Constitutional Law II Outline

Case Outline
 
Methodology for EP analysis
what is classification
what is the group
how does law distinguish between groups, among people
on face, in effect – in reality tends to exclude one group?
what is the level of scrutiny applied
Strict Scrutiny (SS) – race, national origin
Intermediate Scrutiny (IS)(heightened) – gender, non-marital children
Rational Review (RR)(rational basis) – economic, all other classifications
Are these levels distinct, is it a spectrum?
Does Govt action meet level of scrutiny?
Does it make sense what they’ve done
If we apply test in 2nd question, do they pass the level of scrutiny
Analytical Method:
what is the classification
how does law distinguish among people
on face? In effect
what is the level of scrutiny applied
SS – race, national origin
IS – gender, non marital children
RR – economic
Does govt action meet level of scrutiny (continuum moreso than discreet groups)
SS
                                                              i.      Ends/goals: compelling
                                                            ii.      Means: least restrictive/narrowly tailored
IS
                                                              i.      Ends/goals: important
                                                            ii.      Means: substantially related
RR
                                                              i.      Ends/goals: legitimate
                                                            ii.      Means: rationally related
Race gets most rigorous level?
·         Justification for race getting highest level of scrutiny
1.      legislative history of 14th – protect blacks
2.      history of country and race relations, institutionalized and private racism
3.      immutable characteristic – unfair to punish for it
4.      fear that distinctions reflect stereotypes, not reality
5.      blacks = Discrete & Insular (D&I) minority, Pol/Process failure
a.       D&I – US v Carolene – fn. 4 –
                                                              i.      Ability as group to effect political process (bc too small)
                                                            ii.      Inability to get into political process (PP failure)
                                                          iii.      If group isn’t able to adequately represent themselves, courts will protect them
                                                          iv.      Case suggesting group of ppl may be so effected by political process, majoritarian system, and are unable to protect themselves, so other, non-majoritarian branch of govt must protect them (courts)
                                                            v.      Court protects some “losers” of political process
 
Carolene Products
1.      when to apply strict scrutiny?
a.       Some groups aren’t protected by the political process
b.      “whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry”
 
Finding Discriminatory Purpose from Discriminatory Impact
1.      pattern Gomillion, Yick Wo
2.      only explanation is animus Griffin
3.      Arlington Heights
a.       different procedures used
b.      whether “item at issue” has always been that way, or recently changed (so as to preclude integration
4.      Legislative history – Hunter
5.      historical background – Hunter, Rogers
6.      racial voting lines, black never being elected – Rogers
 
Gender Discrimination Cases
 
Struck Down
Frontiero
Weisenfelf
Goldfarb
Wengler
Orr
Hogan
Caban
 
Upheld
Kahn
Ballard
Webster
Michael m
Nguyen
Parham
 
What unifying theme makes court uphold one line of cases and strike down another line??
Are there multiple themes
Would there be one unifying theme if you could change one or two cases on each side?
 
I.     Rationality Reivew
A.    Invidious cases treated differently
B.     Most other cases are considered deferentially
C.     Generally applied to social/ economic regulation (which is what govt. generally does)
 
Arguments for Deference – any conceivable or plausible purpose motivating the legislation
Arguments for Higher Standard: requiring an actual legitimate purpose, and perhaps a look at the means
Federalism: States have the right to regulate their own social policies – general police powers: protecting safety, public health, and public morals.
It’s not the court’s province, the job should be left up to the legislature.
The constitution requires actual purpose, not just any conceivable purpose
No systematic losers – We aren’t dealing with fundamental rights here
Sometimes and economic interest cause some fundamental inequalities
Supports majoritarian impulses, furthers d