Tests For Constitutionality of Law or Ordinances

2022-09-29administrator

Balancing of interest test

A test used for weighing which right is more important (i.e. liberty rights are more important than
property rights)sample:A applied for a job in B’s company; B will accept in condition that A will not join
unions, A accepted the offer.

Officers of union invited and A joined;

B removed A due to violation of a contract;

A argued that she signed it because she needed a job

WEIGHING ISSUES:

A and B have right to contract (property right) vs. A’s right to join an association (liberty right);

– Liberty right prevails

Is signing the contract a waiver of right?

Yes

Problem: labor code, illegal contract – yellow dog contract; cannot prevent an employee to join labor
union;

Policy of state: encourage unionism; industrial peace; to protect greater interest of workers

Test for a valid Ordinance

It must not contravene the Constitution or any Statute

It must not be unfair or oppressive

It must not be partial or discriminatory

It must not prohibit but may regulate trade

It must be general and consistent with public policy

It must not be unreasonable

Test for reasonable/valid Classification

It must be based on substantial distinctions which make for real differences

It must be germane to the purpose of law

It must not be limited to existing conditions only

It must apply to all members of the same class

Three levels of scrutiny of judicial review

Rational Basis Test/Reasonable Connection Test

– When there is a reasonable connection between the classification and state interest or purpose
of law
– Used when issues involve property rights
– Need to identify the Medical, Empirical, Scientific, and Statistical bases whether the intention is
germane to the purpose of law

Clear and Present Danger Test / Strict Scrutiny Test / Dangerous Tendency Test

– Liberty right – involves restriction to freedoms

– Involving speech; free exercise of religion; travel; privacy

Note: religion and speech are rights higher than life and liberty

Intermediate Scrutiny Test / O’Brien Test

– When issues involve gender neutrality or equality

– When it involves important state interests
– Content Neutral Regulation

The Precautionary Principle

When there is a good reason to believe that there is a threat of serious and irreversible damage to
health or the environment, the lack or full scientific certainty shall not be a valid excuse to postpone the
employing cost-effective measures to prevent the damage.3 elements to use the precautionary principle:

Uncertainty of threat – no application if it can be prevented because of certainty

Such uncertainty may lead to serious threat or damage to health or enviornment – if not serious
damage, no application

There is irreversible damage – no application of this principle if it can be reversed