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Constitutional Law II
University of Iowa School of Law
Bonfield, Arthur E.

Constitutional Law II
Bonfield: Fall 2006

SUBSTANTIVE DUE PROCESS

I. Due Process Clauses
a. 5th Amendment – limits the federal government
b. 14th Amendment – limits state action at all levels
c. Limits on procedure and substance – the government can’t act arbitrarily, capriciously, unreasonably
II. Economic Regulation
a. Lochner (CB 492)
i. Economic regulation violates DP if it doesn’t pass rational basis test
1. Ends must be legitimate, within the scope of government’s powers
a. Must be a bigger evil than just some small harm (in Lochner harm of bakers’ poor health not big enough to warrant gov intrusion)
2. Means must be reasonable – must be rational relationship between means chosen by the legislature and achievement of the legitimate end
a. In Lochner, means failed RB because the law only changed amount of sleep bakers could get, but not what they put in their bread, and besides, baker should decide for himself when he sleeps
ii. Regulation in Lochner fails RB (statute: limited number of hours bakers could work) because for the end to be legitimate, it must be a bigger evil than just some small harm
iii. Lochner announces RB test – but doesn’t really apply it very well (Lochnerizing: the court was coming up with an excuse to step in)
1. Unduly narrow construction of the ends analysis
2. Substituted their own judgment for the legislature’s
3. court shouldn’t have put burden of proof on gov
b. Nebbia (CB 503)
i. Court changes RB test (*modern approach):
1. Any end is legitimate as long as it is to cure some harm/evil and it’s not specifically prohibited by the Constitution
2. Rational relationship between means and end
a. Best means don’t have to be used, as long as rational legislature could think means are reasonably related to end.
b. Where do you find it? Look in statute, history, what defense counsel says
3. Burden is on the challenger to prove that there’s no legitimate end and means aren’t rationally related
c. In social/economic regulations court is very deferential to legislature – even hypothesizes rationales for statutes, even if the government doesn’t argue them
III. Fundamental Rights – Privacy
a. When a fundamental right is implicated, RB not enough – instead use strict scrutiny
i. Compelling state interest
1. Court has said that morality is not a compelling state interest
ii. Means are narrowly tailored to achieve the ends
iii. Burden of proof on the government
b. When is there a fundamental right?
i. Look to the text – are they alluded to or explicitly discussed
ii. Look at history – is there any clear history that indicates a fund. right?
iii. Shared consensus in society – a hierarchy of interests (is there consensus in society that this right is more important than most others?)
c. Why do fundamental rights deserve more strict scrutiny? Because of those same 3 reasons
d. Sterilizing people against their will – SS because fundamental right involved: the ability to have children (Skinner CB 545)
e. Prohibiting sale of contraceptives to deter extramarital sex – SS because fund. right in married couples being able to have sex however they want and right not to have children (maybe history, maybe shared consensus) – law is overbroad because it doesn’t just deter extramarital sex but marital sex as well (Griswold CB 546)
f. Right whether or not to have a child is fundamental, so triggers SS (Carey CB 556)
g. Roe v. Wade (CB 558)
i. Majority uses SS to overturn TX prohibition on abortion
1. Fails on both interests: life of the fetus and health of mother
2. Too broad to protect mothers (actually safer for women to have abortion in 1st trimester than to give birth)
3. No compelling state interest in fetus until third trimester, when fetus reaches viability
ii. Only anti-abortion laws upheld after Roe are ones that require parental permission for minors
iii. Weakest part of Roe: the line the court draws between viability and non-viability (however, Casey, which reaffirms Roe, says that nonetheless, gov doesn’t have compelling interest until viability because until then baby can’t survive outside mom)
h. Casey: Reaffirms Roe, but uses Undue Burden Standard (only for abortion cases!)
i. Undue burden means state reg has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus
ii. Statute with this purpose is invalid
iii. Undue burden test only used in abortion cases (instead of SS, even though right to/not have child is fundamental)
i. Government Funding of Abortions
i. Court applies RB instead of SS, because gov funding doesn’t interfere with the fundamental right
ii. Only (1) government prohibitions/regulations of the right or (2) penalization require SS
iii. When gov refuses to fund, they leave the woman as she was before the law, so no undue burden on the right
IV. When does law impinge fund. right enough to trigger SS?
a. If you’re regulating, prohibiting or penalizing the right
b. If all the state is doing is refusing to fund/facilitate the right, leaving the person where they were, only RB applies
V. Regulation of Families
a. Right to Marry (is it a fundamental right?)
i. Court uses SS in right to marry cases (struck down ban on interracial marriage, ban on people getting married unless court approval when one spouse owes support to previous kid/spouse)
ii. However, some laws pass even strict scrutiny (age limits, blood tests to make sure you’re not too closely related) because of the compelling state interest (health/safety/etc)
iii. Where does the right come from?
1. Probably shared consensus that the right to marry/not get married is an important interest (even though no shared consensus on who should be allowed to get married, there’s consensus that the idea of marriage is highly important)
b. Right to Live together
i. Court uses SS to strike down law that defines family in a way that wouldn’t let grandmother and her grandkids live in house together in residential are zoned for family (Moore v. E. Cleveland)
1. Court says means not narrowly tailored enough since it affects fundamental right of families living together, and family is deeply rooted in tradition
ii. However, no SS when law is about college kids living together, RB because no fundamental right (Belle Terre v. Boraas CB 595)
c. Sexual Intercourse
i. Fundamental right to engage in private sex

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1. History: The motivation for the Equal Protection Clause was a fear that as soon as former slaves were freed by the Emancipation Proclamation and the 13th Amendment the states would use their own laws to treat black people as non-citizens
2. There was a long history in this country of invidious & irrational racial discrimination
3. Racial classifications as a generic statement are usually (not always) without legitimate or rational basis
4. Minorities are politically powerless, in the sense that if you’re a member of a minority living in a community of a majority race, you have no power at the polls, because you’ll be outvoted by the majority.
5. Racial classifications are usually stigmatizing – made to feel/appear inferior
6. Race is an inalterable trait – if you’re born with it, you can’t do anything about it
v. Plessy (CB 671): Separate but equal okay – as long as equal facilities no violation of EP
vi. Brown v. Board (CB 673): segregation in schools is inherently unequal, unconstitutional
1. Can’t disadvantage a racial group simply because you dislike a race
2. Even if physical facilities are equal, there is still inherent disadvantage to blacks
3. Badge of inferiority
4. Much easier way to decide Brown: use SS because race is a suspect class, and find that there’s no compelling state interest that necessitates total racial segregation
5. Brown only controls de jure discrimination – discrimination by the state
6. Discriminatory impact alone is not enough
7. Later cases just used SS instead of “badge of inferiority” theory
vii. Loving (CB 681): court struck down law that punished people for interracial marriage, even though both blacks and whites suffered equally, it failed SS because there’s no compelling interest other than pure racism
viii. Prisons
1. Can’t segregate across the board, but can segregate after a race riot
b. Racial Impact
i. Laws that discriminate on their face are easy
ii. Some laws are neutral on their face but discriminatory in effect
iii. Law that has extremely discriminatory effect can violate EP (Yick Wo CB 685)
iv. Can only challenge based on disproportionate impact, if you can prove specific intent to draw that classification (cause that effect) (and even then the law has to fail SS) (Washington v. Davis CB 688)
1. So, even though whites did better on a PO exam than blacks, the department had made a good faith effort to test the performance of all officers (no evidence that department acted with intent to DQ minority applicants)
2. Why do you have to show specific intent?