Constitutional Law (Kairys)
MASTER OUTLINE – Spring 2003
STANDARDS OF REVIEW
Three standards: There are three key standards of review which reappear constantly throughout Constitutional Law. When a court reviews the constitutionality of government action, it is likely to be choosing from among one of these three standards of review: (1) the rational basis standard; (2) the strict scrutiny standard; and (3) the intermediate review standard. Kairys also added one on either end of the spectrum: (1) absolute (most restrictive) and (2) Not court’s business (least restrictive).
Content (what government has to show to uphold its statute)
Burden of persuasion
Categories of Cases
· Nothing else matters
· Compelling government interest: First, the objective being pursued by the government must be “compelling” (not just “legitimate,” as for the “mere rationality” standard); and
· Necessary means: Second, the means chosen by the government must be “necessary” to achieve that compelling end. In other words, the “fit” between the means and the end must be extremely tight.
· No less restrictive alternatives: In practice, this requirement that the means be “necessary” means that there must not be any less restrictive means that would accomplish the government’s objective just as well.
The standard that is hardest to satisfy is the “strict scrutiny” standard of review. Not accepting anything on its face – going to look at it with “strict scrutiny”
No deference to government. Governmental action will almost always be struck down.
Governmental body whose act is being attacked has the burden of persuading the court that its action is constitutional.
· Substantive due process/fundamental rights: If govt action affects fundamental right. E.g. “privacy” cluster of marriage, child-bearing, rearing. contraception.
· Equal protection review: Any violation based on suspect classification or a fund. right. “Suspect classifications” include race, national origin.. “Fundamental rights” include the right to vote, to be a candidate, to have access to the cts, & travel interstate
· Content-based Freedom of expression/association: If the govt is impairing free expression in a content-based way; e.g. if the govt is restricting some speech but not others, based on the content of the messages. Also applied to any interference w/ the right of free association.
· Freedom of religion/Free Exercise Clause: Any impairment of free exercise of religion. Even if the govt does not intend to impair a person’s free exercise of his religion, if it substantially burdens exercise of religion the govt will have to give him an exemption from the otherwise-applicable regulation unless denial of an exemption is necessary to achieve a compelling govt interest.
Carolene Products fn. 4; Korematsu; Bakke.
· Substantial govt interest: Here, the governmental objective has to be “important” (1/2 way between “legitimate” and “compelling”).
that they’re satisfied.
Very deferential to government. Governmental action will almost always be upheld.
Individual who is attacking the government action will generally bear the burden of persuading the court that the action is unconstitutional.
· Dormant Commerce Clause: Rational basis is the main test to determine whether a state regulation that affects IC violates the “Dormant Commerce Clause.” In addition to standard rational basis factors, the state’s interest in enforcing its regulation must also outweigh any burden imposed on or discrimination against IC.)
· Substantive due process (excluding where a “fundamental right” is affected), leaving the vast bulk of economic regulations (since these don’t affect fundamental rights).
· Equal protection (excluding (1) where a classification is being used; or (2) a fundamental right is being impaired). This still leaves (1) almost all economic regulations; (2) some classifications based on alienage; and (3) rights that are very impt but not “fundamental”, such as food, housing, and free public education.
Romer v. Evans
· Not court’s business.