Historical Introduction:
Among the most important features of the Constitution is that it is a written document. A written constitution possesses three distinct advantages: (1) consistency (2) preservation of expectations and (3) prevention of disputes. Among the principle characteristics of the American constitution are its status as a framework, a document of symbolic importance, and its status at the ―top‖ of the legal hierarchy. Perhaps the greatest feature is the difficulty in amending the document. Nature and Structure of the Constitution: The American Constitution is (largely) concerned with the creation and limitation of power: Government of Enumerated Powers: The American constitution provides a framework for an enumerated government – its original intent was to lay out exactly what the government can do. A power that is not within the Constitution is not meant to be a function of government. Government of Unenumerated Powers: (contrarily) a document more concerned with what a government cannot do. Within the Constitution, there are two Primary Components: Structural Provisions: One function of the Constitution is to set up the ―machinery‖ of government. Power Related Provisions: Conferring Power: National Government: o Article 1, § 8: defines the scope of Congressional Authority ―necessary and proper‖ clause: has been interpreted in a ―wide reaching‖ manner, often broadly interpreted. o Article 4, § 3: power to make rules and regulations regarding territories and government property o Article 3, § 3: designates the appropriate punishment for treason o Article 2, § 2: enumerates presidential powers o Article 3: enumerates judicial powers o Amendment 16: later gave the power of income taxation State Government: with limited exceptions (the power of extradition and the ability to dispatch the national guard), the National Constitution has no concern with the powers of states. State powers are granted by the state constitutions. Individuals: No individual is granted power by the US Constitution Limiting Power: National Government: o Article 1, § 9: Bills of Attainder and ex post facto laws are outlawed o Bill of Rights: the enumeration of ―natural law‖ that anti-federalists insisted upon for ratification State Governments: o Article 1, § 10: one of the problems with the Articles of Confederation duties were exercised on state to state transfers of goods. o Article 6, § 2 and Amendment 14: the ―supremacy clause,‖ outlining that all State Laws must conform to the US Constitution above all else. Individuals: The only limitations on individuals are o 13th Amendment: no individual is allowed to own slaves o 18th Amendment: later repealed, prohibition was the only other specific limitation to individuals.
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Constitutional Convention of 1787: What ―brought‖ America to Philadelphia? Debtor Backlash: the economic disaster spreading under the Articles of Confederation – farmers were extremely impacted by the depressed business conditions. Additionally, the state legislatures had been elevated to the most powerful position of government (most governors no longer had veto power). Many passed laws that relieved debtors (due to public demand) but destroyed creditor’s powers to collect. o Shay’s Rebellion (1786): a group of armed farmers prevented the circuit court of Massachusetts from sitting. Confirmed the fears of the wealthy that anarchy was a realistic threat. o Rhode Island: Leaders refused to participate in the convention. Rhode Island was tied to the idea of paper currency, low taxes, and popular government. George Washington: “Wisdom and good examples are necessary at this time to rescue the political machine from the impending storm.” Washington was elected president of the Constitutional Convention, and most presumed he’d be the first US president. Impotent Continental Congress: The government under the Articles of Confederation was ―woefully‖ inadequate [or so Madison believed]: o Had authority to conduct the war, but could not impose taxes to finance them o Had limited power to enact laws, but no means of enforcing them o Bankrupt: paper money flooded the countryside, but the actual treasury (with no means of taxation) was completely depleted by the war effort o 9/13 requirement (require support of nine states to pass anything) Security Concerns: o Indians o Slaves o Shay’s Pride: to European nations, America was viewed as a ―third rate republic‖ ―Liberty‖ : potentially the most important concern brought to the convention – though no one agreed on its meaning.
The Convention convened in September, 1786. Seventy-four delegates were appointed to the convention (55 actually attended), including Washington (president), Madison (―father‖ of the Constitution), Hamilton, and Ben Franklin. Virginia Plan: called for a strong central (―consolidated‖) government. Essentially Madison’s plan, it proposed the three branch system. The plan created the ―supreme‖ power of government (―nationalism‖) favored by the large states. New Jersey Plan: called for a revision of the Articles of Confederation which allowed Congress to raise revenue and regulate commerce, without interfering with state sovereignty. The model envisioned the states as a ―federation‖ with individual powers, and was favored by the smaller states. The New Jersey Plan was championed by William Patterson. Hamilton’s Plan: Alexander Hamilton, like many other delegates, believed that America would eventually be a monarchy. However, the post-war sentiment that flooded the country kept this from being a reality.
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The Great Compromise: The ―Connecticut Compromise‖ proposed the familiar bicameral system established. It proposed a house equally divided, as well as a house of proportional representation. It also include the 3/5’s requirement for counting slaves. Ratification of the Constitution: Ratification created many of the same problems that the Convention dealt with: Nationalists (Federalists) v. States-Righters (Anti-Federalists) Liberals v. Moral Conservatives Northerner’s v. Southerners Big States v. Small States Aristocrats v. Egalitarians Debtors v. Creditors New Hampshire finally ratified on July 2, 1788, becoming the ninth state. Among the principle components of ratification was the anti-federalist pressure to include a Bill of Rights. Though a Bill of Rights was mentioned at the original convention, most delegates believed it to be superfluous – all power not expressly delegated to the new government was reserved to the people. Madison constructed 17 original amendments, the Senate cut the number to 12, and 10 were finally ratified within the states.
Judicial Review:
A hallmark of modern law, judicial review is not specifically allocated to the supreme court through the constitution. There are many theories of why: One theory is that the power is implicit – most supreme courts at the time of the Convention possessed the power of judicial review. Another is that the framers didn’t want the Supreme Court to have the power of judicial review – 11 of 55 delegates mentioned judicial review at the conference (and 2 of them were opposing it). The final theory is that judicial review was viewed as unnecessary—Congress has very specific authority, and there’s no reason for them to stray. Marbury v. Madison: William Marbury was denied a signed commission for a justice of the peace position for the District of Columbia. He sued for a writ of mandamus under the Judiciary Act of 1801. Rather than issuing the writ, the Supreme Court held that the Act was unconstitutional. Defined the power of judicial review for the Supreme Court. Writ of Mandamus: a court order to a public official or corporation commanding the performance of a public duty. The Judiciary Act allowed a suit against the Secretary of State (Madison) to be brought under the courts original jurisdiction. The problem: the ―exceptions‖ clause of Article 3, § 2 (clause 2, ―with such exceptions…‖) seems to allow Congress the ability to change the jurisdiction of the Court. Chief Justice Marshall opposed this reading, finding that the jurisdictions enumerated were meaningless if Congress could change them at will. As such, Marshall found the Act to be ―unconstitutional.‖ Marshall’s plan was a brilliant political strategy, it allowed them to brand Jefferson a civil-rights violator, without trying to issue an order that he could simply ignore.
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Supreme Court: Process of Review: Original Jurisdiction: Article 3, § 2: ―in all cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the Supreme Court shall have original jurisdiction.‖ Complaint/Answer ► Hearings Before Special Master ► Exceptions Filed ► Oral Arguments ► Decision Appellate Jurisdiction: Article 3, § 2: ―in all other cases before mentioned, the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such exceptions, and under such Regulations as the Congress shall make.‖ Decision Below ► Certiorari Petition ► Screening: Cert Memos ► Conference [―Rule of Four‖] ► Cert Denied (98%) ► Cert Granted (2%) ► Briefs Filed ► Oral Arguments [30 min. per side] ► Conference and Vote ► Assignment of Opinions ► Opinions Circulate ► Opinions Announced ―Rule of Four‖: Four justices are required to grant certiorari Opinion Assignment: Made by the Chief Justice (if in the majority), or the senior justice in the majority (if C.J. is not) Current Court: Ultra Conservatives: o Scalia, Reagan Appointee o Thomas, Bush Appointee Very Conservative: o Rehnquist, Nixon Appointee Conservatives: o O’Connor, Reagan Appointee o Kennedy, Reagan Appointee Moderates: o Stevens, Ford Appointee o Souter, Bush Appointee o Ginsberg, Clinton Appointee o Breyer, Clinton Appointee
Constitutional Interpretation:
Sources that guide interpretation: Text Itself: looks to the actual language and structure of the text History: intentions of the framers Case-law/Precedent: Previous judicial decisions Consequences: interpretation has focused on social, economic, and political consequences of particular decisions Natural Law: Framers believed in a ―higher‖ or ―universal‖ law that defined the inherent rights of the people (much like the Declaration of Independence) o Nearly all theories of interpretation emphasize the first three elements
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Two Primary Approaches to Interpretation: Originalists: (Black, Scalia, Thomas, Rehnquist, Bork) Textualists: grant primary weight to the text and structure of the Constitution Intentionalist: grant primary weight to the intentions of the framers Follows the idea that judges should not seize power from elected officials Forces legislatures to ―fix‖ their own errors Preserves the authority of the court Marsh v. Chambers: (1983): Does Nebraska’s practice of prayer before the legislative session violate the establishment clause of the 1st Amendment? * Originalist Decision Congress shall make no law respecting an establishment of religion… Majority: (Burger) emphasizes historical frame for legislative prayer gives a way to interpret the meaning of the establishment clause framers opened their own sessions with prayers most of the original congress voted for a legislated prayer – they also voted for the 1st Amendment indicates that the framers did not consider opening prayers as placing an ―official seal of approval on one religious view.‖ Dissent: (Brennan and Marshall) the majority doesn’t apply any of the traditional ―tests‖ that structure establishment inquiries The prevailing test was given in Lemon v. Kurtzman. To escape the establishment clause, the statute at issue must: o have a secular legislative purpose o its primary or principal effect must neither advance or inhibit religion o must not foster an excessive government entanglement with religion Legislative prayer is religious (rather than secular). It should therefore be considered Unconstitutional Madison: voted for the bill authorizing Congressional ―chaplains‖ but later changed his mind – his reason was probably because he was a detached observer (which the court should also be) The majority treats the 1st Amendment as merely an ―act of Congress‖ – but just because they voted for it doesn’t mean they weren’t capable of violating it. Non-Originalists: (Brennan, Marshall, Blackmun, Douglas, Posner, Warren) Pragmatists: grant substantial weight to judicial precedent and consequence driven thought Natural Law Theorists: believe that a higher moral law ―trumps‖ inconsistent positive law The framers indicated that their intentions should not control interpretation Constitutions cannot necessarily predict future governmental oppression, and judges are to ―fill in‖ the gaps Amendment process is too difficult to protect the people from inflexible interpretations Allows the constitution to evolve
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Griswold v. Connecticut: (1965) Does anything within the Constitution allow for the right to use birth control? *Non-Originalist Decision Executive Director of Planned Parenthood was arrested for giving information, instruction, and medical advice to married people about contraceptives. Majority: (Douglas) Rights to privacy have been found in the 1st, 3rd, 4th, 5th, and 9th Amendments The specific guarantees of the Bill or Rights have ―penumbras.‖ Various guarantees create ―zones of privacy‖ In order to invade a ―zone of privacy,‖ a statute must demonstrate both a ―compelling state interest‖ and ―least restrictive means‖ o Later gives way to the idea that choosing parenting (or not) is a private matter – becomes the primary basis for Roe v. Wade Concurrence: (Goldberg) ―Liberty‖ in the Due Process clause would protect a decision to use contraceptives Dissents: (Black and Stewart) The fact that the law is stupid doesn’t mean it’s unconstitutional The primary (modern) disagreement between the two schools of thought is the conflict over ―fundamental rights‖ that are not explicitly protected by the constitution. Two interesting struggles between the two fields (below), the rise and fall of ―Lochnerism‖ and ―Separate but Equal.‖ Though the modern court recognizes that constitutional protection should be given to unenumerated rights, it divides on what sources to look to in deciding those rights.
The Incorporation Debate:
Does the 14th Amendment ―incorporate‖ the Bill of Rights, making them enforceable against the states? One of the most heavily debated issues of the late nineteenth and early twentieth centuries, with valid arguments suggesting that it doesn’t. One of the proposed ―rights‖ in Madison’s original Bill of Rights was an application of the 1st Amendment to the states. It was rejected by the states, who didn’t want to usurp their own power. Direct limitations to the states are listed in the text – the framers clearly knew how to limit state powers. Barron v. Baltimore: (1833) o A complaint under the ―takings clause‖ of the 5th Amendment o City of Baltimore seized a wharf from a person (and never compensated them) o The court ruled that the 5th Amendment only applied to the federal government – it could not be applied to states, cities, or municipalities The Civil Rights Act was created in 1866 – it was declared unconstitutional by Andrew Johnson (who vetoed the Act). The 14th Amendment (1868) was created as a leverage tool – Southern states were forced to sign in order to get back into the union. It was created to give Congress the ability to constitutionally enact measures such as the Civil Rights Act.
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Provisions of the 14th Amendment: Privileges and Immunities Clause No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; Due Process Clause Nor shall any State deprive any person of life, liberty, or property, without due process of law Equal Protection Clause: Nor deny to any person within its jurisdiction the equal protection of the laws. Slaughter-House Cases: (1872) Does the Privileges and Immunities clause apply against the States? Louisiana created a Charter which forbade all slaughter-houses (except the one established by the Charter) from slaughtering meat within the city of New Orleans. The charter gave a monopoly to the Crescent City Slaughter House – employees were given no choice (most of them were black). Distinguished between citizenship in a state and citizenship in the United States The privileges and immunities clause only restricted the actions of the US Decided by a 5/4 vote Limited the 14th Amendment to Civil Rights cases. The effect of the Slaughter-House Cases was to severely restrict the P/I clause. Consequently, the majority of incorporation came through the Due Process clause (which acted as a surrogate to the intent of the P/I clause). Twentieth Century Views of the Incorporation Debate: No Incorporation: (J. Frankfurter) The only state laws that can be overturned are those that ―shock the conscience‖ or are ―inconsistent with ordered liberty.‖ Total Incorporation: (J. Black) Testing incorporation is a vague practice, which gives judges too much subjectivity – therefore, all rights are incorporated Selective Incorporation: (J. White) The predominant view of the incorporation debate. The current view of the Bill of Rights is: o 1st Amendment: fully incorporated o 2nd Amendment: incorporation has never really been decided… o 3rd Amendment: no Supreme Court Decision o 4th Amendment: fully incorporated o 5th Amendment: incorporated, except for the clause guaranteeing criminal prosecution only on a grand jury indictment o 6th Amendment: fully incorporated o 7th Amendment: Not incorporated o 8th Amendment: Fully incorporated Adamson v. California: (1947) Does the 14th Amendment incorporate the 5th Amendment protection against self-incrimination apply against the states? Adamson was arrested for murder, and the judge revealed prior convictions to the jury, even though Adamson never took the stand to testify. Majority: (Reed) The 5th Amendment is not incorporated by the 14th Amendment The freedom from self-incrimination has been found specifically beyond the privileges and immunities clause
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A person is both a national citizen and a state citizen – while some rights are a privilege of national citizenship, a state can deny those rights to the ―state citizen.‖ Concurring: (Frankfurter) The freedom from self-incrimination clearly applies in federal courts However, there is no reason to see a historical requirement of the states to feel the same Nearly half the states who ratified the amendment did not have a grand jury system – surely the wouldn’t have ratified the amendment if they believed it ―tethered‖ them Dissent: (Black) The previous decisions about incorporation were wrong Historically, the states meant for the 14th Amendment to incorporate the Bill of Rights
Duncan v. Louisiana: (1968) Does the Constitution guarantee a jury trial in all criminal proceedings? Duncan was convicted of battery, which under Louisiana law carries a two-year jail sentence. He requested a jury trial, but was denied. Majority: (White) The test of incorporation used: ―is the right fundamental to the American Scheme of Justice?‖ There is a difference between ―petty crimes‖ and ―serious offenses‖ (which the court decides to not try and define). Petty crimes don’t require a jury trial – serious offenses do. Because of the two-year sentence, battery in Louisiana is clearly a serious offense, and therefore should have had a jury trial. Concurrence: (Black) Emphasizes again that the 14th Amendment should apply totally Dissent: (Harlan) Calls for a question of ―fundamental fairness‖ in incorporation debates. o Practical Effect: Duncan essentially told the states that only crimes with greater than a six-month jail sentence required a jury. States completely renovated their criminal codes in accordance with this number – the current standard is that any crime that states don’t want to have jury trials for carry a six-month sentence.
By the time of Duncan, much of the Bill of Rights had been incorporated through the Due Process clause. This more modern ―selective incorporation‖ view follows the idea that the Bill or Rights provisions ―fundamental to the American Scheme of justice‖ are incorporated, while others (such as the right to a jury trial in civil cases) are not.
2nd Amendment: Right to Bear Arms
A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed. Controversial in its meaning – few parties can agree on what it means or how it applies to individuals Also controversial in its incorporation – In 1876 (the last time the Court addressed the amendment), it was decided that the Amendment did not apply to the states. However, there has been a large scales incorporation of amendments since then
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U.S. v. Miller: (1939) Miller was arrested for interstate transport of a sawed-off shotgun. Majority: (McReynolds) There is nothing to indicate that a ―shotgun having a barrel of less than eighteen inches in length‖ has any bearing on security or arming a militia. The court seemingly suggests that the only arms protected by the amendment are those that could actually be used by a militia. Since a (sawed-off) shotgun isn’t – its not protected as an individual right. The court doesn’t address what would have happened had Miller been carrying a regular shotgun. Quilici v. Village of Morton Grove: (7th Circuit C of A, 1982) Does the 14th Amendment incorporate the 2nd Amendment against the states? Village of Morton Grove prohibited the possession of handguns within the villages borders. Majority: The 2nd Amendment is not incorporated – therefore, the state has a right to prohibit handguns. Dissent: Recognizes a unique right of protection within the home – the city’s prohibition interferes with the fundamental right of privacy. U.S. v. Emerson: (N. Dist. Ct. of TX, 1999) The 2nd Amendment was intended to protect an individuals rights to own firearms – the right to bear arms is a necessary check against tyranny. The opinion was later struck down by the court of appeals.
4th Amendment: Search and Seizure
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. New Jersey v. T.L.O.: (1985) Does the 4th Amendment protect students against searches of personal effects by a school official? T.L.O. was taken to the principal’s office for smoking. When she denied it, the principal searched her purse (for cigarettes) and discovered marijuana, receipts, and cash. She was arrested, and complained that the search was illegal. Majority: (White) School officials are subject to the 4th Amendment. However, the school situation entitles some degree of modification of the grounds for a search. Schools are entitled to a more relaxed standard of ―probable cause‖ when there is suspicion of a violation of school rules. The reasonableness of a search requires looking at: o Was the action justified at its inception o Was the search actually conducted reasonably related in scope to the circumstances which justified the interference in the first place. Remaining Opinions: Brennan, Marshall, and Stevens concurred in part, and dissented in part. The primary dissenting issue is that ―reasonableness‖ is a subjective standard – which is clearly at odds with the high burden of ―probable cause.‖
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Vernonia School Dist. v. Acton: (1995) Are blanket searches of teen athletes permissible under the 4th Amendment. School district implemented an across the board drug-testing policy of student athletes. Acton wanted to play football, and refused to consent to the testing. Majority: (Scalia) the Invasion of Privacy was not significant: the major ―privacy‖ issues revealed by urinalysis were protected by the testing procedures. Also, because the entire group was tested, there was no individualized scrutiny (which would need probable cause. Concurring: (Ginsberg) There should be a ―reasonable‖ balance between privacy issues and governmental interests. Dissent: (O’Connor, Stevens, Souter) Any search that does not include suspicion is unreasonable.
5th Amendment: Takings of Private Property:
…nor shall private property be taken for public use, without just compensation. Both federal and state governments have the right to take property under eminent domain – however, constitutional challenges generally involve ―inverse condemnation actions,‖ in which the government hasn’t admitted to a taking. The ―takings clause‖ is usually applies to land, but can also apply to chattels or to intangibles (like trademarks or patents). ―Public Use‖ is usually very broadly construed by the court – this generally gives a lot of latitude to cities to do what they want (as long as there is some ―public benefit). ―just compensation:‖ usually means market value [value before – value after]. The takings clause has been incorporated against the states through the fourteenth amendment. What are relevant factors in deciding if a ―taking‖ has occurred? Amount of loss in fair market value Character of the action: seizures, invasions, or prohibitions of use. Interference with investment backed expectations. Penn Central Trans. Co. v. New York City: (1978) Penn Central wanted to add 55 stories to Grand Central station. The city’s Landmarks Preservation Law forbade building on top of a historic landmark. City instead offered transferable development rights. Majority: (Brennan) Property was not ―taken‖ because it still had substantial value. Zoning requirements are not a ―taking,‖ simply because they limit what can be done with a historic property. Penn Central had the ability to sell their ―air space‖ to another development, which would enable (the other business) to build outside of height requirements. While transferable development rights may limit what an owner can do with their own property, it still has significant value. Dissent: (Rehnquist) The primary difference in the opinions is that the dissent has a different perspective on what constitutes a taking. ―Taking‖ means interference with an owner’s property rights – limiting what an owner can do with his property is a ―taking.‖
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Dolan v. City of Tigard: (1994) Are city exactions a taking? Dolan wanted to expand her business. The city instituted an ―exaction‖ – she was given the permit to expand, as long as she built a bike path on her property. Majority: (Rehnquist) In order to inquire into the taking there is a two-part test: o First, is there an ―essential nexus‖ between a ―legitimate state interest‖ and the permit exaction o Second, must decide the degree of connection between the exactions and the proposed impact of the proposed development. The court requires a proportional exchange between the cost to the owner and the benefit to the city—requires a rough proportionality between what was given up and what was received. Tigard fails the first part of the test This is a ―taking‖ in that P lost the ability to exclude people from her property – a fundamental right of ownership. Dissent: (Stevens) If the government can demonstrate rational restrictions on land use, it should be presumed they are valid. It is not the court’s role to micromanage land use. Lucas v. South Carolina Coastal Council: (1992) Should “regulatory” takings require compensation? Lucas had bought beach property for the purpose of developing residential property. SC instituted a law that made it so he could not develop the land. Lucas claimed this made the land worthless. Majority: (Scalia) Regulation is allowed without compensation – however, case law demonstrates that when regulation goes too far it is a taking. There are two circumstances in which regulatory action is compensable, without analyzing the public interest: o Regulations that compel an owner to suffer a physical invasion o When regulations have denied all economically beneficial or productive uses of land. Because the regulations have rendered the land economically ―non-viable,‖ it clearly demonstrates a taking. Dissent: (Blackmun) The court has used a missile to kill a mouse. The decision is rooted ―neither.. in prior case law, common law, or common sense.‖ No one has ever bothered to ask what value the land how without a residence on it – how can anyone actually say that the land is valueless?
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8th Amendment: The Death Penalty:
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. 39 States still have death penalty laws on their books. ―Cruel‖ : o mentally cruel o physically cruel o ―excessive‖ : the court favors striking down laws that are unnecessary for what the law intends to accomplish. ―Unusual‖ o arbitrary o hidden from the public Textualists argue that the death penalty is not included in the 8th Amendment, the primary argument being the 5th Amendment (life…due process). Non-originalists argue that the framers anticipated evolving standards of decency (which is still the predominant interpretation for ―cruel and unusual claims.‖ Policy arguments have recently centered on a ―world-view‖: most nations oppose the death penalty, the US should to. Furman v. Georgia: (1972) Do “arbitrary” death sentences violate the 8th amendment? In the 1960’s, the NAACP Legal Defense Fund created a ―logjam‖ by helping to initiate a moratorium on death-penalty cases. By piling up over 600 individual cases, the Fund attempted to overturn all death penalty cases simultaneously. Decided by a 5/4 vote, with each justice filing a separate opinion. White/Stewart were swing votes – the Fund’s tactics successfully swayed them. While the opinions varied, Furman invalidated all then existing death penalty laws. Unless there was a way to demonstrate that the sentences were not arbitrarily imposed, then they were cruel and unusual. At the time of the decision, it was assumed that capital punishment was at an end. 38 states reformed their capital punishment laws Gregg v. Georgia: (1976) Does capital punishment violate the 8th Amendment per se? Gregg killed and robbed two men. The trial was in two stages (a guilt stage, and a sentencing stage). The jury was advised that they could recommend a life-sentence, or the death penalty. Gregg was sentenced to death. Majority: (Stewart) The court has consistently held that capital punishment is not per se unconstitutional. A majority of reasoning for adopting Furman was a belief in evolving standards of decency. That issue is raised again. However, the fact that many states have subsequently reformed their laws indicates that ―decency‖ hasn’t moved away from the death penalty. The death penalty imposed also doesn’t violate the ―decency‖ at the core of the amendment. DP is not per se unconstitutional. It is constitutional if it imposes a threshold criteria, below which the DP cannot be imposed. Further, the state must provide rational criteria to establish when DP is proper.
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McCleskey v. Kemp: (1987) Are statistical discrepancies enough to prove unconstitutional application of the 8th amendment in death penalty cases? McCleskey (a black man) killed a white police officer and was sentenced to death. He produced evidence (the Baldus study) that demonstrated Georgia courts imposed the death penalty 4.3x more frequently when the victim was white, then when the victim was black. Majority: (Powell) Allowing McCleskey’s claim would create serious trouble for the justice system. It is not enough to show that the ―system‖ has problems – it is up to an individual defendant to prove there was a problem with his particular sentence. Dissent: (Brennan) The majority opinion looks too much at potential future applications – the defendant clearly demonstrated there was prejudice, therefore he should not suffer the DP. Hudson v. McMillan: Angola prison guards shackled and beat a prisoner. 5th Circuit Court of Appeals ruled that 8th Amendment would only be violated if a prisoner was hospitalized or permanently disabled. (SC later overturned). Ingraham v. White: Miami High School’s policy of corporal punishment was held to not violate the 8th Amendment, because the 8th was clearly meant to apply to criminal punishment. However, the dissent ignores the intent argument of the majority, and focuses on the text of the statute – under the dissent’s reading, the prohibition applies always.
Constitutional Protection of the Home:
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner nor in time of war, but in a manner to be prescribed by law. {3rd Amendment} Engblom v. Carey: (US Ct. of App. 1982) One of the only cases to ever address the third amendment. During a prison strike, national guardsmen were called in to serve in place of the striking guards. The guards lived on the prison site in dormitories, which is where the guardsmen were housed during the strike. The prison was sued for violation of the 3rd Amendment. The third amendment is incorporated by the 14th Amendment. The 3rd amendment should not be limited to owners in fee simple. Because the guards had a substantial tenancy interest in the housing and were able to exclude others, these were clearly ―homes‖ as established by the 3rd amendment. Therefore, the quartering of the guardsmen violated the constitutional rights of the prison guards. Dissent: The numerous rules and regulations imposed on the guards really limited the idea that this could be home. The US Supreme Court has never incorporated the 3rd Amendment into the 14th. The right of the people to be secure in their persons, houses, papers, and effects… {4th Amendment} while the home is specifically mentioned within the text of the fourth amendment, finding protection for the home frequently involves” reading between the lines…”
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Kyllo v. United States: (2001) US Dept. of Interior used thermal scanning to detect marijuana growth within Kyllo’s home. This information was used to obtain a warrant, and Kyllo was arrested for manufacturing marijuana. The issue before the court is whether this constitutes a ―search‖ under the 4th Amendment. Majority: (Scalia) Visual observation is not a ―search‖ – things in public view are not subject to an expectation of privacy. Constitutional analysis of a search requires two separate components: o a subjective/personal expectation of privacy o a socially ―reasonable‖ (objective) expectation Fourth Amendment searches only occur when both are present (and violated). When the government utilizes technology to explore details of a home that would previously have been unknowable without a physical intrusion, the surveillance is a search and requires a warrant. Dissent: (Stevens, Rehnquist, O’Connor, Kennedy) Majority makes an unnecessary bright-line rule that impedes future technological innovations. Poe v. Ullman (1961) Challenges to the constitutionality of bans on contraceptives. The first attempt to undermine the Connecticut statute at issue in Griswold. The majority opinion upheld the statute. Dissent: (Harlan) Privacy within the home is a fundamental liberty. The statute attempts to undermine this privacy. All unreasonable governmental invasions into privacy of life or sanctity of the home should be deemed unconstitutional. ―It would surely be an extreme instance of sacrificing substance to form were it to be held that the Constitutional principle of privacy against arbitrary official intrusion comprehends only physical invasions by the police.‖ Stanley v. Georgia (1969) Police searched Stanley’s home for evidence of bookmaking. While looking through a desk they found ―obscene‖ films, and charged him for them. The question before the court – can a state punish possession of obscenity? Extremely important decision for privacy law. Majority: (Marshall – unanimous decision). While a state may have a justifiable interest in regulating the sale, display, etc. of obscenity, it does not have the ability to regulate what a man reads within his home The First Amendment means nothing if it does not mean that a state can’t tell someone what to read, watch, or think within his own home. A state must possess a ―higher‖ or ―more compelling‖ interest before they are allowed to invade a person’s home. Owens v. Ohio: later case in which the court distinguished child pornography from the decision reached in Stanley. Quilici v. Morton Grove (1982) The majority opinion emphasizes that the state must demonstrate an extremely important interest before they are entitled to intrude into the privacy of a home.
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Bowers v. Hardwick (1982) Hardwick was arrested in his own home for violating Georgia’s sodomy statute. The statute carried a 1-20 year sentence. Hardwick’s attorney (Tribe) argued that the right to privacy within one’s home was a ―fundamental right,‖ and that GA must demonstrate CSI + LRM. GA argues that they must only demonstrate a RB, and that the rational basis of the GA law was ―morality.‖ ** The ―zone of privacy‖ theories developed in Griswold/Stanley were still in need of ―line drawing.‖ Griswold involved a ―decisional privacy.‖ Stanley involved the idea of ―spatial privacy.‖ The Bowers decision demonstrates that the court is hesitant to make both ideas fundamental rights. The concern was that some actions within the home (domestic abuse) still require state interaction. ** Majority: (White) The right to immunize ―illegal conduct‖ within the home is not absolute. Sodomy is not a ―fundamental right.‖ The ―rational basis‖ for outlawing sodomy is ―morality‖—and that’s good enough. Minority: (Blackmun) The essence of the 4th Amendment is the ―invasion of the indefeasible right of personal security, personal liberty and private property.‖ Prescribing a morality on the way people live within their homes cannot be justified. -- Bowers was a 5-4 vote. Justice Powell was the swing voter, and later confessed that he made a mistake in voting the way he did, primarily because it was inconsistent with Roe. The same statute was later stricken down by the GA Supreme Court for violating the GA constitution. Ravin v. Alaska (Ala. 1975) Alaska Supreme Court case analyzing the constitutionality (under the Alaska constitution) of a statute criminalizing possession of marijuana. Ravin attempted to argue for an expanded view of ―privacy‖ under both the state and federal constitutions. Majority: Ravin argues for a right to privacy, citing Griswold and Stanley. The right to privacy is especially high within an individual’s home. Alaska has specifically recognized a right to privacy under the Alaska constitution. The state does not demonstrate a compelling interest in prohibiting possession within the home. Frisby v. Schultz (1988) Abortion protestors faced an ordinance that forbade them from protesting on the lawns of abortion providers. The town board emphasized that the ban was necessary to prevent harassment of the providers. While First Amendment rights are involved, the court affirms the ordinance. The statute of an individual’s home is shown to potentially limit other constitutional provisions. The State’s protection of residential privacy suffices to limit free speech rights – especially since protestors are still entitled to express their views in other ways.
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Substantive Due Process:
While ―procedural‖ due process insists that the ―process‖ of law should be fundamentally fair, ―substantive‖ due process insists that the law itself is fair and reasonable, and that it has an adequate justification for imposing itself on an individual. The ―substance‖ of the law requires fairness as well. The term ―substantive due process‖ predicates the idea that liberties not explicitly protected within the Constitution are impliedly protected under the Due Process Clause. Fifth Amendment: … nor be deprived of life, liberty, or property, without due process of law… Fourteenth Amendment: … nor shall any State deprive any person of life, liberty, or property, without due process of law… {Due Process Clause}
Liberty Of Contract: The evolution of ―Lochnerism‖ presents a shift from ―non-original‖
thinking back to an originalist perception of the Constitution. Initially, the court implements a laissez faire economic system, initiating a free-market spin on constitutional reading. However, by the time of Williamson, the court has insisted that the Constitution doesn’t prescribe any ideology, economic or otherwise. Lochner v. New York (1905) Do maximum work hours violate the 14th Amendment? Lochner was convicted of allowing an employee in his bakery to work more than sixty hours, violating a New York statute. Majority: (Peckham) Freedom of contract (in regards to an individual’s business) is part of the liberty of the individual. There are limited circumstances in which the government can interfere with the liberty to contract – police powers of the state have to demonstrate an advancement of health, safety, or morality. However, any regulation that is directly related to one of these interests cannot be allowed to impede the liberty of contract. Dissent: (Holmes) The majority’s opinion is devoted to laissez faire economics Nothing in the constitution allows for the imposition of a particular economic system. Muller v. Oregon: (1908) Court upholds a limitation of hours for women – reflects the paternalistic view of the court in regards to the states role towards women. Future Justice Louis Brandeis filed a 116 page brief, 113 pages of which were evidence of the negative effects of long work hours on women. Largely factual briefs are now called ―Brandeis briefs,‖ and many suggest it was the crucial factor in the differing opinion. Nebbia v. New York (1934) New York established a minimum price charge for the sale of milk. Nebbia owned a grocery store, and was convicted of selling milk at too low of a price. Majority: (Roberts) States’ economic decisions will be presumed constitutional. Challenger must prove there is an unconstitutional element to the statute. Ordinary market forces have not influenced the production of milk within the state of New York. Milk is important to the general welfare of the state (namely the economic interests of small milk providers). New Standard of Analysis: o Interest of the State has to be reasonable o Statute has to be substantially related to the achievement of the interest.
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Because limiting the price of milk is substantially related to a reasonable end, the statute is upheld.
-- Nebbia demonstrates a substantial change in the policy of the court towards economic interests. The court allows greater deference to the economic interests of the state. Nebbia probably would have been unconstitutional under the Lochner analysis, unless the interest of health was pursued. Nebbia was also written at the height of the Great Depression. Williamson v. Lee Optical (1955) Oklahoma ordinance prevented opticians (who grind lenses) from creating lenses without a prescription from an ophthalmologist (a physician) or an optometrist (who recognizes diseases of the eyes). Basically, the ophthalmologist/optometrist camp had better lobbyists. Majority: (Douglas) The days of Lochner of over – ―for protection against abuses by legislatures the people must resort to the polls, not to the courts.‖ States must merely demonstrate that their actions are rationally related to a legitimate end. Modern Due Process Analysis: Substantive Due Process claims were considered ―void‖ by the end of the Lochner era. The Court’s focus instead shifted to only enumerated rights (from the Bill of Rights). The real shift back to Substantive Due Process evaluation occurred with the Warren Court’s decision in Griswold. Modern Due Process focuses almost strictly upon ―fundamental‖ and ―personal‖ liberties. Fundamental Personal Liberties: subject to a ―strict scrutiny analysis,‖ o CSI + LRM (compelling state interest, least restrictive means) o ISI + SRM (important state interest, substantially related means) o ―undue burden‖ Economic or “non-fundamental” Liberties: subject to only minor scrutiny, the rational basis test.
Right to an Abortion:
Roe v. Wade (1973) Probably the most controversial decision in recent Supreme Court history. Jane Roe was an unwed mother who sought an abortion under Texas law, but abortion was illegal in the absence of a threat to the life of the mother. Arguments for Roe: Law infringes upon Griswold’s right to privacy – utilized the idea of ―decisional‖ privacy Right to abortion is a fundamental right, which should trigger strict scrutiny. o heavy impact upon mother’s health and life Violates the Fundamental right of doctor’s to give medical care Texas law not supported by a compelling state interest Fetuses not ―persons‖ under 14th amendment Unconstitutionally vague Arguments for Texas: No right to abortion in text Griswold protected marital privacy –abortions involve the interaction of a stranger – attempted to cast Griswold as an issue of ―spatial‖ privacy.
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Texas is supported by a compelling state interest – protecting fetal life A fetus is a person under 14th amendment Not unconstitutionally vague Challenge is moot – Roe isn’t pregnant.
Majority: (Blackmun) Court expands the ―zone of privacy‖ idea of ―liberty‖: rather than merely emphasizing that people have a fundamental right to ―privacy‖ within their homes, the emphasis instead focuses on a right of personal autonomy – the private right to make personal decisions. Fundamental questions of liberty require strict scrutiny (CSI + LRM) Texas’ interests: o Protecting potential life o Protecting the mother’s health Court rationalizes that the state’s interests in protecting maternal health are only ―compelling‖ after the first trimester – prior to that point a mother is safer aborting than carrying a child to term. Protection of unborn child only becomes ―compelling‖ at the point of viability. A state cannot regulate abortion prior to the first trimester. After the first trimester, a court may impose ―lenient‖ regulations (for maternal health), up to the second trimester. After the second trimester, the state develops a compelling interest in protecting the fetus. At birth, a child becomes a ―person,‖ and subject to other constitutional protections. Planned Parenthood v. Casey (1992) Pennsylvania statute required informed consent of a parent for a minor to obtain an abortion, or a judicial bypass. Also required married women to notify their husbands of an intended abortion. Planned Parenthood sued for an injunction against the statute, and the US joined as amicus asking the court to overturn Roe. The composition of the court: o 2 ―pro-Roe‖ votes: (Blackmun, Stevens) o 3 ―swing‖ votes: (Souter, Kennedy, O’Connor) o 4 ―anti-Roe‖ votes: (Rehnquist, White, Scalia, Thomas) Majority: (O’Connor) Upholds Roe on the basis of status quo (stare decisis) – changing previous decisions undermines the effectiveness of the court. However, the ―trimester‖ framework of Roe hasn’t provided an effective method of defining intrusion into the rights of abortion. Creates a new standard of evaluation (unique to abortion), the ―Undue Burden‖ test: A state cannot impose an ―undue burden‖ on the right to decide to have an abortion. Rather than any sort of strict scrutiny analysis, a statute is evaluated purely to decide if it ―unduly burdens‖ the right, and is invalidated if it does. A law imposes an undue burden if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion (prior to viability). Dissent: (Scalia) The majority opinion is wrongly decided. If a case was wrongly decided the first time, tradition isn’t a good reason to simply affirm it .
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Right to Die:
Cruzan v. MO Dept. of Health (1990) Nancy Cruzan was injured in an automobile accident in 1983. As a result, she was in a persistent vegetative state. Her parents sought the court’s permission to remove her feeding tube. Nancy was allowed to die on Dec. 26, 1990. The state of Missouri said that permission to die could only be granted if the family could provide ―clear and convincing evidence‖ that Nancy would want to die. Majority: (Rehnquist) The Missouri court emphasized that a person in Nancy’s condition had a fundamental right to reject ―death prolonging‖ procedures. Missouri states they have a compelling interest in protecting human life – this is why the requirement of evidence is so high. A relatively clear indication is not enough to waive this interest. The majority upholds this interests – absent ―clear and convincing‖ proof that an individual would not want medical care, the state is justified in substituting preservation of life for the alleged will of the individual. (This is a variation of the strict scrutiny model – though it recognizes a fundamental liberty issue, it very quickly asserts that the state’s compelling interest is sufficient to justify the intrusion). Concurrence: (Scalia) Nothing within the constitution suggests that an individual has the option of choosing their quality of life. -- The rest of the justices in the court (minus Scalia) see an inherent right to life. The issue for the court is whether there is enough evidence in Nancy’s case to justify her family’s decision. The Missouri requirement is sufficiently justified. Evidence was later revealed that met the standard, and Nancy was taken off her feeding tube. The impact of the Cruzan decision was that people began to draw up living wills. Washington v. Glucksberg (1997) At issue is a Washington ban on doctor-assisted suicide. Relying on Cruzan and Planned Parenthood, the Ninth Circuit asserted that the constitution implicitly protects the right to die, and that terminal patients should be allowed to die when the decision is made by competent adults. The Court unanimously rejects this logic. Majority: (Rehnquist) There is no fundamental liberty in choosing suicide There is no traditional or historical right to assisted suicide – 49 of the 50 states still have laws against it. Since there’s no fundamental liberty (or traditional right) at risk, the state must merely demonstrate a rational basis for the ban , which they do: o Preserving life, Preventing suicide o Avoiding the involvement of third parties using arbitrary, unfair, or undue influence against vulnerable groups o Protecting family members and loved ones o Protecting the integrity of the medical profession o Avoiding movement toward euthanasia Concurrences: (O’Connor, Ginsberg, and Breyer) Emphasize that the outcome might be different if a (terminable) patient was in great pain, but that’s not the issue here. Under different circumstances, the decision to end one’s life may be a ―constitutionally cognizable interest.‖
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Rights of Family:
Wisconsin v. Yoder (1972) Amish parents chose to not follow Wisconsin’s compulsory school-attendance law. They argued that while they weren’t opposed to compulsory elementary education (which benefited their children by providing necessary educational elements), they were opposed to sending their children to high school. The objections were that high school took the children away from the value system of learning in the Amish community, and instilled ―bad influences.‖ Majority: (Burger) Compulsory education violates the Amish’ first amendment rights While there is no religious interest the state attempts to advance – the actions nonetheless interfere with traditional Amish practice. Since the parents are the ones who suffer from the ordinance (a $5 dollar fine and conviction), it is a statute that offends their religious values (not the children’s). The state’s interest (preparing citizens for democratic participation, and fostering selfreliance) do not sufficiently justify the intrusion. Dissent: (Douglas) Children are protected by constitutional rights – in this case, the right to choose whether education fits more into their own perspective. Village of Belle Terre v. Boraas (1974) Belle Terre had an ordinance that only allowed only one-family residences to include relationship by ―blood, marriage, or adoption.‖ Any other group was limited to two residents. Defendants were six college students who wanted to live together. Majority: (Douglas) Defendants say that the legislation is designed with animosity towards unmarried couples – but why would they allow two unmarried people to live together? State says they have an interest in reducing traffic and noise. Since there is no ―fundamental liberty‖ at risk, the state must merely demonstrate a ―rational basis.‖ While the statute is imperfect, it does have a rational basis for existing. Because it doesn’t violate a fundamental liberty, it is a problem for legislative (not judicial) correction. Dissent: (Marshall) Ordinance violates first amendment right to association. Since this violation would require strict scrutiny, the outcome would be different. The court cannot demonstrate LRM when they allow blood relations to have as many people (cars, noise, etc.) as they want, while turning away un-related roommates who don’t necessarily contribute to the problem. Moore v. City of East Cleveland (1977) Moore lives with her son and two grandchildren (the two grandchildren are cousins). Because Cleveland’s housing code limits ―family‖ to a different meaning, Moore was given notice to evict the ―illegal occupant‖ or face prosecution. Majority: (Powell) East Cleveland’s ordinance substantially differs from Belle Terre, because it attempts to limit a definition of ―family.‖ Because family (and the personal choices made about it) is a historically protected liberty, it can be seen as a ―fundamental‖ liberty. The statute has to be analyzed by strict scrutiny.
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State’s interest is preventing overcrowding, minimizing traffic, and avoiding undue burdens on the school system. The statute would allow a family with many children, and many cars, to abide by the zoning requirement, while stifling a situation like this one. Concurrence: (Stevens) The statute interferes with the right to use property as the owner sees fit. Michael H. v. Gerald D. (1989) Michael had a child (Victoria) with Carole D., Gerald D’s wife. Gerald was listed on the birth certificate as the biological father (which Michael later learned was wrong). Michael asserts that he has a fundamental right to see his biological daughter (Victoria also asserts the right). Majority: (Scalia) Determining if there is a fundamental right at stake would require looking at tradition. There is no traditional protection (statutorily or otherwise) that provides rights to the father of a child through an adulterous affair. Since allowing parental rights would deny the rights of a traditionally protected party (Gerald), the court cannot find any right for Michael to see his daughter. Dissent: (Brennan) ―It is ironic that an approach so utterly dependent on tradition is so indifferent to our precedents.‖ The majority decision ignores the fundamental right to family. The court should attempt to protect the rights of people who don’t necessarily conform to traditional ideas. Troxel v. Granville (2000) Washington statute allowed ―any person‖ to petition for visitation rights, when it ―serves the best interest of the child.‖ The Troxels were paternal grandparents whose son had committed suicide. They petitioned the court system for visitation rights, which Granville (the mother) opposed. The visitation rights were initially granted, but later overturned. The lower court’s found that grandparents had no right to intervene with the ―fundamental rights of parents to rear their children.‖ Majority: (O’Connor) The fourteenth amendment guarantees ―heightened protection against government interference with certain fundamental rights and liberty interests.‖ The right of a family to determine the raising of their children is one of the oldest recognized ―fundamental rights.‖ The Washington statute is overly broad, and thus interferes with the fundamental right. The statute takes away the power of parents to determine the child’s best interests, and instead places it in the hands of a judge. Concurrence: (Thomas) The State of Washington lacks a legitimate interest in second guessing a parent’s right to determine the visitation of third parties. Dissent: (Scalia) Family law is better evaluated by the state legislatures than the federal Supreme Court. One ―liberty‖ interest that is absent from the opinion is that of the child. While parents clearly have a ―fundamental‖ liberty interest in determining how their children are raised – the children have liberty interests that may be infringed upon by the court’s decision.
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Procedural Due Process:
Substantive Due Process takes the position that the state is generally forbidden with interfering with a right (unless a conflicting interest makes it necessary). Procedural Due Process is a more direct approach, focused instead on the issue of fairness. The more important the ―thing‖ that the government attempts to take away, the more ―process‖ is required to legitimize it. Fourteenth Amendment: … nor shall any State deprive any person of life, liberty, or property, without due process of law… {Due Process Clause} Procedural Due Process has to balance between conflicting ideas of ―fairness‖ – on one hand is the realization that ―process‖ itself is inherently good, however ―over-process‖ is unwelcome and inefficient. As a result, Due Process analysis requires two steps: The first part requires asking – ―has there been a deprivation of a protected interest?‖ Read another way, ―has the State deprived a person of life liberty or property?‖ o One way to read the terms is a shorthand for ―an important interest.‖ o However, the Court has instead adopted a ―three-box‖ approach to Due Process – if the State hasn’t attempted to take away (1) Life, (2) Liberty, or (3) Property, then Due Process isn’t required. These are the only interests that are protected. The second analysis requires asking – ―how much process is due?‖ This analysis generally analyzes: o the strength of the individual interest o the risk of error o the strength of the government’s interest in not affording process. The goal of Due Process is to produce more accurate results, and to avoid wrongfully deprivation of important interests. Basic Presumptions of Due Process: Due Process requires giving notice to affected individuals if a statute is overly vague it doesn’t sufficiently give notice generally, people have a right to be heard (to give their side of a story) Legal conclusions should be backed by sufficient evidence Due Process Rights of Students: Goss v. Lopez (1975) Various students in the Ohio Public School System were suspended without a hearing. The School System allowed appeals of all decisions, but did not require anything more than notification of the reasons for suspension. Majority: (White) Under Ohio law, students have an entitlement to a free education – therefore, this creates a property issue. They also have an interest in the preservation of reputation – this creates a liberty interest. Because of these two interests, the state cannot completely disregard Due Process. At a minimum, the interests create a right to have a student’s side of a story heard, to protect them from arbitrary or mistaken exclusion from their right to an education. Dissent: (Powell) Examining the rights of students as constitutional rights infringes upon the authority of school administrators and state legislatures.
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Ingraham v. Wright (1977) Two students filed complaints against Florida’s paddling practice. They argued first that corporal punishment violated the 8th Amendment prohibition against cruel and unusual punishment (which was rejected, as the 8th Amendment only applies to prisoners), and secondly that the Due Process clause required notice and opportunity to be heard. The statute forbade ―degrading and unduly severe punishment‖ and contained explicit directions. Majority: (Powell) Corporal punishment interferes with the ―historic liberty … to obtain judicial relief for unjustified intrusions on personal security.‖ However, the need for disciplinary measures within schools rationalize some intrusion on this right. Because the statutes provide safeguards against abuse (such as the openness of schools), the violation of rights can only be regarded as minimal. The Due Process clause does not require a hearing before corporal punishment is imposed, as long as the practice is limited by common-law. Dissent: (White) Complains primarily against the majority’s rejection of the 8th Amendment claim Horowitz v. Board of Curators, University of Missouri (1978) Horowitz was a UMKC medical student who was dismissed in her final year for failure to meet academic standards (as well as having poor personal hygiene). She was given careful scrutiny, the decision was careful, and she was granted an appeal. Majority: (Rehnquist) Plaintiff asserts that she has been denied a liberty interest However, the court decides this isn’t really consequential Even if there was an interest, Horowitz was granted all necessary Due Process – she was given warning, she was given opportunity to defend her own position, and the decision was carefully made.
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Equal Protection:
Fourteenth Amendment: No state shall… deny to any person within its jurisdiction the equal protection of the laws Read literally, the equal protection clause only limits the actions of states. The same limitations have been imposed on the federal government through the Due Process Clause of the fifth amendment. The protections apply to ―any person,‖ not merely citizens of states. The clause does not mean that laws cannot make classifications – it means instead that the law has to provide equal treatment among those ―similarly situated.‖ Legislative Classifications
M = ―mischief,‖ a problem intended for correction by a statute T = ―trait,‖ a classification within the statute
M T
Ideal: legislation that perfectly matches the problem with those burdened by the legislation.
M T
Under-inclusive: statute burdens only part of the people who cause the problem.
T M
Over-inclusive: statute burdens people who aren’t part of the problem.
Irrational: The worst kind of legislation burdens a group who don’t contribute (at all) to the problem.
M
T
The usual result is that a statute is both underinclusive and over-inclusive.
M T
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Levels of Scrutiny:
Equal Protection claims are traditionally evaluated under a three (four?) tiered analysis of scrutiny: Strict Scrutiny: (CSI + LRM) traditionally applied to racial minorities and ―suspect classifications,‖ strict scrutiny gained important ground in a footnote to Carolene Products v. US (1938). The note mentioned that strict scrutiny may be applied when: o The statute appears on its face to violate the Bill of Rights, or other ―fundamental rights‖ o It restricts political processes which can bring about repeal of ―undesirable legislation‖ o It is directed at particular religious, national, or racial minorities o It is directed at ―discrete and insular minorities.‖ Intermediate Scrutiny: (ISI + SRM) applied to ―quasi-suspect‖ classifications, particularly gender. Rational Basis Test: applies to all other classifications o Rational Basis “with bite:” a higher level of analysis has been required for legislation that impacts ―sympathetic‖ groups. While the three-tiered system is the norm of precedent, other justices have espoused different views: Scalia/Thomas: prefer a two tiered system, all statutes are subject to a ―rational basis‖ test, unless they make a racial classification (in which case they’re instantly invalid). Stevens/Burger: all statutes should be evaluated under a ―reasonableness‖ standard. Marshall: viewed equal protection as a ―sliding scale.‖ The degree of scrutiny required was to be proportional to the degree which the classification was ―suspect,‖ or the importance of the state interest. --------► Race Degree of Scrutiny: ------------► Gender ----------------------► Retardation ----------------------------- -- ►Age Degree of suspect classification – importance of interest Railway Express Agency, Inc. v. New York (1949) New York ordinance prohibited placement on motor vehicles, except for an owner advertising their own business. Majority: The city’s justification is that it created a distraction – their interest was in preventing traffic accidents. While the legislation is under-inclusive, it does serve a rational basis. Interfering with advertising is acceptable when it doesn’t impact the business. o Modernly, this statute would violate the first amendment.
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Kotch v. Board of River Port Pilot Commissioners (1947) Mississippi required all river port pilots to be licensed for Mississippi waterways. The licensing process required (among other things) that each pilot serve an apprenticeship under another pilot. Because current pilots only chose relatives and friends as apprentices, the plaintiff was unable to work in the profession (even though he had fifteen years experience). Majority: (Black) The state’s goal is to provide safe river boat pilots. Additionally, there is a communal or ―moral‖ element to the job, and it makes since for the pilots to accept apprentices that fit in. Because there’s no fundamental right at stake, the statute should be examined by a rational basis test. The state’s interest is rationally related to the apprenticeship process. Dissent: (Rutledge) The only reason for the statute is nepotism and ―blood.‖ If the statute were actually phrased to include such restrictions, it would clearly violate the equal protection clause. Why doesn’t it here? The state’s interest is a ―wholly arbitrary exercise of power.‖ Skinner v. Oklahoma (1942) Oklahoma instituted a policy under which criminals convicted three times of certain offenses would be sterilized. The offenses included only certain crimes (like theft), but did not apply to their white-collar counterparts. Majority: (Douglas) * unanimous vote* Petitioner was convicted of armed robbery twice, and once for stealing chickens. The state argued that sterilization was necessary to eliminate the offspring with undesirable characteristics. The Court subjects the statute to strict scrutiny analysis, because the right to reproduce is a ―fundamental right.‖ Because the state doesn’t apply the same punishment to embezzlement (even if it’s basically the same crime), they cannot demonstrate that the interest expressed is accomplished by the statute. Korematsu v. United States (1944) Korematsu was an American citizen of Japanese descent. He was convicted of remaining in his California home despite a military order forcing him to leave the area. The order was created under the power of an executive order designed to protect against espionage. Majority: (Black) All legal restrictions ―which curtail the civil rights of a single racial group are immediately suspect.‖ ―Citizenship has its responsibilities as well as its privileges, and in time of war the burden is always heavier.‖ The power of the war department to make decisions relating to security has to be balanced against the suspect nature of the classification. While the decision may have impacted loyal citizens, it was necessary for the department to be able to prevent the actions of disloyal parties. Korematsu is probably the only case in which the strict scrutiny test is evoked, but the statute still upheld. This probably had a lot to do with the date.
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Loving v. Virginia (1967) Virginia implemented miscegenation statutes, which forbade intermarriages between ―whites‖ and ―non-whites.‖ The Lovings left Virginia, and were married in another state. They returned, and were arrested (and convicted) for living as man and wife. Majority: (Warren) Court implemented strict scrutiny on two grounds: o Marriage is a fundamental right o The statute specifically utilizes racial classifications. State urged that their primary interest was in protecting the psyche of children of interracial marriages. The statute is stricken down.
Separate but Equal:
Plessy v. Ferguson: (1896) Louisiana passed an act providing for separate railroad cars for white and ―colored‖ passengers. The challenge to the act was brought as a ―set-up‖ by the railroads, who wanted it overturned. Homer Plessey was 1/8th black – but looked Caucasian. The fact that he ―looked white‖ was probably thought to make a better case for the challenge. Majority: (Brown) The object of the fourteenth amendment was to create ―absolute equality of the two races before the law.‖ However, ―it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political equality, or a commingling of the two races upon terms unsatisfactory to either.‖ As long as everything was ―equal,‖ it was fine to for a legislature to insist upon ―separate‖ facilities. ―Separate but Equal‖ accommodations do not violate the fourteenth amendment. Evaluates the law for ―reasonableness,‖ which it finds present. The argument (of the plaintiff) that separate but equal ―stamps the colored race with a badge of inferiority… [is] solely because the colored race chooses to put that construction on it.‖
* The majority opinion completely ignores the ―reality‖ of race relations. Dissent: (Harlan) – among the most famous of constitutional dissents Calls the majority on their logic – asks if they can really think that there’s no inferiority in distinguishing races. The majority has ―blinders on.‖ Asks how far the court will go with this sort of analysis – would it be permissible for Louisiana to separate Protestants and Catholics?. ―constitution is color-blind, and neither knows nor tolerates classes among citizens.‖ Charles Houston: leader of the NAACP Legal Defense fund. Houston was the son of a lawyer, who decided to fight ―Jim Crow‖ laws after serving in WWI. Though an officer, Houston was astounded by the way black soldiers were treated (by their own troops). Houston developed a strategy to overturn Jim Crow by attacking ―separate but equal‖ within the educational system.
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Chronology: Murray v. Maryland (1935): Murray was a black student who wanted to attend the University of Maryland Law School. The Maryland Court of Appeals ordered them to do so. Teacher’s Salary Cases: a series of cases challenging the discrepancies between the salaries of white and black teachers. Gaines v. Canada (1938): (below) Houston began to work on other ―foundation‖ cases – challenged separatism in railroads, the army, and other places. Thurgood Marshall takes over the NAACP LDF, and working towards school desegregation. 1950 – Houston Dies Sweatt v. Painter: Texas refused to admit a black student to the University of Texas Law School. Texas’ answer was to form a new law school specifically for him, which the court patently disagreed with. McLaurin v. Oklahoma State Regents: Oklahoma admitted a black student to the University of Oklahoma School of Education, but required him to sit in a designated desk, to eat when no white students were present in the classroom, and to study at a specific desk in the library. Brown v. Board of Education (1954) Gaines v. Canada, Registrar of the University of Missouri, et. al. (1938) Lloyd Gaines was refused admission to the University of Missouri School of Law when it was discovered that he was Black. Missouri wanted instead to utilize a provision of Missouri statutes which would enable them to send him to a law school in an adjacent state (with MO picking up the difference in tuition). Majority: (Hughes) ―Separate but Equal‖ requires equal treatment within the state of MO Meeting the burden of the fourteenth amendment requires equal treatment within the state – this is a personal obligation of each state, and they cannot force citizens out of the state to receive the treatment. Because MO has not provided an opportunity for Gaines within their borders, he should be admitted to the MO School of Law. Dissent: (McReynolds) Missouri should have the opportunity to promote interests that they feel are important, including racial segregation. Forcing the state to admit Gaines ignores this interest, as well as ignoring the ―good faith‖ efforts the state put into trying to accommodate Gaines. Missouri’s answer to the problem was to build a Lincoln University School of Law. In later cases this was found to inappropriate as well. Gaines disappeared shortly after the Court’s decision. Some speculate he was murdered, others that he was paid off to drop the litigation. Some think that Gaines felt like he’d been used by the NAACP, and committed suicide. Brown v. Board of Education of Topeka (1952) Plaintiffs were black children residing in Topeka. The contention was made that segregated public schools are not ―equal,‖ and that they never could be. Argumentation in the case was founded by two different strands of logic: The ―pro-Plessey‖ arguments focused on intentions and case law
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The ―anti-Plessey‖ arguments focused on the text of the constitution and policy arguments. Majority: (Warren) Decided in a 9-0 vote The decision didn’t go as far as it could have. Warren wanted a unanimous vote on the issues, and went as far as he could with all nine votes on his side. Decision stressed that in public education, where psychological development is most important, ―separate‖ facilities are inherently ―unequal.‖ The Brown decision never over-turns Plessey. However, subsequent decisions by the court treat it as if it did. Opposition to the decision was fierce (e.g. Little Rock).
Gender Discrimination:
Unlike racial or national characterizations, discrimination based upon gender is only considered a ―quasi-suspect‖ classification (theoretically because there may be valid reasons for gender classifications. As such, the scrutiny made against gender discrimination is only that of ―intermediate scrutiny.‖ Mississippi University for Women v. Hogan (1982) Mississippi created the MUW, which is the oldest state-supported all-female college in the US. Hogan was a nursing supervisor in Columbus (where the school is located), and applied for admission to the nursing program. He was told that he could audit the courses, but could not enroll for credit. Majority: (O’Connor) Gender discriminations are subject to an intermediate scrutiny: ISI + SRM Limited circumstances may allow gender-classifications, such as directly assisting members of a sex disproportionately burdened. Mississippi has made no showing that women are discriminated against in receiving nursing jobs or training. The classification here actually enforces stereotypes As such, males should be allowed to enroll. Dissent: (Powell) Single sex colleges have a benefit to education States don’t violate the constitution by merely attempting to accommodate personal choices. United States vs. Virginia (1996) Virginia Military Institute (VMI) is a military college exclusively for males, receiving funding from the state of Virginia. The goal of VMI is to produce ―citizen soldiers,‖ though an education focusing on character development and rigorous training. An earlier decision called for corrective measures, which prompted Virginia to create the Virginia Women’s Institute for Leadership (VWIL). Majority: (Ginsberg) Gender discrimination must be subjected to Intermediate Scrutiny A community made up exclusively of one sex is different from a community made up of both.
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Virginia argues that VMI’s model provides benefits that would have to be modified to include women in the program [Ginsberg replies that the argument is just another ―selffulfilling prophecy‖ used to routinely deny rights or opportunities.] The second plan – VWIL was modified to create an atmosphere more appropriate for women. However, VWIL has failed as an equal to VMI. The alternate program has to be ―substantially equal‖ (mirroring arguments in Sweatt v. Painter). As such, the remedy doesn’t match the violation. Dissent: (Scalia) The ―tests‖ utilized by the majority aren’t anywhere within the constitution. This isn’t interpretation, as much as it’s writing a new constitution. All that should be required is a rational basis test, which VA plainly meets. * Vote Breakdown: Ginsberg had argued gender-discrimination cases prior to her placement on the court. Thomas recused himself from the decision (his son was a student at VMI).
Proposed Equal Rights Amendment: The proposed ERA had a minor impact upon
constitutional interpretation, temporarily calling into question if gender might be ―suspect‖ classifcation. Chronology: Bradwell v. State (1873): The first gender evaluation, five years after the passage of the fourteenth amendment. Court says that the equal protection clause was designed to protect against racial discriminations only. Minor v. Harpersett (1875) The Court denied women the right to vote. Muller v. Oregon (early 1900’s) upheld minimum wage, maximum hours law for women (even after the Lochner decision). 19th Amendment (1920): The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex. Goesart v. Cleary (1948): Court upheld a law prohibiting women from being bartenders (rational basis for limiting jobs to male – bars are rough places, ―needing‖ men). Hoyt v. Florida (1961) Court upholds a law giving an automatic jury exemption to women. Reed v. Reed (1971) First case to strike down a gender classification. Idaho statute establishing male administrators in the case of intestate death. Idaho’s argument is that it’s simply a tie-breaker. The court doesn’t buy the argument, even under a rational basis test. Frontiero v. Richardson (1973) [argued by R.B. Ginsberg] case arguing that a spouse of a male (in the military) was presumed to be a dependant, while female military members had to prove dependency by the spouse. o The statute is stricken down, with four justices arguing for a strict scrutiny analysis. o The remaining majority cited the pending ERA as a factor in their decision. It was widely assumed that the ERA would compel application of strict scrutiny analysis to gender classifications. Equal Rights Amendment: the amendment fell three states short of ratification, largely due to opposition by women voters. Concerns over mixed bathrooms and women in combat compelled the decision.
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Craig v. Boren (1976): Oklahoma statutes prohibited the sale of 3.2% beer to males under 21, and to females under 18. The most relevant interest expressed by the state was a desire to curb traffic injuries among young men. Majority: (Brennan) The stereotypes that lead to age-differential laws are also likely to distort the accuracy of statistics. The law is unnecessarily over-inclusive. OK hasn’t provided enough information to satisfy that the regulation against 3.2 beer relates sufficiently to the state’s objective. Dissent: (Rehnquist) Utilizing an intermediate scrutiny test in gender discriminations doesn’t make any sense. There’s nothing in the language of the constitution that would justify treating gender classifications different than any other legislation (and would only require a rational basis analysis).
Michael M. v. Superior Court of Sonoma County (1981) California’s statutory rape law only punished males engaging in sexual intercourse with a female who is under 18 years of age. Michael M. (who was 17½) was convicted for having sex with a 16½ year old girl. The state interest expressed was the prevention of teenage pregnancy. Majority: (Rehnquist) The state’s interest is sufficient to compel the statute The gender differentiation is sufficiently related to the objective. o Only women suffer from the adverse effects of pregnancy. o Because of this, women have additional incentives to avoid pregnancy There is no indication that a gender-neutral statute would be as effective in halting the problem. While the statute may put an additional burden on men, there’s no reason to assume that they require ―special solicitude‖ from the courts. Concurrence: (Blackmun) The statute is just part of a broad scheme of protections against the ―risks attendant upon adolescent sexual activity.‖ Dissent: (Stevens) The majority can’t really believe that the risk of pregnancy effectively deters sexual conduct The fact that a class of persons is especially vulnerable to a risk the statute is designed to avoid is a reason for making the statute applicable to that class. If society’s interest is to protect from the harm of a conduct – why exclude half the participants? ―A rule that authorizes punishment of only one of two equally guilty wrongdoers violates the essence of the constitutional requirement that the sovereign mush govern impartially. The decisions in Craig and Michael M. point to a problem with the intermediate scrutiny test. In general, there’s too much discretion for judge’s to evaluate based upon their particular feelings. This tends to limit predictability, and to encourage litigation of the gray areas.
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Proving Unconstitutional Discrimination:
There are two different types of discrimination challenges: Discriminatory on its Face: challenges the way a statute is written. A challenge to such statutes can be made prior to its application. Discriminatory as Applied: arguments that involve neutral statutes – the discriminatory nature of the statute grows out of its application. Yick Wo v. Hopkins (1886) Plaintiff alleged that he had been discriminated against by an act requiring licensure for wooden laundries. The plaintiff noted that the act required permission from a board of supervisors, and that only 1/200 Chinese applicants received licenses. However, 79/80 non-Chinese applicants were given licensure. Majority: (Matthews) The purpose of the statute is not related to the state’s interest (protecting against fire) as much as it’s intended to confer ―naked and arbitrary power to give or withhold consent.‖ The power of the Fourteenth Amendment extends to ―all persons,‖ not merely citizens The statute does not meet strict scrutiny analysis – while a state interest may be at stake, the application utilizes means that are discriminatory in effect. Washington v. Davis (1976) DC Metropolitan Police Department administered Test 21 (an evaluation administered by the Civil Service Commission designed to test verbal skills, vocabulary, reading and comprehension) to all applicants to the police department. Plaintiffs argued that the test had a discriminatory impact in screening out black candidates. Majority: (White) The city has affirmatively sought to enroll black officers in their department The issue in the case is between discriminatory effect and discriminatory purpose While an effect may be evidence of a discriminatory purpose, it is not independently enough to justify strict scrutiny analysis. Because the issue is on a discriminatory effect, the state must merely meet a rational basis requirement. The interest of the state is to hire more skilled police officers, and the test clearly provides a desirable Village of Arlington Heights v. Metropolitan Housing Development Corp. (1977) MHDC applied for a rezoning request for a 15-acre parcel of land from single-family to multi-family. Their intent was to utilize federal assistance to build low-income housing. AH argued that they wanted a ―buffer‖ between single and multi-family housing. Majority: (Powell) Washington made clear that official action isn’t unconstitutional simply because it has a racially disproportionate impact. An intent or purpose is necessary to trigger strict scrutiny analysis. This purpose may be discerned by: o Historical background of the decision o Sequence of events prior to the decision o Legislative or administrative history, especially contemporaneous statements by the member of the decision-making body. The buffer theory had been utilized before – this seems to indicate that there isn’t a readily apparent discriminatory purpose. * Sometimes viewed as a primer in how to discriminate. The decision tells city officials exactly what they have to do to avoid liability in civil rights discrimination.
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Batson v. Kentucky (1986) Batson was a black man indicted on burglary charges. The prosecutor utilized all of his peremptory jury challenges to strike the black jurors. The jury convicted. Majority: (Powell) While a prosecutor can use his challenges to strike anyone from a jury, it is a violation of Equal Protection when jurors are stricken purely because of their race. * ―Batson Challenge‖: opposing counsel may ―call‖ an attorney on the decision to strike a member of the jury pool, if it appears to have been done with a discriminatory intent. The result is that counsel then have to justify their decisions on non-discriminatory grounds. Massachusetts v. Feeney (1979) Mass. established a preference for hiring veterans. The result was a 6/3 vote, in which the majority found no discrimination.
Affirmative Action:
What about affirmative action programs? When a statute utilizes racial distinctions for a good purpose, does this create an equal protection issue? Regents of the University of California v. Bakke (1978) UC Davis had a ―special admissions‖ program to their medical school. Of the 100 seats in their admitted class, with 16 spots reserved for minority applicants. The standards utilized for admission to the ―special‖ slots were significantly lower, but minority students were also considered for the regular spots. Bakke was denied admission (twice) despite scores significantly higher than applicants admitted through the special admission program. Vote Breakdown: 4 votes viewed the admission as a violation of Civil Rights Statutes (Stevens, Burger, Stewart, and Rehnquist) 1 vote applied strict scrutiny, and found the practice to violate the constitution (Powell). 4 votes voted for intermediate scrutiny, and found no constitutional violation (Brennan, White, Marshall, Blackmun). o The problem with Bakke is that schools began to tailor their special admissions programs to fit the majority opinion, even though they’re basically following the single swing-voter. Majority: (Powell) The state’s interests are (1) reducing the deficit of minorities in medicine, (2) countering societal discrimination, (3) increasing physicians in underserved communities, and (4) creating a diverse student body. Only the fourth goal is a compelling interest – requires application of strict scrutiny The problem with the requirement is that it focuses primarily on racial diversity Assigning a fixed number of minority students doesn’t accomplish this end Special Admissions programs are entitled to take race into account as a ―plus‖ to admissions, but cannot be the only reason for the decision. Holding aside seats for minority students (as opposed to things like geographically or class diverse candidates) doesn’t sufficiently accomplish the goal.
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The modern court has never addressed affirmative action, and will probably have to eventually. If it happens soon, it’s likely to come down to a single swing-voter again (this time, O’Connor). The Fifth Circuit recently predicted (in Hopwood v. Texas) that the court would not follow Bakke today. City of Richmond v. A. Croson Company (1989) Richmond City Council instituted a ―set-aside‖ program, requiring general contractors to city construction contracts to ―set-aside‖ 30% of the dollar amount for minority-owned businesses. The problem arose when Croson attempted to fulfill a contract for plumbing fixtures in the city jail. The actual fixtures amounted to 75% of the contract, forcing Croson to find a minority owned business to supply the fixtures. The only company that qualified charged $6k higher than was allocated in the original bid. The city refused to waive the requirement. Majority: (O’Connor) The state’s purported interest is to remedy societal discrimination against minority businesses The problem is that Richmond hasn’t demonstrated that they have discriminated Remedial programs have to ―fix‖ a problem arising from the group that created the problem. It is not enough to show that society has discriminated against a particular group. Concurrence: Scalia All racial classifications require strict scrutiny. Dissent: Marshall Affirmative Action plans only require intermediate scrutiny Deciding otherwise is a ―deliberate and giant step backward.‖ Adarand Constructors, Inc. v. Pena (1995): challenged the use of a federal clause providing bonuses to contractors utilizing ―socially and economically disadvantaged individuals.‖ The question before the court was whether the Fifth Amendment required the same degree of scrutiny as the fourteenth in regards to affirmative programs. Because the clause merely creates a rebuttable presumption based upon racial classification, the court only applied an intermediate scrutiny as a ―benign‖ racial classification.
Rational Basis “With Bite”
Under the ―rational basis‖ test, as long as the state can provide any legitimate reason for a statute, it’s nearly universally upheld. In cases where the state is unable to provide a convincing rationalization, the court will usually provide one for them. However, there is a line of cases in which the rational basis test has been shown to have ―bite,‖ typically in situations involving a sympathetic group, or an exceptionally strong individual interest. The application of the test differs – the court actually weighs the state’s asserted interest against the individual interest at stake. Plyler v. Doe (1982) Texas revised its education laws to withhold funds from school districts for the education of illegal immigrants. Additionally, districts were permitted to deny their admission. Texas never claimed the measure was designed to keep illegal immigrants out, but rather that it was designed as a financial measure to conserve educational resources. Majority: (Brennan) Even aliens are subject to equal protection (Texas argues they’re not ―people‖ under the constitution)
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The children affected by the statute are ―special members of an underclass‖ Texas wants to punish children for the conduct of their parents. The law ―imposes a lifetime hardship on a discrete class of children not accountable for their disabling status.‖ The extremely negative impact on children of being denied education ―cannot be considered rational unless it furthers some substantial goal of the state.‖ Texas has three interests they claim they’re protecting: o halting an influx of illegal immigrants – the statute provides no real impact upon this goal o the special burden of immigrant children justifies exclusion – however, they can’t document that they provide any real impact on educational resources o immigrant status makes them more unlikely to remain in the state and contribute something meaningful – ―it is difficult to understand precisely what the States hopes to achieve by promoting the creation and perpetuation of a subclass of illiterates within our boundaries‖ Because the state cannot prove that the statute furthers a substantial state interest, it is invalid. Dissent: (Burger) Assuming a policy initiative trespasses on the ―assigned function of the political branches.‖ The majority (correctly) rejects the idea that illegal aliens are a suspect class, and that education is a fundamental right. The majority opinion ―spins out a theory custom-tailored to the facts of these cases.‖ The statute bears a relation to a reasonable state interest City of Cleburne, Texas v. Cleburne Living Center (1985) Cleburne Living Center wanted to build a group home for the mentally retarded, which required a special permit (even though other group homes would not). The city denied the permit. The state offered as its reasons (1) the negative attitude of property owners and the elderly in the neighborhood, (2) it was across from a high school (fearing torment of the patients), (3) it was located on a flood plain (safety concerns), (4) the concern of how many patients would live in the home. Majority: (White) The State must demonstrate only a rational basis for the legislation However, the only demonstrable reason for rejecting the permit was ―irrational basis against the mentally retarded‖ Romer v. Evans (1996) Colorado adopted Amendment 2 to eliminate ordinances that prohibited discrimination based upon sexual orientation. The result was to also destroy the classification of homosexuality as a protected class – under the amendment, no law could be passed that considered homosexuals the members of a class, even if designed to protect them. Majority: (Kennedy) The amendment imposes a broad disability on a single named group The breadth of the statute cannot be explained by anything except contempt for homosexuals, and ―lacks a rational relationship to legitimate state interests.‖ The Amendment is both too narrow and too broad – it identifies people by a single trait and them denies them protection across the board.
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Colorado’s reasons are to ―conserve resources for other discrimination‖ and to ―respect freedom of association.‖ The statute classifies homosexuals to make them unequal – this won’t work. Dissent: (Scalia) It’s okay to dislike gay people! The job of the court is not to put forth a privileged policy initiative. And why didn’t they mention Bowers?
Racial Discrimination and State Action:
The Constitution is only a prohibition on the actions of government. As such, equal protection claims require a showing of ―state action,‖ a demonstration that the actions of the government (and not private actors) are sufficiently ―at the roots‖ of discrimination. The essential meaning of ―state action‖ is that there is sufficient governmental underpinnings to make the actions of a private individual synonymous with government action. There are three theories under which ―state action‖ is found within the actions of private entities: Public Function Theory: the constitution is found to apply when the government turns over traditional functions to private parties. If a state permits a private party to exercise what is clearly governmental power, the actions of the private party will be treated as state action under the fourteenth amendment. Evans v. Newton (1966) Senator Augustus Bacon devised a tract of land to Macon, Georgia under the terms that it be used as a park for ―white persons.‖ The city kept the park segregated, but eventually began to eliminate the segregation. To carry out the intent of the devise, the city turned over the management of the park to a board of trustees. The court found that maintenance of the park was still primarily municipal, and therefore could not be segregated. Evans v. Abney (1970) After finding themselves unable to segregate the park, Macon attempted to give the land to the heirs of Senator Bacon. Their belief was that since they could not lawfully carry out the will of the deceased, it should revert to his heirs. Because altering the devise would destroy the intent of the will, it reverted instead. Judicial Enforcement Theory: judicial enforcement of private discrimination may create state action. However, this does not mean that any judicial decision regarding a private agreement creates state action – it is primarily limited to situations in which the judicial element involves the government’s complicity. Shelley v. Kraemer: (1948) The Shelley’s (who were black) attempted to buy a parcel of land which was subject to a restrictive covenant. The court ruled that while individuals had the right to create restrictive covenants (as a matter of private law), judicial enforcement of the covenant would violate the Equal Protection clause. The consequence is that all racially restrictive covenants were consequently invalidated. o The element at risk in Shelley was that the court order sought would have forced the seller to practice racial discrimination. Enforcing such a decision against two unwilling actors would have been state action. Entwinement/Encouragement: actions of the government are so entwined with a private sector, that state action is applied. What is fundamental in many cases is a symbiotic relationship between the state and the private establishment – both of them should benefit from the other (like in Burton). If such a relationship exists, the private party cannot implement policies that the government could not.
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Burton v. Wilmington (1971) Burton was excluded from the Eagle Coffee shop, a racially segregated diner in a city parking garage. Because the city had the ability to remove racial restrictions (through a lease) but didn’t, it was held to be state action within a private business. Moose Lodge v. Irvis (1972) The court limited the doctrine of Burton, however, regarding a private club’s racial segregation. Though the club was granted a liquor license, the court was unwilling to find this a ―symbiotic‖ relationship to state action. The Moose Lodge was private property, and not held up as a ―public‖ place. As such, no state action was found. o The Moose Lodge has a freedom of association claim as well, which probably assisted the decision of the court. o Additionally, the court expressed concern over the precedent involved in declaring a liquor license state action. o Norwood, a Mississippi case from the same year declared that state provided textbooks for private schools was state action. State Action doctrine is ―murky‖ at times – this is primarily because of the progressive state action interpretations of the Warren Court. However, the Burger and Rehnquist courts have gradually eroded the requirements, pushing state action to more a narrow meaning.
Fundamental Rights:
Another issue within the Equal Protection clause is government encroachment on ―fundamental rights.‖ Strict Scrutiny is applied any time in which a ―fundamental right‖ is interfered with by statute. The right to Vote: Strict Scrutiny has been applied to any statute that interferes with voting rights (such as poll taxes) Access to the Ballot: Statutes charging high fees to run to office or property ownership have been struck down by Strict Scrutiny analysis. Right to Marry/Divorce Right to Justice: Strict Scrutiny has undermined statutes that charge high filing fees for criminal appeals.
Right to Travel:
Supreme Court case law is rich in a theory of the ―right to migrate.‖ There are three contingent elements: The right of a citizen of one state to leave and enter another state: Fourteenth Amendment: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. The right to be treated as a welcome visitor: Article 4, § 2: The citizens of each State shall be entitled to all Privileges and Immunities of Citizens of the several states . The right to be treated like other citizens after becoming a resident: Fourteenth Amendment: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside. No State
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shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. Shapiro v. Thompson (1969) Thompson moved from Massachusetts to Connecticut, and applied for Aid to Families with Dependant Children (AFDC) support. Connecticut rejected the application, on the ground that she had not lived within the state for a year. Majority: (Brennan) The effect of the waiting period is to create two distinct classes of needy – residents who have (and have not) been within the state for a year. Connecticut justifies the waiting period as a means of deterring ―continuing burdens on state resources.‖ This purpose is unconstitutional, because it’s entire goal is to deter the practice of a fundamental right (the right to migrate to a new state). The second justification is that the waiting period acting as a means of administrative efficiency (i.e. proving qualification for the program). This desire cannot withstand scrutiny – there are more efficient means of preserving resources than to require a waiting period. Zobel v. Williams (1982) Alaska created a statutory scheme which distributed income derived oil revenues among citizens. The dividend program distributed wealth in accordance with how long citizens had lived in the state, which each additional year enabling a resident to an additional dividend. The State argues that the interests it seeks to protect are (1)creating an incentive for establishing and maintaining residences in Alaska, (2) encouraging prudent management of the fund, and (3) apportioning benefits based upon ―contribution‖ of residents. Majority: (Burger) 8-1 decision The only interest preserved on appeal is the final interest. This fails to meet even the RB test – the means employed would ―open the door‖ to state apportionment of all benefits. Dissent: (Rehnquist) Alaska’s plan is primarily an economic plan Economic regulations are typically held to be presumptively valid – why did the majority apply an equal protection rationale? Saenz v. Roe (1999) California limited welfare benefits for the first twelve months of residence within the state. New residents were limited to the amount they would have received from their prior state. This essentially created a welfare system in which some residents (with equal needs) received as much as 3x higher benefits. The state’s primary interest was in protecting themselves from becoming a welfare magnet (California had significantly higher benefits than neighboring states). Majority: Stevens Slaughter-House Cases – citizens moving to a new state become citizens of that state. The citizenship clause of the Fourteenth Amendment does not allow for ―degrees‖ of citizenship based upon length of residence.
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