Con Law II Outline: Arthur “Hello, Does anybody care?” Bonfield
I. Substantive Due Process
a. Intro
i. The focus of this course is on individual rights as a limitation of governmental power.
ii. Due process
1. = procedure if “due”
a. Govt cannot arbitrarily, capriciously, unreasonably, abusively deprive people of liberty, life, and property
b. Slaughter House case gives substantive contents to DP besides procedural. Not only “how” the govt acts is limited, but also “what they do” is limited
2. 5th: bars govt from depriving any person of DP of law
a. Only applies to fed govt
3. 14th: prevents the state from depriving life, liberty, & property w/out DP of law
4. Is the crt justified in striking down legislation simply b/c it violates some natural law? No.
a. The crt can only strike down an unconst’l legislative act when it violates some prohibitory language in the Con.
b. Calder v. Bull: a crt can strike down an action of congress ONLY IF it violates PROHIBITORY language of the Cong
b. Regulation of the Economy—Social and Economic welfare cases= RATIONAL BASIS TEST
i. Lochner v. NY
1. NY law prohibited the employment of bakery employees for more than 10 hours/day or 60hrs/wk. Lochner was convicted and fined for permitting an employee to work in his bakery for more than the time allowed. I: whether the NY law is const’l
a. 14th v. state police power
b. Judicial review:
i. Strong presumption of constitutionality for govt action (judicial rev is not completely clear in the language of the con)
ii. There are state con as well as fed con, each w/ their own DP clause
1. if one losses a case on fed DP, one is free to argue that there is a violation of DP under the state con and will be determined by the state supreme crt
2. Q1: What interest is at stake?
a. Lochner: argues the law denies him the DP of the freedom to contract (liberty)
3. Q2: Are life and property absolute?
a. No. Govt can take them when it follows DP.
ii. What is substantive DP?
1. RATIONAL BASIS TEST: The end of the law must be legitimate. The means must be reasonable. The burden is on the plaintiff to prove the unconst’lity. 2 parts:
a. Ends analysis: There is power reserved for the states, which is state police power. Any end within the public health, welfare, and safety of people is a legitimate end unless it is prohibited by another provision of the con (ie, 1st am, religious freedom). Crt:
i. Minor evils cannot be eliminated—small evils beyond the power of the state (But, still evils…)
ii. The state cannot enact pure labor labors (can’t correct imbalance of bargaining powers). But, why? Not in the con…
iii. = legislation end unjustified
b. Means analysis: REASONABLENESS is the test. This is NOT a Q of substituting the judgment of the crt for that of the legislature (this part is correct). But the crt later contradicts itself by substituting its judgment upon the legislator. We don’t care what the crt believes but rather what the legislature believes. The crt says that there are more direct means (wrong). Crt:
i. Test is whether the means are a fair, reas, appropriate use of the police powers. The means in this case is the limitation of the hours of the bakers.
ii. The means in this case is the limitation of the hrs of bakers. This law does not effect anyone but the bakers themselves [not true].
iii. The means analysis (whether means reasonably related to the prevention of some evil), “this is not a question of substituting the judgment of the court for that of the legislature.”
1. But then, “we do not believe in the soundness of the views which uphold this law”
2. Q is: could a reasonable legislator think that bakers working too many hours will not follow the health stds as bakers wrking less hours, that they might injure the public as a result, or would the bakers as a class suffer (not up to the crt to decide soundness of the views)
3. “It is manifest to us that the law here has no such direct relation to and no such substantial effect upon the health of the employee as to justify us in regarding the section as really a health law”
a. Doesn’t matter if it’s direct or indirect
2. Vice of this case: Lochnerizing—crt got the right test, but that’s it
a. Crt unduly narrowed the conception of the ends of police power (too narrow a reading to legitimate end). So long as it’s not prohibited by the Con, the legislature can act, no matter what the crt thinks
i. They CAN legislate to prevent small evils
ii. There must be a direct harm by the activity regulated rather than an indirect harm (but who cars if it’s indirect or direct if there is a harm either way, where did they get this distinction?)
b. Absolute of crt to apply the reasonable means: It’s not a Q of substituting the crt’s judgment for the legislature’s. The crt should ask whether a reasonable legislator could have thought it was a reasonable means to achieve the legitimate end.
c. Misplacement of burden of proof. Crt appears to prove that it’s the burden of govt whether it’s const’l, rather than the PLAINTIFF who challenges it—must prove either no legitimate end or no reasonable means
iii. Nebbia v. New York
1. Farmers were getting inadequate $. Legis thought the inadequate income of milk producer is not good for the society. Set the min price for milk in retail stores. Society is in need of milk—Unemployment and huge pressure on the society—Milk producer might use short cuts to the healthy quality of milk.
a. Since Nebbia, crt has not overturned an economic/welfare/social regulation. Strong presumption of validity in favor of statute. Has crt gone too far in reaction to Lochner?
2. Rational Basis Test:
a. Legitimate end: Any end that the legislature thinks is related to any public health, welfare & safety, and the end is not prohibited by the language of the con (doesn’t matter big or small, important or not important, prohibiting big evil or small evil…).
i. If a statute specifies ends in text:
1. Even if not expressive, advocates defending the law are free to suggest the legislative purpose. Or a court may take a look to ascertain what the real purpose is. Or a court may hypothesize on their own as to what the purpose is.
b. Reasonable means: Only ask whether the means bear some substantial relation.
i. Alternative—why not set the min price for what the farmers get instead of what the stores get? There was enormous competition at the retail level, and as a result, the retailer put pressure on the wholesaler and farmer to sell the milk at a lower price.
ii. Does the legislator have to pick the BEST means? NO.
iii. Does it have to be the CHEAPEST means? NO.
c. Burden of proof: is on the challenger of the law to prove that there is no conceivable legitimate end and the means has no fair and substantial relation w/ the end. It doesn’t matter whether the statute is prohibiting big or small evil.
d. Summary of RB test:
i. Must be a legitimate end, to be found from govt doc itself, ends argued by counsel or legislative history, or crt can hypothesize the ends
ii. Law must be rationally related to achieving the end (need not be the best)
iv. Other cases:
1. West Coast Hotel v. Parrish
a. Women in unfair bargaining power. Legisl decide that b/c of this, enact law that there are min wages and hrs for women.
b. Valid? Yes:
i. End: Harm to women and their family b/c of their position (they suffer, their families suffer)
ii. Means: Is reasonably related to this end
iii. Harm to the state: no min wage for min survival; the state will feel compelled to subsidize w/ welfare
c. Dissent:
i. Businesses might be driven out of business. True, but who should decide whether it’s socially more useful to permit low wage businesses that are
rest protecting mother’s health.
3. 3rd trim: It’s too dangerous. The burden on the women is greater later.
b. Means:
i. The law is overbroad to bar all trimesters during which the mother can have abortion.
ii. If the law regulates the 1st trim, the law is unconst’l on its face. If the statute regulates the 3rd trim, SS applies—means—no other less stringent means.
5. Held: law is unconst’l b/c it too broadly prohibits abortion
a. For the stage prior to approximately the end of the 1st trim, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician.
b. For the stage subsequent to approximately the end of the 1st trim, the state in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to material health.
c. For the stage subsequent to viability, the state in promoting its interest in the potentiality of human life, may if it chooses, regulate, and even proscribe, abortion, except where it is necessary to preserve the life or health of the mother.
6. Summary:
a. First, is a recognition of the right of women to choose to have an abortion before viability and to obtain it w/o interference from the state.
b. Second, is a confirmation of the state’s power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger a woman’s life and health.
c. Third, is the state’s legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child.
d. The state may regulate the conditions under which she can have the abortion, but only to aid her health or life (regulate surgery itself).
i. Subsequently, spouse vetos were held invalid, waiting periods invalid.
ii. Valid: when minors could be subject to parental notice reqs, it could be required that a dr. do the procedure
7. Can the govt fund the woman who wants to have a child, but refuse to fund the women who wants to have an abortion? What test? Whether the govt directly and substantially interferes w/ the fundamental right. 3 classifications:
a. (1) If the govt directly and substantially interferes w/ the exercise of the fundamental right; governs conditions when and where = SS
b. (2) When the govt w/draws otherwise available benefits b/c one exercises the fundamental right—that’s a penalty on the exercise of fundamental right= SS (ie, no woman can go to a state university if she had an abortion)
c. (3) If govt refuses to fund one’s own exercise of the fund right, it is not the govt who puts the direct and substantial burden on the this exercise, the govt just leaves as it is. = RB applies (ie, govt doesn’t have to have a hospital to provide abortion b/c the state doesn’t have to have any hospital)
ii. Other cases:
1. Maher v. Roe
a. Sustained a Conn regulation granting Medicaid benefits for childbirth but denying them to nontherapeutic, medically unnecessary abortions. RB applies. The state imposed no restriction on access to abortions that was not already there
b. SS was not warranted b/c the unequal treatment of abortion and child birth in the scheme did not interfere w/ the fundamental right recognized in Roe.
2. Harris v. McRae
a. Sustained a federal funding limitation, which barred payments even for most medically necessary abortions (except for victims of rape or incest or where the mother’s life was threatened). The financial constraints that restrict an indigent woman’s ability to enjoy the full range of const’ly protected freedom of choice are the product not of governmental restrictions on access to abortions, but rather of her indigency
