Constitutional Law II Outline Prof.

Brown – Fall 2003 I) Fourteenth Amendment A) Privileges and Immunities Clause – “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States…” 1) Scope (Slaughterhouse Cases, 83 U.S. 36 (1873) (state granted monopoly on butchering did not abridge plaintiff’s right to make a living) (p. 693).)– “[T]those privileges and immunities that are fundamental; which belong of right to all citizens of a free society…” 2) What rights are protected? a) Three general headings - Protection by the government, right to possess and acquire property, to pursue and obtain happiness and safety. Slaughterhouse Cases, id. b) Crandall v. Nevada, 73 U.S. 35 (1867) (cited by Slaughterhouse Cases above). – “It is said to be the right of the citizen of this great country, protected by implied guarantees of its Constitution, 'to come to the seat of government to assert any claim he may have upon that government, to transact any business he may have with it, to seek its protection, to share its offices, to engage in administering its functions. He has the right of free access to its seaports, through which all operations of foreign commerce are conducted, to the subtreasuries, land offices, and courts of justice in the several States.” 3) Incorporation – what rights does the Fourteenth Amendment incorporate against the states? a) Duncan v. Louisiana, 391 U.S. 145 (1968) (6th amendment right to a jury trial) (p. 707) – “The question has been asked whether a right is among those ‘fundamental principles of liberty and justice which lie at the base of all our civil and political institutions,’ and ‘whether it is 'a fundamental right, essential to a fair trial’...The question thus is whether given this kind of system a particular procedure is fundamental--whether, that is, a procedure is necessary to an Anglo-American regime of ordered liberty.”

“[R]egulation which is reasonable in relation to its subject and is adopted in the interests of the community is due process. Carolene Products. 729). 6) Court will not question whether the means chosen by the legislature are the best means . 300 U. Connecticut. 483 (1955) (p. and that it might be thought that the particular legislative measure was a rational way to correct it.” . 381 U.“Under the system of government created by our Constitution. or property.” Ferguson v.” Williamson v.S. 372 US 726 (1963) (Kansas statute prohibited the profession of debt adjusting) (p. 379 (1937) (p. B) Privacy Interests 8) Contraception – A “governmental purpose to control or prevent activities consitutionally subject to state regulation may not be achieved by means which sweep unecessarily broadly and thereby invade the area of protected freedoms. 9) Abortion – “Only where state regulation imposes an undue burden on a woman's ability to make this decision does the power of the State reach into the heart of the liberty .II) Substantive Due Process – “nor shall any State deprive any person of life. as applied to a particular article is without support in reason because the article. 144 (1938) (regulation of filled milk deemed to constitute fraud) (p. though the effect of such proof depends upon the relevant circumstances of each case…” United States v. 304 U. although within the prohibited class. 479 (1965) (state’s interest in preventing extramarital sexual relations did not justify regulation of contraception for married couples) (p. Parrish. 5) Court may test legislative reasoning for minimum rationality .West Coast Hotel v. Lee Optical. valid on its face. 727) (minimum wage regulation does not violate the contract clause or due process rights).“[T]he law need not be in every respect logically consistent with its aims to be constitutional. 731) 7) And will generally defer to those chosen by the legislature .” Griswold v.“[T]he Constitutionality of a statute. is so different from others in the class as to be without reason for the prohibition. may be assailed by proof of facts tending to show that the statute. 731).S. 348 U. 811). not the courts to decide on the wisdom and utility of legislation. it is up to the legislatures. without due process of law” A) Economic Interests 4) Reasonable regulation in the interests of the community is due process .S. It is enough that there is an evil at hand for correction. Skupra. liberty.S.

Beliefs about these matters could not define the . and of the mystery of human life. of the universe. are central to the liberty protected by the Fourteenth Amendment. etc. involving the most intimate and personal choices a person may make in a lifetime. 431 US 494 (1977) (invalidating a state statute that prohibited cohabitation by non-blood relatives) (p. Casey. At the heart of liberty is the right to define one's own concept of existence. b) Marriage . e repealed choice.” Planned Parenthood v.A finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus. City of East Cleveland.protected by the Due Process Clause. of meaning. this Court must examine carefully the importance of the governmental interests advanced and the extent to which they are served by the challenged regulation…” Moore v.. 883). 850). 10) Family a) Cohabitation – “When government intrudes on choices concerning family living arrangements. 505 US 833 (1992) (Pennsylvania statute restricting abortion did not undly burden due process right to abort a nonviable fetus) (p. 434 US 374 (1978) (court struck down state statute requiring discharge of child support obligations before marriage) (p.“When a statutory classification significantly interferes with the exercise of a fundamental right.” Zablocki v. 887). choices central to personal dignity and autonomy. it cannot be upheld unless it is supported by sufficiently important state interests..) commitment to punishing 11) Sexual privacy – “The liberty protected by the Constitution allows homosexual persons the right to choose to enter upon relationships in confines of their homes and their own private lives and still retain their dignity as free persons…[Citing Casey] ‘These matters. Redhail. Right Precedent History Consenus B Narrow Literal No 24 states owe (gays) (reproductio demonstrabl still prohibit n n) e sphere of protection Lawren Broad Extrapolatio No Over half ce (persons) n demonstrabl states had (autonomy.

maintaining integrity and ethics of medical profession.. mentally competent adults..) 12) Right to die a) Right to refuse medical treatment ..Important individual interests are not entitled to less protection under due process clause because the Government finds itself in the position of defending individual interests. preventing suicide. and continues explicitly to reject it today. of Health.. consistent and almost universal tradition has long rejected asserted right.” Cruzan v. thus. protecting vulnerable persons who might be pressured into physician-assisted suicide. Glucksberg. 904). for purposes of substantive due process analysis. rather than seeking to take action against an individual. i. assisted or otherwise – “Asserted right to commit suicide. it did not violate due process clause... 521 US 707 (1997) (Washington state assisted suicide ban did not violate the due proces clause) (p.Washington's assisted-suicide ban was rationally related to legitimate government interests in preservation of human life. b) No right to suicide. . has no place in nation's traditions. even for terminally ill..In determining an incompetent person's right to withdrawal of lifesustaining medical treatment.’” [NOTE: Lawrence court cites international consensus and social meaning. stigma of sodomy statute.attributes of personhood were they formed under compulsion of the State.A state has legitimate interest in the protection and preservation of human life and is not required to remain neutral in the face of an informed and voluntary decision by a physically able adult to starve to death. a state may properly decline to make judgments about the quality of life that a particular person may enjoy and may simply assert an unqualified interest in the preservation of human life to be weighed against the constitutionally protected interests of the person..” Washington v. which itself includes right to assistance in doing so.“A competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment. 457 US 261 (1990) (state statute requiring clear and convincing evidence of incompetent’s desire to refuse medical treatment did not violate due process clause) (p. Director MO Dept. and protecting disabled and terminally ill people from prejudice. 911).e. negative and inaccurate stereotypes and societal indifference.

does the state actually substantially affect the operation of the contract? ii) Impairment – does the action advantage one party at the expense of the other? A law that simply regulates all persons but happens to make a contractual obligation difficult or impossible may not be an impairment. There must be a preexisting contract before the law is passed. 13) Contract must predate law . safety. The means to ends fit is important.means must be reasonable and narrowly tailored to accomplish these goals. 290 U. b) Purpose of the law must be to assist public – the law may not favor one party over the other. & Loan Assoc. that interference with the enforcement of other and valid contracts according to appropriate legal procedure.) (p.” Home Bldg.S.. although the interference is temporary and for a public purpose. 398 (1934) (state law postponing mortgage sales during the Great Depression did not violate contract clause.pass any.III)Contract Clause – “No state impairing the obligation of contracts” A) Three part test test to evaluate whether a state law impairs contractual rights.. or welfare. v. or public health.. 945) c) Reasonably and narrowly tailored to accomplish its goals . “[T]he state power may be addressed directly to the prevention of the enforcement of contracts only when these are of a sort which the Legislature in its discretion may denounce as being in themselves hostile to public morals. Blaisdell. but must be designed to assist the public at large. is not permissible. or where the prohibition is merely of injurious practices.does the contract preexist before the law? a) State action must substantially impair the contract i) Substantial effect .. .

438 U.” Allied Structural Steel Co. Under the Court's opinion.B) Summary and counterargument to test – “Today's conversion of the Contract Clause into a limitation on the power of States to enact laws that impose duties additional to obligations assumed under private contracts must inevitably produce results difficult to square with any rational conception of a constitutional order. and. v.S. finally. dissenting) (Minnesota statute retroactively altering private pensions violated the contract clause) (p. any law that may be characterized as ‘superimposing’ new obligations on those provided for by contract is to be regarded as creating ‘sudden. The necessary consequence of the extreme malleability of these rather vague criteria is to vest judges with broad subjective discretion to protect property interests that happen to appeal to them. whether it is temporary (as few will be) or permanent. . substantial. 953). whether its duties apply to a broad class of persons. whether it operates in an area previously subject to regulation. and unanticipated burdens’ and then to be subjected to the most exacting scrutiny. Spannaus. 234 (1978) (Brennan. The validity of such a law will turn upon whether judges see it as a law that deals with a generalized social problem.

that is. 272 (1928) (cutting down Cedar trees to prevent spread of Cedar rust disease was not a taking) (p. 984). courts must defer to its determination that taking will serve a public use. South Carolina Coastal. 505 U.” Miller v. C) State action that does not deprive land of reasonable beneficial use is not a taking . D) Loss of all beneficial use in property is a taking . 276 U. 958).” Hawaii Housing Authority v. 964). 465 US 1097 (1984) (Hawaii land plan to condemn land prior to redistribution as a means of reducing tax burden did not violate the takings clause) (p.” A) Legislature may generally determine what constitutes a public use – “If a legislature. Schoene. state or federal.S.“The restrictions imposed are substantially related to the promotion of the general welfare and not only permit reasonable beneficial use of the landmark site but also afford appellants opportunities further to enhance not only the Terminal site proper but also other properties.“When the owner of real property has been called upon to sacrifice all economically beneficial uses in the name of the common good. . without just compensation. 1003 (1992) (plaintiff could not use his land because of a state statute designed to prevent beach erosion) (p. B) State preference of a private right aligned with public interest is not a taking – “Where public interest is involved. to leave his property economically idle. 438 US 104 (1978) (city’s refusal to permit developer to build a high rise office building above Grand Central Station did not constitute a taking) (p.” Penn Central Transportation Co. v. determines there are substantial reasons for an exercise of the taking power. he has suffered a taking” Lucas v.S. 963). New York City.IV)Takings Clause – “nor shall private property be taken for public use. Midkiff. preferment of that interest over individual's property interest is distinguishing characteristic of exercise of police power affecting property.

S. it may not constitutionally authorize the deprivation of such an interest. Sinderman. 408 U. It is the purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives. 922) 4) An individual cannot be deprived of a public benefit without adequate procedural safeguards . 923) . To have a property interest in a benefit. of Educ. 532 (1985) (security guard at school who was accused of stealing but not given a hearing stated a claim for due process violations) (p. V.Perry v. 408 US 593 (1972) (professor at state junior college may state a claim under due process where he was not reappointed contrary to de facto tenure system and without a hearing) (p. 3) Procedural due process also protects against arbitrary government action . He must. instead. 564 (1972) (untenured professor at state university was not deprived of due process when he was not reappointed) (p. then a procedural obligation attaches to the state’s discretion to exercise its decision. not under state law. 470 U. have a legitimate claim of entitlement to it. reliance that must not be arbitrarily undermined. Loudermill. once conferred. 2) Due process must be afforded to a vested public right .“The court has held that a person receiving welfare benefits under statutory and administrative standards defining eligibility for them has an interest in continued receipt of those benefits that is safeguarded by procedural due process. a person clearly must have more than an abstract need or desire for it.V) Procedural Rights A) When due process is due 1) Test for whether a public right is subject to due process a) Does the governing law limit the state’s discretion to act with regard to the benefit? (Is the benefit provided at will or is it conditional?) i) If yes. Roth. without appropriate procedural safegaurds.“While a legislature may elect not to confer a property interest in public employment.S. 921). He must have more than a unilateral expectation of it.” Board of Regents v.” Cleveland Bd. ii) What procedures are required is a question of Constitutional law to be decided by federal courts.

523) i) Impact of official action – “Sometimes a clear pattern. Metro. Ferguson. Housing Development Corp.“government's interest. particularly if it reveals a series of official actions taken for invidious purposes. history of oppression/prejudice. if any. 424 US 319 (1974) (p. emerges even when the governing legislation appears neutral on its face.Matthews v. 163 US 537 (1896) 1) Formal equality – equality of outcome 2) Substantive equality – equality of treatment B) Steps in equal treatment analysis 1) Identify the inequality – what is the inequality and who is affected? 2) Identify the state interest – why has the state chosen to create the inequality? 3) Determine whether the inequality is applied against a suspect class or with animus a) Suspect class characteristics – discrete. and” c) Government’s interest . 252 (1977) (rezoning was not racially motivated) (p. including function involved and fiscal and administrative burdens that additional or substitute procedural requirements would entail. 429 U.Plessy v.] b) Factors used to identify animus – Arlington Heights v.” 2) Additional process depends on: a) Nature of the affected interest – “private interest that will be affected by official action” b) Value of additional process . unexplainable on grounds other than race. immutable ..B) What process is due . and probable value. political powerlessness.“risk of erroneous deprivation of such interest through procedures used. 930) 1) Opportunity to be heard – “Fundamental requirement of due process is opportunity to be heard at meaningful time and in meaningful manner.” VI) Right to Equal Treatment – “nor deny to any person within its jurisdiction the equal protection of the laws” A) Formal versus substantive equality . Eldridge. of additional or substitute procedural safeguards. insular. [NOTE: Gays are not a suspect class under Romer and Lawrence.S.” ii) Historical background of the decision – “The historical background of the decision is one evidentiary source. The specific sequence of events leading up the .

U. nonsuspect classes (retarded).g. For example. ii) Standard – per se unconstitutional as an illegitimate interest. Minnesota v. wealth and voting etc.S. Evans. Clover Leaf Creamery Co. Lightfoot. 488). 485). Davis. minutes of its meetings. 449 US 456 (1981) (wood versus pulp milk containers) (p. 473 US 432 (1985) (zoning decision prohibiting group home for mentally retarded) (p. 348 US 483 (1955) (opticians versus opthamologists) (p. of Agriculture v. Moreno. 426 US 229 (1976) (facially neutral . 492). Washington v. if the property involved here always had been zoned R-5 but suddenly was changed to R-3 when the town learned of MHDC's plans to erect integrated housing. especially where there are contemporary statements by members of the decisionmaking body.” 4) Apply the appropriate level of scrutiny a) Evidence of animus – City of Cleburne Living Center. we would have a far different case. particularly if the factors usually considered important by the decisionmaker strongly favor a decision contrary to the one reached. Gomillion v. 517 US 620 (1996) (law preventing cities from enacting ordinances to protect gays) (p. New York. although even then such testimony frequently will be barred by privilege.” iii) Legislative or administrative history – “The legislative or administrative history may be highly relevant. 364 US 339 (1960) (voting district that excluded blacks had no legitimate reason for its shape) (p. In some extraordinary instances the members might be called to the stand at trial to testify concerning the purpose of the official action. 521). Romer v. i) Applies to – deliberate discrimination against anyone based on a factor that is irrelevant to state interest. 413 US 528 (1973) (law intended to prevent hippies from buying food stamps) (p.. Dept. politically unpopular groups. Departures from the normal procedural sequence also might afford evidence that improper purposes are playing a role. or reports.challenged decision also may shed some light on the decisionmaker's purposes. Substantive departures too may be relevant. Railway Express Agency v. Lee Optical. 493). b) Rational basis – Williamson v. 484). 485). 336 US 106 (1949) (advertising versus non-advertising vehicles) (p. e.

See. 518 U. Harper v.i) ii) c) i) ii) d) i) ii) test has disproportionate impact) (p. 395 U.“Rationally related to a legitimate state interest.S. e. Intermediate scrutiny .Korematsu v. Adarand Constructors. Union Free School District. Reed.S. 736) Applies to – against a suspect class or with animus. 383 U. e. 429 U.g. 429 U. United States. where a disproportionate impact exists against a suspect class but there is no intent to discriminate.University of California v. Metro Housing. Applies to – against a quasi-suspect class. 501). 663 (1966) ($1.g.. 539 US ____ (2003) (handout) (affirmative action in law schools). Inc. 535 (1942) (required sterilization for criminals) (p.” [NOTE: State may take one step at a time as long as reasonable. Richardson. 515 (1996) (p. 515 US 200 (1995) (p.” Strict scrutiny . etc. 677 (1973) (military conferred extra housing benefit for married men but not women) (p. Virginia. 252 (1977) (rezoning denial against low income housing alleged based on race) (p. United States v. e. 553).50 poll tax was unrelated to voting and constituted invidious discrimination) (p.” VII)Requirement of State Action . 514). Grutter v. Frontiero v. 602). 741).S. shift to strict scrutiny).g. v. 71 (1971) (preference given to male heirs in estate administration) (p. 744).S. Oklahoma. 404 U. Virginia. Bollinger. Arlington Heights v. 438 US 265 (1978) (reverse discrimination against white applicants) (p.“Substantially related to an important state interest. 323 US 214 (1944) (internment camps for Japanese-Americans during WWII) (p. Skinner v. 598). Craig v. Kramer v. 574) (minority preference in government contracts. gender Standard . facial discrimination against race Standard – “Necessary to a compelling state interest” or “Narrowly tailored to advance a compelling state interest. 598). 611) (VMI case).S. 316 U.S. Bakke. 190 (1976) (lower drinking age for women than men) (p.S. 621 (1969) (restriction on voting) (property ownership requirement to vote for school board) (p. Applies to – commercial versus non-commercial distinctions.S. 523). Boren. Standard . Pena. Reed v. 411 U.

Irvis. or benefitted from the action Burton v. Inc. Wilmington Parking Authority. endorsed. 522 (1987) (discriminatory licensing of exclusive rights to word “olympic” did not constitute state action because government did not direct encforcement of rights) (p. 457 U. 830 (1982) (even though school received 99 percent of its funds from the state. 922 (1982) (sheriff executed a writ of attachment against plaintiff without a judgment against him) (p.A) No state action . state did not benefit and no symbiotic relationship existed to support a finding of state action) (p. state sanction behind discriminatory policies constituted state action) (p. 365 U. 407 U. v. Brooks. 1513). 457 U. Rendell-Baker v.Flagg Bros. v. Moose Lodge No.. 1534). 482 U.S. San Francisco Arts & Athletics.S.Lugar v. Kohn. 715 (1961) (stated acted by permitting discrimination in a restaurant under lease in building financed by public funds and owned by the parking authority discriminated against plaintiff) (p. B) State involvement in executing the action . 1509).S. 1538).S. 1527). Edmondson Oil Co. D) State delegation of an exclusive public function . Olympic Committee.S. C) State approve.S. 163 (1972) (where club would lose its liquor license by changing its rules to allow blacks. U. 1533). 107 v. 436 U.S 149 (1978) (state did not act by contracting storage of evicted tenant's goods to warehouseman) (p.

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