CONSTITUTIONAL LAW II
General Matters/Misc
When the BOR were drafted they were not drafted with the main purpose of protecting individual rights but rather to protect the states from federal tyranny (contained strong structural component)
Original draft of const was a way in which the states could protect themselves from federal tyranny by giving the federal government enumerated powers. States were trusted because they were closer to the people and had own const
With the passing of the 14th Amend we see new idea of const à14th Amend through DP applies the BOR to the states (denying fund rights can’t be done without violating DP)and therefore helped to bring about the modern conception that the BOR are individual rights that WE can claim against the government (both federal and state)
US v. Carolene Products:
i. **FOOT NOTE 4**: SC hinted at what might be a solution to balance of protection of democratic process and concern for the protection of individual rights
1. there is a narrower presumption of const when leg appears to be regulating something in the BOR (do not presume const when deal with the BOR)
2. Suggests that under a certain set of circumstances…. then there will be a stricter scrutiny by the court
a. specific const prohibitions
b. right to political participation or speech
c. leg targeting discrete insular minority
i. discrete and insular minorityà small tightly groups that tend to stick amongst themselves.
ii. We protect them b/c they oftentimes lose in the political process
Counter-Majoritarian Difficulty:
i. We democratically elect bodies/representative and they in turn use the democratic process to create laws that govern everyone, BUT..
1. PROBLEMà the democratic body makes the law, but the Court, which is not democratically elected, strikes it down [undemo branch overturning will of demo process]
2. we are willing to live in this kind of society were an un-demo body has the final say because we are willing to protect the right of the minority (those that have little political sway)
a. rights such as EP and DP are other way to protect the min
ii. Dred Scott: ~ worst decision in US Reports
1. Scott, a slave owned in Missouri was moved to Illinois (a free state according to the Missouri Compromise). Administrator of slave owner’s estate brought action. Scott contends that he is a free citizen b/c live in Illinois
2. poster child case of majority imposing will on min that existed through the passage of the 13th Amend
3. Black are not “persons”/”citizens” under the US Const
4. Court looks at the intentions of the framers and determines that they did not intend for blacks to be citizens (Fugitive Slave Clause- thought of as property; framers owned slaves) YET they state that if they interp the lang at the present time then would find that blacks were citizens
5. court avoids looking at the justice implications of their holding (function of court)~ does not stand up to counter-majoritian decision
6. Court looks to who made the principles instead of the principles and ideas behind const
iii. The goal of the 13th and 14th is to protect insular min(blacks) from maj rule (whites)
1. story behind 14th is the story of the enumerable ways the whites attempted to overrun the blacks and any other insular minority
EQUAL PROTECTION:
Intro:
EP applies to the federal government by DPC of 5th
EP applies to states via 14th
i. Purpose of Juris prudence: to distinguish permissible differentiation from impermissible discrimination
ii. EP is the basis for raising claims on many types of discrimination, not just race
iii. Major problem with the EPC is that government, by its nature, involves line drawing and creating classifications among people. A law is not going to affect everyone by its nature. (i.e min driving age, varying tax rates, and creating welfare standards). The lines must be legitimate and if draw lines for a discrete min then have a higher standard
1. the classifications that we are worried about are the ones that allocate benefits or impose burdens (the ones that violate EP)
2. The issue will be ARE THESE CLASSIFICATIONS JUSTIFIED?
FRAMEWORK for EP Analysis: (basic outline for how to answer an EP exam question) This is how we determine if the law has been drawn in an impermissible way
i. Basic Question: is the government’s classification justified by a sufficient purpose(what counts as a “suff purpose” depends on the type of discrim)?
ii. Question 1: What is the classification being made?
1. Two basic ways to esta classification:
a. On face of the law- i.e prevents blacks from owning a home; prevents 16 yr olds from driving
b. Facially neutral, but there is a discrim impact to the law or discrim. Effects from admin AND if there is a discrim purpose- i.e pop o must be at least 150pds and 5’10” (40% of men meet requirement and 2% of women meet this) therefore discrim against women
iii. Question 2: What is a appropriate level of scrutiny to be applied to the classification? [Level of scrutiny depends on the classification] (which pair of glass will the court put on to scrutinize (SS, thick, look at most level of detail)
1. Several Criteria applied to determine what level of scrutiny to use
a. Immutable characteristics (things they did not choose- race, gender, marital status, national origin) warrants heightened scrutiny
b. Ability of the group to protect itself through the political process (women have greater ability to protect themselves then non-citizens)
c. History of the discrim against the group (race)
d. Courts judgment concerning the likihood that the classification reflects prejudice as opposed to a permissible government purpose (gender may be a legit basis for types of classif (b/c genders are funda diff)
e. Politically Disfavored Group (dissenters or min view)
2. Rational Basis- all laws challenged under EP go through this unless they qualify for a higher level of scrutiny
a. Requirements/Elements
i. Rationally related (means chosen don’t have to be only way to do it but just have some reason that it is related)
ii. To a legitimate gov purpose. (does not need to be compelling or important but just something that the government legitimately may do)
1. as long as can think of ANY legitimate purpose for the law then it is ok, (does not have to be the government’s actual purpose) Fritz
2. RB Test with a BITEàMoreno-some reasons are better than others and really bad reasons don’t count. Needs to be at least ANY GOOD REASON (RB Test with a “Bite”)
b. Burden is on the challenger to show this
c. Extremely deferential to the government
3. Intermediate Scrutiny (hesitant to give this kind of heightened scrutiny b/c creates more work for court and *opens it up to more litigation (higher degree of review the closer look at laws and decide that they aren’t right and
. no requirement of EP that he law alleviate ALL the problems that it alludes to (does not have to be perfect coverage b/w the purpose and the classification)
d. Railway Express:
i. local, city ordinance banned advertising on the side of vehicles unless the vehicle carried the good that it advertised on the side of it. Petitioner was a delivery truck that advertised other products on the side of the truck
ii. conceivable purpose- prevention of traffic condition and dangers posed by distracting advertisements on trucks (safety)
iii. court rejected petitioners argu of underinclusiveness (argue that their trucks were no more dangerous or caused no more congestion than other trucks with ads; no distinction b/w their ads and the ones that other bus have~ if you think ads distractive then should outlaw all ads)
iv. upheld classification, finding the city council could have determined non-delivery truck ad posed more a danger and problem than delivery trucks. Deferred to the leg policy choice~ no requirement that he law elevate ALL the problems that it alludes to (does not have to be perfect coverage b/w the purpose and the classification)
2. Tolerance for Overinclusiveness under RB review
a. Overinclusive- includes more people in the classif than is ness to achieve the regs purpose.
b. Substantial overinclusivenss is permitted under the RB test. Can regulate more than you need to achieve the purpose
c. NYC Transit Authority v. Beazer:
i. regulation that bars M uses from working for the Transit Author w/o drawing a distinction b/w some non-dangerous M users (those that have relapsed back to using and those that made recovery)
ii. Authority reason for excluding them- a certain % (up to 30%) relapses and therefore they are high-risk EE (heroine addicts not safe)
iii. proported purpose- does not heroine addicts as EE and want to be SAFE
iv. upheld regulation b/c it furthers the legit interest of promoting public safety. Stated that choice to include all M users was a policy choice approp made by the leg
v. Dissent- think that key charac that an employer should be asking about is employability (and you can’t avoid total risk for them)
1. If employability is the real classification then here there is still no assurance that the people you hiring will be good workers (could never smoked in life but be a bad driver and therefore unemployable)
2. Just b/c 20-30% relapse tells us nothing about the employability success of M users
3. Cases where laws are deemed arbitrary and unreasonable (and therefore fail RB review)~ does not involve any suspect classif
a. If the court has evidence that the actual purpose of the statute is to harm an unpopular group, it is a fundamental violation of EPC that it will strike down the law- even under RB review
