “lesser” liberties may be restricted as long as they are not
unreasonable or arbitrary.
Remedy
Give the benefit to all or remove the detriment from all.
Take the benefit from all or impose the detriment on all.
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1.
Two potential reasons of the Equal Protection Clause:
Laws applied equally to all (appears to be covered by due process)
Laws can’t treat people unequally (appears to be covered by
privileges and immunities, but P & I has been rendered
meaningless in Slaughter House Cases
Court uses equal protection clause to fill in for the deficiencies left
by due process and privileges and immunities as construed.
B.
The Original Understanding
1.
Slaughter-House Cases (Louisiana butchers)
Equal Protection clause is what keeps states from preventing black
people from owning property, etc. Equal protection says the states
can’t discriminate at all.
Alternate reading of the Fourteenth Amendment would have been
that the states can’t do anything the feds can’t, but this was not the
holding in Slaughter-House. Another alternate reading would be
that Congress intended to give all people the same rights white
people have.
2.
Strauder v. West (1980)
Struck down law that non-whites couldn’t serve on juries. No
analysis of reasonableness or rationality. The just said it’s
unconstitutional.
3.
Gulf, Colorado & Santa Fe Railroad v. Ellis (1897)
Equal protection was applicable to railroads. Statutes awarded
attorneys fees to landowners who sued railroads after their trains
threw sparks and caused fires. Only the railroads had to pay. If
plaintiffs lost, they didn’t have to pay. Classifications have to be
reasonable. This was going on at the same time as the
development of the substantive due process doctrine and represents
a broadening of the equal protection doctrine.
Doctrine of Reasonable Classification – Bender thinks this is not
useful.
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4.
C.
The Standard of Review
Social and Economic Regulatory Legislation
1.
Railway Express Agency v. New York (1949)
Advertising on trucks for other than the owner’s business banned
in New York City because they were distracting to motorists. All
truck operators can have their own ads. No truck operators can
have others’ ads. What about billboard owners?
A low that banned all three types of ads would be constitutional.
How would RwyEx be helped by stopping others from
advertising? How is RwyEx being hurt?
Not an equal protection violation. It is no requirement of equal
protection that all evils of the same genus be eradicated or none at
all. Government doesn’t have to regulate everything it can.
Jealousy clause: When a law confers to one person and not to
another a benefit that doesn’t impose a detriment on the one not
receiving the benefit. If the court really meant to look at the equal
protection issue, it would have used a different test. Should the
court care about distinctions when there is no competition between
groups and no “protected” class.
Heightened scrutiny of every law and regulation would be
impracticable. Legislatures are not rational. The process doesn’t
allow for the kind of rationality that would withstand judicial
scrutiny. Especially true when complainant doesn't have a right to
the benefit in the first place and they are jealous of people who are
benefitting.
Today, this case would press free speech rights. Commercial ads
were not protected speech then. Now it is protected.
2.
Williamson v. Lee Optical (1955)
Oklahoma statute prohibiting opticians from fitting glasses.
Legislature might have concluded that in some instances
prescriptions were necessary to permit accurate fitting.
Government has the right to combat evil one step at a time. To
attack economic/social regulations must rebut not only the
proferred reason for the regulation, but all possible reasons the
legislature might have considered.
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D.
3.
FCC v. Beach Communications (1993)
4.
Heller v. Doe (1993)
5.
Modern Rational Basis Review
Classifications
Higly Suspect
Semi-Suspect
Non-Suspect
Race, Alienage, Nationality
Gender, Illegitimacy
Age, Height, Weight,
Mental Retardation/Illness,
Homosexuality
(History of Oppression)
(Tradition of Oppression &
Exclusion)
E.
Highly Suspect Classifications
1.
Classifications Disadvantaging Racial Minorities
a)
Loving v. Virginia (1967)
Statute prohibiting marriage between whites and non-whites,
justified by state on grounds that it treats both races alike.
Statute contains racial classification and equal application does not
immunize it from strict scrutiny. Statutes purpose is invidious
discrimination and it has no overriding legitimate purpose.
Racial classifications are bad no matter what. The law treats
people unequally. Makes marriage a crime based on the race of
the marital partners. All racial classifications are subject to test.
Why is the state doing this if people are equal?
Is this necessary to accomplishment of a permissible state
interest?
Is it independent of racial discrimination?
Burden is on the state to show a compelling state interest.
b)
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Palmore v. Sidoti
White woman with a child divorced and was given custody.
She married a black man and Florida court transferred
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custody to the child’s white father, saying the child would
be stigmatized by remaining with her mother.
Court held that the law may not, directly or indirectly, give
effect to such private prejudices. Strict scrutiny showed
state’s goal of awarding custody in the best interest of the
child was compelling, but bowing to private prejudices was
not a necessary means of accomplishing this goal.
2.
Nationality
a)
Hirabayashi v. U.S.
b)
Korematsu v. U.S.
Post-Pearl Harbor order interring west coast Japanese
residents, including citizens. Court upheld the conviction,
but did not rule on the validity of the exclusionary rule.
Japanese is not a race, but is a protected group. All legal
restrictions that curtail the civil rights of a single racial
group are immediately suspect, but not necessarily
unconstitutional. It must be subjected to the most rigid
scrutiny. Pressing public necessity is okay. Racial
antagonism is not okay. Pressing public necessity
overrides racial antagonism where it exists.
Order upheld despite suspect classification because of
compelling need to prevent espionage and sabotage. No
less restrictive means to rapidly distinguish the loyal from
the disloyal.
3.
Racial Segregation in Schools and other Public Facilities
a)
Plessy v. Ferguson
Plaintiff, who was 1/8 negro, was required to sit in the colored car
by Louisiana law. Court said that 14th Amendment was not
intended to abolish distinctions between races. It wasn’t intended
to require comingling of races, not satisfactory to both. Separation
does not imply inferiority. Social equality is not intended.
Forced separate but equal applies in schools. Laws such as this
related only to social equality, not political or civil equality. Social
equality was not a goal of Equal Protection and could only be
attained through voluntary action by individuals, not states.
All classifications subject to rule of reasonableness.
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Classifications treating people separately must be
reasonable.
There is a question of being at liberty to mingle.
This case did not overrule Strauder, which was a
determination of whether black people could do something
at all (jury service). Holding gets watered down over time.
b)
Brown v. Board of Education of Topeka
Overruled Plessy. Rejected separate but equal as being
inherently unequal.
Broad attempt to get schools equalized under Plessy had
been gaining momentum. States that didn’t have equal
facilities were paying to send black students out of state.
This required travel, requirement of moving and lack of
access to the network in their home state. The same
problems arose with forcing blacks to sit in different parts
of the room or library. Attacking inequalities in elementary
and high schools would have to be done on a case by case
basis.
Court said the effect of segregation is to engender feeling
of inferiority in blacks. It made findings of fact about the
affect of desegregation.
Psychological damage
Inequality
Education is really important.
They avoided rational basis analysis of the law, legitimate
state interest and suspect class analysis.
4.
F.
Alienage
Semi-Suspect
1.
Classification Based on Gender
a)
Generally
Constitutional
(1)
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Micheal M. v. Superior Court (statutory rape)
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(2)
Rostker v. Goldberg (drafting of men only)
(3)
Miller v. Albright (citizenship requirements
dependent on gender of parent who is a citizen)
(4)
Geduldig v. Aiello (pregnancy not included in
health insurance coverage)
Unconstitutional
(5)
Reed v. Reed (probate administrator)
(6)
Frontiero v. Richardson (benefits for military
dependents)
(7)
Craig v. Boren (sale of 3.2 beer)
(8)
Virginia v. U.S. (Virginia Military Institute
integration)
(9)
Mississippi University for Women v. Hogan
(women only nursing school)
(10)
J.E.B. v. Alabama (gender based jury strikes)
Comparing all of the cases to the test in Railway Express
(as long as legislature could reasonably think the
classification is valid, it’s valid) all of the unconstitutional
cases would have been upheld. Comparing them to the
strict scrutiny applicable to race-based cases, all of the
cases would have been overturned. The unconstitutional
cases all place a burden on one sex.
Gender is a suspect class based on
Tyrannical overreaching, and/or
Stereotyping, and/or
Disparate impact.
Test: Heightened scrutiny
Classification by gender must
Serve important governmental objectives, and
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Must be substantially related to achievement of
these objectives
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Proffered state justification must be exceedingly
persuasive.
The bottom line is that you have to convince the Supreme
Court. There isn’t a hard standard that can be counted on.
Bender says that if there are potential dangers associated
with an action, then we shouldn’t do it unless we really
have to.
b)
Reed v. Reed (1971)
Idaho Probate Code granting preference between two
equally qualified candidates for administrator of an
intestates’ estates to males over females.
Does a difference in the sex of competing applicants for
letters of administration bear a rational relationship to a
state objective that is sought to be advanced by the
operation of the law?
State objective was to eliminate one area of controversy.
Reducing courts’ workload is not without validity,
however, the manner in which the law seeks to accomplish
this is not consistent with the Equal Protection Clause. Sex
is not a permissible classification justified by the state
objective.
c)
Frontiero v. Richardson (1973)
Military men are presumed to be the primary breadwinner
and are automatically given married rate benefits. Military
women have to overcome the presumption that their
husbands are not dependent on them to get benefits.
Classifications based on sex, like those based on race,
alienage and national origin, are inherently suspect and
must be subjected to strict scrutiny.
Since sex, like race and national origin, is an immutable
characteristic determined solely by the accident of birth, the
imposition of special disabilities upon the members of a
particular sex because of their sex would seem to violate
the basic concept of our system that legal burdens should
bear some relationship to individual responsibility. The sex
characteristic frequently bears no relationship to the ability
to perform or contribute to society.
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Government objective is “administrative convenience.”
Must demonstrate that it is cheaper to give benefits to all
men than it would be to evaluate men’s eligibility. By
according differential treatment to male and female
members for the sole purpose of achieving administrative
convenience, the statute violates Due Process Clause and
the 5th Amendment.
d)
Craig v. Boren (1976)
Law prohibiting sale of 3.2 beer to males over 21 and
females under 18. Law doesn’t prohibit drinking, just
purchase. Male contests statute.
Classifications by gender must serve important
governmental objectives and must be substantially related
to achievement of those objectives.
Important governmental objective was a traffic safety goal,
purportedly supported by statistics. However, Court found
that statistics could not support the conclusion that the
gender-based distinction closely served to achieve that
objective and therefore the distinction could not withstand
an equal protection challenge.
Principles engendered in the Equal Protection Clause are
not to be rendered inapplicable by statistically measured
but loose-fitting generalities.
Statute is weighed down with the baggage of sexual
stereotypes.
e)
Michael M. v. Superior Court (1981)
California statute made males liable for intercourse with
minor women, but women not liable for any intercourse.
State’s asserted reason for statute is entitled to great
deference.
Similarly situated: Differentness or sameness of people is
determined by reference to the objectives of the statute
being analyzed.
Must look at State’s objective in enacting or maintaining
the statute. Purpose was to discourage illegitimate teenage
pregnancies. Legislature was justified in seeing men and
women as differently situated because deterrent affect of
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pregnancy on woman was not applicable to men. The
statute served to equalize the deterrence on both sexes and
so, evaluating the statute in light of the objective, it treats
the sexes equally.
f)
Virginia v. U.S. (1996)
VMI provides a unique educational opportunity in Virginia
to males only.
Is proffered justification for classification exceedingly
persuasive?
Burden of justification is demanding and rests entirely on
the state. Justification must be genuine and not
hypothesized or invented post hoc in response to litigation.
Must not rely on overbroad generalizations about the
different talents, capacities or preferences of males and
females. All gender-based classifications today warrant
heightened scrutiny.
g)
Mississippi University for Women v. Hogan
Males can’t be excluded from a women’s nursing program.
Test is straightforward
Burden is on the state to show exceedingly persuasive
justification
Classification must serve important government objectives
Discriminatory means are substantially related to
achievement of objectives.
h)
J.E.B. v. Alabama
Potential jurors have an equal protection right to jury
selection procedures that are free from state-sponsored
group stereotypes rooted in, and reflective of, historical
prejudice. Gender, like race is an unconstitutional proxy
for juror competence and impartiality.
i)
Rostker v. Goldberg
Reinstatement of the draft, only as to men.
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Heightened scrutiny was not applied. The decision to
exempt women from the draft was not the accidental byproduct of a traditional way of thinking. The purpose of
registration was to prepare to draft combat troops. Women
are not eligible for combat. The exemption of women is
sufficiently and closely related to Congress’s purpose in
authorizing registration. The need for women could be met
by volunteers.
j)
Miller v. Albright
Different rules for establishing citizenship for illegitimate
children of citizen mothers and citizen fathers.
Statutory classification is not based on traditional
stereotype about men and women. The biological
differences between single men and single women provide
a relevant basis for differing rules governing their ability to
confer citizenship on children born in foreign lands.
k)
Geduldig v. Aiello
Lack of coverage for normal pregnancy under the
California disability insurance program was not an equal
protection violation. State has a legitimate interest in
maintaining the self-supporting nature of the program, and
in distributing the available resources in such a way as to
provide adequately for covered disabilities, rather than
inadequately for all disabilities. This is an objective and
non-invidious basis for the statute.
G.
Discriminatory Impact
1.
Washington v. Davis (1976)
Test for qualification for police officer candidates excluded
a disproportionately high number of black candidates.
Bender says this would pass rational basis scrutiny and
probably would pass strict scrutiny on compelling state
interest. “For all we know…” approach.
A statute need not be facially or expressly discriminatory.
The impact/effect of the statute is relevant. A statute,
otherwise neutral on its face, must not be applied so as
invidiously to discriminate on the basis of race. Action
must have discriminatory intent.
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With a prima facie case made out, the burden of proof
shifts to the state to rebut the presumption of
unconstitutional action by showing that permissible racially
neutral selection criteria and procedures have produced the
monochromatic result.
This case does not involve an intent to discriminate. The
classification is not suspect (police officer candidates).
Test is reasonably related to the government interest.
2.
Arlington Heights v. Metropolitan Housing (1977)
Rejection of request for rezoning for the purpose of
building apartments for integrated housing was not
unconstitutional. Discriminatory purpose was not a
motivating factor in the rejection.
In absence of clear discriminatory purpose, the following
may be considered in addition to disproportionate impact.
Historical background of the decision, especially if it
reveals a serious of official actions taken for invidious
purposes.
Specific sequence of events leading up to the decision.
Departures from the normal procedural sequence.
Legislative or administrative history.
3.
Personal Administrator of Massachusetts v. Feeney (1979)
Lifetime hiring preference for veterans. Complaint was
that it gave a disproportionate benefit to males.
Statute was neutral on its face. Law could not be explained
only as a gender-based classification. It cannot be
rationally explained on that basis.
Effect of statute did not reflect invidious gender-based
discrimination.
Volition or awareness of the consequences does not
constitute intent.
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4.
Castenada v. Partida (1977)
Grand jury selection process discriminated against MexicanAmericans.
H.
Voting
1.
Rogers v. Lodge (1982)
At-large election system was maintained for a discriminatory
purpose.
Showing of racially motivated discrimination is a necessary
element in an equal protection voting dilution claims.
Does the districting plan exist because it was intended to diminish
or dilute the political efficacy of that group?
Racially discriminative purpose triggers strict scrutiny. Antagonist
purpose.
2.
Hunter v. Underwood (1985)
Disenfranchisement of persons convicted of crimes had a
disproportionate impact on blacks. Original enactment was
motivated by a desire to discriminate against blacks on account of
race and continues to this day to have that effect. As such, it
violates the equal protection clause under Arlington Heights.
I.
Benign Discrimination
1.
Classifications Advantaging Females
a)
Kahn v. Shevin (1974)
Property tax exemption for widows in Florida. In taxation,
states have large leeway in making classifications and
drawing lines that in their judgment produce reasonable
systems of taxation. State had an interest in reducing the
disparity between the economic capacities of a woman and
a man. Law rests on a ground of difference having a fair
and substantial relation to the object of the legislation.
b)
Califano v. Webster (1977)
Difference between Social Security requirements for men
and women.
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c)
2.
Mississippi University for Women v. Hogan (1982)
Classifications Advantaging Racial Minorities
a)
Regents v. Bakke (1978) Medical School admission.
Should the use of race in UC Davis’s admissions be suspect?
Is it antagonistic toward white males?
Does it cause racial animus?
Does it reinforce stereotypes?
Equal Protection is there to serve
Government antagonism toward a minority
Perpetuation of society where economic inequality or segregation
are usual.
No discriminatory purpose, or discriminatory effect.
Bender says you don’t know whether the program will do a good
thing or a bad thing and the courts should just leave it alone.
Should not be decided by courts.
b)
Richmond v. J.A. Crossen & Co. (1989) Minority
Contractors – strict scrutiny
c)
Adarand Constructors v. Pena (1995)
Minority contractors – strict scrutiny Affirmative action is
okay if the government admits to past discrimination.
d)
3.
Constitutional Law
Bender – Fall 2000
Miller v. Johnson ( ) Congressional redistricting
disadvantaging minorities.
Classifications Disadvantaging Aliens
a)
Graham v. Richardson (1971) Aliens denied welfare
benefits in Arizona.
b)
Bernal v. Fainter (1984) Texas law preventing aliens from
becoming notaries.
c)
Mathews v. Diaz (1976)
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Congress may condition an alien’s eligibility for
participation in a federal medical insurance program
(Medicare Part B) on continuous residence in the U.S. for a
five-year period and admission for permanent residence.
Both conditions are constitutional. See also comment at
end on state welfare benefits.
4.
Classifications Based on Illegitimacy
a)
Lalli v. Lalli (1978)
Illegitimate children of decedent barred from inheriting
because no order of filiation was entered during decedent’s
lifetime. Test: Did discrete procedural demands of statute
placed on illegitimate children bear an evident and
substantial relation to the particular state interests the
statute was designed to serve? Goal of statute was to
provide for the just and orderly disposition of property at
death. Fraudulent assertions of paternity will be much less
likely to succeed, or even to arise, where the proof is before
the court of law at a time when the putative father is
available to respond. Focus is not on abstract fairness, but
on whether the statute’s relation to the state interests it is
intended to promote is so tenuous that it lacks the
rationality contemplated by the 14th Amd.
b)
Clark v. Jeter (1988)
Difference in time during which legitimate and illegitimate
children could establish paternity was an equal protection
violation.
5.
Classifications Disadvantaging Non-Suspect Groups
a)
Cleburne v. Cleburne Living Center (1985)
Permit for operating a group home. Not a quasi-suspect
classification, so lesser standard of scrutiny is applicable.
Under that standard, ordinance is invalid as applied.
b)
Heller v. Doe (1993)
Lower standard of proof needed to commit mentally
retarded than mentally ill. Constitutional on rational basis
review.
c)
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Romer v. Evans (1996)
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6.
Legislative Districting
a)
Reynolds v. Sims (1964) See notes
b)
Davis v. Bandemer (1986)
Plurality opinion. Redistricting plan alleged to be
discriminatory to Democrats.
Justiciable
Must prove intentional discrimination against an
identifiable political group and an actual discriminatory
effect.
Adverse effect is insufficient for an EP violation. Failure
to win seats is unsufficient. Need more than one election to
prove.
c)
Miller v. Johnson (1995)
Need racial neutrality in governmental decision making.
Racial discrimination in districting gets strict scrutiny.
d)
Harper v. Virginia State Board of Elections (1966)
[Federal poll tax prohibited by the Constitution.]
Combination of important issues/rights and impact on the
poor raises Constitutional claim, even though there is no
specific constitutional right involved.
e)
Shapiro v. Thompson (1969)
Durational residece requirements for welfare benefits. New
residents are a suspect class. Can’t penalize the exercise of
a constitutional right (to resettle in another state). Such
legislation is subject to strict scrutiny.
f)
7.
Length of State Residence Distinctions
a)
Constitutional Law
Bender – Fall 2000
Dunn v. Blumstein (1972) Long residency requirements for
voting.
Zobel v. Williams (1982) Alaska tax rebate distribution
plan unconstitutional.
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8.
9.
Court Access, Welfare and the Poor
a)
Boddie v. Connecticut (1971) Court filing fees.
b)
U.S. v. Kras (1973) Filing fees for bankruptcy
c)
Harris v. McRae (1980) Hyde Amendment. No public
funding of abortion except. . .
Education
a)
San Antonio ISD v. Rodriguez (1973) Poor,
minority/majority school districts.
b)
Plyler v. Doe (1982)
Right of Texas to deny public school education to
undocumented school age children.
VI.
Regulation of Private Conduct Under 13th Amendment
1.
Jones v. Alfred H. Mayer Co. (1968)
Refusal to sell home to black purchaser was unconstitutional under
13th Amendment as a badge of slavery. Congress has the right to
execute the intention of the amendment.
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VII.
Freedom of Expression
A.
Content-Based
1.
Advocacy of Illegal Action
a)
Masses v. Publishing Co. v. Patten (SDNY 1917)
Clear and present danger test was weak, so learned hand set
forth a new test focussing solely on the words spoken, not
the surrounding circumstances. Okay to criticize the law,
but not to counsel or advise others to violate it. Test makes
the likely effects of the speech irrelevant.
2.
Clear and Present Danger Test
a)
Schenck v. U.S. (1919)
Circulars sent to draftees calculated to cause insubordination in the
armed services and to obstruct the recruiting and enlistment
service. Urged conscript not to submit to intimidation. Character
of the act depends on the circumstances in which it was done. No
protection for shouting fire in a crowded theater. Do the words
and context together present a clear and present danger that
they will bring about the substantive evils that Congress has a
right to prevent? Things said during war are different from the
same things said during peace.
b)
Abrams v. U.S. (1919)
Circulars distributed intending to bring the form of
government of the U.S. into disrepute. Called on workers
to strike so that unrest at home would prevent U.S. from
sending troops to Russia. Convictions upheld.
c)
Gitlow v. New York (1925)
Statutory crime of anarchy. Advocated the overthrow of
the U.S. government by unlawful means. Statute upheld.
Intent is all that is needed. Need not wait for the spark to
blaze up to extinguish it.
d)
Whitney v. California (1927)
(Majority overruled in Brandenberg) Criminal syndicalism
(teaching or abetting sabotage) Statute upheld. Statute
could not be declared unconstitutional unless it was an
arbitrary or unreasonable attempt to exercise the authority
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vested in the state in the public interest. Brandeis,
concurring: Fact that speech is likely to result in some
violence or in destruction of property is not enough to
justify its suppression. There must be the probability of
serious injury to the state. Among free men, the deterrents
ordinarily to be applied to prevent crime are education and
punishment for violations, not abridgment of the rights of
free speech and assembly.
e)
DeJonge v. Oregon (1937)
Member of the Communist Party. Peaceable assembly for
lawful discussion cannot be made a crime. Purpose of the
meeting is determinative and this meeting wasn’t
advocating the overthrow of the government.
f)
Dennis v. U.S. (1951) Smith Act makes speech per se a
crime.
g)
Brandenberg v. Ohio (1969)
Current state of Clear and Present Danger Test. (Overrules
Whitney)
KKK leader convicted under Ohio statute for criminal
syndicalism.
Principle is that constitutional guarantees of free speech
and free press do not permit the state to forbid or proscribe
advocacy of the use of force or of law violation except
where such advocacy is directed to inciting or producing
imminent lawless action and is likely to incite or produce
such actions.
Incitement
Imminence
Probability of producing
Danger has to be serious
Statute must include on its face the clear and present danger
rule. If it tells people they can’t do something they have a
constitutional right to do, it will be declared
unconstitutional. [Test has to be in the statute or to have
been construed to be in the statute and jury has to know
about its requirements.]
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3.
Defamation
a)
Beauharnais v. Illinois (1952)
b)
New York Times Co. v. Sullivan (1964)
c)
Gertz v. Robert Welch, Inc. (1974)
d)
Dunn and Bradstreet, Inc. v. Greenmoss Builders, Inc.
Credit report incorrectly indicating Greenmoss was
bankrupt. Suit was for injury to reputation. Purely private.
No malice needed for punitives.
e)
4.
5.
6.
Obscenity and Pornography
a)
Paris Adult Theatre I v. Slaton (1973)
b)
Miller v. California (1973)
c)
Jenkins v. Georgia (1974)
d)
New York v. Ferber (1982)
e)
Osborne v. Ohio (1990)
f)
Reno v. ACLU (1997) Internet oscenity
“Fighting Words”
a)
Cantwell v. Connecticut (1940)
b)
Chaplinsky v. New Hampshire (1942)
c)
Cohen v. California (1971)
d)
City of Houson v. Hill (1987)
Hate Speech
a)
7.
Constitutional Law
Bender – Fall 2000
The Florida Star v. B.J.F. (1989)
R.A.V. v. City of St. Paul (1992)
Commercial Speech
a)
Virginia State Board of Pharmacy v. VCCC (1976)
b)
Central Hudson Gas & Electric v. PSC (1980)
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c)
B.
44 Liquormart, Inc. v. Rhode Island (1996)
Content-neutral time, place, and manner regulations
1.
2.
3.
Constitutional Law
Bender – Fall 2000
Public Forum
a)
Scneider v. New Jersey (1939)
b)
Frisby v. Schultz (1988)
Non-Traditional Public Fora
a)
Adderley v. Florida (1966) Jail demonstration.
b)
International Society for Krishna Consciousness v. Lee
(1992) Airport solicitation
Private Premises
a)
City of Ladue v. Gilleo (1994)
b)
City of Renton v. Playtime Theatres, Inc. (1986)
c)
Consolidated Edison Co. v. PSC (1980) Controversial
material in bill stuffers.
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VIII. Penumbral First Amendment Rights
A.
Symbolic Speech
1.
U.S. v. O’Brien (1968) Draft card buring
2.
Texas v. Johnson (1989) Flag burning
3.
U.S. v. Eichman (1990) Anti-Flag Burning Act unconstitutional.
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IX.
Freedom of Religion
A.
B.
Establishment Clause
1.
Everson v. Board of Education (1947)
2.
Lamb’s Chapel v. Center Moriches Union Free School District
(1993)
3.
Rosenberger v. Rector and Visitors of U. of Virginia (1995)
4.
Santa Fe ISD v. Doe (2000) Prayer at football games.
5.
Agostini v. Felton (1997)
6.
Mitchell v. Holmes (2000)
Free Exercise
1.
Sherbert v. Verner (1963) Sabatarians
2.
Wisconsin v. Yoder (1972)
Amish need not send their children to high school. Intersection of
Free Exercise and fundamental right to rear children the way you
choose.
3.
Employment Division v. Smith (1990) Peyote case.
4.
Church of the Lukumi Babalu Aye v. City of Hialeah (1993)
Animal sacrifice.
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