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Constitutional Law II
Villanova University School of Law
Yildirim, Seval

Con Law 2
Professor Yildirim – Villanova Law School
Fall 2012
·         For exam
o   The applicable case/law is Virgina v. Black, where the court found that… and decided the following
§  Flag burning -> true threats
§  State has authority to prohibit true threats
§  But the state may not take away right to rebut presumption of intent
o   For exam, make sure to state the law fully before beginning analysis
§  Also include definition (prurient interests)
·         Exam Prep
o   Grading – point for each point made.
§  Rack up points by:
·         Analogizing facts to cases.
·         Making all available arguments.
§  Whenever you make a statement, back it up with “BECAUSE”
·         Make legal argument, state the law, back it up with facts and arguments from other cases.
o   Begin with clear statement of the law
§  Go with “in this case, the justice’s argument was…”
o   General rule
§  She looks for clear statement of the law AND fact.
·         She really wants the reasoning of the justices; why did they decide the way they did?
·         Begin by telling what the law is.  If the law has changed over time,
o   “the current law is clear that….”  “X case adds the requirement that…”
§ Unless the question states “discuss the history of how the law has evolved…”
§  May ask “how would you make an argument for strict scrutiny?”
·         Then you can go back to
§  Puts in position of somebody (clerk/attorney)
·         Writing brief argument
·         Exam-type question:
o   Only men have to register for the draft to receive federal educational aid.
·         Selective incorporation
o   Very few individual rights in Const.
§  A1§9 – prohibits Congress from suspending habeas corpus
§  A1§9-10 – no bill of attainder or ex post facto laws
·         BOA – Arrest Yildirim if she makes the class too boring
·         Ex post facto – renders act criminal after the conduct occurs.
§  A3§2 – all crimes, except impeachment shall be judged by a jury
§  A3§3 – can’t punish anyone for treason except for the traitor
§  A3§ – Privileges and immunities clause
§  A6 – no religious test to qualify for any office of public trust
o   Bill of Rights doesn’t bind the states unless SCOTUS rules -> selectively incorporated.
§  Before 14th amendment, Bill of Rights only applied to federal govt.
§  Slaughter House Cases said that the P&I clause does not apply to the states.
o   Two are not specifically NOT incorporated:
§  Fifth amendment –  crim. prosecution guaranteed only in grand jury indictment
§  Seventh amendment guarantee of jury trial in civil case
o   Many are incorporated:
§  All first amendment (establishment, free speech, press, assembly)
§  Second amendment “right to bear arms” (McDonals v. Chicago
§  Fourth – search/seizure, warrant req., evidence rules
§  Fifth amendment – double jeopardy, self-incrimination, just compensation.
§  Sixth amendment – right to a speedy trial
§  Eighth – excessive bail, cruel and unusual punishment.
·         State Action Doctrine (Dev. in Civil Rights Cases)
o   Rule: Const. protections of individual liberties apply only govt. action (Fed, ST, and local)
·         Process:
o   Identify the governmental purpose AND the method used to achieve that purpose
§  (1) IS purpose compelling/important? (2) Is the law narrowly tailored?
·         Test:
o   Is there a classification in the law and if so (b) what is the classification in the law?
§  Facially disc. (rare); facially neutral with disc. purpose AND effect
o   What is the appropriate level of scrutiny?
§  Level of scrutiny – the level of justification that they must meet.
o   Does the government action meet the level of scrutiny?
·         Three levels of scrutiny:
o   Rational basis scrutiny (default):
§  Must be rationally related to achieving a legitimate governmental purpose
·         Legit purpose – any purpose not prohibited in Const.
o   Economic classifications.
·         Rational – only reasonable (does the connection makes any sense?)
o   Intermediate scrutiny – rare (Non-marital, gender)
§  Must be substantially related to achieving an important governmental purpose.
o   Strict scrutiny (race, national origin, and non-citizens)
§  Necessary to achieve a compelling governmental purpose
·         Must be narrowly tailored.
§  De novo review (No deference) – CT independent determination
§  Uses: fundamental rights
·         (1) Explicitly stated (1st AM), and those (2) “found to be fundamental over time”
§  Uses (civil liberties) classification encroaches on right of suspect class.
·         “historical and systematic discrimination where the political participation power of the class has been rendered null”
·         Inherent characteristics (Immutable characteristic that is not in the power of the individual to be changed.) – NOT ALL COURTS!
o   Exception – gender
o   What about homosexuality? Probably not immutable.
·         EP deals w/ classifications – treat similarly situated people the same (San Antonio v. Rodriguez)
o   Recognizes racial differences; “We are different but are treated as if we are the same.”
o   Contrast w/ DP –  govt can’t abridge rights without specified processes
§  Equal protection always deals with groups (DP right apply to all citizens)
o   Examples of equal protection classification:
§  State requires attorneys to pass the bar exam
·         No classification by group (all subject to same test)
§  All women who want to be attorneys must take exam 1, men must take exam 2.
·         Gender – Similarly situated people treated differently based on gender
·         Problems with early analysis (Dred Scott)
o   Economic – Slave owners maintained their lifestyle by using slaves
o   Framer’s intent – Court thinks there’s no way that blacks (free or not) were intended to be within the phrase “We the People”
o   The “it’s for their own good” argument – they might start revolting (public safety)
o   Statutory construction – early rights to import/trade slaves
o   Dissenting arguments:
§  Equate citizenship with “freeman,” no point in freedom if you can’t be a citizen
§  Competing history – evidence that Framer’s hated slavery
·          Making up history to support your conclusion!
·         Terms may change over time (Johnson v. McIntosh)
o   “We the People” now applies to all citizen (not just whitey)
§  “The reality of changing concepts and changing meanings”
o   Indian tribe denied property ownership (not a citizen)
·         How to determine if there is a racial classification:
o   1) If racial classification is evident on the face of the law -> strict scrutiny applies. 
o   Three kinds of racially discriminatory laws
§  Disc. against a particular group (only ONE upheld -> Jap internment (Korematsu)
§  Treats all races the same way, but in an unfair way
·          “If the law takes race as the core reason for a punishment, even if the law may apply equally to all races, strict scrutiny will apply.” (Loving v VA)
o   Race is a suspect category -> strict scrutiny applies
·         Interracial marriage ban –really White Supremacy (Loving v. VA)
§  Affirmative action – benefits a race to counter-impact historical discrimination.
o   2) If facially neutral, must show BOTH discriminatory impact and intent/purpose. 
§  Intent (more than foreseeability) – a desire to bring about consequences
·         Factors:
o   Statistical proof so clear as to leave “no other exp.” (Yick Wo)
o   Historical Background
§  Historical pattern of discrimination?
§  Ex: requirement to get 3 letter

agg – “Was Blind but now I See”
§  Colorblindness is attractive to white liberals
§  To be white is to not think about it.
o   Effects:
§  Furthers racism because we’re constantly thinking about race
·         Results in reverse racism – disc. against white middle class men
§  AA necessary because in the past, white men had special favors under the law.
o    “The Constitution is both color-blind AND color conscious.” (Gratz, Ginsburg dissenting)
§  Color blind:
·         Can’t deny a benefit based on race
§  Color conscious:
·         Goal is to prevent discrimination being perpetuated and to undo the effects of past discrimination.”
·         Affirmative Action General Rules
o   AA Definition – a law that is meant to bring into the fold minorities that have been historically disadvantaged.
§  Requires Historical pattern of discrimination (Not every non-white race)
§  Ex: African Americans, Hispanics, and native Americans
o   Two types of AA issues (quota and factor systems):
§  Quota system – set aside some number of seats for a particular group.
·         Usually unconstitutional, especially since 1995 in the education context
§  Factor system (Michigan Law) – race is one factor among others.
·         Early cases:
o   Bakke (78) – White dude denied admission to med school, blackie w/ similar GPA got in
§  Quota system w/ race to make admission decision is UNCONSTITUTIONAL
§  But, no standard of review set (later established as SS)
o   Wygant v. Jackson (86) – School cutting back, firing whites and keeping new blacks
§  Using race as sole determinate is CLEARLY UNCONSTITUTIONAL
·         But race CAN be used as one variable among others.
o   Richmond v. JA Croson
§  Racial classification for affirmative action subject to strict scrutiny.
·         Compelling state interest in obtaining diversity in higher education (Grutter)
o   Utilitarian reason:
§  Helps them interact in a diverse workforce; they’ll learn to interact with people different from them
§  Diversity is necessary for a good overall legal education, achieving critical mass brings the school to a meaningful student body.
o   Two acceptable uses of race in the law (Seattle School District):
§  Remedying the effects of past discrimination
·         De facto (they just live in separate neighborhoods) has never been a reason to justify desegregation
·         De jure (judicial) segregation
§  Fostering diversity in higher education
o   Narrow Tailoring: Can only use race if it is through a holistic and individual review of applicants (Gratz)
§  Bakke – Can’t use quota system (by definition not narrowly tailored)
§  Cannot attach pre-assigned values to race (make race a determining factor)
·         Gratz – race gets point bonus, other points for various categories (alumni relationships, residency, etc.)
·         Not an “individual and holistic review” because it simply bumps up their chances.
§  Grutter: Race can only be considered as a “plus factor”
·         Individual applicant is considered as an individual (race NOT determinative factor)