Con Law Review 1. DP and EP RB a. Both DP and EP clause have a RB test. The Test is applied when no other test can be applied. No suspect classes, then you are left with the rational basis test. b. Basic Approach: DP RB or EP RB. This is usually not a crucial choice, but make your best effort to make your best call. i. DP concerned with the law overall (“This law just doesn’t seem to make sense”) 1. RB Applied: Williamson Lee Optical. The TC found the law to be needless and wasteful which hints towards DP analysis ii. EP principal concern is classification. If it treats people who are similarly situated in different ways. If you look at a law and the classifications don’t make sense, you may have an EP issue. 1. RB Applied: State the Test. “The law limiting the substantive interest must rationally relate to a legitimate gov’t end.” “The court may add in fact to support the law.” Know the likely conclusion that the law will stand, but explain why. iii. For both RB analysis: Note that the deference given to the legislative branch makes it unlikely that any particular law will be irrational. Acknowledge the weaknesses of the law and give a practical analysis of it. c. More Searching RB Test: If you see a law that gets the RB test, usually you apply the deferential review standard. But, you use the more searching RB as an alternative discussion only when you have (1) a politically unpopular group has been singled out for mistreatment because it is not well liked. If so, (a) apply the more searching RB test when it is likely to make a difference. i. The Ct will apply the test in a more searching kind of way. The Ct is more careful about the purpose the State gives for passing the law. The Ct will look for the actual purpose for the law being passed. 1. Hippies, Gays, Mentally Retarded, Children of Illegal Aliens. 2. The Contract Clause a. ONLY STATE LAWS cannot be impaired i. The K Clause has no application to Federal Laws. 1. If a federal law impairs it is DP RB issue b. ONLY RETROACTIVE K impairment is not allowed i. If prospective, it is DP or EP RB c. If you have a state law that retroactively impairs contact rights then you apply the public purpose balance test: i. Substantial impairment; 1. More than de minimus but not total destruction of K rights. 2. Does it destroy rx investment based expectations? 3. Did the State historically regulate this area? 4. The court will usually look to 2nd and 3rd prongs even if not sub imp. ii. Justified by a legitimate public purpose; 1. Nature of gov’t interest 2. Not limited to emergencies iii. Rx conditions appropriate to the public purpose. 1. Whatever the law is advances the public purpose. 2. Are contractual rights fairly treated? a. Billesdale K between mortgage holders and banks gave banks right to foreclose. Law impaired preexisting K’s in a way that advanced the concern for the Great Depression. Balanced horrors of depression w/K rights. 3. 5th Amendment No Takings Clause a. What is public use? i. Ct has defined public use as either 1. For public use 2. For any public use that rationally relates to public interest a. The gov’t can use eminent domain and take property from one private person and give to another private person assuming that there is a rational relation with the takings for another public purpose. b. What is just compensation? i. First English – City of LA tried to back out of their takings issue. The Ct said that if the court determines it is a taking – even if the gov’t thought it was just a regulation – there are two choice: 1. Take it and pay the FMV 2. Cancel the takings but still pay for the period of time in which it was using the property. c. What is a taking v. not a takings i. If it is considered to be a compensable taking, the gov’t must pay for it. ii. If not a compensable taking there must only be some rational basis for the regulation. iii. Zoning Laws 1. Not compensable takings. They must only relate to legitimate gov’t interest. 2. Exception: Zoning laws that take away nearly all or all economically viable use are a taking. iv. Per Se Categories 1. Per Se = Automatic taking requiring just compensation. 2. Physical appropriation by the gov’t moving in and taking property. v. Penn Central 1. Extent of Taking a. All of it Takings b. Less than all of it not a taking 2. Nature of Taking a. Zoning Not a taking b. Retroactive in nature maybe a takings 3. Harm to rx investment backed expectations vi. If no taking: 1. RB DP 4. Fundamental Right to Privacy a. The right to privacy cases are usually DP cases. If you have a fundamental right it is the CSI test: i. Must be narrowly tailored to advance some compelling state interest. 1. Must consider less drastic alternative ways without hurting the CSI. a. Many cases are resolved using the least drastic alternative test so use it. b. The Biases are so much against the validity of the law that the Ct may not take a true analysis of the competing interests. Determine what kinds of interests fall within the various rights. The only clear issue is with regard to procreation decisions. They fall within right to privacy issues. i. Procreation decisions 1. Regarding children deserve special attention because the Court has not decided how to treat them yet. ii. Child Rearing decisions 1. We know that in some instances there are fundamental rights involved. When the child was denied any contact with natural father = RB Test. CSI test applied when … Just talk about the issue. iii. Right to vote iv. Right to travel v. Right privacy: 1. Right to marriage a. Problematic b/c ‘significant and unrx restrictions on the right to marry get CSI test.” “Insignificant and rx restrictions on the right to marry to get RB test.” i. Right to gays to marry nothing in the test that gives us very much of a clause as to how the court will rule. 2. May include the right to keep information confidential (ON TEST). vi. Abortion 1. Undue Burden Test a. The regulation get an undue burden b. Prior to the point of viability the undue burden test applies. c. After the point of viability the gov’t has a CSI in protecting the fetus subject to the life of the mother always being protected over the life of the infant. 2. Parental Consent/Parental Notification a. Court has upheld parental consent /notification laws provided there is a judicial bypass. The Court has been very strict with the judicially bypass provisions: i. The provisions must have two aspects: 1. Judge must have authority to determine whether minor is mature to make own decision; and if the minor is not sufficiently mature to make her own decision, then the 2. Judge must have discretion to decide whether the abortion is in the best interests of the minor. 3. Partial Birth Abortions a. Laws the regulate a particular horrific abortion. Court said that partial birth laws were historically too vague. (They struck normal abortions as well and there was no emergency or exigency exception). b. Congress has found that there are no emergency or exigency exceptions that would require partial birth abortion. 4. Funding Decisions a. Always get RB level of review. b. Direct or indirect funding laws get RB level of review. 5. Suspect Classifications a. Race, ethnic origin. b. Test: CSI. i. Always state the test: Narrowly tailored to advance a CSI. Look for less drastic alternatives of advancing the gov’t interest without race-based classifications. c. Race and school desegregation cases present a special problem b/c the court distinguishes between de jure segregation and de facto segregation i. De Jure Intentionally state imposed segregated schools. Gov’t acts or official acts that create a segregated school system. The only type of segregation that violates the EPC. 1. The Law only forbids de jure segregation. ii. De Facto No remedy; segregation just b/c the way it is (ie, social, economic factors, etc). d. De Jure Segregation Remedies i. Limited to fixing the wrong. Federal courts cannot go beyond what the constitutional violation was. ii. When local school boards have remedied last vestiges of segregation there is no longer the ability of federal court to do anything. e. Gender Based Classification i. Intermediate Test 1. Craig v. Boren: Law must substantially relate to important gov’t interests. 2. Loren: Exceedingly Pervasive justification. a. State both for Test ii. MCG thinks that “Substantially relate to important gov’t interest” is the test to use. 1. Must look to rx alternatives. Is there another way f. Classifications Based Upon Pregnancy i. Classification based upon medical condition (not gender) = RB level of review. g. Disproportionate Impact i. Washington v. Davis Neutral law which has disproportionate impact on race and gender. ii. Ignore disproportionate impact. The level of review is not changed and the level of review is not changed (usually RB test). 1. Exception: Intent If the law was passed for the purpose for working a discriminatory classification based upon race or gender than the law is per se invalid. a. Proof that the law is passed for the purpose the hurting someone b/c of their race/gender 2. Race Based Classification You only apply the per se approach when the law has no valid purpose at all except intentional discrimination. If there is any conceivable purpose: CSI. h. Gender Based AA i. Intermediate Test. Laws passed for the purpose of making up for historical discrimination against women can pass the intermediate test. But, you must consider rx alternatives, and if a case-by-case analysis is a better alternative the law may not pass. ii. Gender Based AA programs must be moderate and flexible overall. i. Race Based AA i. Get CSI. But, in defining the CSI in this area, the Ct has upheld benign race based classification such as race based AA. ii. Look at four factors 1. Purpose a. Making up for past race-based classifications are not sufficient. The best purpose is making up for past racebaase discrimination is for specific purposes (such as employers discriminating, diversity in schools, etc.). 2. Degree of advantage of minority a. Can’t give too much advantage. It should be a case by case analysis of the minority applicant in school settings. 3. Degree of disadvantage to majority a. Employment case said that preferences in hiring might pass, firing someone in order to maintain racial quota not ok. 4. Degree of flexibility a. Waiver provisions are viewed more favorably than racial quotas. Racial quotas are unconstitional. j. Classifications based upon Alienage i. Most state laws get CSI test. ii. State laws which classify based upon jobs defining the political function get RB: 1. State classifications with regard to particular jobs that regard a high level of policy making in the performance of the job. 2. This rule is only between legal aliens and citizens, not illegal aliens. 3. All federal laws regarding alienage get RB test. k. Classifications based upon Legitimacy i. Less strict intermediate test than gender discrimination. ii. Classification based upon legitimacy must bear a substantial relationship with legitimate state ends. 1. The Ct has upheld laws that require some form of legitimating in the life of the father in order to inherent. If the father is still alive the ct requires that the child have until the age of majority to est legit. l. Fundamental Right to vote i. Qualifying to vote 1. Length of Registration must be a resident for one year. Anything beyond that fails the CSI test. 2. Apportionment legislative district must be roughly equal in size. a. Congressional Districts Must be as near to 1=1 as practicable. b. State Legislative Districts Must be substantial equality based upon population. ii. Racial Gerrymandering 1. Districts cannot be drawn when the primary purpose is to draw the districts based upon race. Districts cannot be drawn when the primary purpose is to draw the districts based upon race. Some consideration based upon race is allowed, but the primary purpose cannot be race. 2. Size of district Repubilcan v. Dem districts is OK for now iii. Access to Ballot 1. Get CSI test but actual rule is that the regulations must rx relate to the electoral process. 6. Fundamental Right to Travel a. Durational Residency i. b. Necessities of life or other fundamental rights. 7. Bona Fide Residency Requirements a. Typically RB Test 8. Wealth Based Classification a. RB level of review i. However, fees and charges – if they impact a persons right to get a hearing – will be struck. 9. Education a. Above a minimal level is not a fundamental right. Absolute denial is an unresolved issue. 10. Procedural DP a. It must be the right kind of act. It must a judicial like determination: an individualized, case-by-case discretionary decision. b. There must be the taking of a liberty or property interest: i. State law gives property interests. NOT THE CONSTITUION. 1. If the law says that you can only be fired for case then you have a property interest in your job. If the law says that you hold your job at the discretion of your employer than you don’t have a property interests. ii. Liberty interest are created by state law AND THE CONSTITUTION 1. Fundamental rights, etc, are all liberty interest protected by the constition. iii. Right level of process. 1. The level of DP required is infinitely variable: Look at: a. Importance of State interest b. Importance of Private interest c. Would additional DP reduce Error? 11. Irrebuttable Presumptions a. Classifications getting the RB level of review. b. The only possibility of IP is that if your facts parallel: i. Ct made a discretionary decision (fault, fitness of parent) ii. Scheduled a hearing after the fact. c. This requires PDP. 12. State Action a. VERY OFTEN OVERLOOKED ISSUE b. How to Spot the Issue: i. If it is the gov’t doing something then you don’t have a state action issue. ii. If there is any gov’t agency, any person employed by the gov’t, etc., there is not state action discussion b/c you just say “the city did this, it is state action.” c. State Action is a key issue when there is a private person that has abridged someone’s constitutional rights. d. Lawsuit against the gov’t for something a private person did i. Lawsuit filed against the private individual. e. Once you have a State Action issue you must weight the fact: Sift the Facts. Look for Gov’t blame and gov’t responsibility. 13. Congress’s Power a. First, can Congress pass legislative reaching private acts? i. Yes-under the 13th and 14th Amendment ii. Congress can reach private acts using Section 2 of the 13 A with two elements: 1. Must involve racial discrimination a. Racial Discrimination involving employment, contracting rights, ownership and use of property. 2. Must involve a badge of slavery. b. Congress can reach private acts that invade your privilege and immunities as a private citizen i. Congress has the inherent power of protecting the essential attributes that protect your members. Thus, congress can make it a crime for someone to interfere with one of the following areas: 1. Sailing Waters 2. Petition for Grievance in DC 3. Federal Marshall rights 4. Right to Travel interstate. ii. Congress does not have the right to reach things outside of these. Gender Discrimination or any other type of private acts. c. Second, can Congress change the constitutional meaning of the 13, 14 and 15 Amendment. i. Congress has some limited ability to expand the substantive provisions of Section 1 of 13th A, Section 1 14th A, and Section 1 of 15th A. ii. Congress cannot change substantive but can change remedial provisions. “Congress can make limited changes.” Thus, the 13th A prevents slavery and congress can prevent badges of slavery. 15th says no dis in voting, Congress can say no laws that have disproportionate impact. 14. Free Speech a. Moving quickly to the type of issue that it is. Make a judgment about the type of speech it is and go there. i. Radical Political? ii. Defamatory Speech? iii. Regulation of Indecent Speech Fighting words. iv. Right to privacy issues v. Revealing private fact vi. Time/Place/Manner regulation vii. Content based, apply strict test. Make good choices as to what I’m going to narrow in on. b. Void for vagueness and overbreadth i. KEY: Use when your client is engaged in speech not protected by the first amendment. c. Licensing /Permit Schemes i. d. Prior Restraints i. Presumptively invalid absent some C/P Harm or SCI e. Commercial Speech i. Central Hudson/Obrien 15. Establishment Clause a. Three part limit test: i. Too much focus on just religious aspects of 10th Amendment is b. Making determination of whether gov’t is too much focused on religion, use CSI. i.