Page 1 of 3 Con Law Review Session Due Process & Equal Protection • Rational Basis Test • Same in the both of those o When do you apply the Rational basis test When no other test applies -> it’s the fall back test When you don’t have Fundamental, Suspect /Semi Suspect class The Basis Approach • Do you approach it as due process rational basis or equal protection rational basis -> as long as you apply rational basis it is not crucial to understand whether it is due process or equal protection • Basically Due process -means you are concerned with the overall law does not make sense (Lee Optical – requiring prescriptions to be only fulfilled by optometrists • Basically Equal Protection – Always concern for classifications – the classifications don’t make sense -> you have equal protection issue o Exam Answer State the Test (i.e. Rational Basis) Explain the Test Analyze the Facts to the Test Conclude o More Searching Rational Basis Test If you see a law that gets the rational basis test -> then you apply the rational basis test Use More Searching Rational Basis as an alternative discussion when • (1) – those groups of cases (key fact – a polititcally unpopular group has been singled out b/c they are not very well liked) • (2) – the searching rational basis may lead to a different result o A higher level of review In Applying the Rational Basis the court will apply both parts in a slightly more searching kind of way -> more careful about the purpose -> less willing to take any conceivable purpose (i.e. mentally retarded /hippies /gays or homos for different treatment /children of illegal aliens o Contract Clause Only applies to STATE LAWS (NOT FEDERAL LAWS) – if you have a federal laws then you would use due process rational basis Only acts with regard to retro active contracts Future contracts – Rational Basis Public Purpose Balancing Test – is applied • Regulating Baseball – Provided that baseball players held their jobs at will and then the state law required a hearing o Public Purpose Balancing Test Must have Substantial Impairment • More than some insignificant change to the contract • FACTORS – does it destroy reasonable investment expectations /has the area been regulated in the past If Substantial Impairment – it must be justified • Look at how important the govt interest is v. the right to have contracts free from govt hindering them • The overriding govt interest are not limited to emergency’s It must be based upon reasonable conditions & that it must advance the public purpose • Look to see that the Contract claims were fairly treated even against the govt interests o No Taking Clause (5th Amend) No taking of private property with out just compensation What is Taking v. What is not a Taking • If a compensable taking – must pay for it • If not a compensable taking – just satisfy the rational basis o Zoning Law – not compensable taking However, Zoning Laws that take away all economic viable use – are a compensable taking • Nuisance Exception o Per Se Categories (compensable taking) Physical Appropriation – is a taking Noise, Dirt, Smells o Penn Central Balancing Test The restrictions on the property can be a compensable taking FACTORS (Extent of the Taking (full v less than full), Nature of the Taking (retro active zoning), How much was done against reasonable economic expectancies • Either for public use or any use that rationally relates to public interest • Can take private property from one private person and give it to another private person (as long as it rationally relates to public interest What is Just Compensation – Did not get into • If the court determined it was a taking but the govt thought it was just regulating -> the city has 2 choices -> either full taking with just compensation or back out by changing the regulation but still pay for the time that it was a taking o Fundamental Rights PRIVACY (Marriage, Procreation (i.e. abortion, contraceptives), Child Rearing, Keeping information confidential (i.e. medical records to keep confidential – court has not decided yet) • Compelling State Interest Test o Govt Interest must be Compelling (whether or not it actually is compelling) o Advance these govt interests o Is there a less restrictive way to achieve the govt objectives Procreation Decisions with Regard to Children – the majority of courts have found that children have a fundamental right to privacy just as adults Right to Marry – is a fundamental right (however reasonable restrictions on marriage get a rational basis level of review) Page 2 of 3 Child Rearing Decisions – some child rearing decisions are fundamental rights (however in some cases the court will apply the rational basis) Abortion Regulation – Undue Burden Test (court has upheld parental consent clause as long as court has a judicial bypass – (1) judge has the authority to determine that the minor is mature enough to make the decision herself & (2) the judge can decide in the best interest of the child • Undue Burden Applies – before the point of viability (i.e. when the fetus is capable of surviving outside of the whom b/c of physiological change to the fetus) • Point of Viability – State Regulation w/Rational Basis (with preference for the life of the mother) • Funding for Abortions – Get a Rational Basis Level of Review • Partial Birth Abortion – Involving late term and legally admissibly late term abortions – court has held they are too vague, and that they did not have emergency exceptions o Suspect Classifications Compelling State Interests • (1) Compelling State Interest (2) Advancing govt interest (3) No less restrictive way to achieve govt interests o School and Segregation De Jure – intentionally state imposed segregated schools (govt acts that are taken for the intent of segregating students within the school) • Federal Courts are only allowed to regulate the wrong • Once the City has remedied the wrong then the Federal court has no more authority to remedy De Facto -(Constitution does not forbid de facto segregation – segregation occurs naturally – economic /social /migrating) Race Based Preferences – Get Compelling state interests • 4 Factors Test o Purpose making up for past is not valid, best purpose is past racial discrimination in a narrow area, diversity in schools o Degree of advantage to minorities Factor to talk about o Degree of disadvantage to majority o Overall Flexibility Waiver Provisions /race as a factor /goals or objectives v. Racial quotas o Gender Base Classification Intermediate Test • (1) Substantially related to Important Govt Interest (2) Advancing that govt Interests (3) Look to reasonable alternatives to advance govt interests without using Gender Base Classification • (1) exceedingly persuasive govt interest o Classification Based upon Pregnancy Courts Look at it as a Medical Condition -> Rational Basis of Review Laws Making up for Past Discrimination can pass the intermediate test (but remember to look at reasonable alternatives) o Discriminatory Intent Neutral Law that has a disproportionate impact based upon race /gender impact • Impact doesn’t matter – you still get the rational basis test • EXCEPTION o If the law was passed with the purpose of working a hostile race based /gender based classification -> Per Se Invalid o (Stark Statistical Evidence – looking for evidence that the law was passed for the purpose of harming race or gender groups) • ISSUE o When do you apply compelling state interest /intermediate versus Per Se Approach o Use Compelling state interest /intermediate where there is some valid purpose along with discriminatory purpose o Regarding to Alienage Compelling State Interest (like suspect classification based upon race) EXCEPTION • High Level political jobs that have to do with the democratic governance – Rational Basis • Congress Laws for Aliens – Rational Basis o Legitimacy /Born In order to inherit from father by a legitimate child While the father is alive the child has until the age of majority to establish paternity o Fundamental Rights to Vote 50 days ok Reapportionment – 1 person = 1 vote (each district must be equal in size – nearly equal in population size as is practicable • In Federal Districts – need it as close to equal as possible • For State – districts can be drawn as off as 16% was upheld o Access to Ballet – must reasonably relate to govt state interest o Fundamental Right to Travel Durational Residency Impacting the necessities of life o Fundamental Right to Education Education beyond a minimal level of education is not a fundamental right Procedural Due Process • Right kind of act (judicial like act (i.e. what judges do)) – may be on the part of any govt official (individual case by case basis) Page 3 of 3 o Taking of a liberty or property interest Govt Jobs – the law says you can only be fired for cause -> you have a property interest Liberty Interests – free from confinement, right to speech, right to travel, good time for prisoners o Level of Process Importance of Govt Interest Importance of the Individual Whether additional process will lead to likely less error • Irrebutable Presumptions o Rationale Basis Unless has to do with a Fundamental Right State Action • No state may deny individual of fundamental rights • Key is spotting the issue (private person engaged in violating fundamental rights) o If it is the govt doing something – you don’t have a state action issue o If a private person has violated the constitutional rights of an individual TYPE 1 – lawsuit is filed against the govt for something that the private person did TYPE 2 – lawsuit filed against private individual for something they did o Sifting the facts to lay blame to govt /govt responsibility (financing, regulation, benefits, involvement) Congress – Enumerated Power Issues • Issues o Can Congress reach private acts with legislation Under the Commerce Clause, Spending power etc Congresses ability to reach private acts under its enforcement power (1) must involve racial discrimination (preventing racial discrimination, (2) must involve a badge of slavery (i.e. employment, ownership use of property, contracting Congress can reach private acts that invade the privileges and immunities of citizens (sailing the navigable waters, traveling to Washington dc, rights to travel interstate, right for protection in the custody of a marshal) • Not have the ability to reach private acts for (gender discrimination, free speech,) o To what degree can Congress Change the constitutional meaning Limited ability to expand the sections of the 13, 14, 15th Amend Congress can not change the substantive provisions but may change the remedial provisions (Congress can make insignificant changes • 13th – involuntary servitude (i.e. badges of slavery • -no law that have a disproportionate impact based upon race Free Speech • Moving Quickly to the kind of issue you have • What type of speech do you have o Radical Political Speech o Defamatory Speech o Clear and Present o Fighting Words o Indecent Speech Time Place and Manner Regulation • Content Neutral – use the • Content Based – use one of the tests Vagueness and Overbroad • Prior Restraints Commercial Speech Symbolic Speech Establishment Clause (3 part lemon test)