Con Law II Outline: West-Faulcon Fall 2006
A. US Constitutional Amendments
Bill of Rights (Amends 1-10) and Civil War Amends (13, 14, 15) offer the greatest constitutional
individual rights protections.
13th Amend: Banned Slavery
14th Amend: Due Process clause, P & I clause, Equal Protection Clause (section 1 contains
substantive rights and section 5 gives Congress the power to enforce those rights)
15th Amend: Cannot deny person the right to vote based on their race
Natural Rights: non-textual substantive rights (a debatable proposition)
B. Initial Interpretation of the Civil War Amendments - Privileges & Immunities
2 P&I Clauses in the Const: (1) Art 4 section 2 (prevents states from discriminating against out-of-
staters and (2) 14th amend P&I clause (protects rights of “national citizenship” like right to petition
congress, right to vote in fed elections, right to travel)
Right to Travel: Court used 14th amend P&I clause to overturn a state law (1st time ever) that limited a
new state resident’s welfare amount to the amount of their previous state (Saenz v. Roe).
C. Applying the Bill of Rights to the States – Incorporation
Incorporation: idea that purpose of the 14th amend was to make the bill of rights applicable to the
states (through the word “liberty” in the due process clause).
Selective Incorporation: court applied bill of rights to the states one amend at a time. This is
important b/c ct didn’t confine fund rights to only those in bill of rights so can find new fund rights.
Test = principle of justice so rooted in the traditions and conscience of our people as to be ranked as
fundamental. Whether right is fundamental to American scheme of justice.
Incorporated: 1st (speech), 4th (search & seizure, jury in criminal trial), 5th (self-incrimination), 6th
(right to counsel), 8th (cruel & unusual punishment)
Not Incorporated: 2nd, 5th (grand jury), 7th (jury trial in civil cases)
Undecided: 8th (prohibition against excessive fines), 3rd (prohibition against quartering soldiers)
D. Congressional Power to Enforce the Amendments
State Action – provisions in amends that prohibit government infringement on peoples’ rights. Need
some state action (state, city, local) before amends will apply. Exception: 13th amend – neither gov’t
nor private people can enslave others. 3 Major Categories of State Action:
Note: 14th amend protects people from state action that violates their rights, but it doesn’t allow
Congress to punish individuals for violating the rights of another under Constitutional law (Civil
a) Public Function: if a private party exercises a power that is traditionally and exclusively reserved
to the states, then it will be a public function (i.e. state action).
1) Is a Public Function: running democratic primaries, owning a town,
2) Is NOT a Public Function: owning shopping center, owning a park (typically), city enforcing an
indiv’s will (probably), settlement btwn debtors and creditors, state’s refusal to act (generally)
b) Gov’t Endorsement of Private Activity: when gov’t would have to give force to a private indiv’s
discrimination it constitutes state action (ex: court enforcement of a racially restrictive covenant,
city executing a racially restrictive trust, actions that involve the judge and jury like preemptory
challenges by prosecutor (backed by state authority), entwinement of gov’t and private group (like
association where lots of city officials and city money is involved).
c) Symbiotic (“Catch-all”) Category: when gov’t entity benefits from involvement with a private actor
1) Is Symbiotic: city owns a building that it leases to a restaurant that discriminates; clause in state
constitution that said state wouldn’t stop people from discriminating when selling, leasing, or
renting property (law in effect encouraged discrimination)
2) Is NOT Symbiotic: state gives lodge that discriminates a liquor license (mere regulation isn’t
enough); state heavily regulates private utility company that discriminates.
E. Federal Power to Regulate Private Action under 13th and 14th Amendments
Congressional Authority to Pass Anti-Discriminatory Legislation – (1) enforcement clause of the
13th amend (to remove incidents and badges of slavery), (2) commerce clause, (3) enforcement clause
(section 5) of the 14th amend.
Congressional Power to Redefine the Amendments
Section 5 of 14th Amend: “congress shall have the power to enforce, by appropriate legislation, the
provisions of this article.”
Rule: Congress may abrogate a state’s 11th amend immunity if (1) congress clearly intended to
allow states to be sued, (2) history of discrimination (according to ct’s definition), (3) law is
congruent and proportional to the injury (means-end fit).
Note: congress cannot give you more rights under the 14th amend than the supreme ct has b/c it’s
the ct’s job to interpret the const. (ex: ct struck down fed law for age discrim & disability discrim).
Note: it’s really hard for congress to pass a law in this area that won’t be struck down.
II. PROTECTION OF FUNDAMENTAL RIGHTS – DUE PROCESS CLAUSE OF 14TH AMENDMENT
Procedural DP – procedures gov’t must follow before taking away life, liberty or property. Involves
notice and the opportunity to be heard
Substantive DP – justifications gov’t must make before passing laws that restrict life, liberty or
B. Economic Due Process
Intro - Ct’s original response to legislation passed in response to the industrial revolution. Lochner era
was 1st period of fed ct activism where cts were striking down state laws as unconst. The reaction to
Lochner has shaped modern const law.
Modern Rule – economic legislation must only pass the deferential rational basis test to be upheld as
const. Ct will apply a presumption of constitutionality. Don’t need to know congress’ actual purpose
as long as a ct can come up with some rational purpose.
Hands Off Approach – ct hasn’t held a state economic statute unconst under DP since 1937. There
still some judicial oversight of economic legislation in the takings clause (gov’t can’t take away your
property w/o just compensation) and the contracts clause (gov’t cannot infringe upon existing contracts).
C. Protection of Personal Liberties - Right to Privacy
Intro: If a right is fundamental under the DP clause, it must be guaranteed to all.
2 Types of Privacy Interests
Non-Disclosure: indiv interest in avoiding disclosure of personal matters
Decision-making Autonomy: interest in indep in making certain kinds of important decisions.
What is a Fundamental Right?: guaranteed explicitly (enumerated, textual) or implicitly (like rt to
privacy) by the const (look to history and tradition)
Ct-Recognized Fundamental Rights: (1) rt as parents to direct upbringing of child, (3) rt to make
decisions in matters of childbearing (contraceptives), (4) rt to choose the blood relatives w/ which one
lives, (5) rt to choose whether or not to terminate pregnancy w/o state intervention (abortion), (6) rt of
competent adult to refuse medical treatment, (7) rt to marry, (8) rt to travel.
Heightened Liberty Interest: right of sexual intimacy btwn consenting adults in privacy, education.
Note: how you define the right being affected (broad or narrow) can have a huge effect on whether the
ct finds a fund right infringed (ex: rt to homosexual sodomy v. rt to private intimacy)
Strict Scrutiny Test (applies to fundamental rights, except abortion): (1) Does law further a
compelling gov’t purpose AND (2) Is law narrowly tailored to achieving that purpose (i.e. least-
Undue Burden Test (applies to abortion laws only): law has the purpose or effect of placing a
substantial obstacle in the path of a woman seeking to abort a non-viable fetus
Non-viable: 1st trimester
Gov’t may regulate abortion from the very moment of conception as long as it doesn’t create an
undue burden (law can make abortion more costly, more time-consuming, or state can give
alternatives to abortion)
As long as ultimate choice to have an abortion lies with the woman, not an undue burden.
After fetus is viable, state has a compelling interest in protecting the fetal life and can prohibit the
abortion, except to save the mother’s life.
Example of undue burden: requiring spousal consent for abortion. Regulation doesn’t’ have to be a
substantial obstacle for every member of the class to be undue burden. Law can also be an undue
burden on a certain type of abortion procedure if it bans it and it could be the safest procedure in a
particular situation (if law has no exception for maternal health).
Rational Basis Test (applies to non-fund rights): (1) Does law further any permissible purpose? And (2)
is there any rational relationship btwn the means and that purpose?
III. EQUAL PROTECTION CLAUSE OF THE 14TH AMENDMENT
A. Intro: If a right is afforded by the gov’t to some people, and denied to others, that’s a classification and the
EP clause is implicated.
B. Economic Equal Protection – economic classifications are non-suspect and must only pass the toothless
rational basis test.
C. Classifications (Discrimination)
5 suspect & quasi-suspect classes – (1) race, (2) gender, (3) alienage, (4) legitimacy (non-marital
children), (5) exercise of fundamental rights. A classification based on any of these will get some
form of heightened scrutiny (strict or intermediate).
3 Ways a Law can Classify (PF Case for EP Violation):
1) Law classifies on its face = facially discriminatory
2) Law classifies in its application = facially neutral
3) Law is facially neutral & applied in a neutral manner but has both discrim effect and intent
Law w/ only discrim purpose/intent & no discrim effect doesn’t violate EP (ex: shutting
down community pool after court ordered desegregation)
Discrim Intent = decision was made at least in part because of, not in spite of, it’s adverse
effects upon an identifiable group.
Factors to Prove Discrim Intent: (1) the impact of the official action (discrim effect - might
be enough for PF case on its own if bad enough), (2) the historical background of the
decision, (3) the specific sequence of events leading up to the decision, (4) any departure
from normal procedural sequence, (5) legislative or admin history
Note: once P proves the law classifies in one of these 3 ways he has established his PF case for
EP violation. The burden then shifts to D rebut P’s claim by showing a legit gov’t interest. D’s
burden in overcoming P’s claim depends on the ct’s level of review (strict, intermediate or
rational basis plus) which is dependant on the type of classification.
Note: if P doesn’t meet his PF burden in establishing a classification, ct will apply deferential
rational basis test. P loses EP claim, ct will uphold law unless it’s crazy.
Levels of Review for Classifications
Type of Classification Level of Review Test – D’s Burden of Proof
Suspect Classification Strict Scrutiny Law must be (1) narrowly tailored to serve (2) compelling
(Race, Alienage state, Exercise of gov’t interest
Quasi-Suspect Classification Intermediate Law must be (1) substantially related to (2) important gov’t
(Gender, Legitimacy) Scrutiny interest
Non-suspect Classification Rational Basis Law must be (1) rationally related to (2) legitimate gov’t
(Alienage Fed, Retards, Wealth, Gays, Plus interest
Elderly, Illegal status)
Government Interest or Purpose
Compelling – military evacuation order based on national security, not is state interest in saving
its welfare money for its citizens.
Important – insuring potential citizen is biologically related to citizen parent, preventing teenage
pregnancy, orderly disposition of decedent’s estate
When Court gives Congress Deference – military, immigration & naturalization, issue already
heavily debated in congress
Classifications that Won’t Pass Heightened Scrutiny – Created solely for admin convenience,
Arbitrary, based on stereotypes or generalizations, bad means-ends fit.
Classifications that Won’t Pass Rational Basis – law based on prejudice and general animus
Note: when ct applies heightened scrutiny, it will look to the actual gov’t purpose, not the
litigation post-hoc justification for the law.
Race (ethnicity and national origin)
Background: Plessy set up the idea of separate but equal. Ct reversed in Brown with the notion
that separate could never be equal.
De jure segregation = Racial segregation that is the product of purposeful action by gov’t
De facto segregation = segregation by the facts. Segregation is unconnected to any purposeful
action by the gov’t.
School Desegregation – a unique analysis
If one of Green factors shows segregation, P satisfies PF claim of EP violation and burden shifts
to school board to overcome the presumption (by proving segregation is de facto). Green
factors = (1) student assignment, (2) faculty and staff, (3) transportation plan, (4) activities
(segregated teams?), (5) facilities (segregated?).
District ct has power to alter attendance zones, require racial ratios and can order bussing of
children in order to desegregate a school.
Full compliance w/ Brown = unitary school system (school board will be released from district
Only de jure segregation in school will create EP violation. If school segregation is the
product of racially segregate housing or migration patterns, and not product of purposeful action
by school board, there’s no EP violation and ct won’t intervene.
ct only has power to fashion an interdistrict remedy when the EP violation is also interdistrict.
P must prove this. Scope of remedy is limited to scope of EP violation.
P must prove segregative intent (current or vestiges of de jure segregation) in order to win.
once school board shows that it has made a good faith effort to comply with deseg orders and
vestiges of past discrim have been eliminated to the extent practicable, it can file a motion to
close case (or unitary status motion). In the alternative, board can file a motion for partial
unitary status wrt a certain factor (like student assignment).
hard to prove current situation is a vestige of past discrim versus product of de facto seg. Also,
it’s easy to prove “to the extent practicable.”
All Other Racial Discrimination
Rule: Once P has proved his PF case that the law classifies (in one of the 3 ways) on the basis of
race, the court will apply strict scrutiny.
Rule: Once P has proved his PF case that the law classifies (in one of the 3 ways) on the basis of
gender, the court will apply intermediate scrutiny. Also can use “Exceedingly persuasive
justification” language from US v. Virginia.
When Court will Uphold Gender Classification: law is based on the real biological difference
between men & women and not on a stereotype (women in combat/draft, teenage pregnancy)
General Rule: apply strict scrutiny to classifications based on alienage when it’s a state or local
law, but if it’s a fed law, apply rational basis (ct defers to fed in this area).
Political Function Exception: if (1) classification is specific and (2) only applies to people who
perform functions that go right to the heart of representative gov’t (i.e. have policy-making
responsibility or broad discretion in execution of public policy) rational basis review.
Rule: apply intermediate scrutiny to classifications based on legitimacy.
Affirmative Action – policies designed to help a minority group
Rule: benign classifications are subject to the same tests as discrim classifications.
Affirmative Action Policies Generally: ct is most likely to uphold a policy that is moderate and
flexible that looks at race/gender/etc as only one factor of many (no rigid quotas).
Gender-Based Affirmative Action: such laws are subject to intermediate scrutiny. ct may accept
such a classification if its purpose if to remedy economic discrimination of the past (economic
remedial rationale) (ex: tax break to widows, more social security benefits to women). However,
law will be unconst if the classification is unnecessary to effectuate the gov’t purpose (i.e. gender-
neutral law would have worked better) or is perpetuating a stereotype (e.g. women only in nursing
Race-Based Affirmative Action: such laws are subject to strict scrutiny. Societal or industry-wide
discrim alone will not be enough. Ct will only uphold such a classification if the entity enacting the
policy specifically discriminated against race in the industry affected by the policy. The entity must
prove there’s an unjustified racial disparity w/in the qualified pool of applicants.
Higher Education Context: ct has accepted a 2nd compelling interest for race-based affirmative
action – diversity in higher ed. Diversity Plan must be narrowly tailored – (1) individualized
consideration (no quotas), (2) no race-neutral alternatives, (3) undue harm to other races is
minimized, (4) plan limited in duration.
Rule: if classification is not a member of the big 5 and the law seems like it’s based on animus
towards a group, apply rational basis plus review.
Legit Gov’t Purpose: look at actual purpose of the law (if it’s fear, prejudice and general animus
the purpose won’t be legit).
Law is Rationally Related to Purpose: unlike deferential rational basis, this test looks at whether
there’s a means-ends fit for achieving the gov’t purpose.
Fundamental Rights EP Analysis
Rule: when a law only affects certain groups’ fundamental rights you can analyze under EP and
apply strict scrutiny.
Examples: abridging fundamental right to marry of those who are poor and can’t afford child
support, abridging fundamental right to travel of those who are poor and get welfare benefits.
Special Case: state cannot deny education to children just b/c their parents are illegal. Education
isn’t a fundamental right (and illegal status not a suspect class), but it’s important such that the
benefits of such a law would be far outweighed by its burdens.
DUE PROCESS EQUAL PROTECTION
What type of interest is at issue? What type of classification has the government used?
“fundamental right” under DPC (must be guaranteed to all) “quasi-suspect” classification
“non-suspect” classification (not in big 5 list)
“protected liberty interest” under DPC OR
Is a fundamental right at issue protected by equal protection
not protected under DPC clause (must be afforded on an equal basis)?
What level of review applies? What level of review applies?
If non-fundamental → Rational Basis If “suspect classification” or infringes
“fundamental right” → Strict Scrutiny
If infringes fundamental right → usually Strict Scrutiny
(exception here is abortion – reason for “usually”) If “quasi-suspect”→Intermediate Scrutiny
(infringe = something more than regular burden, ex: requiring blood
test before getting married doesn’t infringe on right to marriage) If “non-suspect” → Rational Basis
What is the standard of review (test) for the interest asserted? What is the standard of review (test) for that level of
Strict Scrutiny Test: Strict Scrutiny Test:
1) Does the law further a compelling government purpose? 1) Does the law serve a compelling government purpose? and
2) Is the means chosen to serve that purpose the least burdensome 2) Is the means narrowly tailored to serve that compelling
means of achieving that compelling purpose? purpose?
Undue Burden Test: (only abortion) Intermediate Scrutiny Test:
Does the law have the purpose or effect of placing a “substantial 1) Does the law serve an important government purpose? and
obstacle” (in the path of a woman seeking an abortion before the 2) Is the means substantially related to that important purpose?
fetus attains viability)?
Rational Basis Test: Rational Basis Test:
1) Does the law further a (any) permissible purpose and 1) Does the law serve a (any) legitimate government purpose?
2) Is there a (any) reasonable relationship between the means and and
the purpose? 2) Is the means (in any way) rationally related to that legitimate
IV. FREEDOM OF SPEECH – 1ST AMENDMENT
1st Amend – “Congress shall make no law…abridging the freedom of speech.”
Major Justifications for Protecting Freedom of Speech – (1) democracy (need to facilitate self-
gov’t), (2) truth (market-place of ideas), (3) personal autonomy (self-fulfillment), (4) tolerance (free
speech will ultimately lead to a more tolerant society)
Vagueness – if a person of common intelligence can’t tell what behavior is prohibited law is unconst
Overbreadth – if a law prohibits substantially more behavior than necessary to achieve the gov’t
purpose, it’s unconst overbroad.
Prior Restraint – if gov’t action prevents speech from being uttered it’s presumed unconst (restraint
will only be upheld if speech would give away the location of a troop ship).
B. Content of Speech
General Rule – content-based restriction on speech gets strict scrutiny. Content-neutral restriction on
speech gets intermediate scrutiny.
Content Based Restriction = restricts speech w/ a certain subject matter (ex: no demonstrations in the
park about the Iraq war) or restricts speech w/ a certain viewpoint (ex: no anti-war demonstrations).
These restrictions do typically violate the 1st amend.
Exception to General Rule – Unprotected & Less Protected Speech
1) Incitement – speech that incites imminent lawless action
Test: speech is (1) directed (intent) to inciting or producing imminent lawless action and (2)
likely to incite or produce such action.
Note: no incitement just b/c speaker has a hostile audience (gov’t must control audience)
2) Fighting Words & True Threats – insults & epithets (unprotected)
Test: speech tends to incite an immediate breach of the peace (ex: insulting someone to their
face or burning a cross in someone’s yard)
Note: it’s not enough that the speech is vulgar or offensive or hateful alone.
3) Defamation – publication of false statements about another that damages his reputation
Rule: a public official can’t recover damages for a defamatory falsehood relating to a public
issue unless he proves that the statement was made with actual malice (i.e. knowledge that it
was false or reckless disregard of whether it was false). A private person suing when it’s a
non-public issue doesn’t have to prove actual malice, just that the statements were false.
4) Obscenity & Child Pornography
Rule: both are unprotected speech.
Test: Obscenity = (1) appeals to prurient interest (lewd, immoral type of sexual desire as judged
by contemporary community standards), (2) patently offensive and (3) lacks serious redeeming
social value (taken as a whole).
5) Commercial Speech
Rule: Commercial speech is less protected (subject to intermediate scrutiny). False or
misleading commercial speech or advertising for illegal transactions is unprotected.
Note: comm speech isn’t subject to vagueness, over-breadth, or prior restraint analysis.
C. Content-Neutral Speech
Intro – this is content-neutral restriction on speech and subject to intermediate scrutiny.
Content Neutral Restriction = restricts all speech regardless of its subject matter or viewpoint.
Typically include time, place & manner restrictions. Do not typically violate the 1st amend.
Manner Restriction – must (1) be content-neutral, (2) be narrowly tailored to a significant gov’t
interest, (3) leave open adequate (ample) alternative channels of communication.
Note: ct has never overturned such a law based on the significance of the gov’t interest (it’s
deferential). The hard part is proving it’s narrowly tailored and leaves open other channels of
Note: for prong (3), good arguments are that restriction allows for the same speech in other ways,
speaker can’t accidentally violate the law etc.
Place Restriction – applies if speech occurs on gov’t property.
Types of gov’t prop: (1) traditional public forum, (2) designated public forum, (3) nonpublic forum.
Rule: treat restrictions on traditional or designated public forum the same as regular speech. If the
place restriction is content-based apply strict scrutiny, if it’s content-neutral apply intermediate. If
the restriction is on a nonpublic forum, it must be (1) reasonable in light of the uses & purposes of
the forum and (2) viewpoint neutral.
D. Symbolic Speech
Rule – treat the same as regular speech: if content-based restriction apply strict scrutiny, if content-
neutral restriction apply intermediate scrutiny.
Content-Neutral – law prohibits both communicative and non-communicative actions (ex: burning
draft card on courthouse steps and burning card on leaves in your yard).
Content-Based – law only prohibits communicative actions (ex: punishes burning flag in protest but
doesn’t punish burning flag out of respect).
V. FREEDOM OF RELIGION – 1ST AMENDMENT
A. Introduction: there can be a natural antagonism btwn the 2 religion clauses of the 1st amend. Current
supreme ct is less likely to accommodate religion (weak on free exercise) and doesn’t restrict gov’t action
as much (weak on establishment).
B. Establishment Clause
Intro – clause prohibits the gov’t from favoring one particular religion over other religions OR from
preferring religion generally over non-religion
Note: if law benefits a group b/c of their religion, the establishment clause is implicated.
Rule – officially it’s the Lemon Test: (1) law has only no secular purpose or (2) primary effect of law is
to advance or inhibit religion or (3) law creates excessive entanglement of church and state.
Note: also argue the endorsement and coercion tests along with the Lemon Test.
Endorsement Test – if a reasonable observer would interpret the gov’t actions as an endorsement
of religious belief or disbelief, it violates the establishment clause (i.e. gov’t makes adherence to a
particular religion relevant in anyway to one’s standing in the political community).
Coercion Test – if gov’t coerces religious belief/non-belief or practice/non-practice it violates
Types of Establishment Clause Cases
School Prayer – religious instruction on school grounds, teacher-instructed school prayer & moment
of silence are all unconst violations of the establishment clause. Allowing time off for religious
teaching at a religious facility is okay. Particular danger of establishment in school programs.
School Curriculum – posting 10 Commandments in classroom or prohibiting the teaching of
evolution violates the establishment clause.
School Vouchers – won’t fail prong 2 of Lemon Test if program allows for individual choice.
Financial Assistance – Very involved. Ct struggles w/ whether to be neutral by not giving any
public money to religion at all or by treating religious and non-religious entities the same.
Public Displays – big issue when displaying religious symbols is whether gov’t did it with a
religious purpose or not (prong 1 of Lemon Test). Look at actual purpose.
C. Free Exercise Clause
Intro – clause prohibits gov’t from interfering w/ peoples’ free exercise of their religion
Note: if law burdens a particular religious group, the free exercise clause is implicated.
Rule – if that law is one of general applicability and isn’t targeted at a particular religious group apply
rational basis. If the law is targeted at a particular group (not a law of general app) and it has animus
towards that religion apply strict scrutiny.
Note: if law is not one of general app but there’s no strong animus towards religion it still gets
rational basis review (ex: state can provide merit scholarships for higher education and say the
money can’t be used on religious majors)
Hybrid Claim Exception – if it’s a law of general applicability and it infringes on another
fundamental right (ex: fund right of amish parent to raise child or free exercise combined w/ free
speech) then apply strict scrutiny.