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Constitutional Law II
University of Iowa School of Law
Buss, William

ConLaw II Outline
Professor Buss, Summer 2006 – Text: Sullivan & Gunter (15th ed.)
I.       Levels of Scrutiny
Government Interest (Purpose)
Regulation (Means, Fit)
Rational Basis
Rationally related
Intermediate Scrutiny
Substantially related
Strict Scrutiny
Narrowly tailored
II.    Due Process
A.    Substantive Due Process
1.      Basic Substantive due process analysis
a.       Is there a liberty interest?
1.      No – stop – no due process problem at all
2.      Yes – continue …
b.      Is there a fundamental liberty interest?
1.      No – rational basis review (Lee Optical standard) – a legitimate interest and a plausible means (the lowest possible requirement – it met, it is constitutional) (burden of persuasion on the challenger)
2.      Yes* – strict scrutiny review (compelling state interest and no less restrictive alternative must be demonstrated to meet this standard)
(a)    * exception – abortion – “substantial burden test” (Casey)
(b)   What are fundamental liberty interests? Sex, marriage, child-bearing and child-rearing
2.      Cases
a.       Barron v. Baltimore (US.1833) (p 446)
1.      Holding: The Fifth Amendment taking clause only applies to the federal government.
(a)    At that time, this was true for every provision in the Bill of Rights
(i)     This is no longer the law (although some people think it should be)
b.      Calder v. Bull (US.1798) (p 487)
1.      Issue: whether a specific action by the state was constitutional based on some principle of natural law or natural justice?
(a)    Justice Chase said there should be some limits even if they’re not spelled out in the Constitution (see bottom of page 487) [natural law] (b)   Justice Iredell – the only limits should be the ones listed in the Constitution
2.      Book’s comment (bottom of p 488) – said that Justice Iredell’s view prevailed in form (but not in substance) – we don’t talk about natural law, but refer everything to the Constitution; however, we don’t rely simply on the explicit text of Constitution (i.e. often use a low, even vague, standard for constitutional interpretation)
3.      Economic cases
a.       Lochner v. NY (US.1905) (p492) – introduced substantive due process. Found that freedom of contract is part of the “liberty” protected by the 14th amendment; when a fundamental liberty is invaded by regulation, the law is unconstitutional unless the state can demonstrate that the means are directly related to a legitimate state end [strict scrutiny]. After Lochner, the court struck down almost any state economic regulation; this lasted until 1937. In retrospect, critics decry “Lochnerization” of economic regulation. (Lochnerizing = inappropriately substituting judicial judgments for judgments made in the democratic political process).
1.      Lochner test –
(a)    Close fit: Had to be a “real and substantial” relationship between the statute and the goals – close fit between means and ends was not present in Lochner
(b)   Limited objectives: Only certain legislative objectives were acceptable
(i)     Regulation of health, safety and public welfare 
b.      Nebbia v. NY (US.1938) (p 503) – Standard: State can adopt whatever economic policy may reasonably be deemed to benefit public welfare so long as they have a reasonable relationship to a proper legislative purpose and the law is not arbitrary or discriminatory. Started the “decline” of Lochner
a.       Carolene Products (1938) footnote 4 (p 508) – Court found that Economic regulatory legislation is presumed to be constitutional and should be upheld if it is supported by any rational basis. However, legislation dealing with individual liberties may be held to a higher level of scrutiny. Footnote said the anti-Lochner position should usually be followed, but there are some exceptions. These exceptions all justify a conclusion that the political process doesn’t work well in certain areas and therefore justify the court stepping in (examples – political process, voting, religion, minorities)
c.       Williamson v. Lee Optical (1955) (p 509) – example of the end of Lochnerizing and the rise of the new deferential approach. Moves to a “very little scrutiny” standard while saying they retain the Nebbia test. “It is enough there is an evil at hand for correction and that the legislature might have thought the legislation might be a rational way.”
4.      Privacy cases – reproduction/childrearing
a.       Meyer v. Nebraska – Broad reading of “liberty” – denotes the right of the individual to contract, choose occupation, acquire knowledge, marry, raise children, etc. Conviction of a teacher reversed for teaching German which violated state law prohibiting teaching foreign languages to young children. Fundamental right to be educated
b.      Pierce v. Society of Sisters – Parochial and private schools challenged Oregon statute requiring children to go to public school; law interfered with parents’ liberty to “direct the upbringing and education of their children.” Fundamental right to educate your children in the manner you choose
c.       Griswold v. Connecticut (1965) (p 546) – strict scrutiny (no less restrictive alternative + compelling state interest) is applied to fundamental liberties; marital use of contraception is part of privacy, which is a fundament liberty found in the penumbral emanations of  the Constitution
d.      Eisenstadt v. Baird (1972) (p 556) – expanded Griswold to unmarried people
e.       Roe v. Wade (1973) (p 559) – abortion is a fundamental privacy right founded in the due process clause of the 14th amendment; the state may not regulate abortion during the first trimester, may only regulate for the health of the mother during the second trimester, and may regulate/restrict in any way they desire during the third trimester (at viability)
f.       Planned Parenthood of Central Missouri v. Danforth (1976) (p 568) – Rule: Laws requiring spousal consent or notice are unconstitutional (they unduly interfere with the woman’s right to choose)
g.      Bellotti v. Baird (Bellotti II) (1979) (p 586) – Rule: A state law can require parental consent or notification when a minor seeks an abortion if and only if it also contains a judicial bypass exception
h.      Maher v. Roe (1977) (p 569) and Harris v. McRae (1988) (p 570) – Rule: it is constitutional for a state to choose to subsidize childbirth and not abortion, because that choice does not leave the women any worse off than they would otherwise be
i.        Planned Parenthood of Southeastern PA v. Casey (1992) (p 574) – court upheld informed consent, parental notification, and facilities requirements for abortion clinics; struck down spousal notification provision as unconstitutional under the newly-articulated “substantial burden” test. However, the court retained the central holding of Roe and the framework is basically the same. A substantial burden = the purpose or effect of state regulation places a substantial obstacle in the path of a woman seeking an abortion for a non-viable fetus.
j.        Mazurek v. Armstrong (1997) (p 588) – An application of the Casey “undue burden” standard. Rule: If the law merely has the purpose, but not the effect, of being a substantial obstacle to abortion before viability, it is not impermissible.
k.      Stenberg v. Carhart (2000) (p 589) – court found a law prohibiting “partial birth abortions” except to save the life of the mother was unconstitutional because the statute did not specifically limit itself to D&Xs and because it did not include an exception for the health of the mother
5.      Privacy cases – sexual orientation (see, also, Romer, below in EQP)
a.       Bowers v. Hardwick (1986) (p 600) – Court found that a Georgia law prohibiting sodomy for all persons was constitutional on its face, at least as applied to homosexual sodomy. No fundamental right to homosexual physical activity.
b.      Lawrence v. Texas (2003) (p 602) – Court struck down a Texas statute that criminalized sodomy only for homosexual couples; found it unconstitutional as applied to a person convicted under this law. Explicitly overruled Bowers. Court did not hold that homosexual conduct was a fundamental liberty, merely that the state did not have a legitimate interest in prohibiting this type of individual freedom (i.e. they ducked the issue). Note – there was also an effective equal protection argument in this case.
6.      Family composition
a.       Loving v. Virginia – The Right to marry has been referred to as a “basic civil right.” 
b.      Moore v. City of East Cleveland – The Court has recognized the right of related persons to live together in a single household– not really fundamental so received lower scrutiny
7.      Privacy cases – right to die (you don’t have one, but can refuse life-sustaining measures)
a.       Cruzan v. Director, MO Dept. of Health (1990) (p

ogram. Rule: A person’s interest in a benefit is a ‘property’ interest for due process purposes if there are such rules or mutually explicit understandings that support his claim of entitlement to the benefit and that he make invoke at a hearing.
d.      Mathews v. Eldridge (1976) (p 639) – Court held that pre-termination evidentiary hearings were not required in the context of disability benefits. 3 factors to consider in procedural due process questions (to determine if the administrative procedures are constitutionally adequate): (1) the private interest that will be effected, (2) the risk of erroneous decision and the value of additional/substitute safeguards, (3) the government interests (including increased burdens of additional procedures)
III.Equal Protection
A.    Intro
1.      Equal protection analysis is focused on classification (not deprivation)
a.       The critical question is: is the classification (different treatment) sufficiently related to a sufficient state interest
2.      Default rule is rational basis – you have to show something special to get a higher level of scrutiny (suspect, semi-suspect, or fundamental interest)
3.      Chart – supreme court approach to equal protection
Test used
Minimal scrutiny
Indigence                   Mental disability
Age                            Sexual preference (but see Romer)
Wealth                       Mostly everything
Intermediate scrutiny
Gender                       Illegitimacy
Strict scrutiny
Race                           Alienage (state-based only)
Fundamental interest
4.      Over- and Under-Inclusive Statutes
a.       Tussman-tenBroek analysis – page 645(+) – a helpful “analytic tool”
1.      T = trait (the thing that puts you in a class, e.g. sex), M = mischief (the purpose/end that the state is trying to achieve/eliminate) (evil the regulation is trying to avoid)
b.      5 categories
1.      Perfect fit – All Ts are Ms, all Ms are Ts [very rare – can’t find any real examples] 2.      Perfectly unreasonable – If no Ts are Ms, and no Ms are Ts
(a)    Also rare – perhaps maybe if all babies with green eyes were put to death b/c the state believed they were infested by the devil – but there was not devil
3.      Under-inclusive classifications – All Ts are Ms, but some Ms are not Ts
(a)    Example – regulation says that no person over 75 who is bald shall be qualified to be a fire-fighter; state says the purpose is to ensure the physical fitness of firefighters – the statute clearly does not cover enough of the physically-unfit
4.      Over-inclusive classifications – All Ms are Ts, but some Ts are not Ms
(a)    Example – Japanese internment during WWII due to concerns some would be traitorous – the statute clearly interred way too many people
5.      Under- and over-inclusive classifications (this is most classifications!)
(a)    Example – Japanese internment was over-inclusive of Japanese, but was also under-inclusive (did not catch lots of other possibly traitorous people, e.g. German)
B.     Rational Basis
1.      Economic or social regulation à deferential rational basis review
a.       Always start with the assumption the regulation falls in this category
1.      It is only if you can change this assumption that you trigger one of the 2 stricter scrutinizes
General rule: In areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld