Con Law II Outline
Margaret Russell
Fall 2007
I. Equal Protection (Applies to Federal Gov. through Due Process Clause of 5th (implied) and applies to States through Equal Protection Clause of 14th.)
a. Analysis:
i. What is the classification?
1. Facial classification – categories in the law such as race, gender, age, wealth, etc.
2. Facially neutral/discriminatory impact and discriminatory purpose (needs to be proven if facially neutral.)
ii. What level of scrutiny should be applied?
1. strict scrutiny – usually for race, national origin, aliens (generally)
a. gov. has burden of proof
b. gov. must have compelling interest
c. gov. must show it cannot achieve interest in any less discriminatory way – narrowly tailored means
d. Usually fatal to challenged law
2. intermediate scrutiny – gender, non-marital children
a. gov. has burden of proof
b. gov. must have “important” objective
c. gov. means must have a “substantial relationship” to the ends being sought
3. rational basis – minimum level, applies to everything else
a. challenger has burden of proof
b. law has to be rationally related to legitimate government purpose
i. legitimate usually includes public safety, public health, public morals, etc.
ii. a law is determined not to be rationally related only if it is “clearly wrong, a display of arbitrary power, not an exercise of judgment.”
c. The means only need be a rational way to meet ends
d. Usually allows over and under-inclusiveness
e. Allows idea of “one step at a time.”
iii. Does the particular gov. action meet the level of scrutiny?
1. strict scrutiny – end must be deemed compelling for law to be upheld
2. intermediate scrutiny – end has to be regarded as important
3. rational basis – there has to be a legitimate purpose
4. Degree of under-inclusiveness and over-inclusiveness
a. Laws that are underinclusive do not regulate all who are similarly situated
b. Laws that are overinclusive regulates individuals who are not similarly situtated; it covers more people than necessary to accomplish its purpose
b. Public Policy – comes from Carolene Products footnote
i. Discrete and Insular Minorities
if there is animus or prejudice.
iv. Under rational basis review, laws that are both significantly underinclusive and overinclusive are still upheld. Remember that laws can be both over and underinclusiveness. However if the law is significantly under or overinclusive, it may be a sign of prejudice and rational basis with bite might be applied.
1. Railway Express Agency, Inc. v. New York – purpose of law was to prevent distractions to drivers by not allowing advertising on trucks that did not advertise the trucks themselves. The law was underinclusive because it did not regulate all of the other advertising that could distract drivers, but law still allowed. Law also allowed under rational basis because the law had a rational relation to the gov.’s given reason, (even though arguably it was just to discriminate against the trucks.)
New York Transit Authority v. Beazer – law was overinclusive because it discriminated against certain transit workers for using a product meant help drug addiction based on the assumption the workers were still using drugs, but not all workers using the
