Constitutional Law, Josie Brown
Constitutional Law: Principles and Policies, 5th Ed
I. Power of judicial branch
Marbury v. Madison gave court 3 responsibilities from Article III:
Determine existence of a Con right (and interpret Con)
Determine meaning of fed law thru Con (and determine if unCon)
Determine the scope of judicial responsibility
Interpretation of Constituion
Originalists- limit SCOTUS power by written enumerations of Con, if Con silent, legislature decides w/o SCOTUS interference
Use meanings of words at time Con was written
Non-originalists- allow SCOTUS to continually reinterpret Con via unenumerated rights, not limited to writers’ experience or meaning
Text: structure, word choice, provision in context of whole document, and relationships among different provisions
History: historical context and intention of provision drafters
Precedent: court has accountability to prior decisions and articulated understandings, has an obligation to explain changes in interpretation, and modify/specify application of provision
Prudence: practical consequence of interpretation compared against those of other interpretations
Normative ideas: looking at moral and ethical ideals and societal goals
II. Equal Protection
14th Amendment- “No state shall deny to any person within its jurisdiction the equal protection of the law.”
SCOTUS rolled 5th Amendment assessment into 14th.
Bolling v. Sharpe “discrimation may be so unjustifiable as to be in violation of due process.”
Equal Protection Rules
Equal Protection scrutiny
First EP question: How does legislation classify?
Legislation has a classification “on its face,” or explicitly
Gov’t has to show how it doesn’t have discriminatory intent
Facially neutral, but impact or effects are discriminatory
Challenger has to show how it has discriminatory intent
Second EP question: Which level of scrutiny does the court use?
Based on whether the classification is based on an immutable or voluntary characteristic, the group’s access to political recourse, and whether there’s a history of discrimination (Carolene Products). 3 Tiers:
Strict- when targeted classification is based on race, national origin, and aliens. To be upheld, gov’t has burden to prove that law has a compelling end and the law is a necessary means to that end.
Intermediate- when targeted classification is based on gender or children out of wedlock. To be upheld, gov’t has burden to prove law has an important end and the law is substantially related to that end.
Rational basis- all other EP issues. To be struck down, challenger has burden to prove that law either has an illegitimate end or is not rationally related to that end.
Third EP question: does gov’t meet that level of scrutiny?
Examines means and ends of legislation according to scrutiny level. Among other things, looks for
Overinclusion: when a law’s impact includes too large a group necessary to accomplish its end
s to show discriminatory intent
This means decision maker chose course of action “because of” race, not “in spite of.” How to prove (from Arlington Heights):
Impact so discriminatory that no other explanation is adequate
Historical context of gov’t action
If intent is found, state’s burden is to show enaction without disputed factor
Gender classifications under intermediate scrutiny (Craig v. Boren)
Laws benefitting women (and disadvantaging men) also not allowed
These are often based on stereotypes and perceived capabilities
Orr v. Orr- like only men paying alimony not allowed
MS Univ. for Women- state’s female-only nursing school unCon
Michael M.- stat. rape laws Con b/c only women get consequences
Rostker- too much burden to include women in draft
Laws benefitting women based on remedy are okay
Califano- goal of “redressing disparate treatment of women” okay in social security benefits being more favorable to women
Nguyen v INS- upheld policy where children of US citizens abroad didn’t have to do anything if mother was citizen, but did if father was citizen.
Court cited bio differences, no doubt of relationship b/w mother and child