Constitutional Law II Outline

I. EQUAL PROTECTION ROADMAP
A. POLICY – why have something like eq/pro?
1. Abdication of judicial review hurts legitimacy (USSC seen as a “rubber stamp”)
2. D&I/Minorities might not be the ONLY ones w/ pol/process failures
i. Diffuse and anonymous minorities (gay people)
ii. Diffuse and anonymous majorities (consumers, poor)
iii. Disproportionate power of “special interests” (corporations)
3. Rigorous scrutiny of means is appropriate
i. Endsmay still receive low scrutiny; assure good fit
ii. Check & see – that the way of getting to the end actually works
4. Discipline legislatures from using naked preferences (good thing for legis to think long & hard abt reasons stated for particular pieces of legislation)
B. STATE AXN –Is there state action? Do I have the right D?
C. CLASSIFICATION
1. what kind of classificxn does the law make? How is the gov’t/law drawing the distinction?
i. what line is the law drawing?
ii. how is the law drawing the line, drawing the distinction b/w people?
2. Is gov’t classificxn justified by sufficient purpose? Is there sufficiently important object for discriminating?
3. How is the law classifying (discriminating) people?
i. Law = F/D: discriminatory on face of the law –very terms draws distinction based on particular characteristic
ii. Law = F/N but has disc/p + disc/imp (effect)
(a) disc/effon a race or sex classification? (Yick Wo, Gomillion)
1. Something that shows disparate impact on a certain classification
(b) Disc/intent (purpose) driving the act?
1. Bad motives are not enough (Palmer)
2. Disc/p requires law/policy implemented because of not in spite of disc/outcome (Washington, Feeney)
3. Ways to prove disc/p: (Arlington Heights)
(i) clear pattern unexplainable on other grounds (Yick Wo,Gomillion)
(ii) historical background of decision (timing of decision, departures from normal procedure)
(iii)legislative history (Moreno, but see Fletcher leg. history irrelevant, could be passed again w/ “pure motives”; intrusion into other branches)
(iv) if prove disc/p, b/proof shifts to gov’t to prove non-disc reason for implementing statute (apply appropriate std)
4. Note: Eq/Pro can apply to a single person (see Village of Willowbrook v. Olech)
D. APPROPRIATE LEVEL of CONSTITUTIONAL SCRUTINY
1. Strict scrutiny (S/S)
i. Applies to: race, national origin, alienage (w/ some exceptions)
ii. Ends/goals: law must serve compelling state interest goal/purpose that must be at the time law enacted, not post hoc
(a) public necessity may sometimes justify existence of such restriction, racial antagonism never can
1. Hirabayashi: although discriminatory, mandatory curfew of Jp-Ams = C b/c intended as defense/military measure due to threats of threats of air raid, invasion by Jp
2. Following Hirabayashi, Korematsu:mandatory internment of Jap-Ams = C b/c of nat’l security
iii. Means: law must use least restrictive/narrowly tailoredmeans(no other way of achieving objective through any less discriminatory alternative)
(a) Note: if law both over- and under-inclusive, then not the least restrictive means
(b) Parents Involved in Community Schools defines “narrowly tailored” as serious good faith consideration of workable race/neutral alternatives
iv. Outcome of S/S: Law = C, upheld if proved nesc to achieve compelling gov’t purpose
(a) Gov’t has b/proof to persuade court compelling purpose + least restrictive/narrowly tailored
(b) S/S is virtually always fatal to challenged law
v. Policy reasons: unfair to penalize a person for characteristics that person not choose & cannot change
(a) See policy reasons for S/S for R&NO classfxn to argue for S/S esp if new classificaxn
2. Intermediate scrutiny (I/S)
i. Applies to: gender, non-marital children (illegitimacy)
ii. Ends/Goals: law must serve an important goal/purpose at the time law enacted, not post hoc
iii. Means: law must be substantially related to the end/goal
iv. Outcome of I/S: law = C, upheld if substantially related to gov’t purpose
(a) Gov’t has the b/proof
3. Rational/Review (R/R)
i. if reg not involve R/clsfxn or other clsfxn that warrants heightened scrutiny, use min Rat/Rvw to determine whether there is rational relation to legit gov’t end
(a) Applies to: economic reg/legislation, poverty, disability, all other classificxns (aka rational basis)
(b) Queries for R/R (Cleburne)
1. what class is harmed by the legis?
2. what public purpose being served by the law?
3. what characteristic of the disadvantaged class justifies the disparate trmt
ii. Ends/goals: law must serve a legitimate goal/purpose, which can be made up by gov’t post hoc
(a) Gov’t obj can be “concievable” –post hoc
1. much deference to legis in defining what is legit gov’t purpose, objective
(i) legit purpose: advancing traditional police purpose
(ii) (R/Rw/ a bite) but not legit if:
a. essentially arbitrary
b. bare congressional desire to harm politically unpopular grp (animus)
(b) obj that is not grossly unfair or totally irrational = OK
1. what might have motivated legis, even if unclear from legis history what were the precise obj
2. as long as there at least 1 conceivable legit obj + rationally related to means selected, then USSC ignore possibly illegit obj that might have motivated legis
iii. Means: law employs rationally related means
iv. Outcome of R/R: law usually upheld if rationally related to legit gov’t purpose
(a) Strong presumption in favor of challenged law –enormous deference to gov’t
(b) P/challenger has b/proof that law is not reasonably based but essentially arbitrary
(c) Laws rarely declared under R/R unless law is essentially arbitrary
E. SURVIVING/SATISFYING CONSTITUTIONAL SCRUTINY: does gov’t axn meet required level of scrutiny?
1. Evaluate the fit b/w ends and means of the law
i. Focus on degree which law is under- or over-inclusive
(a) Under-inclusive if does not apply to indiv who are similar to those law applies to
(b) Over-inclusive if applies to people who do not need to be included in order for gov’t to achieve its purpose (law unnecessarily applies to a grp of people)
ii. Laws can be both under- & over-inclusive
iii. Level of review determines how under- or over- inclusive a law may be.
F. ARGUING FOR A NEW CLASSIFICATION
1. Why new classification should undergo heightened scrutiny:
i. history of discrimination
ii. political powerlessness
iii. immutability/no relation to ability to perform
iv. (if necessary, Carolene Products “discrete and insular minority”)

G. NON-FACIAL CLASSIFICAION ANALYSIS (generalized from P + E cases)
1. Is there a disc/effon a race or sex classification?
i. something going on that will generally show disparate impact.
ii. Cf Yick Wo, Gomillion
2. Is there disc/int? (Palmer, Washington v. Davis)
i. needs to show law/policy implemented because of, not in spite of disc/outcome (Washington v