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Constitutional Law II
Villanova University School of Law
Lanctot, Catherine J.

Constitutional Law II Outline


14th Amendment: “no state shall make or enforce any law which shall . . . deny to any person within its jurisdiction equal protection of the laws”

1. Three levels of Judicial Scrutiny:
1. Rational Basis (statute generally upheld): legislative classification must be rationally related to a legitimate government objective
▪ used for review of statutes NOT based on “suspect classification” or the “quasi suspect classifications” (sex or illegitimacy)
▪ Typically review statutes involving social or economic classifications under this level of scrutiny
▪ Plaintiff challenging the validity of a legislative classification must show
(a) that the classification does not rationally advance a legitimate state objective, OR
(b) that, no matter how will the classification serves the objective, the objective is not legitimate
2. Intermediate Scrutiny: government has the burden of proving that the classifications serve important governmental objectives and must be substantially related to achievement of those objectives (see Boren)
▪ Generally applied to classifications based on gender and illegitimacy (alienage as well)
▪ Government interest must be more than merely legitimate but does not need to be compelling
▪ The classification does not need to be necessary or narrowly tailored to the objective but it must be more closely related to the objective than merely rational
3. Strict Scrutiny (generally invalidates the statute): burden on government to prove that the classification is necessary (“narrowly tailored”) to serve a compelling government objective.
▪ Some classifications are presumptively void, b/c they employ suspect criteria (e.g., race) or which substantially impairs a constitutionally fundamental right
▪ the objective must be very important, and the fit must be extremely close
2. Classifications and Objectives:
● Over-Inclusive: when a statutory classification includes or excludes more people or things than necessary to achieve the objective perfectly
▪ ex: Enacting juvenile curfew for all minors for sole purpose of preventing nocturnal crime by minors – result: over-inclusive b/c even though all minors who are criminals will be included NOT all minors are criminals
**EXAM TIP** the idea that burdening those who do not deserve it is worse then not burdening those that do
● Under-Inclusive: When a statutory classification includes or excludes fewer people or things than necessary to achieve the objective perfectly
▪ ex: City ban on SUV’s to improve driver visibility in traffic and reduce air pollution – result: under-inclusive b/c even though SUV’s impede visibility and produce air pollution they constitute only a small fraction of the problem, thus, fewer things are included in the classification than is optimal to accomplish its objective
**EXAM TIP**: Courts very rarely invalidate a statute for under-inclusiveness – rationale – Courts are allowed to solve problems “one step at a time” (RR Express)
● Over and Under Inclusive: Statute makes 16 the minimum driving age w/ the objective of limiting driver eligibility to only those w/ sufficient maturity and judgment to drive a car.
▪ under-inclusive b/c many people over 16 are immature w/ poor judgment
▪ over-inclusive b/c many people under 16 have sufficient maturity/judgment
vRule: Over and Under inclusive are not by themselves enough o invalidate laws as violations of EP BUT they are helpful tools in attacking a statute for EP violations
▪ “Perfect Fit” and “perfect lack of correlation” almost never occur between a classification and a legislative objective

3. Categorizing Classifications:
v Legislative classifications are presumed valid UNLESS there is some reason to be suspicious of the classifying device or its effect (e.g., race)
▪ the EP clause itself says nothing of presumptions of invalidity or suspect classifications – what is the justification?

ª Footnote 4 Carolene Products:
à 3 types of legislative classifications that may warrant heightened scrutiny – and thus not receive the presumption of constitutionality
(1) Facial Conflict w/ the Constitution:
(2) Inhibit the Democratic Process: (e.g., right to vote)
(3) Classify on basis of Race, Religion, or membership in and other “discrete or insular” minority
Note: Economic minority (oleomargarine example) is NOT the type of minority that excites EP concern

EXAM TIP – Review of 3 Tiers of Scrutiny:
Rational Basis (Default Review) àLegitimate Objective is rationally related to the government classification
● presumption of constitutionality – burden on person challenging the classification
Intermediate Scrutiny à classifications serve important governmental objectives and must be substantially related to achievement of those objectives
● Burden on government
Strict Scrutiny àClassification is narrowly tailored to a compelling objective
● Presumption of unconstitutionality – burden on government

B. MINIMAL SCRUTINY: The Default Level of Review
à Should extreme under-inclusion or over-inclusion be enough to establish that the classification is not rationally connected to its objective?
▪ Ask: Is the line drawn by the Government (e.g., classification) constitutional?

1. Means: What is Not Rational?
TEST: Statute will NOT be stricken if it is conceivable that there is some rational relation b/w the means selected by the legislature and a legitimate legislative objective.

ª RR Express Agency v. NY:
à Introduces the one-step-at-a-time approach
Facts: NYC regulation bans placing ads on vehicles, except that the owner of a vehicle is permitted to advertise his own products. Essentially you may not sell ads on trucks but you may advertise your own business. Purpose of the reg. is to reduce traffic hazards. Act was challenged on the theory that a vehicle carrying ads for the vehicle’s owner is no less distracting than a vehicle carrying ads for others
Claim: Classification is not justified by the purpose – i.e., the classification has no relation to the safety problem
v Rule: A statute that is under-inclusive is NOT necessarily invalid.
▪ “It is no requirement of EP that all evils of the same genus be eradicated or none at all”
▪ note: If a higher level of scrutiny was used – tougher to justify the statute since a close fit would be required
Concurrence – Jackson: Thinks allowing under-inclusive legislation invites arbitrary action

EXAM TIP – Using RR Express:
● Use majority opinion to show that under-inclusive classification DOES NOT necessarily make a statute invalid à Legislators may take the one-step-at-a-time approach
● The classification still has to be rationally related to a legitimate state interest
Argument Against Classification:
● Use Jackson Concurrence and discuss dangers of under-inclusivity
▪ invites arbitrary action by legislators
▪ enables legislators to permit actions for some while regulating others
Note: The presence of significant under-inclusion is strong evidence of a naked preference of one group over another
Rule remains àIf there is any conceivable basis to surmise that a law was rationally related to a legitimate state goal, the law should be upheld

► Determining a statute’s “Purpose”:
à Before determining whether the purpose of a statute is legitimate and that the link b/w means and end is a close enough fit the court must determine what the “purpose” is.
v Rule: So long as one of the purposes of the statute is legitimate, and sufficiently closely linked to the classification, the statute will satisfy the rational basis review

The Court will look to:
(1) Actual Legislative Purpose, OR
(2) “Conceivable” Purpose

● Actual Legislative Purpose: If the statute itself – contains a statement of purpose, that statement will con

▪ Ex: Statutes that single out the mentally retarded (Cleburne) and gays and lesbians (Romer v. Evans) have received this treatment


TEST: A classification violates EP UNLESS found to be necessary to promote a compelling state interest

1. Overview:
v Rule: Suspect classifications are presumptively void and trigger Strict Scrutiny
– Three groups of Suspect Classifications
(1) race
(2) ethnicity (national origin)
(3) lawful resident alienage (people in the country legally)
à All classifications by race or ethnicity trigger strict scrutiny BUT lawful resident alienage is treated separately
Suspect classifications: are classifications that immediately give rise to a presumption of invidious, or wrongful discrimination – discrimination alone is NOT invidious (driving ages)

► Determining when a Statutory Classification is Invidiously Discriminatory
▪ Immutable Traits: Classifications by an immutable trait – a fixed, unchangeable quality like race are dubious.
– When the immutable trait is irrelevant to the legitimate objective it becomes a more suspicious device for classification
▪ History of Purposeful Unequal Treatment: Alone this may not be significant. But when a particular group sharing an immutable trait has received purposefully unequal treatment for a long period of time it is difficult to escape the conclusion that some prejudice is at the heart of the history – applies to the legislature not the average citizen
▪ Perennial lack of access to political power: Mere lack of political power is not the issue (i.e., felons have no political power). The issue is the lack of power coupled w/ a lack of any access to that power (e.g., voting rights).
▪ Rarely if ever relevant to the decision:
▪ Discrete and Insular Minority:

ª Korematsu v. U.S:
Facts: All persons of Japanese ancestry were ordered to be excluded from certain “military areas” on the Pacific coast. The exclusionary law was a presidential order in response to Pearl Harbor. Korematsu was tried and convicted for remaining in his home despite the order. Issue: Could race be used as a criterion for curtailing civil rights in a time of grave threats to national security. Held: exclusionary order upheld
à Court applied Strict Scrutiny b/c the exclusionary order classified on the basis of race
▪ compelling interest: prevention of espionage and sabotage for national security
▪ narrowly tailored: Court defers to government’s claim that the order is narrowly tailored by applying to all Japanese on the West Coast
– impossible to sort out loyal from disloyal – must include all (addressing over-inclusiveness)
– Japanese were a greater threat then other WWII immigrants (Germans, Italians) b/c of their dual citizenry and loyalty to emperor
Note: Lanctot thinks the Court applied rational basis under the guise of Strict Scrutiny – Under SS the question of over-inclusiveness would have been harder to overcome (why were children and the elderly included)
Note: Presence of severe danger b/c of war time was the reason this was allowed – Court is more willing to make exceptions during war time