Download Substantive Due Process – Fundamental Rights

Constitutional Law II Outline
11th Amendment
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“The judicial power of the US shall not be construed to extend to any suit in law or equity, commenced
or prosecuted against one of the States by citizens of another state, or by citizens or subjects of any
foreign state.” 11th
The 11th on its face does not say anything about a citizen of a state suing their own state.
Shortly after the Constitution was adopted the Court in Chisolm v. Georgia said that a citizen could sue
a state. So, 11th was passed to reverse that decision. It was passed to restore sovereign immunity it did
not create it. State sovereign immunity preceded the constitution. (Alden v. Maine)
Seminole Tribe v. Florida: Citizens of Florida cannot sue Florida. The 11th amendment does not create
the sovereign immunity of the states. This preexisted the Constitution.
In the last 25 years Congress has been expanding dramatically passing bills that purport to force states to
consent to be sued and the Rhenquist court has had to protect the states.
The Interaction of the 5th & 14th Amendments
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5th: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a
presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the
militia, when in actual service in time of war or public danger; nor shall any person be subject to the
same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to
be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor
shall private property be taken for public use, without just compensation.”
The 5th only controls the Federal government. It has been selectively incorporated through the 14th to
actions of State governments.
14th: “nor shall any state deprive any person of life, liberty, or property, without due process of law.”
Takings Clause:
o The court said that the bill of rights does not apply to the states and you have no relief from the
state taking your land. (Barron v. Mayor of Baltimore 1833)
o The 5th amendment takings clause has since been incorporated through the 14th and today Mr.
Barron would win.
Double Jeopardy Clause:
o Palko v. Connecticut: The birth of selective incorporation. Only Fundamental principals of
liberty and justice which lie at their base of all of our civil and political institutions will be
applied to the states. This is the filter to decide which provisions of the bill of rights will be
applied the states.
o The double jeopardy provision is not a fundamental principle and is not incorporated against the
states.
Self-Incrimination Clause:
o The self-incrimination clause is not incorporated against the states because it is not a
fundamental principle of liberty. (Adamson v. California)
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Reconstructions Amendment: 13, 14, & 15
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13, 14,15th amendments were the reconstruction amendments to try to make the former slaves on an
equal footing with other citizens.
The 13th and the 15th are limited to race and newly freed slaves. The 14th is not; the second sentence of
the 14th does not mention race, slavery or former condition of servitude and is therefore applicable to
everyone.
Section 5 of the 14th amendment says: “The congress shall have the power to enforce, by appropriate
legislation, the provisions of this article.” What does this mean?
o The legislation must have “congruence and proportionality” between the enforcement provisions
and the constitutional violations that it is trying to stop. (Kimel v. Florida)
o City of Boerne v. Flores: Congress claimed that they were just trying to enforce the 1st
amendment as applied to the states through the 14th under the power of section 5 of the 14th. The
court says that this is not just enforcement. The Congress cannot change the meaning of the
constitution.
o There has not yet been a Congressional act that has been upheld under section 5 powers since
City of Boerne came down.
Article I §10 – The Contracts Clause
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Article I, §10: “No State shall … make any… Law impairing the Obligations of Contracts”
In order for the contracts clause to be violated:
1) Must be States action, not the federal government.
2) A city may have to comply with the contracts clause as an arm of the state, but it is not as clear.
3) A law must have been passed; not just the government breaking a contract.
 Contracts clause has been expanded to public contracts. (Dartmouth College v. Woodward)
 Types of Contracts and level of scrutiny:
o When the state passes a law affecting a contract between two independent 3rd parties it is a
rational basis test. (Blaisdell)
o If the law affects a contract between the state and a 3rd party, this is still hotly governed by the
contracts clause. (New Jersey Trust)
o If it is a contract between two independent 3rd parties, but it involves a highly regulated industry,
this is still hotly governed by the contracts clause. (Allied Structural Steel)
 You may not contract away the police power. The state can take back their police power at anytime.
(Stone v. Mississippi & Butcher’s Union)
 A state is allowed to interfere with the contract if it passes a five part test: (Home Building & Loan
Ass’n v. Blaisdaell)
1) An emergency
2) legitimate end; basic interest of society
3) reasonable; does not end the contract altogether
4) extension time is not unreasonable
5) legislation is temporary in duration.
 The State can pass a law interfering with contracts as long as the law does not affect an essential
element of the contract. (City of El Paso v. Simmons)
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5th Amendment –Takings Clause Jurisprudence
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Takings Clause of 5th Amendment “nor shall private property be taken for public use, without just
compensation” has been incorporated to the states. This has been reduced to almost nothing, but is now
making a comeback. Anytime you seriously talk about the 5th amendment you scare the local
governments because they could not afford the cost of actually paying for everything that they have
taken.
 The Public Use doctrine:
o It used to mean that the public would have access to the land for highways, or parks, or trains,
airports, etc.
o In recent years, as Hawaii Housing v. Midkiff shows, public use has been changed to almost a
non-element of the takings jurisprudence. The Government forced private property owners to sell
to other private owners. They defined Public Purpose very broadly and made it a rational basis
tests.
o GM v. Poletown: The government gave GM a housing district for plant expansion and this was a
public use.
o Public Use is not dead it is just dormant. So always raise the Public Use argument and then
dismiss it using Hawaii Housing.
2 types of takings:
o Regulatory taking: the destruction of the value of property by the passage of a law or regulation that
does not involve physical possession. If you destroy the value of property it is a regulatory taking.
(Pennsylvania Coal v. Mahon & Lucas v. S. Carolina) Must first prove a taking has occurred and
then argue over price.
 Any residual use = no taking. If there’s something valuable and you haven’t destroyed all
economic use it is not a taking. If you are making any money after the alleged taking, it is not
a taking. (Penn Central v. City of New York)
 Two factors to consider: Economic impact of the regulation and the character of the
governmental action.
 There must be a nexus between the harm alleged and the condition imposed. Nollan v.
California Coastal Commission)
 The relationship between the harm alleged and the condition imposed must be roughly
proportional (Dolan v. City of Tigard)
 100% Loss in Value a taking (Lucas v. South Carolina Coastal Council)
 Temporary takings exist and must be compensated for. (First English Evangelical Lutheran
Church v. County of Los Angeles)
o Physical Taking: When there is physical occupation of land the only real issue is the amount the
government pays. When no physical occupation you first have to prove a taking then the amount.
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The 14th Amendment– State Action Requirement
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“nor shall any state deprive any person of life, liberty, or property, without due process of law”
The Congress has no power under the 14th to regulate private conduct it only applies to government
conduct. (The Civil Rights cases)
What is State Action? 3 different tests:
1) The Lugar Test to determine state action:
a) Whether the claimed constitutional deprivation resulted from the exercise of a right of privilege
having its source in state authority. And
b) Whether the private party charged with the deprivation could be described in all fairness as a
state actor. (fact and circumstances test)
2) Traditional Government Functions Test: If you take on the functions of a government, you are a
government and are subject to the constitution limits on government. (Marsh v. Alabama)
3) Pervasive Entwinement Test: The new test (Brentwood Academy)
o Some Examples of State Action:
 A court ruling and enforcement of a judgment is state action that can rise to the level of
constitutionality under the 14th. (Shelly v. Kramer)
 The Civil Rights Act of 1964 does not cover Sexual Orientation discrimination so the
only available way to protect against this is through the Shelley theory.
 Discriminatory jury selection in a criminal case is state action (Powers v. Ohio) and even in
civil case it is state action under the 14th (Edmonson v. Leesville Concrete) but a public
defender is not a state actor and can discriminate in jury selection (Polk Count v. Dodson).
o Some example were No State Action found
 Columbia Broad. Sys. v. Democratic Nat’l Comm.: the mere licensing of television stations
does not prevent the station from content-based discrimination of advertisements.
 Moose Lodge Number 107 v. Irvis: the Court found the mere grant of liquor license to a
discriminating private club not to make the club a state actor.
 A states failure to provide protection from private harm does not involve state action.
(Deshaney v. Winnebago County Social Services)
Procedural Due Process – 14th Amendment
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Easily identified in the criminal arena, but it also refers to the rights outside of criminal issues. These are
the rights owed to you by the government just b/c you are a citizen. Not a lot of emotion in this area just the
guarantee that government will act in a certain way in a given situation
Quick test for procedural due process:
1. Is there legitimate expectation re: interest?
2. Did they rely on that expectation?
3. Were the procedures adequate?
To gain protection you must show a legitimate expectation and reliance upon that expectation (Bd. of
Regents v. Roth)
Mathews Test
1) How important is the private interest affected by the official action?
2) How great is the risk involved in the erroneous deprivation through the procedures used?
3) How great a value if any of additional or substitute procedural safeguards? and
4) Compare all that to the government’s costs both fiscal and administrative of additional or substitute
procedural requirements.
Punitive Damages: deprive ’s of property (money) through the state courts and if there is not sufficient
guidelines for the jury and appellate procedures to protect the ’s interest it could impinge on ’s
procedural due process rights. (BMW v. Gore– violates due process, Pacific Mutual v. Halsip– sufficient
procedures so okay
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1st Amendment – Free Speech
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Three questions for 1st amendment:
1) What kind of speech?
o Political, religious, commercial, news, symbolic, entertainment, erotic, obscene, threatening
o Threatening is not protected.
o Child porn is not protected.
o Political is the most protected.
o Commercial speech is in the middle.
2) Where is the speech?
o Non-Public Forum: restrictions on speech are allowed if reasonable Time Place and Manner
Restrictions. (Krishna Case)
o Limited Public forum: intermediate scrutiny
o Public forums: Strict Scrutiny, Compelling state interest, narrowly tailored.
 The entrance to government facilities are public forums but you cannot block egress.
3) What, if any, is the government imposed Burden?
o After this come the tests. There are lots of tests depending on the answers to these questions.
 Prior Restraint: Stopping speech before it occurs. These are in use all the time in the US. But if on an
exam strike it down.
o Narrow definition: a court or other government order not to publish certain speech.
 We do not tolerate this in the US. You can say it and then you are later punished.
o Presumed unconstitutional. To overcome the presumption must prove justification for the
restraint (NY Times v. US.)
o May be allowed only if no less drastic means available (Nebraska Press)
 What is the difference between a content-based regulation and a viewpoint based regulation?
o Content-based: more easily upheld then viewpoint discriminations. Aimed at keeping the whole
range of information out of view. Both the pros and the cons are suppressed.
o View-point: easiest to recognize when there are several sides to an argument but only some sides
are allowed to post their signs or what ever. Aimed at regulating the information flow so that
only a certain view gets through. Strict scrutiny applies when you find viewpoint discrimination
(Rosenburger v. Rector)
Types of Speech
 Defamation: NY Times v. Sullivan. Defamatory (Libel) speech is protected if about a public officer
unless it was malicious.
 Commercial Speech: relates solely to the economic interest of the speaker; May not be fraudulent.
o 3 elements of commercial speech (Bolger v. Young Drug Product):
1) an advertisement,
2) referring to a specific product;
3) where the speaker is economically motivated.
o Commercial Speech gets Intermediate Scrutiny 4 part test (Central Hudson v. Public Services
Commission of New York):
1) Is the commercial speech protected? Must be lawful activity and not misleading.
2) Is the asserted government interest substantial? This prong is not very strong it’s kind of a
rational basis test. If the legislature will pass it is likely substantial.
3) the restriction must directly advance the state interest
4) could it be more narrowly tailored
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Fighting Words/Inciting Criminal Action: Not protected (Chaplinsky) and subject to regulation. In order
to constitutionally suppress/punish such speech, it must meet the Brandenburg Test:
1) Intend to incite immediate unlawful activity and
2) be likely to incite immediate violent lawless activity.
Offensive Words/Hate Speech: (Cohen v. California) Is protected Speech. To prohibit or regulate it
would constitute content-based discrimination. (RAV v. St. Paul)
o A Hate Crime is not symbolic speech, when it turns into conduct it can be regulated and
prosecuted. (Wisconsin v. Mitchell)
Obscene Speech is not protected. 3-part Miller Test for obscenity:
1) The average person would find “taken as a whole, appeals to the prurient interest”;
 Prurient: that which reflects a shameful or morbid, rather than a normal interest in sex.
2) Describes or depicts, “in a patently offensive way, sexual conduct specifically defined by
state law”; and
3) “as a whole, lacks serious literary, artistic, political or scientific value.”
o Obscenity standards of Miller do not apply to child pornography because it is per se obscene
(NY v. Ferber)
o Obscene material on the internet is not restricted (Reno v. ACLU)
Symbolic Speech/Expression:
o Look to results and compare:
 It can: ban draft card burning, ban nude dancing, ban hate motivated actions
 It cannot ban: flag burning, sit-ins, the refusal to salute, attaching a peace sign to a flag,
wearing a black armband.
o if the motive is to suppress a certain type of speech it is bad, but if it is a neutral law that was
intended to stop something and it happens to have the incidental effect of suppressing some
speech, it is okay.
o The O’Brien Test:
1) is the government action constitutional?
2) If it furthers a an important or substantial government interest;
3) if the governmental interest is unrelated to the suppression of free expression; and
4) if the incidental restriction is no greater than is essential to the furtherance of the
interest.
o Flag burning history: Texas v. Johnson struck down a state statute against it In response congress
passes the flag protection act of 1989. Then in US v. Eichman in a 5-4 decision this law is struck
down.
o Nude Dancing: apply O’Brien Test (Barnes v. Glen Theater)
Government employee Speech: receives less protection. Must pass the Connick Test (Waters v.
Churchill): Public employee speech is protected if:
1) it is a matter of public concern and
2) it does not unduly disrupt the functioning of the workplace.
Interaction between the Spending Clause and Free Speech:
o Rust v. Sullivan and NEA v. Finley the court held that the federal government can decide what
type of speech it wants to fund without violating the 1st amendment rights of the people receiving
the funds.
o Legal Services v. Velasquez: The federal gov. was not allowed to restrict a Lawyers types of
representation even though the federal gov. was paying for it through the spendings clause
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Freedom of Association: the right to associate with people who have the same beliefs as you have even
if your beliefs are unfounded.
o Intimate associations are absolutely protected from government intrusion.
 Familial, marital, etc. They are a group that bids together to foster and maintain close
personal relationships; small highly selective.
o Expressive association: Expressive associations are not an absolute right.
 Definition: A group that binds together to shield or forward a particular point of view and
are public groups, no selective joining.
 Two tests for protection:
A) Infringements on that right may be justified by regulations that: (Jaycees)
1) Do not impose any serious burden on the freedom of expressive association?
2) Was adopted to serve a compelling state interest,
3) Is unrelated to the suppression of ideas,
4) cannot be more narrowly tailored.
B) Boy Scouts Case Test:
1) Does the organization engage in some kind of expression?
2) What is that expression? Question of fact. Looks at what the organization says
3) Will the conduct being imposed impair this expression? The majority gives some
deference to the beliefs of the organization on this point also.
 Political Parties are expressive associations so the government may not regulate the way
it chooses it’s political candidates (California Democratic Party v. Jones).
Privileges and Immunity Clause – Article 4, §2; & 14th Amendment
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“The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several
States.” (Article 4 §2)
o This Privileges and Immunities clause is aimed at a specific group of people: Legislators. Its
purpose is to protect the citizens of the all other states against the favoritism that legislators will
naturally show to the citizens of their own states.
o Homer: When all the close calls go to the home team in any sporting event. The convention was
concerned that this would happen in the state governments.
o There are major and minor rights. As to the major rights all citizens have to be treated alike. But
as to the minor rights the states can favor it’s citizens. The big rights are: (Corfield v. Coryell)
1) Protection by the government
2) Enjoyment of life and liberty
3) The right to possess property of every kind
4) to pursue and obtain happiness and safety
5) The right of a citizen of one state to pass through, or reside in any state
 Right to Travel: a state cannot restrict benefits based on length of residency or prior
state residency Three elements of the right to travel: (Saenz v. Roe)
a) Right to come and go
b) Right to be a welcome visitor
c) Right of newly arrived citizen be treated like any other citizen.
6) To claim the benefit of the writ of habeas corpus
7) to institute and maintain actions of any kind in the courts of the state
8) to take hold and dispose of property either real or personal
9) an exemption form higher taxes or impositions than are paid by the other citizens of the
state.
 The right to pursue an occupation is also protected (Supreme Court of New Hampshire v.
Piper)
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o Remember this: just because it’s a right protected by PI clause doesn’t mean that the states can’t
discriminate. If it does it must do so based on the following test. States are allowed to
discriminate based on citizenship where there is: (Supreme Court of NH v. Piper)
1) a substantial reason for the difference in treatment
2) The discrimination practiced against non-residents bears a substantial relationship to
the State’s objective; and
3) whether or not there is the availability of a less restrictive means.
“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of
the United States”
o The 14th amendment also has a privileges and immunities clause that was meant to give all
citizens a general citizenship and apply the Bill of Rights to the States.
o This was shut down in the Slaughter House Cases because this clause in mentioning a citizen of
the United States was not “meant as a protection to the citizen of a state against the legislative
power of his own state.” The court in this case refused to apply the Bill of rights against the
states.
o After this case the P&I clause of the 14th was reduced to nothing and the Court had to invent
Substantive Due Process in order to give the protections of the Bill of rights to citizens of the
states.
o p. 1116 “perhaps the P&I clause (of the 14th) is just sleeping” Hopefully they will sometime
overthrow slaughterhouse.
Substantive Due Process – Economic Liberty – 14th Amendment
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After Slaughterhouse they could no longer use the P & I clause of the 14th to protect the fundamental
rights (those in the Bill of Rights) of citizens. So they had to make it up using the Due Process. They did
this in Lochner.
Lochner: A baker sues because he wants to work overtime and the state won’t allow it. The court said:
The Freedom of Contract related to carrying out a trade or profession is within the protected liberty of
the 5th and 14th Due Process. This right may be limited only if within the states police powers to protect
the health and safety of it’s citizens. (theory: laizee faire free market)
This approach was revered in Nebbia and Carolene Products. The Current law pertaining to economic
liberty is: Rational basis. If the law has a reasonable relation to a proper legislative purpose, are not
arbitrary or discriminatory, then due process requirements are met.
Equal Protection – 14th Amendment
History of Race Law
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History of Slavery:
o It came as soon as the first ships arrived. Via the West Indies where slaves manned the sugar
cane fields. Native peoples were taken and enslaved.
o It was rather unremarkable until Quaker Writer John Wolman started to call it an evil. He led the
early efforts against slavery that began be picked up by colonist. The Liberator was the
abolitionist newspaper. It published weekly from 1830 to 1865.
o There were 4 million slaves by 1864.
o In the constitution: How to count them, fugitive slave clause, when the importation will stop.
o About 1/3rd of the framers were slave owners including Washington and the writer of the
declaration.
o The 1820 Missouri compromise: Maine is free and Missouri is slave so that there will remain a
balance in the Senate.
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1850 compromise: California free, North/South boundary set up, stronger fugitive slave clause.
Then there is a civil war in Kansas over whether or not it will be a free or slave state.
Nebraska comes in Free.
Dred Scott case. The most infamous case because it has nothing to do with the law, it’s all about
power. In 1846 this case started. An army surgeon owned Scott and his wife and they were
moved around from fort to fort, some of those were in free states. Does this make The Scotts
Free? On the Supreme Court Taney leads a southern majority. They hold that he’s not a citizen
and therefore cannot bring a lawsuit. Congress is not authorized to abolish slavery in the
territories. The right of property in a slave is distinctly reserved in the constitution and you
cannot take away a man’s property under the 5th. Just because a slave is moved to a free state that
does not make him/her free. The southern majority wanted to put an end for all times to the
slavery question. Are territories obliged to return fugitive slaves? The slaves had to flee to
Canada in order to prevent being taken back to the south by a bounty hunter.
o This case brought on the Civil War. 620,000 soldiers died in the civil war.
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Since the Civil War and the enactment of the 14th, we’ve tried to deal with the race problem in 4 ways:
1) Separate but equal: Plessy v. Ferguson.
2) Color Blindness: 1964 civil rights act to abolish Jim Crowe laws in the south.
3) Equality Plus: started in 1968 Affirmative action is used to make some votes rise faster than
others to eradicate the effects of slavery.
4) Today: Now you may never use race to award a benefit or to inflict harm unless it is being used to
remedy an actual act of discrimination based on race.
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The History of School Desegregation:
o Plessy v. Ferguson: Their theory of the 14th amendment is that there are three spheres of
rights: social, economic, & political. The 14th was meant to make blacks and whites will be
equal in the political sphere. They say that the 14th has nothing to do with equality in the
social sphere. “Separate but Equal” Doctrine begins.
o There were several cases in which the Court found instances of separate treatment not being
equal and therefore unconstitutional without overthrowing the separate but equal doctrine.
(Sweatt v. Painter)
o This line of reasoning was finally overturned in 1954 in Brown v. Bd. of Ed. when the court
said that separate is never equal and they ordered schools to move with all deliberate speed to
integration.
o Nothing happened for 5-10 years until Brown v. Bd. II ordered immediate desegregation.
Throughout the late 50’s and early 60’s the desegregation began accelerating.
o The court rules that a school district is under a constitutional obligation to get rid of all
vestiges of previous separate systems. (Green v. County Sch. Bd. of New Kent County) The
6 areas that must be the same are:
1) Faculty,
2) staff,
3) transport,
4) extra curricular activities,
5) facilities, and
6) attendance patterns.
o The federal government had to take control of schools to get them to desegregate and many
districts remained under federal control for over a decade while trying to get equality in all 6
areas. (Freeman v. Pitts- 17 years)
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Equal Protection means: people who are similarly situated should be treated similarly by the
government.
o If the government treats them differently you must have a reason for doing it, in some situations
you must have a very good reason depending on the type of category.
3 different levels of scrutiny:
1) Rational Basis Test: Non-suspect classes such as: age, eyesight, income level, homosexuality, etc.
o Test: Is the Gov. law/regulation rationally related to a legitimate or permissible
governmental objective?
o Burden: On Individual Challenging the Law
2) Intermediate Scrutiny: 2 alarm fire – gender, illegitimacy, and some alienage distinctions.
o Test: Is the Governmental law/regulation substantially related to an important governmental
objective?
o Burden: Arguably on Government.
3) Strict Scrutiny: 3 alarm fire – Suspect Classes: race, national origin, and alienage. Anything
affecting fundamental right such as: the right to vote, court access, right to travel, the right to be a
political candidate. No less discriminatory alternative available, compelling reason, …
o If merely the effects of the policy have a race impact that is not a race based policy and strict
scrutiny will not apply the distinction must be an intention to discriminate upon race.
o Test: Is the suspect classification (or burden on a fundamental right) necessary to promote a
compelling state interest when there is no less burdensome alternative means to accomplish
the state interest?
o Burden: On government
For all Equal Protection Questions must first find State Action Just like in Due Process Analysis.
Bush v. Gore: The recount is an equal protection violation because there are no standards to ensure the
equal application of all votes. And we don’t have time here to make standards and do a recount.
The federal right is selecting a president
Race - Strict Scrutiny
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Not allowed to discriminate against black jurors (Strauder v. West Virginia)
In order to have an Equal Protection Violation you have to show an intent to discriminate on behalf of
the governmental agency.
o Naturally occurring segregation will not be regulated (Freeman v. Pits)
o Disparate impact is not enough (Washington v. Davis)
To prove intent 3 part test: (Village of Arlington Heights)
1) a clear pattern unexplainable without discriminatory intent, or
2) historical evidence of racial discrimination in the community, or
3) legislative or administrative record with statements by decision makers.
Preferential Treatment/Affirmative Action:
o General assertions of past discrimination cannot do away with the requirement of actual showing
of discrimination (City of Richmond - State)
o Strict Scrutiny will apply to affirmative action programs on State and Federal Level. (Adarand)
o The losers in Affirmative action programs are those that bear the burden because they are not
allowed to participate “why do I have to carry the burden of racism in America” (Hopwood)
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Voting Districts/Reapportionment:
o Reapportionment is a justicable issue and not a political question. (Baker v. Carr)
o Until Reynolds v. Simms proportional representation was not required by the states. Until 1960
this was a purely political question. Now it is “One person, one vote.” The districts must be of
roughly equal population. This is by bodies, not just voters.
o A plaintiff states a claim under the Equal Protection Clause by alleging that a state redistricting
plan, on its face has no rational explanation save as an effort to separate voters on the basis of
race. (Shaw v. Reno)
 Courts have refused to get involved into the other kinds of gerrymandering by party lines
or incumbancy. They will only deal with proportionality among the districts and racial
gerrymandering.
o Traditional factors that are allowed in reapportionment: compactness, contiguous geography,
integrity of political subdivisions, avoiding contest between incumbents, geographical
subdivisions
o The traditional factors are fine but race cannot predominate. O’Conner says only extreme
instances of racial gerrymandering will be struck down. (Miller v. Johnson)
o Legitimate districting principles cannot be subordinate to race. (Bush v. Vera)
Gender – Intermediate Scrutiny
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The 14th did noting to change the status of women in the US. (Minor v. Happersett and United States v.
Anthony.)
19th amendment gave women the right to vote but not freedom from other injustices based on gender.
The court in 1976 invented intermediate scrutiny for gender distinctions (Craig v. Boren) the standard
developed was that the government interest had to be substantially related to the distinction. (Craig v.
Boren – not substantially related; Michel M. – was)
New Standard for intermediate scrutiny is (US v. Virginia) The government reg/law must have :
1) an exceedingly persuasive justification for
2) an important governmental objective &
3) must be substantially related to the achievement of that objective.
Alienage: Sometimes Intermediate, sometimes Rational basis It depends on the right being infringed
upon.
o The intermediate issues have been: Cannot exclude from public assistance, public schools (Plier
v. Doe), some civil service jobs.
o The rational basis issues have been: OK to exclude aliens from voting, public office, jury duty,
teaching, and police work.
Illegitimacy: intermediate – important governmental interests, substantially advanced.
Non-Suspect Classes – Rational Basis
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Sexuality: Sodomy is not covered under the right to privacy. Laws against it are not unconstitutional
under equal protection analysis. (Bowers v. Hardwick.)
However, the court has struck down a blanket law against the protection of homosexuals using rational
basis standard of review. (Romer v. Evans)
Mentally Disabled: The court used a rational basis test to strike down an ordinance pertaining to the
location of homes for the mentally disabled. (City of Claiborne)
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Substantive Due Process – Fundamental Rights
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What is substantive due process?
o Textual rights: Freedom of speech, religion, no cruel and unusual punishment, contracts clause,
etc.
o Non-textual rights: this is where substantive comes in. What are the essential rights? This is the
hard part.
If you find a fundamental right protected by the 14th and it is being burdened by the gov. then you
subject the action to strict scrutiny. Test: Does the gov. have a compelling objective (really persuasive)
did they use the least restrictive means available (narrowly tailored).
The 9th amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to
deny or disparage others retained by the people.”
o What does this mean? constitutional history that suggests that this was preserving the rights
listed in the declaration of independence without listing them.
o It must mean at least this: there are some rights not listed that were intended to be protected by
the constitution, otherwise it would be a nullity.
The following have been held to be Fundamental Rights:
 Parental Rights:
o Parent’s have a fundamental right to control the education of their children. (Meyers v.
Nebraska, Peirce v. Society of Sisters)
o The state can elaborate instructions, yet there are some things that they cannot do. If it goes to
the core relationship of how a parent wants their children to be raised, Meyers will protect it.
o Condom distribution in Schools – does this interfere with Parental rights to control upbringing?
Appellate court is split, Supreme Court has yet to decide the issue. (Alfonso v. Fernandez, Curtis
v. School Commitee)
o Parental rights outweigh grandparent rights (Troxel v. Granville)
 Right to Marry: Cannot outlaw interracial marriage (Loving v. Virginia)
 Right to Divorce: There is a constitutional right to divorce subject to the states regulation of the process
(Boddie v. Connecticut)
 Right to Procreate:
o Three-strikes your sterilized is not constitutional. (Skinner)
o Exception is Buck v. Bell where the court held that the mentally retarded could be sterilized.
 Right to Define Your Family Unit
o Zoning laws cannot interfere with one’s right to live with their family (Moore v. City of East
Cleveland)
o The government can give incentives (food stamps, welfare benefits) to limit family size or that
result in the break up of the family unit. (Ling v. Castillo)
o The right to define your family unit will outweigh a father’s right to establish paternity of an
illegitimate child (Micheal H. v. Gerald D.).
 Right to Privacy
o Griswold found a right to marital privacy using the:1st- right of association, 3rd- quartering of
soldiers, 4th – unreasonable search and seizure, 5th – self-incrimination, and the 9th – other rights
not named.
o Eisenstadt enlarged the scope of privacy to unmarried persons.
o Roe v. Wade expanded it to the right to have an abortion.
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Right to Control Reproduction
o The constitution says nothing explicitly about the governments right to control reproduction.
o Roe v. Wade held: 1) there is a fundamental right of woman to abort, 2) No compelling state
interest in fetus, 3) a framework for deciding future state laws into 3 trimesters of different levels
of scrutiny.
o Webster says public funds can be limited as applied to abortions and counseling; interaction with
the spendings clause.
o Planned Parenthood v. Casey throws out the trimester analysis and replaces it with a new
standard. A women’s right cannot be unduly burdened by a law/reg that places substantial
obstacles in a women’s exercising of her right.
 24 hour waiting period, informed consent, minor’s must have permission from parents or
judge, and facility reporting requirements were all okay
 Husband notification was not okay
o Stenberg v. Carhart: the partial birth abortion statute was struck down as a violation of a
women’s right to choose because there was no health of the mother exception and because it was
overbroad and could effect other procedures.
o Know where the justices have been and are likely to go. 4 are committed to a new version of
Casey, 4 would probably use strict and strike any restriction. O’Conner is the float in the middle
using intermediate scrutiny.
Right to refuse Medical Treatment
o There is a right to refuse life sustaining medical treatment. (Cruzan)
o But there is no right to assisted Suicide (Washington v. Glucksberg)
o This difference in treatment does not rise to an equal protection argument (Vacco v. Quill)
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Privileges & Immunities
Article IV: Under the Constitution
 Prohibits a state from denying to out-of-staters privileges it grants to its own citizens
 Applies only when a state is discriminating against out-of-staters in relation to the exercise of a basic or
fundamental right.
 Right to pursue an occupation is a basic right (Sup Court of New Hampshire v. Piper)
 Right to own or dispose of property w/in the state
 Right of access to state courts
 Right to come into the state to exercise a fundamental right; however
 Rights of out-of-staters to hunt elk and harvest oysters are not protected rights (Baldwin v. Fish and Game
Commission & Corfield v. Coryell)
Test for Allowable Discrimination under Article IV:
To justify a discrimination against out-of-staters, state must show:
1) There is a substantial reason for the difference in treatment; and
2) The discrimination bears a substantial relationship to the state’s objective
14th Amend:
 Gives all citizens of the US the right to interstate travel
Slaughterhouse Cases
 P&I clause was severely limited after the Slaughterhouse cases b/c:
 Court refused to apply the bill of rights to the states by holding that the 14th Amend was not meant to protect
a citizen of the state against the legislative power of his own state; therefore
 The court had to invent the substantive due process clause to give the protections of the bill of rights to the
citizens of the states
Saenz v. Roe (breathed new life into the 14th Amend P&I)
This case identified three components of interstate travel and their constitutional bases
 Right of a citizen of one state to enter and leave a state. No constitutional bases given by court
 Right to be treated as a welcome visitors rather than an unfriendly alien when temporarily present in a state.
Based in Art. IV b/c it removes from citizens of ea state the disabilities of alienage in other states
Right of newly arrived citizen to be treated like other residents of the state. Based in 14th Amend
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