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Constitutional Law I
University of Connecticut School of Law
Setty, Sudha N.

Setty – Constitutional Law Outline
Spring 2011
Substantive Due Process Analysis
1.      Is a fundamental right implicated?
2.      Is the right being infringed?
3.      Is the state objective legitimate/compelling?
4.      Is the state action rational/the least restrictive means possible?
Said another way
5.      Is the interest in question one that qualifies as a protected liberty interest under the Due Process Clause?
6.      Is the protected liberty one that is deemed to be fundamental
7.      Does the challenged law interfere with the fundamental liberty in a serious enough way to impinge on or unduly burden that liberty, thereby triggering strict scrutiny
8.      If a fundamental liberty has been impinged on or unduly burdened, does the law substantially further a compelling governmental interest
9.      Has the government chose the least burdensome means of achieving its compelling interest
What is the formula for Equal Protection Analysis?
1.      What is the classification
a.       Is there classification in the text of the law itself
b.      Is the statute facially neutral but there is an underlying classification
                                                              i.      An unconstitutional purpose
                                                            ii.      Some things are presumptively unconstitutional (race)
2.      Determine if there is there a suspect classification
3.      What level of scrutiny should apply
a.       Strict (race; national original …
                                                              i.      Government must show a compelling interest and the means must be the least restrictive possible
b.      Intermediate scrutiny (gender classification; non-mental children)
                                                              i.      Government interest must serve an important purpose and action must be substantially related
c.       Rational basis
                                                              i.      Legitimate interest and a rational means
Equal Protection Clause
1.      Section 1 of the Fourteenth Amendment
a.       “No State shall … deny to any person within its jurisdiction the equal protection of the laws”
                                                              i.      Court has construed the Fifth Amendment Due Process Clause
1.      As “containing an equal protection component prohibiting the United States from invidiously discriminating between individuals or groups”
a.       Washington v. Davis
2.      To determine the standard of review that will be applied
a.       Identify the type of discrimination involved
                                                              i.      Is it a type that calls for strict scrutiny or intermediate scrutiny, or is it a type that triggers only a rational basis standard of review
b.      First
                                                              i.      Examine the face of the law to see what classifications are drawn by its text (facial discrimination)
c.       Second
                                                              i.      Probe behind the law to see what kind of discrimination it may have been designed to accomplish (discrimination by design)
d.      Finally
                                                              i.      Look to how the law is enforced or applied (discriminatory application)
Voting Rights
Determine if infringement is a violation of the Equal Protection Clause
1.      Voting is generally found to be a fundamental right
a.       But strict scrutiny is not always the standard used
2.      Only two provisions in the Constitution expressly guarantee the right to vote in an absolute sense
a.       Article I §2, cl. 1
                                                              i.      Requires members of the House of Reps be “chosen … by the People”
b.      Seventeenth Amendment
                                                              i.      Commands that U.S. senators be “elected by the People”
c.       Both leave it up to the states to decide which people shall enjoy this right
d.      Textual support
                                                              i.      15th and 17th Amendments; 19th; 23rd; 24th
                                                            ii.      Framework is usually under the Equal Protection Clause
1.      Traditionally a state power; so tension as to what extent Federal Courts should get involved
3.      Reynolds v. Sims
a.       Rule
                                                              i.      “One person, One Vote”
1.      Individual vote dilution is subject to strict scrutiny
2.      Under the Constitution; every voter is entitled to cast a vote that carries substantially the same weight as that of other voters
3.      Court has read Article I §2, cl. 1 – representatives are to be chosen “by the People” – as mandating substantial equality of population among various districts established by a state legislature for the election of members of Congress
a.       Extracted same principle from the EPC
                                                            ii.      Group vote dilution defeats the “basic aim of legislative apportionment,” which is “the achieving of fair and effective representation for all citizens”
b.      Facts
                                                              i.      25.1% of the population was in districts that were represented by a majority of the individuals in the Senate
1.      Majority of the population was in urban areas; so there was no equal representation
a.       Alabama ignored urbanization and census; did not redistrict
                                                                                                                                      i.      No reapportionment (define) = distortion of voting power
c.       Court
                                                              i.      Democratic process could not be remedied because the people in power wanted to stay in power
                                                            ii.      Distortion of voting power was a way to continue discrimination against blacks
d.      Alabama argument
                                                              i.      Legitimate exercise of power
1.      Like the Senate is not purely democratic (every state gets 2 votes despite differences in state populations)
a.       Alabama is not purely democratic (failed argument)
e.       Harlan’s dissent
                                                              i.      Alabama merely needs a rational reason to do this because state have the power to set forth their voting structure (notion of Federalism); Court should defer to Alabama’s legislature
f.       Majority
                                                              i.      The right to vote is not just a matter of casting a ballot
1.      It is about having the vote count and being treated fairly
a.       The right to vote does not have much meaning if it is being diluted as the Alabama structure is doing
g.      Terms
                                                              i.      Gerrymandering
1.      Redrawing district lines so minority groups will not have a majority in any district
Poll Taxes
4.      Equal Protection analysis
a.       Classification = an individual’s wealth (non-payers of the poll tax)
b.      Poll taxes are unconstitutional in Fede

                                                    i.      This is not unconstitutional under Reynolds or Kramer framework
                                                            ii.      Upheld a “one acre, one vote” voting scheme for electing directors of a water reclamation district
1.      Voters are the individual’s burdened and benefitted by the right
                                                          iii.      The narrow and special function of the District justified a departure from the popular election requirement
1.      There was a reasonable relationship between the voting system and governmental objectives
                                                          iv.      Context was different and did not implicate a fundamental right; this entity was created
e.       Take away from case
                                                              i.      One-person-one-vote can be limited in certain circumstances; usually dealing with property ownership
8.      Other contexts
a.       Literacy tests are allowed under the general rule that the state has power over voting (not EPC violation)
                                                              i.      Broad; but the state interest in wanting literate/smart people voting is strong
1.      Found constitutionally permissible; but outlawed under Voting Rights Act of 1965
b.      Felon disenfranchisement
                                                              i.      Have to allow to vote prior to conviction
                                                            ii.      Lifetime ban; not a constitutional concern
1.      Rational basis standard used by Court because felons are not a protected class; just need legitimate interest
2.      Must be facially neutral and show no signs of discriminatory intent or application
a.       Disparate effect on black men is not of constitutional concern
9.      Crawford v. Marion County
a.       Rule
                                                              i.      The most obvious way a state might infringe on the Fourteenth Amendment’s fundamental right to vote is by imposing conditions whose effect is to completely deny the vote to selected people
                                                            ii.      Has held
1.      Any classification restricting the franchise on grounds other than residence, age, and citizenship cannot stand unless the … State can demonstrate that the classification serves a compelling state interest
a.       Hill v. Stone
                                                          iii.      This case employs a more flexible ‘balancing approach’
1.      Court evaluating a constitutional challenge to an election regulation must weigh the asserted injury to the right to vote against the ‘precise interest put forward by the State as justification for the burden imposed by its rule’
a.       Inquiry calls for a ‘sliding-scale’ balancing analysis: the scrutiny varies with the effect of the regulation at issue