Constitutional Law II Outline

CONSTITUTIONAL LAW II- SOUCEK- SPRING 2016

14th Amendment: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
3 Questions under Equal Protection:

How is the law dividing people up?
What is the law’s goal?
Is there a sufficient connection between the classification being made and the goal? Levels of scrutiny- meaning how close the “fit” must be/ what is “sufficient”?

Rational Basis: Is the classification rationally related to any legitimate governmental interest?

Default standard of review
This test used when we want to defer to legislature/ democracy. Legislature has the power to make even bad laws, which does not automatically mean they’re unconstitutional. Belief that it’s the political arena that should solve the problem at issue, not the courts. (Ex. Environmental issues, etc.)
“Legitimate governmental purpose”: variety of meanings, from most to least stringent:

legislature’s actual purpose
purpose that a court may reasonably presume motivated the legislature
purpose that might conceivably have motivated the legislature
conceivable purpose, even if that wasn’t what legislature had in mind.

Intermediate Scrutiny: There is an exceedingly persuasive justification for the classification; the law is substantially related to the achievement of an important governmental objective.
Strict Scrutiny: Is the classification narrowly tailored to serve a compelling governmental interest.

Is the classification narrowly tailored (necessary) to serve a compelling (permissible) governmental interest.
Applies to:

Laws that facially distinguish on the basis of race
Facially neutral laws that are enforced in a racially discriminatory way.
Facially neutral law that were passed because of, not merely in spite of, their racially disparate impacts.

Factors for Heightened Scrutiny:

History of discrimination against the group.
Trait bears no relation to ability to participate in or contribute to society
Trait involves an immutable or distinguishing characteristic
Group has limited political power

Civil Rights: The rights people need in order to act with independence and self-sufficiency in civil society. Minimum basic requirements distinguishing free persons from slaves.

Ex. Make contracts, sue, give evidence, inherit/ purchase/ lease/ sell property, access to courts, etc.

Political Rights: Rights associated with participatory citizenship.

Ex. Vote, hold office, sit on juries (?), serve in the military.

Social Rights: Rights in the private or personal sphere, largely dealing with association.

Ex. Schools, transportation (?), homes, clubs, public accommodations (?)

Rational Basis Review

Gulf, Colorado & Santa Fe R.R. v. Ellis
Railway Express Agency v. New York (1949): Law prohibiting vehicles on the streets for purely advertising reasons, but ads on business delivery vehicles allowed, as long as the vehicles are on the streets for usual business or regular work of the owner and not used merely or mainly for advertising. Suit filed claiming violation of equal protection claiming regulation does not solve traffic problem (law’s goal: public safety- reduce distraction) because the violation does not turn on what kind of advertisements are on the trucks, but rather which trucks they are placed- meaning pedestrians will similarly be endangered by advertisements, even on business delivery trucks.

Rational basis review- law is allowed because the classification (ads on advertising trucks v. ads on business’ own vehicles) has relation to the purpose for which it was made. As long as the classification does not contain the kind of discrimination in violation of Equal Protection, it’s an allowable law.
J. Jackson Concurrence: even though there’s no difference in danger between the permitted and prohibited ads, and thus, the regulation does not serve the law’s aims, the law is still permissible. This is because it’s permissible to distinguish between the evil that is done for one’s own self-interest, and the evil that is being done just for hire (just to earn money).

FCC v. Beach Communications (1993): Cable Communications Policy Act distinguished between cable facilities that serve apartments under common ownership and facilities that served separately owned units, with those serving common ownership apartments being except from the franchise requirement. FCC brought suit alleging classification violated equal protection because there was no rational relation between the classification and a conceivable purpose.

Equal protection is not a license for courts to judge the wisdom, fairness, or logic pf legislative choices. If law is truly bad, Constitution infers that democratic process will eventually correct it, judicial intervention is unwarranted. In areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any conceivable state of facts that could provide a rational basis for the classification.

Rational basis does not require legislature to articulate its reasons for enacting statute, thus those reasons do not play in the rational-basis analysis. (low bar)

common-ownership distinction is constitutional. At least 2 possible reasons for the distinction, either one suffices:

Regulatory-efficiency model: Plausible that Congress thought that cost of system for facilities serving common ownership apartments would be even greater than the profit they would generate from subscribers.
Subscriber influence- when facility serves a common ownership building with many subscribers, those subscribers, in total have greater bargaining power when combating the facility, such that outside regulatory safeguards are not necessary.

Facial Classifications

Plessy v. Ferguson (1896): LA Act providing for equal but separate railway carriages for white and black. Suit brought alleging violation of Equal Protection. P: argument that separate accommodations are of equal quality fails because then such separations could apply to hair color, color of people’s houses, business signs, walking on which side of the street, etc.

rational basis- deference to legislature: every exercise of police power must be reasonable, and laws should be enacted with the good faith promotion of the public good, and not for the annoyance or oppression of a particular class- must be legislation enacted for the public good, law needs to have a good public reason. (Slightly beefed up version of rational basis)

When determining reasonableness, must take into account established usages, customs, and traditions of the people, and with a view to promote people’s conform and to preserve public peace and good order.

Concern about status quo (custom and history of segregation)
Concern about interracial violence

With this standard in mind, this law that authorizes or even requires that two races be separated in public conveyances is not unreasonable nor more obnoxious than Congressional acts requiring separate schools.

P’s argument fails because of false assumption:

enforced separation of both races stamps the colored race with badge of inferiority. If it does, it’s not the fault of the act, but solely because the colored races chooses to put that construction (meaning) on the act.
Social prejudices can be overcome by legislation, and that equal