Select Page

Constitutional Law I
University of South Carolina School of Law
Brown, Josie F.

Constitutional Law, Josie Brown

Constitutional Law: Principles and Policies, 5th Ed

Spring 2017

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

Different theories

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

Interpretive resources

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
Underinclusion: whe

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
Legislative history

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