Con Law IR: McGoldrick SUBSTANTIVE DUE PROCESS: The Due Process Clause of the 5th/14th amendments will protect substantive interests/rights. 5th: Congress may not deny due process rights 14th: No state may deny due process rights This is substantive due process. Substantive interests are ―things you might want to do.‖ Rational Basis Test: Any laws limiting substantive interests must rationally relate to some legitimate/permissible government end. Undertake a review of the facts to figure out if there is a legitimate/permissible government end, and then look to see if the law actually passed advances those ends in a rational manner. Legitimate End: All you are looking for are legitimate or permissible. They need not be compelling, just arguably legitimate. Rational Relationship: Does the law rationally attain the end? The Court looks at it – and even if the facts show that the law doesn‘t really advance the governmental interest, there still may be a rational basis. Fifth and Fourteenth Review: The 5th Amendment is read as though it said ―Congress may not take life, liberty or property without due process of law.‖ Note that the first Ten Amendments applied only to Congress until the 14th Amendment applied it to the several states. CONTRACT CLAUSE: No state shall pass any law . . . impairing the obligation of contracts. Test for Laws which Impair the Rights and Obligations of Contracts: Public Purpose Balancing Test: 1. Substantial impairment: The level of the Court‘s review will depend upon the severity of the impairment (don‘t take it too seriously, that‘s just what they say). Court will look at reasonable investment-based expectations. 2. Significant and legitimate public purpose justifying the impairment: How important is the public purpose and how important is it to abridge preexisting contractual rights to advance that purpose. Apparently, the purpose does not need to be very strong, although more is required when government cancels its own contracts. 3. Must be reasonable conditions appropriate to the public purpose: Ask how fair was the state in treating the contract holders. 5TH AMENDMENT: NO TAKING CLAUSE: No taking of private property for public use without just compensation. Public Use: If the government wants to pay for it, it is for the public use. o If the taking rationally relates to the public interest then the gov‘t can take. Even if the gov‘t is taking from one private party to another. Eminent Domain Just Compensation: The fair market value of the property prior to the government‘s interference. No Taking: Most important question.
Types of Takings: 1. When the government takes something for government use it is usually a taking. 2. Government takes your property for use by others it is usually a taking. 3. Indirect action by the government: Government not taking the property, they are just regulating it, there are two most likely situations where takings may be found: a. Physically invasion: (or allows the physical invasion of your property). This is de facto inverse condemnation. b. Regulatory Taking: Inverse Condemnation 4. If something is not a taking it is simply a due process rationale basis review. There must be a relation to a legitimate governmental end. If the government determines that there is a taking, then the gov‘t must pay for the property. a. Penn Coal v. Mann i. Penn prevented the taking coal from the subsurface if it affected the buildings on top of the land. Justice Holmes said that what requires compensation ―is a matter of degree.‖ He concluded that it was a compensable taking. b. Keystone i. Court reached the opposite conclusion with similar facts as Penn Coal hard to distinguish between the two. c. Euclid Realty i. A change in zoning laws from business to residential. This cut the value of the land by 1/3. The retroactive change in zoning was not a compensable taking. The logic is that it is zoning which gives value to property, thus it is the zoning which takes away value; no gain, no loss. 5. Per Se Category #1: Where the government takes all economically-viable uses for your property: Imprecise. Some residual value may be left. Long settled that zoning does not require compensation. a. Major Exception: You cannot take all economically viable use unless necessary to abate a nuisance or some other similar type of governmental interest. 6. Per Se Category #2: A physical invasion or occupation is a taking. It can be a physical invasion or an invasion of noise or smells (think airports). a. Loretto: If the gov‘t physically occupies your property you have a taking, no matter how small. The taking was very de minimums. Gov‘t put a small box on top of every building and the Court said that this was a compensable taking. b. Hawaii: Gov‘t required other boats to use a private marina and the Court said it was a physical taking. c. Cosby: Planes flew over a chicken ranch and chickens became nervous, cracking eggs. Government said that there was a taking. 7. Modern Approach when the two per se categories don‘t apply: Even without the two clear categories there still might be a taking. Look at the three factors from Penn Central: a. The economic effect on the owner of the property. Thus, even though there is not a complete taking the economic harm could be onerous.
b. The harm to reasonable investment-based expectations. Look at a number of things—look to see if the law is prospective or retroactive (prospective laws hurt investment-based decisions less, obviously). c. The Court will look at the nature of the taking and extent. The nature of a taking—it is a little uncertain. Zoning is not usually a taking. Historically it meant that zoning cases were less likely to be takings; normally it just means to look at the inherent fairness of the taking. 8. Penn Central: a. City of NY is trying to protect landmark buildings. Penn Central had purchased Grand Central Station. Penn Central wanted to build a 55 story hotel above the Station. They were denied the right to build the building. There was a trade as to what property you could develop if you were denied a permit b/c of the regulation. The Court said it rationally related to a leg. Gov‘t purpose, thus no taking. The Court said it was not a complete taking because they didn‘t take all economically viable use. The nature of the taking was also considered. Zoning takings are less likely to be compensable takings than other laws. Reasonable investment based expectations: They were denied the right to buy a hotel but still owned a station. Thus, it didn‘t thwart all expectations. 9. Lucas v. South Carolina a. Lucas bought some beach front property and was going to build some single family homes in South Carolina. South Carolina passed a regulation that disallowed permanent structure. However, there is still economically viable uses: rent it out to campers, hold weddings on it, sunbathe, etc. He could still exclude others. Some value is gone, but the Court thinks that the principal value is not gone. However, the Court finds that most economically viable uses are taken and he deserves taking. Nuisance Exception: If your use of property could be a nuisance to other people then the gov‘t can take all economically viable uses of your property without compensation. 98% of the coal could be taken and the rest could be left behind. i. Palazzolo v. Rhode Island: A person with 18 acres was denied a permit to develop 11 of the 18 acres. He sued to get compensation for the property that they could not develop. The Court said ‗no‘ because there was another piece of land that could be developed and thus, applying Lucas, it was not a compensable taking. Although you may not be able to get per se, apply balancing test. ii. Tahoe-Sierra Preservation Council v. Tahoe: The Council has a 32 month moratorium on building homes in the area in order to regulate new development.. It was argued this was a 32 month taking and property owners should be compensated for 32 months of their property. The Court said that this was not a takings. However, the Court does talk about partial takings. Exaction Cases 1. Only applies when there is a change of use
2. When the law school was expanded it was ‗exacted‘ that there be handicap access. Another exaction was the cement slab so that fire trucks can get all around the building. 3. Nolan o If there is a change of use the planning commission may exact conditions for the change of use. However, (1) there must be an essential nexus between the exactions and the change of purpose (easily satisfied). Also, (2) the exactions must bear some rough proportionality between the exactions and the harm caused by the change of use. o Imposed limits on exactions. Nolans had a little beach shack in Ventura and the Nolans decided to build a nicer place. At the time the California Coastal Commission wouldn‘t let the Nolans change the shack until the Nolans provided a lateral public easement (running parallel to the beach). The Coastal Commission said they wanted this easement so as to not diminish ‗blockage of the view of the beach.‘ Beach access paths are usually permitted. There must be an ‘essential nexus’ between what was taken and the reason for the taken. But, the Coastal Commission said that they wanted ‗visual access.‘ However, it doesn‘t make sense that parallel access to the beach is needed for visual access. Thus, there is a compensable taking. You would think that there is an easy way around this: all that is required is that there be an essential nexus stated in your brief. . . 4. Dolan v. City of Tigard o Hardward store and attempt to expand. They are to build on swamp land. However, the city imposes certain exactions: (1) dedicate a portion of her property to the city because of floodplane area, and (2) dedicate land for pedestrian bikeway. The second was a traffic easement given the likely increased traffic. The essential nexus requirement is met for the floodplane area and traffic area. However, the Court imposed a different requirement in the Nolan case: rough proportionality between the exaction and the harm caused by the change in use. The harm is more runoff and the exaction is the turning over of the property in fee simple to the city for floodplane area. However, turning over some of her property in fee simple to the city is not roughly proportional to the increased floodplane area that is needed. They should have made her put in the floodplane area. The second harm is more traffic and the exaction is a traffic easement. However, the Court thinks that the city is not specific enough regarding the traffic increase. It is not roughly proportional. 5. Yee v. City of Escondido o Yee owns a mobile home park. Yee says that a combination between rent control and another thing is a physical invasion. He should have argued Penn Central balancing.
Fundamental Rights
Protection of Personal Liberties a. Liberty has now been interpreted as protection for privacy. Carolene Products – Fn 4 although rationale basis will be the normal test for most things, there will be some classes of things that require strict scrutiny. Minority interests are given a higher level of review. Gender is also elevated. Griswold v. Connecticut - Griswold is the Director of Planned Parenthood, ―PP‖, and was giving information, instruction and medical advice to married persons as to the means of preventing conception. The Court uses the first and fourteenth amendment and fourth and fifth. This case concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. The Majority states that the term ‗due process‘ as used in the Fourteenth Amendment includes all of the first eight Amendments, thus the concept of liberty protects those personal rights that are fundamental, and is not confined to the Bill of Rights. The Court is elevating marital privacy, the right to privacy, and treating it as fundamental giving it a higher level of review. Goldberg believes the Ninth Amendment, ―certain rights shall no be construed to deny or disparage others retained by the people,‘ is applicable. The problem with the 9th Amendment is that it doesn‘t indicate what the rights are or if there are rights what level of review they get. The 9th Amendment has never been relied on by a majority of the Court in any case. Harlan believes that the 14th A should not be used to incorporate the Bill of Rights against the states. Black believes that the people should amend the Constitution if they so feel, but that the Justices are acting outside of their bounds and he would affirm the Connecticut law. Stewart also believes the law does not violate the Constitution. The right to privacy is fundamental because of precedent protecting privacy and choice: Mayer v. Nebraska is where Nebraska prevented the teaching of German language to school kids. The Court said that parents can teach what they want. Also, in Pierce, the Court said parents could send children to public schools. In Skinner v. OK, a law required persons who committed three heinous types of felonies be sterilized in order to preclude passing on this gene to children. The Court said the law violated the Equal Protection Clause b/c it was illogical which persons were sterilized and which were not. In Butt Justice Holmes allowed a young girl to be sterilized. The compelling state interest test is introduced here. Marital privacy is very important to the Court. Above rationale basis test, but are very similar: 1. 2. The Right to Privacy - It is in the due process clause of the 5th Amendment. Liberty cannot be denied without due process. All substantive interests are protected by the same clause, but most are protected with rationale basis.
- The right to privacy is a fundamental right because, even though not mentioned in the constitution, it relates to provisions in the constitutions. The Court says that there is a penumbral relationship between the right to privacy and other rights in the Bill of Rights. Such as the First Amendment freedom to believe, or be silent. The Fourth Amendment protects you from unreasonable search and seizures; this is based on a zone of privacy. The Third Amendment protects you from having to quarter soldiers in your home; privacy in the home. Fifth Amendment privilege against self-incrimination. Privacy as Autonomy versus privacy as Freedom from intrusion and Disclosure b. It is later believed that Griswold protects decisions regarding childbearing from unjustified intrusions from the state. Family and Martial Relationships c. Moore v. City of East Cleveland i. East Cleveland has a housing ordinance that limits occupancy of a dwelling unit to members of a single family. Family, however, is defined narrowly: it disallows grandmothers from living with grandsons. Only the nuclear family is allowed to live together. The court believes that the sanctity of the family should be protected as it is deeply rooted in our Nation‘s history. ―This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the DP Clause of the Fourteenth Amendment.‖ ii. Brennan & Marshall, concurring: He thinks this law was racially pretexted. The city also began witnessing racial unrest, culminating in the Hough Riots on July 18–23, 1966, and the Glenville Shootout on July 23– 25, 1968. iii. Stewart and Rehnquist believe that this law does not impede parental involvement nor dictate how children are to be nurtured and reared. iv. White believes that the issue is whether having more than one set of grandchildren live in her home is entitled to such substantive protection under the DP Clause that this ordinance must be held invalid. He believes it is not; and should not be held invalid. He does not think that this zoning ordinance should be judged by the strict standard employed when a fundamental interests (speech, etc) or suspect classification (race, gender) is involved. d. Zablocki v. Redhail i. A Wisconsin statute requiring a person with a minor child not in his/her custody to pay $108/month until the child reaches 18 and that person must obtain court permission to marry. Plaintiff could not pay the amount as he was indignant, and was in arrears $3,700. He brought this suit to get married. ii. Rules: The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. The right to marry is part of the fundamental right of privacy implicit in the 14th Amendment DP Clause.
iii. When a statutory classification interferes with the exercise of a fundamental right, it cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate only those interests. The majority sees the law as only hurting an individual‘s right to marry without having a net positive effect on the illegitimate children in question. Actually, this law may lead to more illegitimate children and less money being paid to the current child. iv. Stewart believes the law does not violate the Equal Protection Clause e. Michael H. v. Gerald D. i. Victoria, a baby of Carole D., was actually not the daughter of the man living with Carole D., Gerald, but instead the child of Michael H. Gerald was the man living with Carole when she bore Victoria and he intervened based on a Cal. law that says if a wife and husband live together at the time of birth then the child is presumed to be the child of the husband. The court denied Michael‘s challenges to the Constitutionality of the Cal law. Michael was seeking to be named father of Victoria, but if he was named so, would have been given all rights accompanying those rights, including visitation rights. Blood tests showed 98.07% likelihood that Michael was the father. ii. The court says that liberty in the due process clause extends beyond freedom from physical restraint, but includes fundamental freedoms which have been traditionally protected by our society. The Due Process Clause affords only those protections ―so rooted in the traditions and conscience of our people as to be ranked as fundamental.‖ i. The Court affirmed the appellate court which allowed Gerald‘s motion for summary judgment against Michael and Victoria to stand b/c the law presumes he is the father given he was living with Carole. Roe v. Wade A Texas statue making it illegal to have an abortion except to save the life of the mother is challenged. Arguments made by the Petitioner are that the personal liberty provided to women to choose as they want to their body in the 14th Amendment‘s Due Process Clause or in the Ninth amendment. The Court held that ―this right of privacy, whether it be found in the 14th A‘s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the 9th A‘s reservation of rights to the people, is broad enough to encompass a woman‘s decision whether or not to terminate her pregnancy. Where fundamental rights are involved, the Court has held that regulation limiting these rights may be justified only by a ‗compelling state interest.‘ - The Court, however, states that after the first trimester the State has a compelling interest for maternal care and may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health. - For the stage approximately the end of the first trimester the abortion decision must be left to the medical judgment of the physician - For the stage subsequent to approximately the end of the first trimester, the State, may regulate the abortion in ways that are rx related to maternal health.
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For the stage subsequent to viability the State, may regulate and proscribe abortion exception where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.
Planned Parenthood of Southeastern Penn v. Casey - A Penn. Act requires that a woman seeking an abortion give her informed consent prior to the abortion procedure, and specifies that she be provided with certain information at least 24 hours before the abortion is performed. Also, a minor must have parental consent and married woman must have notified her husband. - This case merely reaffirms Roe. - First, a woman has the right to choose before viability and to obtain it without undue interference by the State. ―It might be said that a woman who waits until after viability has consented to the State intervening on the child‘s behalf.‖ This case, however, adds that the State may enact rules and regulations designed to encourage her to know that there are philosophic and social arguments of great weight that can be brought to bear in favor of continuing the pregnancy. - Second, the State has the power to restrict abortions after fetal viability if the law contains exemptions for pregnancies which endanger a woman‘s life or health. Now, also, although the woman has the right to choose, it does not follow that the State is prohibited from taking steps to ensure that this choice is thoughtful and informed. - Third, the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child. - The standard of the woman is an undue burden standard. Only where the state regulation imposes an undue burden on a woman‘s ability to make the decision does the power of the State reach into the heart of the liberty protected by the Due Process Clause. The measures taken by the State to persuade the woman to choose life over abortion will not be invalidated as long as they are not an undue burden on the right. - However, the law requiring that women inform their husband of an abortion is an undue burden and is invalid. However, parental notification for minors is OK. The Equal Protection Clause and the Review of the Reasonableness of Legislation Gulf, Colorado & Santa Fe Railroad Co v. Ellis – A statute allowing reasonable attorney‘s fees is shot down. It harms the loser and thus is unfair.
The Doctrine of Reasonable Classification - to be a valid classification it must be reasonably related to the object of the legislation and cannot be arbitrary. Application of the Equal protection limitation to the Federal Gov‘t through the Due Process Clause of the Fifth Amendment. - Now, the Court has held that the Due Process Clause of the 5th Amendment forbids the Federal Gov‘t from denying equal protection of the laws. Standard of Review
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The rules by which a contention that a statutory classification violates the equal protection clause must be tested: The states have power to classify police laws, but may only classify with a reasonable basis. And, a classification have some rx basis is not made with mathematical nicety, or because in practice it results in some inequality. The one who assails the classification in such a law must carry the burden of showing that it does not rest upon any rx basis, but is essentially arbitrary. Railway Express Agency v. New York – A law which did not allow people to put advertisements on delivery vehicles was adopted by New York. The local authorities thought that this lead to traffic problems and was unsafe for pedestrians and drivers, alike. However, there is a disallowance only of delivery vehicles carrying these advertisements, thus raising an equal protection issue. It is immaterial that NYC wants to eliminate these advertisements from these vehicles, but does not remove the advertisements from Time Square; they gave a rationale reason for discriminating in this manner and the Court allows it. Williamson v. Lee Optical of OK – The Court dismissed an equal protection challenge to the portion of the law exemption sellers of ready-to-wear glasses from regulations imposed on opticians.
Scope and Legitimacy of judicial review of the Rationality of Legislation under Equal Proteciton - Federal Communications Commission v. Beach Communications – Congress drew a distinction between cable facilities that serve separately owned and managed buildings and those that serve one or more buildings under common ownership or management. The Court gave great deference to the legislature. Those attacking the rationality of the legislative classification have the burden to negative every conceivable basis which might support it. The very fact that the law assailed is ‗arguably‘ sufficient, on a rationale-basis review, is enough to ‗immunize the congressional choice from constitutional challenge.‘ - Heller v. Doe - Kentucky drew a line – which the Court allowed - between the authorization of mentally ill v. retarded patients into civil commitment. Mentally ill requires proof beyond a reasonable doubt and retarded requires clear and convincing standard of proof. - Central State University v. American Association of Univeristy Professors – An Ohio statute which was designed to increase the time that public university professors spent teaching, mandated an instructional workload policy that would be exempt from collective bargaining. The Ohio S Ct held that the statute denied the professors equal protection of the laws, because no evidence in the record linked collective bargaining to a decline in teaching and the State had failed to demonstrate ‗any rationale basis for singling out university faculty members as the only public employees precluded from bargaining over their workload.‘ - 34 Suspect Classifications Racial Minorities - Loving v. Virginia – I: does a statutory scheme adopted by the State of Virginia to prevent marriages between persons solely on the basis of racial classifications violate the
EPC and DPC of the 14th Amendment? Virginia had a ban in interracial marriages. The Court held that there is no purpose besides invidious racial discrimination which justifies this classification. The standard by which racial classifications must be judged by is ‗strict scrutiny,‘ and if the law is upheld it must be necessary to the accomplishment of some permissible state objective, independent of the racial discrimination which it was the object of the Fourteenth Amendment to eliminate. Palmore v. Sidoti – The state court divested the natural mother of the custody of her infant child b/c of her remarriage to a person of a different race. The lower court said that a negro and a white woman raising a child was unacceptable to her father and to society. The state law face the most exacting scrutiny; to pass constitutional muster, they must be justified by a compelling gov‘t interest and must be ‗necessary . . . to the accomplishment‘ of its legitimate purpose. Japanese Curfew and Evacuation Cases The S Ct upheld the curfew and evacuation orders. Although the restrictions are subject to strict scrutiny that is not to say they are unconstitutional. Racial Segregation in Schools and Other Public Facilities - Plessy v. Ferguson – a law laid out separate railway carriages for white and colored people. The Court upheld it on the basis that plaintiff‘s argument presumes it is ‗bad‘ or denotes one race as ‗inferior‘ if a certain race must be in a different car than another. Also, P‘s argument assumes that legislation will solve the problem, which – the Court believes – it will not. The Court held that the races should be kept, ―separate but equal.‖ The dissent believes that the fundamental wrong here is that the statute interferes with the personal freedom of citizens. Brown v. Board of Education of Topeka Negros sought to be admitted to the schools of their community on a nonsegregated basis. The Court holds that in the field of public education the doctrine of ‗separate but equal‘ has no place. The Equal Protection Clause of the 14th prohibits the states from maintaining racially segregated public schools. Bolling v. Sharpe Same day of Brown v. Board. Brown dealt with an EP argument: the EPC of the 14th A prohibits states from maintaining racially segregated public schools. This case deals whether the 5th Amendment – which only provides a Due Process clause – also prohibits classifications based on race. Liberty under law extends to the full range of conduct which the individual is free to pursue, and it cannot be restricted except for a proper governmental objective. Segregation in public education is not reasonably related to any proper governmental objective. Thus, the District of Columbia cannot segregate based on race. The Relevance of Discriminatory Impact; the Requirement of a Discriminatory Purpose Washington v. Davis – Police recruits were required to pass a test before entering into a 17-week training program. The validity of this test is challenged because it was not passed by black
applicants with the same proficiency as white applicants. The basic equal protection principle is that the invidious quality of a law claimed to be racially discriminatory must ultimately be traced to a racially discriminatory purpose. Kahn v. Shevin – Florida provided a $500 annual property tax exemption for widows (women only). The Court said that the state law is reasonably designed to further the state policy of cushioning the financial impact of spousal loss upon the sex for whom that loss imposes a disproportionately heavy burden. As long as the tax law discriminates in a reasonable distinction, or difference in state policy, the tax discrimination will be upheld. Califano v. Webster – Women were given the ability to compute a higher average monthly wage than a similarly situated male. The Court held the classification valid, saying, ―To withstand scrutiny under the EPC of the 5th Amendment‘s DPC, ‗classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives. Orr v. Orr – The Court held unconstitutional a statutory scheme imposing alimony obligations on husbands but not wives. The Court held this was unconstitutional because the hearings as to who was the needy spouse already occur and thus, assuming that women ‗need‘ the alimony support more than men after the hearings have already been done is unnecessary. Mississippi Univ. for Women v. Hogan – MUW has always limited its enrollment to women. The party seeking to uphold a statute that classifies individuals on the basis on gender must carry the burden of showing an ‗exceedingly persuasive justification‘ for the classification. The Court held that this school did not ‗directly assist members of the sex that are disproportionately burdened,‘ nor did the State make a substantial showing that the gender-based classification is substantially and directly related to its proposed compensatory objective. Johnson v. Transportation Agency – It was held constitutional that a female with lower scores was given a promotion over him. City of Richmond v. J.A. Croson Company – The Richmond City Council adopted a Minority Business Utilization Plan which required contractors to adopt at least 30% of the dollar amount of their building to one or more minority business enterprises. Grutter v. Bollinger - U of M admits applicants based on a variety of factors including race. The Court held that a diverse student body is a compelling state interest that can justify the use of race in university admissions. The compelling state interest is a diverse student body. Gratz v. Bollinger – The U of M gave 20 points on a 100 point scale to every underrepresented minority. The court held that this was not narrowly tailored enough to achieve the interested in educational diversity hat respondents claim justifies their program.