Constitutional Law II: Spring 2004, Professor Wiseman Page 1 of 7 TABLE OF CONTENTS LEVELS OF REVIEW....................................................................................................................................................................................................................... 1 PRIVILEGES & IMMUNITIES........................................................................................................................................................................................................... 1 DUE PROCESS ............................................................................................................................................................................................................................... 1 EQUAL PROTECTION .................................................................................................................................................................................................................... 2 SUSPECT CLASSIFICATIONS = STRICT SCRUTINY ......................................................................................................................................................................... 3 FUNDAMENTAL RIGHTS............................................................................................................................................................................................................... 4 NON-FUNDAMENTAL RIGHTS = ECONOMIC, SOCIAL WELFARE REGS ...................................................................................................................................... 5 NON-SUSPECT CLASSIFICATIONS = RATIONAL BASIS................................................................................................................................................................. 5 INTERMEDIATE REVIEW = IMPORTANT OBJECTIVE AND SUBSTANTIALLY RELATED.................................................................................................................. 5 CIVIL RIGHTS AMENDMENTS /CONGRESSIONAL LEGISLATION ............................................................................................................................................... 6 WHEN “STATE ACTION” IMPLICATED ........................................................................................................................................................................................ 7 LEVE L S OF REVI EW I. Levels of Review a. Mere Rationality: State is pursuing a legitimate gov’t obj/end and is doing so with means rationally related to that obj [ends-means] b. Intermediate Scrutiny: gov’t obj important and means substantially related to that obj c. Strict Scrutiny: Gov’t action necessary to achieve a compelling gov’tl obj PRIVI L EGE S & IMMUNI T I E S II. Privileges and Immunities a. P&I – Art. IV i. Use this analysis only for state discrimination against non-state residents ii. Use only for rights FUNDAMENTAL to national unity 1. Right to employment, commerce, practice one’s profession, engage in business 2. Elements or rts guaranteed nationally to all citizens iii. TEST: 1. State must show outsiders of state are ‘peculiar source of evil’ 2. State must also show disc. stat. is “substantially related” to the evil of outsiders – must show there are no less discriminatory methods available a. Even tho state immune if acting as market participant – doesn’t apply for Art. IV P&I DUE PROCE S S III. Due Process – XIV Amd. 1868 a. Text: “All persons born or naturalized in the US and subj. to jurisd. Are citizens of the US and of the state wherein they reside. NO STATE SHALL MAKE OR ENFORCE ANY LAW WHICH SHALL ABRIDGE THE P&I OF CITIZENS OF THE US; NOR SHALL STATE DEPRIVE PERSONS OF LIFE, LIBERTY OR PROPERTY WITHOUT DUE PROCESS OF LAW; NOT DENY TO ANY PERSON WITHIN ITS JURISDICTION THE EQUAL PROTECTION OF THE LAWS.” b. Principles: i. Must be the gov’t acting ii. If 13th Amendment, then no need for it to be a state actor, can be anybody acting c. Individual rights given by Bill of Rights (Amd. 1-10) which does not directly apply to states, only to Fed Gov’t – UNTIL XIVth Amd. i. Also BOR is for all persons whereas XIV = 4 citizens (but minor distinction) Constitutional Law II: Spring 2004, Professor Wiseman Page 2 of 7 d. After XIV, Court selectively incorporates different rights avail in BOR (mainly only the fundamental rights) into constitution as applicable to states – nearly all rights are incorporated i. Grand jury NOT incorporated (this is 5th Amd) ii. Right to jury in CIVIL cases NOT incorporated (7th Amd) e. Once incorporated – rights apply same to Fed Gov’t as State gov’t f. 5th Amend also has Due Process Clause for Fed Gov’t – applies the same as XIV amendment but NOT THRU INCORPORATION [Wiseman said] g. PROCEDURAL DP i. Use if someone’s life, liberty, or property taken AND IF SO – was the procedure used to take such liberty applied to an individual 1. Adequate procedures required before enforcing a ban against a particular person’s liberties 2. Procedures include judicial proceeding, hearing, rt 2 call witnesses, right to appl [plus 6th Amd rts 4 crim] h. DP Liberties: physical liberties [incarceration]; intangible rights = practicing a profession, driving, raising family i. Property under DP: attachment of property must be thru proper DP; gov’t benefits someone is already receiving – can’t take w/o procedure if not stipulated @time of grant, but applying for gov’t benefits does not grant prop interest in those benefits i. SUBSTANTIVE DP: i. Use if Gov’t TAKING AWAY something = 2 life, lib, prop EQUAL PROT ECT ION IV. Equal Protection: 14th Amd “[n]o STATE shall make or enforce any law which shall… deny to any person within its jurisdiction the EP of the laws” a. Essentially, those people similarly situated will be treated similarly b. Use for STATE laws RE: classifications based on race, sex, alienage, illegitimacy, wealth or any other characteristic i. Yes it applies to Fed also, but Fed bound by 5th Amd c. ONLY FOR STATE ACTION CREATING A CLASSIFICATION d. LOOK for DISPARATE IMPACT b/c that is enough to shift burden to state to show the INTENT was not to discriminate – if so, then use RATIONAL BASIS i. If impact is against a RACE, then USE STRICT SCRUTINY e. De Jure Discrimination: law is neutral in language and application, but enacted with purpose or motive to discriminate [issue is with application of the law] f. De Facto Discrimination: Neutral law in language, admin, purpose, but has disadvantaging impact or effect g. Facially Discriminatory: law on its face is discriminatory to a group; level of scrutiny depends on the classification [facially = you must be citizen to vote] h. 3 LVLS REVIEW in EP: i. Ordinary Mere Rationality Review: (most economic /social welfare regulations) 1. Legitimate gov’t obj + rational reltn 2 classification & obj (ct only has to believe these are met – no objhective req’t 2 meet) ii. Strict Scrutiny: 1. 4 Suspect Classifications or when Fundamental Rights are implicated = classification MUST be NECESSARY to promote a COMPELLING gov’t interest Constitutional Law II: Spring 2004, Professor Wiseman Page 3 of 7 iii. Mid-level/Intermediate Review: 1. Usually gender and illegitimacy = classification must be substantially related to an important gov’t obj SUS P ECT CLAS S I F ICAT IONS = STRICT SCRUTINY V. SUSPECT CLASSIFICATIONS = STRICT SCRUTINY a. Race, national origin, alienage: immutable traits based on negative stereotypes, lack of political power b. RACE i. Evidence can be circumstantial (interviews of candidates always yields whites chosen for job even tho blacks also interviewed) ii. PURPOSEFUL + INVIDIOUS (based on prejudice/denigrates disfavored class) “discrete and insular minorities” 1. Because such grps have < political clout/protection [less reps, less ppl voting, effect of being a minority group makes others vote to block them f/election process to get adequate representation] iii. Political Process /White Primaries Cases /Districting around Minorities 1. MUST SHOW 1) district lines drawn w/purpose & effect to disadvantage the group; AND 2) race “predominant factor” in how distr lines drawn [if so, then ct will strike down lines] a. Losing an election ≠ sufficient iv. SEGREGATION 1. Most oft Education & Housing 2. MUST BE DE JURE = intentional gov’t action to discriminate a. School issues remedied by bussing BUT MUST STOP once effects of intentional discr eradicated b. NO SCHOOL QUOTAS b/c not the only method to correct v. AFFIRMATIVE ACTION: any aff actn pgm classifying only on basis of race = strict scrutiny 1. Only compelling gov’t int here is redress of past discrimination [gov’t balancing work force/boost university diversity] a. BUT can ONLY do this if discr ACTUALLY HAPPENED b. REMEMBER THIS IS GOV’T DISCR not discrim by society c. NATIONAL ORIGIN d. ALIENAGE (for some purposes) e. YOU ONLY APPLY STRICT SCRUTINY when the differential treatments based on a suspect classification were enacted intentional by the gov’t to be invidious i. DISTINGUISH WHEN THE RESULT OF THE LEGISLATION HAS RESULTED IN AN EFFECT OF DISCRIMINATION – IF SO, THEN USE RATIONAL BASIS 1. Such as segregation school cases that are neutral but result in the very thing no one wants (bussing to resolve desegregation but it results in unbalanced schools – this will NOT be strict scrutiny) f. SEPARATE BUT = is ≠ + is INVIDIOUS b/c discrimination of suspect classes = per se invidious g. Also child custody and adoption (white mom maries black man and loses custody to her white ex-husband = Palmore v. Sidoti) i. State must not “BOW” to racial biases of parties in conflict Constitutional Law II: Spring 2004, Professor Wiseman Page 4 of 7 FUNDAMENTAL RIGHT S VI. FUNDAMENTAL RIGHTS a. Generally covers rts involving sex, marriage, child-bearing/rearing, all rights to privacy b. Always strict scrutiny = compelling gov’t objective, necessary regs i. Even if classification NOT involved (DP) c. GOV’T bears burden 2 prove objective of law compelling & necessary to achieve goal of law d. Covers rts to make decisions about highly personal matters e. Child-bearing/rearing = right 2 birth control (law unclear about this for minors) f. Abortion = Roe v. Wade cut back by Planned Parenthood of SE PA v. Casey THUS ABORTION NO LONGER FUNDAMENTAL RIGHT i. Generally woman has right to abort before viability ii. State can regulate as long as it doesn’t place substantial burden or obstacle on woman’s ability to seek abortion before viability 1. Undue burden ≠ informed consent and parental consent 2. Spouse ≠ right to veto abortion 3. Parents = unemancipated minor must have parent’s consent (can be in person and w/24-hour waiting period) 4. Underage Girl = can get judicial hearing to prove she is emancipated 5. State OK deny Medicaid/public funding of abortions g. Family Relations = how to live your family life and raise kids i. But remember this is family and NOT generally people living together = distinction b/w grandma living w/family and roommates h. Education of Children = parent right to direct upbringing and education of kids i. No req’t to attend public school ii. No req’t visitation of grandparents iii. But not a parent if parent never married or developed rel’tnshp w/kid i. Marriage = can’t deny right of adults to marry j. Adult Sex = Lawrence v. Texas says private sexual acts can’t be regulated by gov’t = INTIMATE AUTONOMY k. Right to Die/Medical Treatment i. No right to commit suicide [Washington v. Glucksberg] or recruit someone else to do it for you ii. Competent adult may refuse treatment [terminal illness ≠ incompetence, will depend on facts] iii. Party wishing to discontinue medical treatment must prove by clear and convincing evidence that patient wanted no life-sustaining procedures iv. Living wills or health care proxy = most states honor them l. “EP” Fundamental Rights: 14th Amd i. Rt 2 vote: but if it only burdens voter/limits voter’s choices, then OK ii. Rt 2 be political candidate = quasi-fundamental; cts will strike restrictions making it hard 2 be new political party, can’s impose expensive registration/filing fees to be candidate BUT minimum reqt’s will be upheld Constitutional Law II: Spring 2004, Professor Wiseman Page 5 of 7 iii. Rt 2 access cts: if fee imposed that rich can pay but poor can’t + criminal, then STRICT SCRUTINY 1. But for civil access 2 cts ≠ fundamental 2. State can’t charges excsv fees for family-law proceedings (divorce, paternity suit, or term parental rts) iv. Rt 2 Migrate interstate/Rt 2 Travel, change addr or empl: 1. Can’t impose substantive “waiting periods” to non-residents to receive VITAL gov’t benefits [Saenz v. Roe, Crandall v. NV, Edwards v. CA] a. But cts will appl STRICT SCRUTINY to laws interfering with rights of nat’l citizenship NON-FUNDAMENTAL RIGHT S = ECONOMIC, SOCIAL WE L FARE REGS VII. Non-Fundamental Rights = Economic/Social Welfare Regulations a. A little of both DP and EP b. State allowed to regulate anything under health, safety, and general welfare = police power i. Non-suspect, non-fundamental rights c. Easy test to pass – rational basis test = rational relation/legitimate gov’t obj d. Ct will invalidate when it excessively burdens the poor to receive basic necessities e. Education @Publ Sch ≠ Necessity or Fundamental Right [but if complete deprivation may be fund rt] f. Welfare Benefits, Necessities of life (food, shelter, med care) ≠ Fundamental Rts NON-SUS P ECT CLAS S I F ICAT IONS = RATIONAL BAS I S VIII. Non-Suspect/and Non-Quasi-suspect Classes: get Rational Basis a. THE FOLLOWING ARE NOT SUSPECT/QUASI-SUSPECT CLASSIFICATIONS and thus get Rational Basis Scrutiny: Age, wealth, mental condition, sexual orientation i. Even tho sexual orientation is non-suspect officially, so cts will make decisions here as rationality “with bite” INTERMEDIATE REVI EW = IMPORTANT OB J ECTIVE AND SUB STANTIAL LY RE LAT ED IX. Mid-Level/Intermediate Review: gov’t obj important and means substantially related to that obj a. Gender, Illegitimacy, Alienage (hybrid) b. Must show that state’s ACTUAL objtv & motivation – can’t be the “any conceivable obj” used by Rational Basis c. GENDER: only matters when state’s legislature has intentionally discr one gender in favor of another (does not matter if the result of the law is that one gender more burdened than another) i. Strike down if the sex-based classification reinforces stereotypes against women d. LEGITIMACY: children must get f/state reasonable oppty to obtain judicial declaration of paternity – once determined to be “of parent’s blood” then must be treated equally to legit kids e. ALIENAGE: can go either strict or intermediate scrutiny i. Alienage applies to those WHO ARE NOT YET US CITIZENS ii. If discrimination is b/c of national origin (e.g., Mexican-American who was naturalized) then STRICT SCRUTINY iii. Can’t deny gov’t benefits based on alienage iv. Can’t prevent resident aliens from prac law Constitutional Law II: Spring 2004, Professor Wiseman Page 6 of 7 v. EXCEPTION = JOBS IN REPRESENTATIVE GOV’T 1. When the alien’s job is closely tied to politics, justice, or public policy = RATIONAL BASIS REVIEW 2. Low level, ministerial, or clerical jobs = OK aliens 3. State troopers, elementary school teachers, probation officers = OK to discr for these jobs [Ambach v. Norwich] f. Unpopular Groups (elderly, disabled, homosexuals) i. Usually intermediate, but for homosexuals may get mid-level review [maybe b/c Lawrence v. Texas says everyone, incl. Homosexuals may exercise private autonomy] g. Affirmative Action Laws enacted by Congress = mid-level review CIVI L RIGHT S AMENDMENT S /CONGRE S S IONAL LEGI S LAT ION X. Civil Rights Amendments and Congressional Legislation a. Understand Congressional Authority to Act: Congress may enact such laws to enforce 13, 14, 15 Amd b. 13 = abolishes slavery + involuntary servitude i. APPLIES TO PRIVATE + PUBL ACTR ii. 13 §1 = No slavery anywhere in USA [unless punishment f/crime] iii. 13 §2 = Congress power to “enforce this [Amd] by appropriate legislature] iv. Provides for Congr to remove “badges and incidents” of slavery [Jones v. Alfred H. Mayer Co] – congr says what badges/incident are 1. Applies to all other racial minorities v. BUT A LAW HAS TO HAVE BEEN BROKEN B4 APPLIES via Congr enforcement thru 13 Amd c. 14 & 15 = bars states f/reaching priv actors i. 14 = Req states give EP, DP and P&I 1. §5 says Congress may enact laws to enforce civil rights ii. 15 = Bars states f/denying voting rts on basis of race, color or prev cond of servitude iii. Congr OK make laws for police to aid ppl’s EP rts d. Congress HAS NO POWER to REDEFINE SCOPE OF RTS i. Once Sup Ct describes area of law based on statute f/Congr or Constitution then Congress CANNOT make new law abrogating Sup Ct 1. Such as passing Religious Freedom Restoration Act b/c didn’t like Sup Ct interpretation of Constitutional Law/Amdmt [City of Boerne v. Flores] ii. Congress can only abrogate a State’s 11th Amd sovereign immunity via 14th Amd by enforcing Fed law against states for actions violative of 13-15 Amd [Nevada Dept of Human Resources v. Hibbs] iii. Law must pass the “Congruent and Proportional Test” in Fla Prepaid and Boerne 1. law must have a “congruence and proportionality b/w injury to be prevented or remedied and means adopted to that end” [US v. Morrison] e. Congress DOES HAVE REMEDIAL POWERS i. If something isn’t provided for in 13th Amd, but an existing behavior/axn is dangerously close to violating Amd 13-15, then Congress can enact remedial law to curtail it [SC v. Katzenbach] 1. BUT THERE HAS TO BE SOMETHING ACTUALLY HAPPENING, not just a fear that such discriminatory 13-15 violations MAY happen – Congress can’t make up laws b/c worried – must be a law congruent and proportional to what is wrong Constitutional Law II: Spring 2004, Professor Wiseman Page 7 of 7 WHEN “STAT E ACT ION” IMP L ICATED XI. WHEN “STATE ACTION” IMPLICATED a. Public Function Doctrine = private indiv/entity entrusted to perf functions traditionally “governmental in nature” making private indiv an AGENT of the STATE, thus indiv axn imputed as state axn i. Company towns [Marsh v. Alabama] ii. Parks [Evans v. Newton] 1. BUT NOT SHOPPING CTRS [Hudgens v. NLRB] 2. NOT UTILITIES b/c not always exclusive to gov’t [Jackson v. Metropolitan Edison Co.] 3. Just b/c UCC allows, not necessarily gov’t axn [see State Involvement Doctrine, b/c may make state axn = liab] iii. MUST BE ACTIONS TRADITIONALLY EXCLUSIVELY LIMITED TO GOV’T 1. Not for warehouseman liens on prop b/c other methods avail to warehouseman [Flagg Bros. Inc. v. Brooks] b. State Involvement Doctrine: state so closely involved in private indiv activities, then = state anx i. State compels axn through proceeding [Shelley v. Kraemer] which results in denial of rts under 14Amd ii. State Encourages or Authorizes activity [Reitman v. Mulkey] which condones discr [expl allowed discr in home sale/rental] iii. State + Priv Indiv have SYMBIOTIC REL’TNSHP/MUTUALLY BENEFICIAL [Derrington v. Plummer, st lesee of café disc against blks] iv. State Entwined /Entangled in action 1. Jury selection b/c judicial proc [Edmondson v. Leesville Concrete Co.] 2. State scholastic assoc w/maj support coming f/gov’t $, mgmt or crtl [Brentwood Academy v. TN Secdry Sch Athl Assn] v. State LOOKS OTHER WAY when axns discr ≠ ST axn b/c not enough involvement [Jackson v. Metro Edison – lady loses utils b/c no pay = gov’t NOT involved as actr] 1. State licensing something ≠ state axn [liquor lic., Moose Lodge v. Irvis] 2. State REGULATING something ≠ state axn [Blum v. Yaretsky, nursing homes; Rendell-Baker v. Kohn, priv schls]