Select Page

Constitutional Law I
University of North Carolina School of Law
Gerhardt, Michael J.

CONSITUTIONAL LAW – Gerhardt, Spring 2008
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
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

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