CONSTITUTIONAL LAW II
SANDERS
FALL 2012
Exam:
3 questions: 20, 50, 30. 1 Fact pattern.
20% for depth of analysis and organization
What is the source of constitutional right that we are talking about?
“the _____ amend apply to the states through incorporation via the 14th amendment due process clause à incorporation”
· Exam answer template:
o Identify whether state action involved.
o Identify source of the possible constitutional violation.
o Identify the analysis
o In your analysis, include:
§ Relevant facts in support of your position
§ Counter arguments; and
§ If applicable, whether there is any unknown information and how that affects your answer.
· Stet 1: State Action Doctrine:
o Nexus requirement:
§ Fact specific, fair attribution inquiry
§ Involve a question of whether:
· A deprivation resulted from an exercise of a right or privilege created or granted by the State and
· Existence of three exceptions.
· 2nd Step: Constitutional Sources of individual rights and liberties
o Takings clause (5th Amendment)
§ Nor shall private property be taken for public use
o Due Process
§ 5th Amendment: Fed Gov. Due Process Clause
· No person shall be deprived of life…
§ 14th Amendment: State Gov. Due Process Clause
o Equal Protection: applies to the federal gov via due process clause of 5th Amendment.
o 2nd Amendment:
§ Fundamental right
§ Applies to states via incorporation under 14th amendment due process clause
o Substantive due process: (9th Amendment)
· 3rd Step: Identifying your analysis:
o Lochner:
§ Liberty interest protected under the 5th and 14th
§ “valid police Purpose”
§ Carefully scrutinized
o Post-Lochner
o Takings Analysis:
§ 4 part inquiry:
· Taking?
· Property?
· Public use?
· Just compensation?
o Equal protection analysis:
§ What is the classification?
· Discuss how state action distinguishes between individuals?
· Discuss whether a Fundamental right is affected.
· May discuss whether the law is facially discriminatory or neutral.
· Level of inclusiveness issues may also be discussed
§ Appropriate level of review:
· Suspect classes:
o Factors to determine whether class is suspect.
§ (Political popularity, immutable characteristics etc.)
o BOP on government
o Some suspect classes get SS
o Others get IS.
o Facially neutral classifications can trigger HS for suspect classes if discriminatory impact and purpose is shown.
· Fundamental rights:
o Determined by history and traditional
o BOP on government
o In most cases SS applies
o Some FR get lower level of scrutiny (abortion is undue burden)
· Rational basis review applies where
o No fundamental right involved.
o Non-suspect class involved, including: age, wealth/poverty, sexual orientation, disability, undocumented aliens, and some alienage classifications.
o Most social and economic regulations.
§ Sufficient justification and means for the purpose?
· Means/ends analysis:
o Relationship between the classification (means) and the objectives/purpose (ends) of the law.
o Key factors for analysis:
§ Level of inclusiveness.
§ Antidiscrimination principles.
§ Narrow tailoring, where applies. (Usually SS cases, “least restrictive alternative”)
o Substantive Due Process:
§ Three part analysis:
· Is a fundamental right infringed?
o Fundamental:
§ Marriage; custody, care, upbringing, and control of children;
§ Family cohabitation
§ Procreation and use of contraceptives
§ Aborting pre viable
§ Refusing medical treatment
§ Voting
§ U.S. travel
§ Private and consensual sexual activity?
· What is the appropriate level of scrutiny?
o Determined by history and tradition
o BOP on government.
§ In most cases SS applies.
§ Some FR get lower level of scrutiny
§ Facial neutrality rules may require RBR.
· Is there a sufficient justification and is the means sufficiently related to the purpose?
o Means/ends analysis:
§ Relationship between the classification (means) and the objectives/purpose (ends) of the law.
§ Key factors for analysis:
· Level of inclusiveness.
· Antidiscrimination principles.
· Narrow tailoring, where applies. (Usually SS cases, “least restrictive alternative”)
o Religious clauses:
§ Two part test for religion:
§ Two clauses:
· Free exercise clause:
o Laws may be discriminatory or neutral
o RB applies if the law is of general and neutral application.
· Establishment clause:
o Law may be discriminatory or neutral.
o Lemon apples if law is facially neutral.
o Establishment clause:
§ Religious symbols on government property:
· Usually an issue of purpose and effect.
· Context factors matter!
§ Aid to schools analyzed under modified Lemon test.
§ Direct prayer in schools prohibited.
o Procedural Due Process:
§ General requirements:
· Notice and
· Opportunity to be heard (meaningful time and manner).
§ 3 basic procedural due process issues:
· Has there been a deprivation?
· Is the deprivation of a protected interest? (Life, liberty, property)
It’s the deprivation without due process of law?
Chapter 5: the structure of the constitution’s protection of civil rights and civil liberties
I. Introduction
II. The application of the bill or rights to the states
1. The rejection of application before the civil war
i. Barron v. mayor and city council of Baltimore
Brief Fact Summary. The Plaintiff, Baron (Plaintiff), a wharf owner sued the Defendant, the city of Baltimore (Defendant) for taking his property without compensation in violation of the Fifth Amendment of the United States Constitution (Constitution).
Synopsis of Rule of Law. The Bill of Rights does not apply to state and local government, only to Federal government.
Up to states to decide what your rights are against the states
Pre 14th amend case
ii. After the civil war, we got 11th-15th amendments
b. 14th amendment
i. SECTION 1.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. 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.
– 1st sentence of § 1 =
1. citizenship clause
– 2nd sentence of § 1 =
1. Privileges and immunities clause
a. Bill of rights (BOR) not actionable against the states
2. Due process clause
a. Only refers to procedural issues, NOT substantive issues (like we have here)
b. Not a source of substantive rights
3. Equal protection clause
a. Only about the protection of blacks/slaves
b. Only protects limited class against state action
2. A false start in applying the bill of rights to the states: the privileges or immunities clause and the slaughterhouse cases
a. Slaughter house cases
i. Butchers benevolent assn of new Orleans v. crescent city livestock AND Saenz v. roe
Brief Fact Summary. A Louisiana statute gave the Slaughter-House Company exclusive rights to the New Orleans slaughterhouse business. Plaintiffs, a group of butchers (Plaintiffs) sued.
Synopsis of Rule of Law. In interpreting a provision of the United States Constitution (Constitution), it is necessary to look to the purpose for which the provision was enacted.
13th amend
– does not apply unless slavery is involved
– intent to end African slavery
14th amend
– Really goes to ending african slavery
– Only 15th amend really addresses color of slaves
2nd sentence of § 1 =
– Privileges and immunities clause
1. Looking at the citizenship clause
a.
tutional deprivation resulted from the exercise of a right or privilege created by the state
Exception to the state action doctrine (talk about ALL of these if you have 1 of these)
– Government/public function
1. Private entity exercises powers that are traditionally the exclusive prerogatives of the state
2. 2 approaches
a. Balancing test
i. Use of private property for public use
b. Traditional and exclusive functions
i. Function usually performed by govt/state
– Entanglement
1. Govt authorizes, encourages, or facilitates private acts
2. Edmonson test– three attributes that determine whether conduct is governmental in nature
a. (1) extent to which the actor relies on governmental assistance;
b. (2) whether the actor is performing a traditional governmental function, and
c. (3) whether the injury caused is aggravated by the incident
3. Examples
a. Discriminatory use of preemptory challenges
b. Discrimination in private restroom located on govt property
c. Discriminatory constitutional amendment
– Entwinement
1. Govt and private entity are entwined in the management or control of the private acts or property
2. Examples
a. Segregation in publicly maintained private park
b. Imposition of sanctions by joint private and public high school sports administration
e. Criticisms
i. How/where do you draw the line when private and public are constantly working together?
f. Post 1940s
i. Court starts defined what constitutes state action
ii. Post 1960s
Court narrows definition
1964 civil rights passed
2. The requirement for state action
i. The civil rights cases: unites states v. Stanley 1833
Brief Fact Summary. Owners of theatres and hotels were prosecuted for discriminating against African Americans.
Synopsis of Rule of Law. Under the Fourteenth Amendment of the United States Constitution (Constitution), Congress does not have the power to pass laws prohibiting discrimination by private citizens
Court
– 14th Amend does NOT give fed govt authority to regulate private conduct within the states
– State sovereignty
– Fed govt cant force states to regulate private conduct within the states
– Dueling theories of 14th amend
1. 14th amend forced socialization à mix of colors
2. Forced end of servitude à stopped slavery
3. the exceptions to the state action doctrine
i. 13th amend: prevents individuals from owning an individual
ii. Public functions
Private entity exercises powers that are traditionally the exclusive prerogatives of the state
2 approaches
– Balancing test
1. Use of private property for public use
– Traditional and exclusive functions
1. Function usually performed by govt/state
