Constitutional Law II Outline

CONSTITUTIONAL LAW II – PROFESSOR SENG – FALL 2016

THE DUE PROCESS CLAUSE:

The Fourteenth Amendment reads, in part, that no state shall “deprive any person of life, liberty, or property, without due process of law.” This applies to states and to local governments. The Due Process Clause of the Fifth Amendment applies to the federal government. Most Due Process issues involve state laws.

Every Due Process Clause analysis begins with the question, “Has the government deprived some person of life, liberty, or property?” If there hasn’t been government action, or if there has been no deprivation, then there cannot be a Due Process issue—substantive or procedural.

CONSTITUTIONAL TESTS:

Explanation of the Constitutional Tests: When the constitutionality of a law is challenged, both state and federal courts will apply one of three levels of judicial scrutiny/review.

The level of scrutiny that is applied determines how the Court will go about analyzing the law and its effects. It also determines which party – the challenger or the government – has the burden of proof.

STRICT SCRUTINY: The law must be necessary to achieve a compelling governmental interest

REQUIREMENTS: To pass strict scrutiny, the law must…

The law must be vital, compelling and a necessary means to an end, and
The law must be the least restrictive means to achieve the compelling state interest

The high level of scrutiny is also applied whenever a “fundamental right” is being threatened by a law

The right to marriage.

The Supreme Court determined that legislation or government actions which discriminate on the basis of race, national origin, religion, and alienage must pass this level of scrutiny in order to survive a challenge that the policy violates a constitutional equal protection
This is the HIGHEST level of scrutiny

APPLIED TO: Fundamental Rights à race, national origin, religion, alienage, right to privacy, right to marriage, right to procreate, right to purchase and use birth control, right to custody of one’s own children and raise them as one sees fit, right to refuse medical treatment, right to vote, freedom of religion, freedom of association, right to free speech, right to travel freely among states

BURDEN OF PROOF: When an individual brings a Due Process claim against a state claiming interference with a fundamental right, it’s the state’s responsibility to demonstrate the compelling nature of its interest and the law is the least restrictive means of achieving that interest. If it is necessary for a compelling objective, there is no substantive due process violation.

EXAMPLE: A state passes a law banning the use of certain forms of birth control. These forms of birth control, the state believes, have contributed to an increase in sexually transmitted diseases because they protect against pregnancy but not STDs. Since STDs have a high social cost, this is a compelling state interest, says the state’s legislature. If a citizen brings a substantive due process challenge to the law, the state must show that their interest in slowing the spread of STDs is indeed compelling and that an outright ban on the specified forms of contraception is necessary to achieve the goal as there are no alternative means.

INTERMEDIATE SCRUTINY: Substantially related to an important governmental purpose

REQUIREMENTS: To pass intermediate scrutiny, the law must…

Serve an important government objective, and
Be substantially related to achieving the objective

This is less demanding than strict scrutiny
more than legitimate
There is less predictability with a gender-based case than race-based
HISTORY LESSON: This test was accepted by the Supreme Court in 1976 to be used whenever a law discriminates based on gender or sex. Some federal appellate courts and state supreme courts have also applied this level of scrutiny in cases

APPLIED TO: Discrimination based on gender, sex, sexual orientation. Serves a category of non-fundamental rights that include economic issues and social welfare concerns.

BURDEN OF PROOF: When an individual brings a Due Process claim against a state claiming interference with a non-fundamental right, it’s the state’s responsibility to demonstrate that the law serves an important governmental objective and it is substantially related to achieving that objective.

EXAMPLE. In certain parts of a state, pesticides sprayed on farms are often carried by winds to nearby residences. In an effort to ensure those residents will not unfairly have to carry the burden of floating pesticides, the state passes legislation requiring all farmers who use certain airborne pesticides to pay into a fund to be used to cover medical treatment of the affected neighbors. This economic regulation in a non-fundamental area of life will be subjected to the intermediate scrutiny test and most likely will pass substantive due process.

RATIONAL BASIS/MINIMUM SCRUTINY: The law must be rationally related to a legitimate government purpose

REQUIREMENTS: To pass the rational basis/minimum scrutiny test, the PERSON (not the government) challenging the law must prove either…

The government has no legitimate interest in the law or policy; OR
There is no reasonable, rational link between that interest and the challenged law

Courts using this test are highly deferential to the government and will often deem a law to have a rational basis as long as that law had any conceivable, rational basis – even if the government never provided one

APPLIED TO: Typically applies to all laws or regulations which are challenged as irrational or arbitrary as well as discrimination based on age, disability, wealth, or felony status

BURDEN OF PROOF: When non-fundamental rights are regulated, the burden of proof is on the plaintiff to demonstrate that the regulation is not even rationally related to some legitimate goal. Absent proof of arbitrariness or irrationality on the part of the legislature, the Court will not strike down a regulation (mostly economic regulations). Therefore, the Plaintiff will have to prove that the legislature’s decision to pass the regulation was arbitrary or irrational. This is a difficult task.

EXAMPLE. Hilly Flats, CO, is the proposed site of a new nuclear power plant. In today’s highly litigious society and given the ever-increasing amounts awarded to the plaintiffs in tort cases, the state didn’t receive any bids from industry companies willing to build and operate the plant. The state legislature then passed an act limiting the liability which would be incurred by the builder/operator of the plant. Unless a plaintiff can demonstrate that the legislature did so arbitrarily or irrationally, the act will survive a substantive due process challenge.

SUBSTANTIVE DUE PROCESS:

Focuses on the right involved. This focuses on the word “liberty” in the Fourteenth Amendment. This includes the rights that are related to personhood, like the right not to be discriminated against or the right to privacy. In reviewing federal and state laws, the courts usually defer to the legislative judgment. If there is a rational basis that the legislature might have had for concluding that a law would further permissible legislative objectives, it doesn’t violate due process. This deferential standard is used in reviewing most social and economic regulation. Essentially, issues involve the states’ power to regulate certain activities.

ECONOMIC REGULATION:

Lochner v. New York

Law: A New York legislatio