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Constitutional Law I
University of North Carolina School of Law
Marshall, William P.

Marshall, Spring 2014
Standards of Review
I. Three Standards
1.       Rational Basis: easiest to satisfy of the 3; the governmental action will be UPHELD if:
a.       Legitimate State Objective: very broad; practically any type of health, safety, or general welfare goal will be found to be legitimate
b.      Rational Relationship: minimal rational relationship between the legitimate state objective and the means chosen by the government; only if the government has been completely “arbitrary and irrational” will this not be found
2.       Intermediate Scrutiny: heightened from rational, not as rigid as strict
a.       Serves an Important Governmental Objective: halfway between legitimate and compelling
b.      Substantially Related Means: discriminatory means must be “substantially related” to the important government objective
c.       The classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives
3.       Strict Scrutiny: hardest to satisfy; standard will be satisfied if the government shows a:
a.       Compelling Objective
b.      Narrowly Tailored Means: the means must be narrowly tailored to meet the compelling governmental interest; must be a tight fit
II. Consequences of the Choice
1.       Burden of Persuasion
a.       Rational Basis: the person attacking the governmental action must bear the burden of showing that the action is unconstitutional
b.      Intermediate Scrutiny: not certain
c.       Strict Scrutiny: government must show why the action is constitutional
2.       Effect on Outcome
a.       Rational Basis: government will almost always be UPHELD
b.      Strict Scrutiny: government action will almost always be STRUCK DOWN; “strict in theory, but fatal in fact”
III. When to Use Each Standard of Review
1.       Rational Basis:
a.       Dormant Commerce Clause
b.      Substantive Due Process: as long as no fundamental right is affected—if the state is pursuing a legitimate objective and using means that are rationally related to that objective, the state will NOT be found to have violated Substantive Due Process
                                                              i.      The vast bulk of economic regulations will then be tested by rational basis and will usually be upheld
c.       Equal Protection: we will use rational basis as long as: (1) No suspect or quasi-suspect classification is being used and (2) no fundamental right is being impaired
                                                              i.      However, rational basis will be used in equal protect for:
1.       economic regulations
2.       some classifications based on alienage
3.       rights that are not fundamental, but are still important, such as food, housing, and public education
2.       Intermediate Scrutiny:
a.       Equal Protection/Semi-Suspect: gender discrimination, illegitimacy
b.      Contracts Clause
3.       Strict Scrutiny
a.       Substantive Due Process/Fundamental Rights: privacy (marriage, child-bearing, controlling offspring, contraceptives, abortion, family relations, etc.)
b.      Equal Protection Review: suspect classification (race, national original, and usually alienage); fundamental rights (right to vote, access to the courts, and interstate travel—state residency)
Race (strict scrutiny)
National origin (strict scrutiny)
Sexual Orientation
Alienage (strict scrutiny with exception)
Gender (intermediate scrutiny)
Legitimacy (intermediate scrutiny)
When a group should fit in to a suspect class à heightened scrutiny
·         History of invidious discrimination
·         Fundamental right
·         Access to the political system
·         Immutable characteristic
I. Judicial Review
·         Marbury v. Madison
o    Just before leaving office, Adams appointed a number of new judges—commissions of these justices had been signed by Adams, but not yet delivered by the time he left office—Jefferson administration then refused to honor the appointments for which commissions had not actually been delivered prior to the end of Adams’ term
o    Holding: If the Supreme Court identifies a conflict between a constitutional provision and a congressional statute, the Court has the authority (and the duty) to declare the statute unconstitutional and to refuse to enforce it
·         District of Columbia v. Heller
o    DC law bans handgun possession—prohibits registration of handguns and makes it a crime to carry an unregistered firearm
o    Holding: 2nd Amendment PROTECTS an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawfully purposes, such as self-defense within the home
§  Class Discussion: the various things the court looked to in order to determine the constitutionality—text of amendment, framers’ intent, historical background, current times and necessity
II. Congressional Power
Congressional powers granted by Article I, § 8:
a.       lay and collect taxes
b.      provide for the defense of the country
c.       borrow money on the credit of the U.S.
d.      regulate commerce with foreign nations, and among the several states
e.       regulate immigration and bankruptcy
f.        establish post offices
g.       control the issuance of patents and copyrights
h.      declare war
i.        pass all laws needed to govern the DC and federal military enclaves
j.        “make all Laws which shall be necessary and proper for carrying to Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States”
A. Introduction: McCulloch v. Maryland
·         Congress chartered a Bank of the US with substantial political opposition—Maryland Act imposed a tax upon all banks operating in the state that were not chartered by the state—state brought suit against the Bank to collect the tax
·         Holding: UNCONSTITUTIONAL—particular powers could be implied from the explicit grant of other powers—“we must never forget that it is a constitution we are expounding”—it’s built to endure
o    Necessary and Proper Clause is a GRANTING clause, rather than a limiting clause
o    the power to tax=the power to destroy, and therefore Maryland does not have the right to tax the bank
B. Federalism Concerns

elf-organization through coercion and intimidation
o    Holding: law is CONSTITUTIONAL—shows a vastly greater willingness to defer to legislative decisions; MODERN TREND—Court will uphold commerce-based laws if the Court is convinced that the activity being regulated “substantially affects” interstate commerce; among the states—very broad
§  because of multi-state network of operations by Jones & Loughlin, a labor stoppage of the PA intrastate manufacturing operations would have a substantial effect on interstate commerce
·         United States v. Darby
o    Fair Labor Standards Act—set minimum wages and maximum hours for employees engaged in production of goods for interstate commerce
o    Holding: CONSTITUTIONAL—establishes “commerce-prohibiting” protective technique (police power regulations)—10th Amendment is only a “truism”—cannot act as an independent limitation on congressional authority over interstate commerce—very narrow; “commerce” CAN include manufacturer
o    Rule: Congress may choose the means reasonably adapted to the attainment of a permitted end, even though they involve control of intrastate activities
·         Wickard v. Filburn
o    Agricultural Adjustment Act of 1938, which permits Secretary of Agriculture to set quotas for the raising of wheat on every farm in the country—also set quotas on wheat which would be consumed on the farm it was raised
o    Holding: CONSTITUTIONAL—establishes the ”cumulative effect” principle—P’s own effect on the market, by his decision to consume wheat grown himself, might be trivial—but “taken together with that of many others similarly situated, it is far from trivial”
·         Heart of Atlanta Motel, Inc. v. United States
o    P is a motel located in downtown Atlanta, which refused to rent rooms to blacks, suing that Civil Rights Act is unconstitutional
o    Holding: Act is CONSTITUTIONAL under the Commerce Clause—The power of Congress to promote interstate commerce also includes the power to regulate the local incidents thereof, including local activities in both the states of origin and destination, which might have a substantial and harmful effect upon that commerce—discrimination impedes interstate commerce/travel
·         Katzenbach v. McClung
o    Birmingham restaurant, located relatively farm from any interstate highway and no evidence of appreciable part of business serving out-of-state travelers, discriminated against blacks
Holding: Act is CONSTITUTIONAL—even though restaurant itself is small, the value of food it purchased from out of state had minimal effect, this conduct is similar to conduct elsewhere in the country