CONSITUTIONAL LAW – Gerhardt, Spring 2008
STANDARDS OF REVIEW
Rational Basis Test
· Requirements
o Government must be pursuing a legitimate governmental objective
· Can be any hypothetical objective the court can think of
· Does not have to be government’s actual objective
o There has to be a minimally rational relation between the means chosen and the governmental objective
· Effects
o Individual attacking the government action usually bears burden of persuasion
o The governmental action will almost always be upheld
· When used
o Dormant Commerce Clause
o Substantive due process
· As long as no fundamental right is being affected
· So most economic regulations fall under this standard
o Equal protection
· RBT will be used:
§ As long as no suspect or quasi-suspect class is being used
§ And as long as no fundamental right is being impaired
· Almost all economic regulations
· Alienage (for federal laws or government functions)
· Important rights that are not fundamental
§ Food, housing, public education
· Wealth
· Age
· Disability (but this uses RBT “with a bite” – Cleburne)
Intermediate/Heightened Scrutiny
· Requirements
o The government must have an important objective
o The means chosen must be substantially related to the objective
· Effects
o Not clear who has burden of persuasion, but probably the government
· When used
o Equal protection
· Intermediate scrutiny will be used:
§ If the classification being challenged is semi-suspect
· Gender
· Illegitimacy
Strict Scrutiny
· Requirements
o The government’s objective/interest must be compelling
o The means chosen must be narrowly tailored to achieve the objective
· This means there can’t be any less restrictive means that would accomplish the objective just as well
· Effects
o Governmental body whose act is being attacked has the burden of persuasion
o The governmental action will almost always be struck down
· When used
o Substantive due process
· When governmental action affects fundamental rights
§ Right to privacy
· Marriage
· Child-bearing
· Child-rearing
o Equal protection
· Strict scrutiny will be use:
§ If a suspect classification is being used
· Race
· National origin
· Alienage (for state laws)
§ Or a fundamental right is being impaired
· Right to vote
· Access to ballot
· Right to interstate travel
CONSTITUTIONAL INTERPRETATION
Sources and Methods
· Where to look and ways to argue
o The text
· Many different ways to read it
§ Logically connected
§ Grammatically separate
· Intra-textual analysis
§ Terms used could be unique, or the same as those used in other parts of the Constitution
o Precedent
· Specifically, Supreme Court precedent
o Original meaning/historical practices
· What the Framers/ratifiers understood a particular provision to mean
· Public understanding
§ Difficult to determine
o Pragmatism
· The consequences of a particular interpretation
· Justices across time have used this in different contexts
o Moral reasoning
· Many terms and concepts in the Constitution are philosophically and maybe even ethically infused
· Basis for choice
§ Choosing one argument over another because it may have greater ethical value
o Structure
· Used to draw inferences about the form
· Wouldn’t inhibit the Constitution in a way that would destroy the republic
o Ethos
· Distinctive character of the Constitution or the republic
· Questions to ask
o Is there an individual (as opposed to collective) right?
o Is the right absolute?
· The Supreme Court does not recognize anything as an absolute right
o How much deference/protection should the right receive?
JUDICIAL REVIEW AND SUPREMACY
Judicial Review
·
e Court is in the best position to perform that role
· Supreme Court has the time, resources, and expertise
· It’s in the nature of the judicial function
o Criticisms of judicial supremacy
· The Court itself needs to be subject to checks because it is fallible
· The Justices might act strategically or politically
· Counter-majoritarian difficulty
o Refers to the Supreme Court’s unprincipled interference with the democratic branches of government
· It’s hard to undo a decision of the Supreme Court
o But if Congress is left to determine the constitutionality of its own laws, it becomes all-powerful
· Political constraints on the Supreme Court
o Impeachment
· Not effective when it comes to controlling decisions
o Presidential nomination and Senate confirmation
o Congressional control of size and funding
· Congress can also regulate jurisdiction
· None of these measures are used often
o Constitutional amendment
o Under-enforcement
· Do very little to enforce the decision or even do what’s possible to undermine it
o Get the Court to reverse itself
· Constraints within the Supreme Court
o Reasoned elaboration
· Court has to explain what it’s doing and why
o Certiorari discretion
o Majority decision-making
o Dissent
o Precedent
· Court will only overrule about 2 cases per term
o Passive virtues
· Standing – governs who may bring a claim in federal court
· Political questions – govern what kinds of issues may be heard by the Court
· Mootness and ripeness – timing
