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Constitutional Law II Paul Bender Fall 2000 This outline was done in Word 2000, so it can be opened by PC or Mac in Word 97, Word 2000 or Word 2001. Page numbers in brackets refer to the casebook. The outline is paged for a tabbed notebook. Click on any item in the table of contents and you will be taken to that place in the outline. 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 Constitutional Law Bender – Fall 2000 God is Good All the Time Page 2 of 50 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 Constitutional Law Bender – Fall 2000 God is Good All the Time Page 3 of 50 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 Constitutional Law Bender – Fall 2000 God is Good All the Time Page 4 of 50 (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 Constitutional Law Page 5 of 50 Bender – Fall 2000 God is Good All the Time 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. Constitutional Law Bender – Fall 2000 God is Good All the Time Page 6 of 50 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. Constitutional Law Bender – Fall 2000 God is Good All the Time Page 7 of 50 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. Constitutional Law Bender – Fall 2000 God is Good All the Time Page 8 of 50 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. Constitutional Law Bender – Fall 2000 God is Good All the Time Page 9 of 50 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) Constitutional Law Bender – Fall 2000 God is Good All the Time Page 10 of 50 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 Constitutional Law Bender – Fall 2000 God is Good All the Time Page 11 of 50 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. Constitutional Law Bender – Fall 2000 God is Good All the Time Page 12 of 50 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. Constitutional Law Bender – Fall 2000 God is Good All the Time Page 13 of 50 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] Constitutional Law Bender – Fall 2000 God is Good All the Time Page 14 of 50 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 Constitutional Law Bender – Fall 2000 God is Good All the Time Page 15 of 50 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) Constitutional Law Bender – Fall 2000 Hagar v. Reclamation District (1884) God is Good All the Time Page 16 of 50 “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] Constitutional Law Bender – Fall 2000 God is Good All the Time Page 17 of 50 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. Constitutional Law Bender – Fall 2000 God is Good All the Time Page 18 of 50 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. Constitutional Law Bender – Fall 2000 God is Good All the Time Page 19 of 50 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 Constitutional Law Bender – Fall 2000 God is Good All the Time Page 20 of 50 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 Constitutional Law Bender – Fall 2000 God is Good All the Time Page 21 of 50 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. Constitutional Law Bender – Fall 2000 God is Good All the Time Page 22 of 50 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 Constitutional Law Bender – Fall 2000 God is Good All the Time Page 23 of 50 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. Constitutional Law Bender – Fall 2000 God is Good All the Time Page 24 of 50 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 Constitutional Law Bender – Fall 2000 God is Good All the Time Page 25 of 50 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) Constitutional Law Bender – Fall 2000 Stenberg v. Carhart (2000) God is Good All the Time Page 26 of 50 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. Constitutional Law Bender – Fall 2000 God is Good All the Time Page 27 of 50 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. Constitutional Law Bender – Fall 2000 God is Good All the Time Page 28 of 50 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. Constitutional Law Bender – Fall 2000 God is Good All the Time Page 29 of 50 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. Constitutional Law Bender – Fall 2000 God is Good All the Time Page 30 of 50 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) Constitutional Law Bender – Fall 2000 Palmore v. Sidoti White woman with a child divorced and was given custody. She married a black man and Florida court transferred Page 31 of 50 God is Good All the Time 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. Constitutional Law Bender – Fall 2000 God is Good All the Time Page 32 of 50 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) Constitutional Law Bender – Fall 2000 Micheal M. v. Superior Court (statutory rape) God is Good All the Time Page 33 of 50 (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 Constitutional Law Bender – Fall 2000 Must be substantially related to achievement of these objectives Page 34 of 50 God is Good All the Time 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. Constitutional Law Bender – Fall 2000 God is Good All the Time Page 35 of 50 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 Constitutional Law Bender – Fall 2000 God is Good All the Time Page 36 of 50 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. Constitutional Law Bender – Fall 2000 God is Good All the Time Page 37 of 50 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. Constitutional Law Bender – Fall 2000 God is Good All the Time Page 38 of 50 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. Constitutional Law Bender – Fall 2000 God is Good All the Time Page 39 of 50 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. Constitutional Law Bender – Fall 2000 God is Good All the Time Page 40 of 50 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) God is Good All the Time Page 41 of 50 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) Constitutional Law Bender – Fall 2000 Romer v. Evans (1996) God is Good All the Time Page 42 of 50 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. God is Good All the Time Page 43 of 50 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. Constitutional Law Bender – Fall 2000 God is Good All the Time Page 44 of 50 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 Constitutional Law Bender – Fall 2000 God is Good All the Time Page 45 of 50 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.] Constitutional Law Bender – Fall 2000 God is Good All the Time Page 46 of 50 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) God is Good All the Time Page 47 of 50 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. God is Good All the Time Page 48 of 50 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. Constitutional Law Bender – Fall 2000 God is Good All the Time Page 49 of 50 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. Constitutional Law Bender – Fall 2000 God is Good All the Time Page 50 of 50