CON LAW – INDIVIDUAL RIGHTS – SYLABUS – SPRING 2006 MCGOLDRICK Assignment Sheet—Spring 2006 Constitutional Law—Individual Rights Jim McGoldrick Text: Constitutional Law by Cohen, Varat, and Amar (Foundation Press—12th edition). As a secondary source, the treatise by Chemerinsky is a good one. First Class: 513—536. This assignment traces the Court's early approach to the due process clause of the 5th and 14th Amendment from the strict scrutiny ofLochmr v. New York to the permissive review of the rational basis test found in U.S. v. Carolene Products Co. (Although I cover historical developments in class, my exam will emphasize the current law which in this case is the rational basis test. Also, I do not examine on case names.) (If you are not familiar with the doctrine of incorporation from your Criminal Procedure class, you should read the summary at pages 510—512.) 2. 536—543,549—551; 551—562,568—579. The Contract Clause protects contract rights to a limited degree from retroactive state laws. The Energy Reserve Group case at pages 549—550 states the modern approach. The no taking clause of the 5th Amendment requires reasonable compensation for government takings, but what is a taking remains a difficult concept. 3. 582—611. Griswoldv. Connecticut finds the right to privacy to be a fundamental right requiring a strict scrutiny compelling state interest analysis as opposed to the permissive review of the rational basis test. The key here is to determine the scope of the interests included within the fundamental right. 4. 621—649, 659—664, 1065-1070. Included within the right to privacy is the right of the female to choose an abortion. 5. 690—712. The equal protection clause of the 14th Amendment is also subject to the permissive review of the rational basis test. 6. 712—733. Race and other suspect classifications require a strict scrutiny compelling state interest analysis. 7. 733—754. The school desegregation cases present one difficult aspect of eliminating the evils of racial segregation. 8. 754—768, 781—792, 799—800. Gender based classifications get what is called intermediate scrutiny. Craig v. Boren requires that gender based classifications must substantial relate to an important governmental interest. United States v. Virginia requires exceedingly persuasive justification.
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9. 800-825. Classifications that are not suspect on their face but that have a race or gender based discriminatory impact will usually get a rational basis level of review unless there is proof of intentional discrimination in which case the laws are per se invalid. 10. 825-835; 835-839, 876-901. Gender based and race based affirmative action classifications are said to get the normal levels of review for gender and race but present difficult judgment issues for the Court. 12. 901-935. Classifications based upon alienage will get either a rational basis or compelling state interest approach depending on whether a state law or federal law and if a state law, whether the classifications fall within the political function exception. Classifications based upon legitimacy get a modest version of an intermediate test. Finally, the Court will sometimes apply the rational basis test with a sharper focus. 13. 998-1003, 936-953, 960-972. The fundamental right to vote has a number of different permutations, including race based district drawing in order to advance minority candidates. I will include some additional aspect by lecture, including the problem of district gerrymandering. + (LECTURE ONLY) DO NOT NEED TO READ 14. 1013-1047. The fundamental right to travel interstate is the last of the fundamental rights that we look at. The important thing to look for is laws that unfairly penalize the right to freely travel interstate. A minority of the Court has a more expansive view of the right, but when added to those justices with a more expansive view of the rational basis test, the minority view will sometimes control the outcome of the case. 15. 1077-1096. Education is not considered a fundamental right and absent suspect classifications, will normally get only a rational basis level of review. Plyer v. Doe, however, presented a difficult version of the problem to the Court. 16. Midterm March 9-non credit multiple choice to cover the material to this point. 17. 1097-1130. Procedural due process and the problematic doctrine of irrebuttable presumptions. 18. 1137-1141, 1145b—1173. The 14th Amendment reaches only state action, not private action, but the line between the two has been the subject of much constitutional litigation. 19. 1184-1213. Congress has the enumerated power to enforce the 13th, 14th, and 15th Amendments, but there are a number of issues raised with regard to the scope of that congressional power. (NO READING WILL COVER BY LECTURE) 20 & 21 (1257 – 1262, 1284-1288), (1291-1298, 1304-1311) 22. 1319-1351. Free speech-defamation and right to privacy issues. 23. 1351-1369, 1398-1416. Free speech-obscene speech and fighting words.
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24. 1424—1430; 1463-1485. Free speech-commercial speech and time, place, and manner of speech regulations. 25. 1485-1496, 1519-1520, 1535-1547. Free speech-more time place and manner and government speech. 26. 1566—1573, 1578-1599, 1654-1661. Free speech-symbolic speech, freedom to believe, freedom of association, and government employee speech. 27. 1725-1730, 1748-1760, 1777-1778, 1793-1811. The no establishment of religion clause. 28. 1823-1845. The free exercise of religion clause.
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