FOURTEENTH AMENDMENT
CONSTITUTIONAL LAW II
FOURTEENTH AMENDMENT – DUE
PROCESS & EQUAL PROTECTION
Amber Whillock – Spring 2007
(Denning)
DUE
PROCESS
I
Generally
A)
Two Due Process Clauses
1)
Fourteenth Amendment – Applies to States
“Nor shall any state deprive
any person of life, liberty, or property, without due process of law.”
2)
Fifth Amendment – Applies to Federal Government
“No person shall . . . be
deprived of life, liberty, or property, without due process of law.”
B)
Types of Due Process
1)
Procedural Due Process – Guarantee of certain procedures
2)
Substantive Due Process – Guarantee of certain substantive rights
C)
State Action Doctrine
To have a violation of the
Due Process Clause, there must be some type of government action, either federal
or state. Private action is not sufficient to claim a violation of the Due
Process Clause.
II
Procedural Due Process
A)
Denning’s Procedural Due Process Analysis
1)
What interests are recognized?
§
Life
§
Property
§
Liberty
2)
What process is due? How much is enough?
B)
Specific v. Legislative Action
Government action directed
at a specific person involves due process. Alternatively, legislative action
directed at a class of people does NOT involve due process. There must be
specific government action to invoke due process.
C)
Defining the Interests that are Protected
What constitutes a life,
liberty, or property interest? Life is pretty self-explanatory, but what about
property and liberty interests?
1)
Property
§
Phase 1 –
Benefits as Privileges
This test has now been
abandoned.
o
Government
benefits were treated as privileges rather than rights.
o
The Court used
the common law to define liberty or property interests. There was no common law
property right in government employment or continued receipt of government
benefits, so procedural due process was not applicable to deprivations of these
interests.
o
Government
employment and benefits were treated as “privileges” that the government could
suspend at its pleasure rather than individual rights that may be divested only
after affording the individual due process.
§
Phase 2 –
Subjective Test
This test has now been
abandoned.
o
Professor
Charles Reich
Reich argued in his book
The New Property that important statutory entitlements ought to be regarded
as property interests to which procedural due process attaches.
o
Goldberg v.
Kelly (1970)
?
This was the
high-water mark of property interests. Court held that any government benefit
that was extremely important to its recipient was a form of liberty or property
to which due process attached. The importance of the interest was determined as
a matter of constitutional law.
?
Focus was on
the subjective importance of the right.
?
Court held
that a welfare recipient was entitled to an evidentiary hearing before the
termination of benefits because the benefits are a matter of statutory
entitlement for persons qualified to receive them and their continued receipt
was of the utmost importance to the affected individual. Elimination of the
benefits would deprive the claimant of “the very means to live.”
?
This principle
was quickly extended to apply to claims made by government employees, licensees,
students, prisoners, debtors, etc.
o
Bell v.
Burson (1971)
?
Georgia law
automatically suspended the driver’s license of any uninsured motorist who
failed to post a security bond to cover the claimed damages in accidents in
which he was a party.
?
Court held the
law was invalid because it failed to provide any form of pre-deprivation
hearing.
?
Driver’s
licenses were held to be a property right because the licenses were “essential
in the pursuit of a livelihood” and suspension adjudicates important interests
of the licensees.
§
Phase 3 –
Reference to State Law
This is the current test
used.
o
Bishop v.
Wood (1976)
?
Current View
of the law
?
The
sufficiency of the claim of entitled to a protected property interest must be
decided by reference to state law.
o
Board of
Regents v. Roth
(1972) – No Property Interest
?
Roth hired as
university professor for one-year term with no tenure or other rights to
continued employment. University told Roth that he would not be rehired, gave
no explanation, and treated decision as final.
?
Court said
Roth had no property or liberty interest at stake. Court says you have to look
at the nature of the interest, NOT to the weight of the interest. To have
property interest in a government benefit, one must have more than a unilateral
expectation of it, he must have a legitimate claim of entitlement to it.
?
Property
interests are NOT created by the Constitution. They are created and are defined
by existing rules and understandings that stem from an independent source such
as state law.
o
Perry v.
Sindermann (1972)
– Property Interest May Exist
?
University
professor was not rehired when the fixed term of his contract expired. However,
here the professor claimed the University had created a de facto tenure system
by informing its faculty that the school wishes each faculty member to feel that
he has permanent tenure so long as his teaching services are satisfactory and he
displays a cooperative attitude.
?
Court held
that the professor raised a triable issue of fact as to whether he had a
protected property interest in continued employment.
?
Court held
that a contract was NOT necessary for there to be a property right. Court says
that a person might be able to show from the circumstances and other relevant
facts that he has a legitimate claim of entitlement to job tenure.
o
Arnett v.
Kennedy (1974)
?
Plurality
Opinion
?
Former federal
employee challenged the procedures by which he was dismissed.
?
Plurality of 3
justices reasoned that where the legislation conferring the substantive right
also sets out the procedural mechanism for enforcing that right, the two cannot
be separated.
?
The employee’s
statutorily defined right is not a guarantee against removal without cause in
the abstract, but such a guarantee as enforced by the procedures which Congress
has designated for the determination of cause. Where the grant of a substantive
right is inextricably intertwined with the limitations on the procedures which
are to be employed in determining that right, a litigant must take the bitter
with the sweet.
?
This view
was specifically rejected by the Court in Loudermill.
o
Cleveland Board of Education v. Loudermill
(1984)
?
FACTS
Loudermill was hired by the
Cleveland Board of Education as a security guard. Ohio law provided that he
could only be terminated for cause (good behavior and efficient service; for
malfeasance, misfeasance, or nonfeasance in office) and gave procedures for
review and for termination. The law provided for review of the termination
AFTER being fired, but NO procedures for responding to the charge BEFORE the
termination. Loudermill was fired according to the procedures provided by Ohio
law and had no opportunity to respond to the charge or challenge the dismissal
before he was fired. He sought review afterwards, but the termination was
upheld.
?
HOLDING
Loudermill had a property
interest in not being discharged without cause. Therefore he was entitled to
due process.
?
ANALYSIS
The property interest and
the procedures necessary for compliance with due process are two separate
issues. The property interest itself is created by independent sources, such as
state law (here the Ohio law), BUT the property interest CANNOT be defined by
the procedures provided for its deprivation. States confer the rights, and the
Constitution provides what process is necessary before that right can be
deprived.
?
IMPORTANCE
The right and the procedures
are separate. State law determines the right, federal constitutional law
determines the adequacy of the procedures required for deprivation.
?
REHNQUIST’S
DISSENT
Rehnquist says Arnett
plurality got it right. The statutorily defined right is not a guarantee
against removal without cause in the abstract, but such a guarantee as enforced
by the procedures which the legislature designated for the determination of
cause.
The procedures are part of
the property right.
o
Castle Rock
v. Gonzalez (2005)
?
Jessica
Gonzalez had a restraining order against her husband. Her husband abducted her
three daughters in violation of the restraining order. Jessica repeatedly
requested police to enforce the restraining order, but the police failed to act
for 10 hours and the husband murdered the three daughters.
?
Jessica
claimed that the police had deprived her of a property interest without
affording her due process because they have never heard nor seriously
entertained her request to enforce and protect her interests in the restraining
order.
?
Court said
that to have a property interest in a benefit, a person must have more than a
mere unilateral expectation, but must have a legitimate claim of entitlement.
?
Court said
that whether what state law has given constitutes a property interest for
purposes of the 14th Amendment is a question of federal
constitutional law.
?
Court
concluded that police had discretion concerning how and when to enforce
restraining orders.
?
Court said
that an entitlement to enforcement of a restraining order could probably not
constitute a property interest because it lacks monetary value, arises
incidentally not out of some new species of government benefit or service, but
out of a function that government actors have always performed.
2)
Liberty
Government actions that
alter one’s legal status under positive law implicate a liberty interest, but
some government actions that may not do so are nevertheless such massive
invasions of liberty that due process attaches.
§
Paul v.
Davis (1976) –
Name on List/Damage to Rep NOT Liberty Interest
o
Davis was
arrestd for shoplifting and his name was placed on a list of “active
shoplifters” by local police that was circulated to local merchants. Charges
were later dropped.
o
Davis claimed
that he had a liberty interest in his reputation, and he was deprived of this
interest by his name being placed on the list.
o
Court held
that reputation, alone, apart from some more tangible interest such as
employment is neither liberty nor property by itself sufficient to invoke the
procedural protection of the Due Process Clause.
§
Wisconsin
v. Constantineau
(1971) – Obtaining Liquor IS Liberty Interest
o
Wisconsin law
provided that whenever someone by “excessive drinking” exposes himself or his
family “to want” or makes himself “dangerous to the peace” government officials
could (without notice or hearing to the drinker) post the drinker’s name in
retail liquor outlets as person to whom sales or gifts of liquor are forbidden
for one year.
o
Court held
that the drinker had suffered more than injury to reputation, she had also been
deprived of a right previously held under state law – the right to obtain liquor
in common with the rest of citizenry. This added factor significantly altered
her status as a matter of state law. This alteration of legal status, combined
with the injury to reputation, justified the invocation of procedural
safeguards.
§
Meachum v.
Fano (1976) –
Medium to Max Prison NOT Liberty Interest
o
Court held
that NO liberty interest at stake when a state decided to shift a prisoner from
a medium security to a maximum-security prison.
o
Once a
criminal defendant has been constitutionally deprived of his liberty and so long
as the conditions of confinement do not otherwise violate the Constitution the
selection of a prison is within the normal range of custody which the conviction
has authorized the state to impose. That life in one prison is much more
disagreeable than in another does not in itself signify that a constitutional
liberty interest is implicated.
§
Vitek v.
Jones (1980) –
Prison to Mental Hospital IS Liberty Interest
o
Court held
that transfer from prison to a mental hospital implicated a liberty interest,
therefore before such transfer the prisoner was entitled to procedural due
process.
o
First, the
Court noted that Nebraska law had created by statute and official practice an
objective expectation that a prisoner would not be transferred except under
prescribed conditions. This created a liberty interest that entitled the
prisoner to the benefits and appropriate procedures in connection with
determining the conditions that warranted his transfer to a mental hospital.
o
Second, Court
held that transfer of a prisoner from a prison to a mental hospital required
procedural protection because the prisoner “residuum of liberty would be
infringed by transfer to a mental hospital.
?
Stigma of
commitment to a mental hospital
?
Possibility of
compelled drug and behavior modification treatment
?
Lesser freedom
permitted mental patients
§
Greenholtz
v. Inmates (1979)
o
No
constitutional liberty interest is involved in a DENIAL of parole.
o
In dicta, the
Court suggested that REVOCATION of parole implicated a constitutional liberty
interest.
o
Court said
that loss of a benefit already conferred is of greater moment than the refusal
to exercise discretion to confer the benefit.
§
Wilkinson
v. Austin (2005)
o
Prisoners
challenged the procedures by which prisoners are assigned to supermax prison
facilities.
o
Court held
that the prisoners had a liberty interest at stake. Court had previously held
that a prison inmates liberty interest is implicated when a state imposes
atypical and significant hardship on the inmate in relation to the ordinary
incidents of prison life. Assignment to the supermax prison was held to impose
such an atypical and significant hardship under any plausible baseline.
D)
Determining What Process is Due
1)
Minimum
Requirement
§
Before a
person is deprived of life, liberty, or property he must be given “notice of the
case against him and opportunity to meet it.” (Joint Anti-Fascist Refugee
Commission v. McGrath (1951) – Justice Frankfurter, concurring).
§
If the
government is NOT depriving a person of life, liberty, or property then it can
use any procedure it wants even if the procedure is arbitrary and capricious.
2)
Goss v.
Lopez (1975)
§
Court held
that an informal conversation between a public school administrator and a
student PRIOR to the student’s suspension from school for ten days was enough to
satisfy due process as long as the conversation included the charges, a summary
of the evidence supporting the charges, and a chance for the student to tell his
or her version of the events.
§
IMPORTANCE:
The process due depends on the situation or circumstances.
3)
Mathews
v. Eldridge (1976)
§
FACTS
o
Eldridge
received disability benefits for chronic anxiety and back strain.
o
The agency
tentantively concluded that Eldridge’s disability had ceased and informed
Eldridge of this decision and reasons for it and invited him to provide a
written response and provide new evidence.
o
Eldridge
responded, but the government terminated his benefits anyway.
o
Eldridge was
entitled to seek a post-termination hearing to contest the termination of
benefits and to recover retroactive benefits if the termination was found to be
in error.
o
Eldridge
claimed that the PRE-termination procedures did not satisfy due process.
§
ANALYSIS
o
Due process is
not a technical conception with a fixed content unrelated to time, place, and
circumstances. Due process is flexible and calls for such procedural
protections as the particular situation demands.
o
Resolution of
the issue of whether the procedures here are sufficient requires analysis of the
governmental and private interests that are affected.
o
Court looks at
THREE FACTORS in a “Balancing Test” –
?
(1) The
private interest that will be affected by the official action
?
(2) The risk
of an erroneous deprivation of such interest through the procedures used and the
probable value, if any of additional or substitute procedural safeguards. Also
the length of the wrongful deprivation.
?
(3) The
Governmental interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute procedural requirements
would entail.
o
Court says
that because the recipient whose benefits are terminated is awarded full
retroactive relief if he ultimately prevails, his sole interest is in
uninterrupted receipt of the benefits.
o
Factor 1 –
Private Interest
In Goldberg v. Kelly,
the Court held that due process requires an evidentiary hearing PRIOR to a
temporary deprivation. The Court here distinguishes Golberg’s welfare benefits
from Eldridge’s disability benefits. Welfare assistance is given to those on
the very margin of subsistence, whereas disability benefits are not based on
financial need and do not take into account income from other possible sources.
Potential deprivation here is LESS than that in Goldberg.
o
Factor 2 –
Existing Procedures
Here, a medical assessment
of the worker’s physical or mental condition is required, which is more
objective and easily documented than determination of welfare entitlement. The
decision will usually turn upon routine, standard, unbiased medical reports by
physical specialists concerning a person whom they have personally examined.
The risk of error is therefore low, and the potential value of an evidentiary
hearing prior to termination is less than in Goldberg. Also, the
recipient has full access to all of the information relied upon by the
government in making the determination and has an opportunity to provide
additional evidence. This is an additional safeguard.
o
Factor 3 –
Governmental Interest
This includes the
administrative burden and other societal costs associated with requiring a
PRE-deprivation hearing in all cases prior to termination of benefits. The
extra cost would be a huge burden, but financial cost alone is NOT controlling.
Government interest in conserving scarce fiscal and administrative resources is
important. At some point the benefit of an additional safeguard to the
individual affected and to society may be outweighed by the cost.
§
HOLDING
An evidentiary hearing is
NOT required PRIOR to termination of disability benefits and that the present
administrative procedures fully comport with due process.
§
DENNING SAYS
The court announces factors,
but then the Court arbitrarily assigns weight to each factor, throws each in and
reaches a conclusion. The Court does not give us a way to determine the weight
to be assigned to each factor. Denning says the Court is wary of raising the
costs of offering the benefits for fear that the government will just stop
offering the benefits altogether.
4)
Pre- v. Post- Deprivation Hearing
§
General Rule –
Due process generally requires the government to provide notice and opportunity
to be heard BEFORE depriving someone of property or liberty, BUT sometimes due
process is satisfied by a post-deprivation hearing or other remedy. Two
situations are listed below in which post-deprivations remedies are
sufficient.
§
POST-deprivation remedies are sufficient to prevent immediate public harm.
In this case no pre-deprivation hearing is required.
o
North
American Cold Storage Co. v. Chicago (1908)
No prior hearing needed
before the government destroyed tainted food because the food was an immediate
danger to public health and a later tort suit provided an adequate remedy.
o
Mackey v.
Montrym (1979)
Court upheld the suspension
without a hearing of a driver’s license of a motorist refusing to submit to
tests for intoxication when arresting officers suspected he was drunk. Imminent
threat to public safety coupled with the prospect of a timely post-deprivation
hearing were sufficient to satisfy due process.
§
POST-deprivation remedies are sufficient when the liberty or property
interest at stake is relatively minor AND either the risk of an erroneous
deprivation is low OR it is impractical to provide pre-deprivation hearings.
o
Ingraham v.
Wright (1977)
Pre-deprivation hearing NOT
necessary before schools could administer corporal punishment (corporal
punishment implicated a liberty interest) because due process was satisfied by
the availability of a post-spanking righ tot bring suit for damages for
excessive, unjustified infliction of physical harm.
o
Parratt v.
Taylor (1981)
Due process is satisfied by
the availability of tort remedies for the negligent destruction of a prisoner’s
property. No PRE-deprivation hearing required.
o
Hudson v.
Palmer (1984)
No PRE-deprivation hearing
required before the intentional destruction of prisoner’s property because of
availability of tort remedies.
o
Daniels v.
Williams (1986) & Davidson v. Cannon (1986)
Even when NO
POST-deprivation tort remedy was available to recover damages caused by
negligence of governmental officials, due process was NOT offended. When a
government official is merely negligent, no procedure for compensation is
constitutionally required. Due process is NOT a guarantee of due care by
government officials.
5)
Connecticut
Department of Public Safety v. Doe (2003)
§
Connecticut
law required convicted sex offenders to register and disclose publicly their
whereabouts after release from custody. Court UPHELD the law.
§
Due process
does NOT require a hearing prior to registration and disclosure because those
obligations were imposed as a result of conviction, and the criminal trial
resulting in conviction afforded ample due process process protection. Court
did NOT address whether there was a SUBSTANTIVE due process violation.
6)
Hamdi v.
Rumsfeld (2004)
§
American
citizen alleged to be an enemy combatant and held as a prisoner by the
government was entitled to challenge his status as an enemy combatant.
§
Due process
requires that the citizen receive notice of the factual basis for his
classification and a fair opportunity to rebut the government’s factual
assertions before a neutral decisionmaker.
III
Substantive Due Process
A)
Generally
Some liberties NOT mentioned
in the Constitution but identified by the Court are considered so fundamental to
the idea of liberty that their invasion by government is presumed to be void and
can be sustained only if the government justifies the invasion.
1)
Calder v.
Bull (1798)
§
Shows that
from the beginning of American constitutional law there has been a doctrinal
voice that insists that there are unwritten individual rights that should be
judicially protected against government invasion.
2)
Fletcher v.
Peck (1810)
§
Court embraced
judicially enforceable unwritten limits on governmental action.
§
Court ruled
that Georgia could not repeal its conveyance of the “Yazoo” lands even though
the original grant had been obtained through bribery. The repeal was invalid
because it was inconsistent with “certain great principles of justice, whose
authority is universally acknowledged” but that are not embedded in
constitutional text.
§
Court relied
on natural reason and principle.
B)
Denning Says to Look for these in each Substantive Due Process Case:
1)
The justification for the judicial role in choosing certain interests and
designating them as “fundamental.” What gives the Court this right? Should
they have this right?
2)
Source of the “fundamental” rights which are not listed in the
Constitution.
3)
Criteria for “fundamental-ness” – Where do these criteria come from?
4)
Scope of the right – Is it expansive or narrow? How does it change over
time from narrow to expansive?
§
High level of
abstraction – “personal autonomy”? Problem is that lots of laws impinge this,
such as drug use.
§
Narrow way?
Like Bowers “right to engage in homosexual sodomy”? This is too narrow.
5)
Standard of Review – Deference? Strict Scrutiny?
§
What does the
Court SAY it is using?
§
What does the
Court ACTUALLY use?
6)
Double Standard – In some cases, the Court requires the government to
prove a lot less for an enumerated right than it does for certain UNenumerated
rights.
C)
Incorporation Doctrine
The doctrine by which most
of the substantive guarantees of the Bill of Rights have been “incorporated”
into the Fourteenth Amendment’s due process clause and thus made applicable to
the states.
1)
Barron
v. Baltimore (1833)
Unanimous decision
§
FACTS
City of Baltimore diverted
several streams during a construction project making it impossible for vessels
to use the wharf. Barron sued the city claiming that the city had taken his
property for public use without just compensation in violation of the Fifth
Amendment. Barron claimed that because the takings clause is in favor of the
liberty of the citizen, it ought to be so construed as to restrain the
legislative power of the state as well as that of the federal government.
§
HELD
The Fifth Amendment does NOT
apply to the states.
§
ANALYSIS
o
The
Constitution created the federal government, therefore the limitation on
government power listed in the Constitution apply to the federal government only
(because it was the government created by the Constitution).
o
The states
have created their own Constitutions. If they want to restrain state
governmental action, they should do so in their own state Constitutions.
o
Article I, §
10 applies specifically to the states by its language. The framers drew a
distinction between states and federal government, therefore other provisions
NOT specifically addressed to the states do NOT apply to the states.
o
If the framers
wanted the amendments to apply to the states, they would have explicitly stated
such as they did in Article I, § 10.
2)
Slaughter-House Cases (1873)
§
FACTS
Louisiana chartered a
slaughter-house company and gave it a monopoly over livestock slaughtering in
and around New Orleans. Other butchers were required to close and were given
the right to slaughter animals at the company’s facilities upon payment of fees
fixed by statute. Butchers challenged the validity of the law contending that
the law deprived them of their right to exercise their trade in violation of the
Fourteenth Amendment’s due process, equal protection, and privileges and
immunities clauses.
§
HELD
Court upheld the law because
the butchers were claiming a violation of privileges of state citizenship and
the P or I clause applies only to protect rights of federal citizenship. State
was exercising its police power so the law is valid.
§
ANALYSIS
o
Due Process
Clause is not applicable because there is no deprivation of property.
o
Equal
Protection Clause is not applicable because it ONLY applies to race because that
was its purpose.
o
There was a
unity of purpose in the 13th, 14th and 15th
Amendments to protect former slaves.
o
Privileges or
Immunities Clause of the 14th Amendment
?
There is a
distinction between citizenship of a state and citizenship of the United States
and each depend upon different characteristics or circumstances in the
individual. This distinction is made in Clause 1 of the 14th
Amendment.
?
The Privileges
or Immunities Clause says “No state shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the
United States.”
This clause therefore protects ONLY privileges or immunities of federal
citizenship, NOT state citizenship.
?
The privileges
that the butchers claim are privileges of STATE citizenship, so their claim
under the P or I clause must fail.
?
Rights of
federal citizenship must owe their existence to the federal government, its
national character, its Constitution, or its laws. Examples: right to come to
the seat of government to assert any claim against the government, transact
business with the government, seek its protection, share its offices, engage in
administering its functions; free access to seaports, access to land offices,
access to courts of justices, ETC. SEE LIST on page 452 of text.
?
Basically the
Court says that the state was exercising its police powers so the law is valid.
3)
Rights of Federal Citizenship
§
The right of
interstate travel or migration is a right incident to federal citizenship. See
also the list on page 452 of the text.
§
Saenz v.
Roe (1999)
Court held that there are
three components of the “right to travel,” and only one component is protected
by the P or I clause of the 14th Amendment. The P or I Clause
protects the right of the newly arrived citizen to the same privileges and
immunities enjoyed by other citizens of the same state. That right is protected
not only by the new arrival’s status as a state citizen, but also by her status
as a citizen of the United States.
4)
Twining v.
New Jersey (1908)
§
The Court
admitted that it was possible that some of the rights safeguarded by the BOR
from federal action may also be safeguarded against state action because a
denial of them would be a violation of due process of law. However, the Court
said that the reason for this was NOT because the rights were enumerated in the
Constitution, but because they are of such nature that they are included in the
conception of due process of law. Only rights that constitute a fundamental
principle of liberty and justice which inheres in the very idea of free
government and is the inalienable right of a citizen of such a government are
included in this concept.
§
Privilege
against self-incrimination was not one of these fundamental rights.
5)
Selective v. Total Incorporation
§
Selective
Incorporation
o
Selective
incorporation has ALWAYS commanded a majority of the Court
o
Palko v.
Connecticut (1937)
?
Court stated
that the 14th Amendment’s due process clause incorporated ONLY those
parts of the Bill of Rights that are “the very essence of a scheme of ordered
liberty,” things so rooted in the traditions and conscience of our people as to
be ranked as fundamental, or rights such that neither liberty nor justice would
exist if they were sacrificed.
?
Freedom of
speech was such a fundamental right, but protection against double jeopardy was
not. This was later overturned in
Benton v. Maryland (1969)
which held that the protection against double jeopardy was so fundamental that
it must be incorporated into due process.
§
Total
Incorporation
o
Black’s
Dissent in Adamson v. California (1947)
?
Black said
that Twining and the “natural law” theory of the Constitution degrade the
constitutional safeguards of the Bill of Rights and simultaneously appropriate
for this Court broad power which we are not authorized by the Constitution to
exercise.
?
One of the
chief objects of the 14th Amendment was to make the Bill of Rights
applicable to the states.
§
Current View
o
The only
provisions of the first 8 Amendments that have NOT been incorporated are:
?
2nd
Amendment
?
3rd
Amendment
?
Grand Jury
indictment clause of the 5th Amendment
?
7th
Amendment
o
“Jot for Jot”
Approach to Incorporation
?
The Court has
determined that the particular right incorporated into due process and made
applicable to the states applies to the states in precisely the same way it
would apply to the federal government.
?
Prior to this
decision, an incorporated right might have one consequence when applied to the
federal government, and another when applied to the states. Example: Treatment
of the exclusionary rule in Wolf v. Colorado (1949); Mapp v. Ohio
(1961) made the exclusionary rule uniform for both federal and state
courts.
?
Current
EXCEPTION to “jot for jot” approach – federal juries must reach unanimous
criminal verdicts, but state juries may convict by less than unanimity.
D)
Economic Substantive Due Process
1)
Pre-Lochner
Cases
§
Hepburn v.
Griswold (1870)
o
Court declared
that Congress could NOT make paper money legal tender. As an alternative
holding the Court reasoned that contracts were property and a requirement that
creditors accept paper money deprived them of property.
o
This decision
was overruled in The Legal Tender Cases (1870)
§
Munn v.
Illinois (1877)
o
Court upheld
against a due process challenge state regulation of grain storage rates.
o
Court held
that government could regulate private property when it is affected with a
public interest or used in a manner to make if of public consequence and affects
the community at large.
o
The Court
suggested that such regulations might be unreasonable and void when applied to
mere private contracts relating to matters in which the public has no interest.
§
Mugler v.
Kansas (1887)
o
Court upheld
state law prohibiting alcoholic beverages against a challenge by a brewer that
the law deprived him of his property without due process.
o
In dicta, the
Court observed that laws have no real or substantial relation to a state’s
legitimate police powers or which are palpable invasions of rights secured by
the fundamental law would be struck down.
§
Allgeyer v.
Louisiana (1897)
– “Liberty” includes “Right to Contract”
o
State law
required that insurance contracts covering Louisiana property must be made with
an insurer licensed to do business in Louisiana. Allgeyer purchased marine
insurance on his goods from an insurer not licensed to do business in
Louisiana.
o
Court struck
down the law as a violation of substantive due process.
o
Court held
that the term “liberty” in the due process clause embraces the right of the
citizen to be free in the enjoyment of al his faculties, to be free to use them
in all lawful ways, to live and work where he will, to earn his livelihood by
any lawful calling, to pursue any livelihood or avocation, and to enter into
all contracts which may be proper, necessary, and essential to his carrying out
to a successful conclusion the purposes above mentioned.
§
Santa Clara
County v. Southern Pacific Railroad (1886)
o
Court held
that corporations were persons for purposes of the 14th Amendment.
This meant that corporations could challenge the constitutional validity of
economic regulations.
§
Holden v.
Hardy (1898)
o
State law
limited the employment of workmen in all underground mines to 8 hours per day.
o
Law was upheld
as a valid exercise of the police powers of the state becaue the kind of
employment and the character of the employees were such to make it reasonable
and proper for the state to interfere to prevent the employees from being
constrained by the rules laid down by their bosses. (Unequal bargaining power
between employees and bosses)
2)
Lochner
v. New York (1905) –
“Liberty of Contract”
§
FACTS
New York law prohibited
bakery workers from working more than 10 hours per day or 60 hours per week.
§
HOLDING
Court struck down the law as
a violation of substantive due process because it interfered with “liberty of
contract.”
§
ANALYSIS
o
In Allgeyer
the Court said that the general right to make a contract in relation to his
business is part of the liberty of the individual protected by the Fourteenth
Amendment.
o
The Court says
that the right to purchase or sell labor is part of the liberty protected by the
14th amendment unless there are circumstances which exclude the right.
o
The Court
recognizes the existence of police powers of the state and says that the 14th
Amendment does NOT interfere with the police powers of the state.
o
The Court says
that there are limits to the valid exercise of the police power. The law here
does NOT involve the safety, morals, nor welfare of the PUBLIC, nor does it
involve the safety, morals, nor welfare of the INDIVIDUAL bakers affected by the
law.
o
The Court says
that the act must have a more direct relation, as a means to an end, and the end
itself must be appropriate and legitimate, before an act can be held to be valid
which interferes with the general right of an individual to be free in his
person and in his power to contract in relation to his own labor.
§
HARLAN’S
DISSENT
o
The Court
should NOT be concerned with the wisdom of the legislation.
o
The Court
should only look to determine whether the means used by the state are germane to
an end which may be lawfully accomplished and have a real or substantial
relation to the protection of the health of bakery workers.
o
Rational
relationship between end (safety of bakery workers) and means (limiting the work
week) is all that is needed and is found here. (Baking is very dangerous).
§
HOLMES’
DISSENT
o
It’s settled
law that states may regulate life in many ways that we might think are
tyrannical – Sunday laws and usury laws.
o
Law should be
upheld because a reasonable man might think it was a proper measure of
protection of the health of bakery workers.
§
DENNING SAYS
o
“Liberty of
contract” is NOT in the Constitution.
o
Where does the
Court find the source of this right?
§
WHAT’S WRONG
WITH LOCHNER?
o
Court makes
factual assumptions about the relative bargaining power of bakers versus miners
o
Court does not
explain the SOURCE of the “liberty of contract” right.
o
Court does not
explain the SCOPE of the “liberty of contract” right.
o
Court does not
address the fact that lots of other doctrines interfere with contract rights and
are constitutional. Examples: Statute of Frauds, Duress, Infancy, Incapacity
3)
Post-Lochner Cases
§
Adair v.
United States (1908)
o
Federal law
that prohibited interstate railroads from enforcing “yellow dog” contracts,
contracts that required employees to promise not to join a labor union.
o
This law was
considered a private benefit – a skewing of common law contractual freedom to
benefit one side of the bargaining process.
§
Muller v.
Oregon (1908)
o
Court upheld a
state law that limited women to no more than 10 hours of labor a day. Court
said that “liberty of contract” was not absolute.
o
Court cited
the “inherent difference between the two sexes.”
§
Bunting v.
Oregon (1917)
o
Court upheld a
state law that required overtime pay after 10 hours and barred anyone from
working more than 13 hours in a day.
o
Court didn’t
mention Lochner.
§
Adkins v.
Children’s Hospital (1923)
o
Court struck
down a law prescribing minimum wages for women. Court said that 19th
Amendment giving the women the right to vote was evidence that men and women
were now equal so that a minimum wage for swomen was arbitrary.
SHIFT OCCURS – At this
point, the Court widened the scope of legitimate government objectives and
employed a more deferential review to measure the connection between legislative
means and ends.
§
Nebbia v.
New York (1934)
o
New York fixed
the price for a quart of milk at 9 cents.
o
Court held
that the law was valid because the law was not arbitrary, unreasonable, or
capricious and the means selected had a real and substantial relationship to the
governmental objective.
o
A state is
free to adopt whatever economic policy may reasonably be deemed to promote
public welfare, and to enforce that policy by legislation adapted to its
purpose.
o
Court applied
Lochner in a more deferential fashion.
§
Sunshine
Coal Co. v. Adkins (1940)
o
Court upheld
price fixing of coal. Court says that price control is one of the means
available to protect and promote the welfare of the economy.
§
West Coast
Hotel Co. v. Parrish (1937)
o
Minimum wage
for women was upheld. Court overruled Adkins.
§
United
States v. Carolene Products (1938)
o
Federal law
prohibited the interstate shipment of “filled milk” because it led to
undernourishment.
o
Court upheld
the law against a due process challenge. Court said that the existence of facts
supporting legislative judgment is presumed. Regulatory legislation affecting
ordinary commercial transactions is constitutional unless the challenger proves
that there is no rational basis for the legislation.
4)
CURRENT
VIEW of Economic Substantive Due Process
§
Laws that
regulate commercial, economic, or business relations are upheld against due
process challenges so long as there is some conceivable basis to
conclude that the law bears a rational relationship to a constitutionally
permissible objective of the government AND economic regulation itself is a
legitimate government objective.
5)
DEATH of
Economic Substantive Due Process
§
Ferguson v.
Skrupa (1963)
o
Kansas made it
unlawful for anyone except lawyers to carry on the business of debt adjusting.
o
Court upheld
the law. Court said that there was a time when the Due Process Clause was used
by this Court to strike down laws which were thought unreasonable, unwise, or
incompatible with some particular economic or social philosophy.
o
Court said “Substantive
due process has long since been discarded.”
E)
Non-Economic Substantive Due Process
The Court uses the due
process clauses to protect an ill-defined cluster of non-economic personal
interests that the Court thinks are critical to human autonomy.
1)
Analysis
§
Burden is on
the challenger to prove that the right is fundamental.
§
If the claimed
right is a fundamental liberty, then the law will be subject to strict
scrutiny. The law is presumed void. Government must prove that the
infringement is necessary to achieve a compelling government objective and the
law is narrowly tailored to achieve this interest.
§
If the claimed
right is NOT a fundamental liberty, then the law will be subject to minimal
scrutiny. The law is presumed valid. Challenger must prove that the law is not
rationally related to a legitimate state interest.
2)
Privacy
§
Meyer v.
Nebraska (1923)
o
Meyer was
convicted of teaching German to children, which Nebraska had made a crime.
o
The Court
struck down the law holding that the substantive liberty protected by due
process included the right “to acquire useful knowledge, to marry, to establish
a home and bring up children, and generally to enjoy those privileges long
recognized at common law as essential to the orderly pursuit of happiness by
free men.”
o
The Court
suggested that it might have upheld the law if Nebraska had offered a convincing
justification for its necessity.
§
Pierce v.
Society of Sisters (1925)
o
Oregon law
required all children to attend public schools. Parochial and private schools
challenged the law as a denial of liberty without due process of law.
o
Unanimous
Court struck down the law, finding that Oregon had shown no justification for
its interference “with the liberty of parents and guardians to direct the
upbringing and education of children under its control.”
§
Skinner v.
Oklahoma (1942)
o
Decided under
the Equal Protection Clause.
o
Oklahoma
mandated sterilization of people convicted three times of felonies involving
moral turpitude (did not include white collar criminals, but did include three
time chicken thieves).
o
Court struck
down the law because sterilization of three-time chicken thieves but not
three-time embezzlers failed the strict scrutiny test.
o
Why strict
scrutiny? Court said the law “involves one of the basic civil rights of man.
Marriage and procreation are fundamental to the very existence and survival of
the race.” Application of the law would have “forever deprived [Skinner] of a
basic liberty.
o
DENNING SAYS –
Procreation is a fundamental right because Douglas says it is. No mention of
the source of the right and no criteria given for distinguishing which rights
are fundamental.
§
Griswold
v. Connecticut (1965)
o
FACTS
?
Connecticut
law made it a crime to use any drug, medicinal article, or instrument for the
purpose of preventing contraception. These articles could be used to disease
prevention, just not contraception. The law penalized any person who assists,
abets, counsels, causes, hires, or commands another to use a contraceptive
device.
?
Griswold gave
a MARRIED COUPLE information about contraceptive use and was found guilty and
fined.
o
HELD
The law is struck down. The
end is legitimate, but the means are unnecessarily broad.
o
ANALYSIS
?
Lochner
is not the guide. The Court is not a “super legislature” that determines the
wisdom, need, and propriety of laws that touch on economic problems, business
affairs, or social conditions.
?
Court looked
at Meyer and Pierce and NAACP v. Alabama as suggesting that
specific guarantees of the Bill of Rights have penumbras, formed by emanations
from those guarantees that help give them life and substance.
?
Court says
that various Bill of Rights guarantees create zones of privacy.
-
First (Freedom of Association)
-
Third (No quartering of soldiers in homes)
-
Fourth (Security against unreasonable search and seizure)
-
Fifth (self-incrimination – enables citizen to create a zone of privacy which
government may not force him to surrender)
-
Ninth (Enumeration of rights will not deny other rights retained by the people)
?
Court says
that this case concerns a relationship lying within the zone of privacy
created by several fundamental constitutional guarantees AND it concerns
the use of contraceptives rather than regulating their manufacture or
sale, which would have a maximum destructive impact upon the relationship.
?
Basically the
Court says that the means are OK, but the means (the law) is unnecessarily
BROAD. “Would we allow the police to search the sacred precincts of marital
bedrooms for telltale signs of the use of contraceptives? The very idea is
repulsive to the notions of privacy surrounding the marriage
relationship.
o
GOLDBERG
CONCURRING
?
Due Process
protects “fundamental rights” and is NOT confined to the Bill of Rights.
?
How to tell
which rights are fundamental?
-
“traditions and collective conscience of our people” to determine whether a
principle is so rooted there as to be ranked as fundamental”
-
is the right of such character that it cannot be denied without violating those
fundamental principles of liberty and justice which lie at the base of all our
civil and political institutions.
o
HARLAN
CONCURRING
?
Due Process
does NOT have to involve a violation of the Bill of Rights. Due Process
protects basic values “implicit in the concept of ordered liberty.”
o
WHITE
CONCURRING
?
Meyer, Pierce,
and Skinner affirm that there is a “realm of family lie which the state cannot
enter” without substantial justification.
?
Goal of
preventing promiscuous or illicit sexual relationships is a permissible and
legitimate legislative goal, but the law does NOT reinforce this goal.
o
BLACK
DISSENTING
?
Government has
a right to invade privacy unless it is prohibited by a specific constitutional
provision. Court shouldn’t use Due Process Clause to invalidate laws which the
Court finds irrational, unreasonable, or offensive. Court shouldn’t rely on
“natural justice.”
o
STEWART
DISSENTING
?
Nothing in the
Bill of Rights invalidates this law. It is not the function of the Court to
decide on the basis of “community standards.”
o
DENNING SAYS
?
Source of
Right – “Penumbras” of the specific Bill of Rights guarantees. Basically the
Court doesn’t want to be seen as engaging in “Lochnerism” (natural law) so the
Court looks to “penumbras.”
?
Scope of the
Right – Court seems to restrict itself to the marriage relationship. Lots of
language concerning marital bedrooms, etc. Although privacy was a concern, the
court seemed to have in mind “MARITAL” privacy, NOT privacy in general.
§
Eisenstadt
v. Baird (1973)
o
Massachusetts
enacted a law banning the distribution of contraceptives to UNMARRIED people.
o
Court struck
down the law on Equal Protection grounds. Court held that the law was not
rationally related to the legitimate government objective of deterring
pre-marital sexual intercourse because it would be unreasonable to assume that
Massachusetts has prescribed pregnancy and the birth of an unwanted child as
punishment for fornication.
o
Prohibition on
contraception was NOT a legitimate state objective.
o
Court said
that if under Griswold the distribution of contraceptives to married
persons cannot be prohibited, a ban on distribution to unmarried person would be
equally impermissible. In Griswold the right of privacy in question
inhered in the marital relationship. Yet the marital couple is not an
independent entity with a mind and heart of its own, but an association of two
individuals each with a separate intellectual and emotional makeup. If the
right to privacy means anything, it is the right of the individual,
married or single, to be free from unwanted governmental intrusion into matters
so fundamentally affecting a person as the decision whether to bear or beget a
child.
o
DENNING SAYS –
Is the Court stretching Griswold too far? Griswold Court thought
that they were protecting rights of married persons.
3)
Abortion
§
Roe v.
Wade (1973)
o
FACTS
?
Texas made it
a crime to get an abortion except to protect to the life of the mother.
o
HOLDING
?
First
Trimester (0-3 mths) – No state regulation is allowed.
?
Second
Trimester (4-6 mths) – States can regulate abortion PROCEDURES to
protect the HEALTH of the mother.
?
VIABILITY
?
Third
Trimester (7-9 mths) – State can regulate however it wants including a total ban
as long as there are exceptions to protect the LIFE of the mother.
o
ANALYSIS
?
Standard of
Review – Strict Scrutiny
(1) Government must prove a compelling government interest
(2) Government must prove that the law is narrowly tailored to meet that
interest
?
Right to
Privacy, includes right to an abortion, as a fundamental right.
?
Person in the
14th Amendment does NOT include the unborn.
?
No real source
given for the right. Denning says the Court just throws everything in and sees
what sticks.
?
Court says
that prior decision suggest that some state regulation in areas protected by the
right to privacy are appropriate.
?
State’s
interest in the HEALTH of the mother become compelling, in light of present
medical knowledge at approximately the end of the first trimester because until
the end of the first trimester mortality in abortion may be less than mortality
in normal childbirth.
?
State’s
interest in the POTENTIAL LIFE OF THE UNBORN becomes compelling at viability
because the fetus then has the capability of meaningful life outside of the
mother’s womb.
o
STEWART
CONCURRING
?
Eisenstadt
recognized the right of the individual to be free from unwarranted governmental
intrusion into matters so fundamentally affecting a person as the decision
whether to bear or beget a child. That right necessarily includes the right of
a woman to decide whether to terminate her pregnancy.
o
WHITE
DISSENTING
?
The Court
simply fashions and announces a new constitutional right. The judgment is an
improvident and extravagant exercise of the power of judicial review.
o
REHNQUIST
DISSENTING
?
Privacy is not
really involved in this case. The performance of an abortion is not private.
?
The test
traditionally applied is whether or not such law has a rational relation to a
valid state objective. The Court’s sweeping invalidation of restrictions on
abortion during the first trimester is impossible to justify under rational
basis standard.
§
Planned
Parenthood v. Danforth (1976)
o
Court struck
down a law requiring a married woman seeking an abortion to provide written
consent of her husband, except where abortion was necessary to “preserve the
life of the mother.”
§
Planned
Parenthood v. Ashcroft (1983)
o
Court upheld a
parental consent requirement that included an adequate judicial bypass.
§
Akron v.
Akron Center for Reproductive Health (1983)
o
Court struck
down law that required all abortions after the first trimester to be performed
in hospitals. This was not reasonably designed to further the state interest in
health regulation because medical evidence showed that out-patient abortions
could be safely perfomed.
§
Maher v.
Roe (1977)
o
Equal
Protection Challenge
o
Court upheld
law that provided Medicaid benefits for childbirth but denied them for medically
unnecessary abortions. Court said that Roe did not declare an unqualified
constitutional right to an abortion, rather the right protects the woman from
unduly burdensome interference with her freedom to decide whether to terminate
her pregnancy. It implies no limitation on the authority of the state to make a
value judgment favoring childbirth over abortion and to implement that judgment
by the allocation of public funds.
§
Harris v.
McRae (1980)
o
Court upheld
“Hyde Amendment” which barred the use of federal Medicaid funds for abortions
except when the pregnancy resulted from rape or incest or when necessary to save
the life of the pregnant woman.
o
Upheld in a 5
to 4 vote.
§
Webster v.
Reproductive Health Services (1989)
o
Court upheld
law prohibiting the use of public employees and facilities to perform or assist
abortions not necessary to save the mother’s life.
o
Court said
result might be different if the state had socialized medicine so that all
hospitals and physicians were publicly funded or if the state barred a physician
from a public hospital because he performed an abortion privately.
§
Rust v.
Sullivan (1991)
o
Court upheld
law that conditioned receipt of federal funds for family planning services on
the recipient’s compliance with three provisions:
?
No counseling
concerning the use of abortion as a method of family planning
?
Could not
provide referral for abortion as a method of family planning
?
Could not
encourage, promote, or advocate abortion as a method of family planning
§
Planned
Parenthood of Southeastern Pennsylvania v. Casey (1992)
o
Pennsylvania
Abortion Control Act requires:
?
Informed
Consent
?
24 hour
waiting period
?
Parental
consent with Judicial bypass
?
Certification
of Spousal Notification
?
Reporting
Requirements for Clinics
o
Plurality
Opinion – majority agreed as to the result, but not the reasoning. Court said
that it affirmed Roe v. Wade.
o
Court rejects
the trimester framework and replaced it with the “UNDUE BURDEN” standard.
?
PRIOR TO
VIABILITY – state can only regulate if the regulations does NOT place an undue
burden on the woman seeking an abortion
?
AFTER
VIABILITY – state can prohibit abortion with exceptions for the life and health
of the mother.
o
“Undue Burden”
– Regulation with the purpose OR effect of placing a “substantial obstacle” in
the path of a woman seeking an abortion. Court says that NOT ALL BURDENS ARE
UNDUE BURDENS.
o
DENNING SAYS –
After Casey, is abortion a fundamental right? If fundamental rights are
associated with strict scrutiny, then maybe in Casey abortion is NOT a
fundamental right because the Court does NOT employ strict scrutiny.
§
Stenberg v.
Carhart (2000)
o
Court struck
down a law outlawing partial-birth abortions because the law was an “undue
burden” on a woman’s right to terminate her pregnancy prior to viability.
o
The law was
too broad in that it prohibited both “dilation and extraction” and “dilation and
evacuation.” ALSO, there was no exception for cases in which this type of
abortion would be necessary to preserve the HEALTH of the pregnant woman.
4)
Right to
Die
§
Cruzan
v. Director, Missouri Department of Health (1990)
o
FACTS
?
Missouri law
required “clear and convincing” evidence that an individual had expressed a
desire (when competent) to refuse life-sustaining measures when in her present
condition BEFORE it would allow the care givers to remove life-sustaining
treatment.
?
Parents of
Nancy Cruzan claimed that forced administration of food and water invaded
Cruzan’s liberty interest under the due process clause to refuse unwanted
medical treatment.
o
HELD
?
Court upheld
the law. The Constitution does NOT prohibit establishment of Missouri’s
procedural safeguard.
o
ANALYSIS
?
Court said
“for purposes of this case, we assume that the United States Constitution would
grant a competent person a constitutionally protected right to refuse
life-saving hydration and nutrition.” A competent person has a liberty interest
in refusing treatment. This can be inferred from previous decisions and the
common law doctrine of informed consent and battery.
?
Missouri’s
interest – Protection and preservation of human life. The Court says Missouri
may legitimately seek to safeguard the personal element of this choice through
the imposition of heightened evidentiary requirements.
?
BALANCING TEST
– The Court weighs the state’s interest in the protection of human life against
the constitutionally protected interests of the individual. Because of the
finality of the decision, the state may permissibly place an increased risk of
an erroneous decision on those seeking to terminate an incompetent individual’s
life-sustaining treatment. An erroneous decision not to terminate results in
maintenance of status quo, whereas an erroneous decision to withdraw
life-sustaining treatment is not susceptible of correction.
o
O’CONNOR
CONCURRING
?
Court does NOT
decide whether the state must give effect to decisions of a surrogate which the
patient has appointed to make decisions about such matters. The decision does
NOT preclude a future determination that the Constitution requires states to
implement the decisions of a patient’s duly appointed surrogate.
?
The liberty
guaranteed by due process must protect, if it protects anything, an individual’s
deeply personal decision to reject medical treatment, including the artificial
delivery of food and water.
o
SCALIA
CONCURRING
?
Scalia would
have preferred that the federal courts have NO business in this field because
the answer is not in the Constitution.
?
No substantive
due process claim can be maintained unless the claimant demonstrates that the
State has deprived him of a right historically and traditionally protected
against state interference which cannot be established here.
o
BRENNAN
DISSENTING
?
If a competent
person has this interest, then so does an incompetent person.
?
State’s only
interest is in making an accurate determination of the incompetent’s wishes.
State can exclude anyone with improper motives from making the decision, but a
state must either repose the choice with the person whom the patient himself
would most likely have chose as proxy or leave the decision with the patient’s
family.
o
STEVENS
DISSENTING
?
Court should
look to the best interests of the incompetent person, not any general state
policy that simply ignores those interests.
§
Washington v. Glucksberg (1997)
o
FACTS
?
Washington law
makes it a felony to knowingly cause or aid another person to attempt suicide.
Withholding or withdrawing life-sustaining treatment is NOT considered suicide.
?
Plaintiffs
claim the right to control the time and manner of death – claim to “integrity.”
?
Plaintiffs
rely on Cruzan – if there is a right to refuse treatment even though it hastens
death, which stems from right to bodily integrity, then it makes sense to extend
that right to suicide
o
HELD
Law is valid. No
fundamental right involved.
o
ANALYSIS
?
Court says
that refusing treatment and committing suicide are different. The law has
always prohibited suicide and assisting suicide. The law has also always
recognized the need for informed consent to prevent liability for battery.
Historically the law has treated the two things differently.
?
There is no
fundamental right involved so the Court uses the rational basis test.
?
All of
Washington’s interests are legitimate (protecting human life, integrity of
medical profession, protecting vulnerable groups, preventing euthanasia).
o
O’CONNOR
CONCURRING
?
There is no
generalized right to commit suicide. State’s interests justify the
prohibition.
?
A patient who
is suffering from a terminal illness and who is experiencing great pain has no
legal barriers to obtaining medication from qualified physicians, to alleviate
that suffering, even to the point of causing unconsciousness and hastening
death.
o
STEVENS
CONCURRING
?
Cruzan makes
it clear that some individuals who no longer have the option of deciding whether
to live or die because they are already on the threshold of death have a
constitutionally protected interest that may outweigh the state’s interest in
preserving life at all costs.
?
I do not
foreclose the possibility that an individual plaintiff seeking to hasten her
death, or a doctor whose assistance was sought could prevail in a more
particularized challenge.
o
SOUTER
CONCURRING
?
Sources of
Fundamental Rights:
(1) those expressed in the constitutional text OR
(2) those exemplified by the traditions from which the nation developed OR
(3) those revealed by contrast to those traditions from which it broke
o
BREYER
CONCURRING
?
It would be a
totally different case if a desire to avoid pain at the end of life were at
issue.
§
Vacco v.
Quill (1997)
o
Companion case
to Glucksberg
o
Court rejected
an equal protection challenge to the assisted suicide ban while permitting
patients to refuse lifesaving medical treatment.
o
Court said
that the laws did NOT treat people differently – everyone can refuse treatment
and no one can assist a suicide.
§
Gonzalez v.
Oregon (2006)
o
Oregon’s Death
With Dignity Act bars liability for physicians who dispense or prescribe a
lethal dose of drugs upon the request of a terminally ill patient.
o
US Attorney
General issued a ruling (with the force of law) declaring that the use,
dispensation, or prescription of controlled substances to assist suicide is not
a legitimate medical practice and was unlawful under the Controlled Substances
Act.
o
Court held
that the AG lacked the statutory authority to issue such a ruling. NO
constitutional issues were decided.
5)
Sexual
Choices
§
Bowers v.
Hardwick (1986)
o
Court upheld
the validity of Georgia’s criminal sodomy law which provided that a person
commits the offense of sodomy when he performs or submits to any sexual act
involving the sex organs of one person and the mouth or anus of another.
o
Court
concluded that no fundamental liberty interest was involved and applied minimal
scrutiny. Court upheld law because it was rationally related to the legitimate
interest of declaring homosexual sodomy to be “immoral and unacceptable.”
o
Justice White
says no fundamental right to engage in homosexual sodomy because the right is
not deeply rooted in this nation’s history or tradition or implicit in the
concept of ordered liberty.
o
BLACKMUN
DISSENT – Right to privacy has both decisional and spatial aspects. This case
implicates both. Sexual intimacy is a sensitive key relationship of human
existence, central to family life, community welfare, and the development of
human personality. The right to conduct intimate relationships in the intimacy
of one’s own home seems to me to be at the heart of the Constitution’s
protection of privacy.
o
STEVENS
DISSENT – State has the burden of justifying selective application of its laws.
A policy of selective application must be supported by a neutral and legitimate
interest – something more substantial than habitual dislike for or ignorance
about the disfavored group.
§
Lawrence
v. Texas (2003)
o
FACTS
?
Texas law made
it a crime to engage in deviate sexual intercourse with an individual of the
same sex.
o
HELD
Court overrules Bowers and
declares the law unconstitutional.
o
ANALYSIS
?
Not a
fundamental right.
?
Standard of
Review – Rational Basis.
?
No legitimate
state interest. State claims an interest in protecting the majoritarian moral
sentiment.
?
Problem – lots
of laws are based on morality as a legitimate interest. What about those?
o
O’CONNOR
CONCURRING
?
Statute is
unconstitutional under the Equal Protection Clause.
o
SCALIA
DISSENTING
?
Court says no
fundamental right and doesn’t apply strict scrutiny, but still finds it
unconstitutional is an “unheard-of form of rational-basis review.”
?
Countless
judicial decisions have relied on the ancient proposition that a governing
majority’s belief that certain sexual behavior is immoral and unacceptable
constitutes a rational basis for regulation. State laws against bigamy, same
sex marriage, adult incest, prostitution, masturbation, adultery, fornication,
bestiality, and obscenity are only sustainable as based on moral choices.
o
THOMAS
DISSENTING
?
No general
right to privacy in the Constitution or Bill of rights so law is NOT
unconstitutional.
o
DENNING SAYS
?
Court did NOT
declare a fundamental right, just a liberty interest so rational basis is used.
?
This is a much
different type of rational basis than in Skrupa.
?
Court says
that basing law on moral disapproval is not a legitimate interest in this case.
Problem is that lots of laws are based on morality – animal cruelty laws.
?
What was going
on here?
(1) Texas was an outlier, only one of four states outlying sodomy so it was easy
to strike it down.
(2) Issue of gay marriage looming so the Court was hesitant to declare a
fundamental right.
(3) So Court just says “liberty interest” and no legitimate interest of the
state, morality isn’t sufficient. Basically the Court fudged the standard of
review.
§
United
States v. Extreme Associates (3d Circuit 2005)
o
District judge
relied on Lawrence to dismiss an indictment for criminal distribution of
obscenity.
o
Judge said
that after
Lawrence the
government can no longer rely on the advancement of a moral code as a legitimate
state interest.
o
Third Circuit
Reversed reasoning that the Supreme Court had implicitly rejected privacy claims
to immunize the distribution of obscenity and it was for the Supreme Court to
decide if Lawrence has striped the government of any legitimate interest
in imposing criminal prohibitions upon distribution of obscenity.
EQUAL PROTECTION
I
Generally
A)
14th
Amendment’s Equal Protection & 5th Amendment’s Due Process
1)
Fourteenth Amendment provides that no state may “deny to any person
within its jurisdiction the equal protection of the laws.
2)
In Bolling v. Sharpe (1954) the Court concluded that the Due
Process Clause of the 5th Amendment obligated the federal government
to provide equal protection also.
3)
In Buckley v. Valeo (1976) the Court held that equal protection
analysis in the 5th Amendment area is the same as under the 14th
Amendment.
B)
Purpose
Original purpose of the
Equal Protection Clause (EPC) was to protect African Americans from government
racial discrimination.
C)
Application
The Equal Protection Clause
applies to governments, not private actions. Only states have to provide equal
protection of the laws. It applies to states under the 14th
Amendment, and Bolling v. Sharpe applied it to the federal government.
II
Levels of Judicial Scrutiny
A)
Carolene
Products Footnote 4 – Justice Harlan Fiske Stone
Laws generally are presumed
to be constitutional, but in the following situations, the legislative
classifications might be subject to heightened scrutiny:
1)
Classifications that are in facial conflict with the specific rights
guaranteed by the Constitution
2)
Classifications that inhibit the democratic process (voting)
3)
Classifications based on race, religion, or membership in any
other“discrete and insular minority”
B)
Minimal
Scrutiny (Rational Basis) – Default Level of Review
1)
Default level of review.
2)
Legislative classification must be rationally related to a legitimate
government objective.
3)
Classification is presumed valid.
4)
Plaintiff challenging the validity of the classification must prove
EITHER:
§
The
classification is NOT rationally related to a legitimate state
objective OR
§
No matter how
well the classification serves the objective, the objective itself is
illegitimate
C)
Strict
Scrutiny – Race & Ethnicity
1)
Classification is presumptively void because it employs a suspect
classification or impinges substantially on a constitutionally fundamental
right.
2)
Government MUST prove:
§
Compelling
government objective or interest
§
The
classification is “necessary” or “narrowly tailored” to accomplish that
objective
D)
Intermediate Scrutiny – Sex & Illegitimate Birth
1)
Involves “quasi-suspect” classifications and these classifications are
presumptively void
2)
Government MUST prove:
§
Important
governmental interest
§
Classification
is “substantially related” to the accomplishment of that interest (more
than compelling but less than
III
Minimal Scrutiny
A)
Railway
Express Agency, Inc. v. New York
(1949)
1)
FACTS
§
New York City
law provided that ads on vehicles were not allowed unless vehicles are engaged
in the regular work of the owner and are NOT used merely or mainly for
adverting.
§
Basically,
businesses could advertise on their own cars, but advertising on cars for hire
was prohibited.
§
City claims an
interest in safety. Ads on cars are distracting for other drivers.
§
There was no
evidence that advertising for hire was more of a problem than other
advertising.
§
Plaintiff is
engaged in a nation-wide express business and sells the space on the sides of
its trucks for advertising. The advertising was unconnected with its own
business. Plaintiff was convicted under the law.
§
Plaintiff
claims that the MEANS are bad.
2)
HELD
Law is valid. No violation
of the Equal Protection Clause.
3)
ANALYSIS
§
Plaintiffs
claim that the classification the regulation makes has NO RELATION to the
traffic problem because a violation of the law turns not on what kind of
advertisements are carried on trucks, but on whose trucks they are carried.
§
Court says
that the classification has a relation to the purpose of traffic safety and does
not contain the kind of discrimination against which the Equal Protection Clause
affords protection.
§
Court says
the fact that the city sees fit to eliminate only part of the problem but does
not eliminate other sources of the problem (billboards, etc) is IMMATERIAL.
It is NOT a requirement of equal protection that all evils of the same genus be
eradicated or none at all.
4)
JACKSON CONCURRING
§
The beginning
of the concurrence sounds like a dissent.
§
Then Jackson
says that the difference between carrying on any business for hire and engaging
in the same activity on one’s own is a sufficient one to sustain some types of
regulations that apply to one and not to the other. He says that the hireling
may be put in a class by himself and may be dealt with differently than those
who act on their own because there is a real difference between doing in
self-interest and doing for hire.
5)
DENNING SAYS
§
Court says
that the end (object) is legitimate – traffic safety.
§
Court says
that the means (eliminating some ads) are rationally related to the goal of
traffic safety.
B)
Williamson
v. Lee Optical Co.
(1955)
1)
Oklahoma barred opticians from making glasses without a prescription from
an ophthalmologist or optometrist.
2)
Court held the law against both Due Process and Equal Protection
challenges.
3)
Court said that as long as there was an “evil at hand or correction”
however modest it may be, the law must be upheld if it might be thought that
the legislation was a rational way to correct it. Basically the
Court said that if there was any conceivable basis to surmise that the law
was rationally related to a legitimate state goal, the law would be upheld.
C)
Problem of Under-Inclusion
Under-Inclusion involves
regulating only PART of the problem, or burdening fewer people than would be
necessary to totally fix the problem. This may raise the possibility that
someone is being “picked on.” However, under Railway Express and Lee Optical,
under-inclusion seems to be ok as long there is a rational relationship to a
legitimate government objective.
D)
Problem Over-Inclusion
Over-inclusive
classifications burden more people than is necessary to accomplish the
classifications legitimate objective.
1)
New York
City Transit Authority v. Beazer
(1979)
§
Court upheld a
New York rule that excluded all methodone users from employment in order to
assure job and passenger safety.
§
Court applied
rational basis and said that a no drugs policy is supported by the legitimate
inference that as long as a treatment program or other drug use (methodone)
continues, a degree of uncertainty persists.
2)
Massachusetts Board of Retirement v. Murgia
(1976)
§
Court upheld a
requirement that all uniformed state police offers retire at age 50.
§
Court said to
fundamental right to public employment. Court said AGE is NOT a suspect class.
Court applied minimal scrutiny.
§
Purpose was to
assure a physically fit and vigorous police force.
§
Even though
some (possibly many) officers over age 50 are fit and vigorous and some under
age 50 are not, the Court regarded the retirement age as rational in relation to
the goals of the regulation.
§
Court said
that perfection in making classifications is neither possible nor necessary.
Where rationality is the test, the state does not violate equal protection
merely because the classifications made by its laws are imperfect.
E)
United
States Railroad Retirement Board v. Fritz
(1980)
1)
FACTS
§
Congress
eliminated railroad benefits for some railroad workers, but not for others.
Non-retired railroad workers who currently did not work in the railroad industry
or had completed less than 25 years of service in the industry were denied
benefits.
§
Workers
claimed a violation of equal protection.
2)
HELD
Law is valid.
3)
ANALYSIS
§
Congress’s
stated purpose was to insure the solvency of the railroad retirement system and
protecting vested benefits. Court held that these were legitimate government
interests.
§
Congress’s
means were to terminate some of the benefits. Court said that this was
rationally related to insuring the solvency of the program, the stated purpose.
§
Court said
that because Congress could have eliminated windfall benefits for all classes of
employees, it is not constitutionally impermissible for congress to have drawn
lines between groups of employees for the purpose of phasing out benefits.
§
Court says
that where there are PLAUSIBLE REASONS for Congress’s action, the inquiry
ends. It is constitutionally IRRELEVANT whether this reasoning in fact underlay
the legislative decision because this Court has never insisted that a
legislative body articulate its reasons for enacting a statute.
4)
STEVENS CONCURRING
§
Stevens
believes that the Constitution requires something more than merely a
“conceivable” basis or a plausible explanation for the unequal treatment, BUT he
doesn’t think that every statutory classification must further the “actual
purpose” of the legislature (because actual purpose may be unknown).
§
Stevens
believes that we must discover a correlation between the classification and
either the actual purpose of the statute or a legitimate purpose that we may
reasonably presume to have motivated an impartial legislature.
5)
BRENNAN DISSENTING
§
Brennan says
that a challenged classification can be sustained under the rational basis test
ONLY if it is rationally related to the achievement of an ACTUAL legitimate
governmental purpose.
§
He says Court
should deduce the independent objectives of the statute, usually from statements
of purpose and other evidence in the statute and legislative history, and to
analyze whether the challenged classification rationally furthers achievement of
those objectives.
§
Brennan says
that here the stated purpose is to preserve vested benefits. The classification
eliminates some of the vested benefits, therefore the classification is NOT
rationally related to the stated purpose.
§
DENNING SAYS –
Problem with this view is how to determine what the actual purpose of the
statute is? Also, losers would salt the legislative history with purposes
favorable to their position.
IV
Strict Scrutiny
A)
Generally
1)
All classifications based on race or ethnicity/national origin trigger
strict scrutiny. Classifications based on race/ethnicity/national origin are
generally irrelevant, therefore are subject to strict scrutiny. These are the
ONLY classifications that trigger strict scrutiny under the Equal Protection
Clause.
2)
Presence of the following factors leads to a determination that strict
scrutiny is warranted:
§
Immutable
Traits (a fixed, unchangeable quality)
§
History of
purposeful unequal treatment – when a particular group sharing an immutable
trait has received purposefully unequal treatment for a long period it is
difficult to escape the conclusion that some prejudice is at the heart of that
history.
§
Perennial lack
of access to political power – Not just lack of political power, but lack of
ACCESS to that power
3)
Racial discrimination must be INTENTIONAL, as opposed to just having a
disparate impact or effect on one group. Intent may be shown by:
§
Facial
Discrimination –
o
The
classification directly employs the suspect criterion.
o
Strauder v.
West Virginia (1879)
?
Law that
limited a jury to white males was facially discriminatory and violated Equal
Protection.
o
Loving v.
Virginia (1967)
?
Law
prohibiting interracial marriage violated Equal Protection, despite the fact
that states punish equally the white and black participants in the
relationship.
?
Court said
that equal application to both races does NOT immunize a statute from strict
scrutiny.
§
Discriminatory
Enforcement –
o
A facially
neutral classification that is ACTUALLY APPLIED on a suspect basis is treated as
a suspect classification, but the party challenging the classification has the
burden of proving the suspect classification.
o
Yick Wo v.
Hopkins (1886)
?
Law said no
laundries were allowed to be operated in wooden buildings.
?
The law was
only enforced against laundries owned by Chinese persons.
?
Court
invalidated the law because there was no justification for its invidiously
discriminatory application of the facially neutral law.
§
Discriminatory
Effects coupled with Discriminatory Motives –
o
A facially
neutral classification that is adopted solely because of an invidiously
discriminatory motive and that produces discriminatory effects is treated as a
suspect classification.
o
Gomillion
v. Lightfoot (1960)
?
City redrew
boundaries to eliminate 99% of black voters but no white voters.
4)
See p. 55-56 of the supplement for jury selection issues.
5)
Two Views of the Equal Protection Clause
§
Anti-Discrimination – Government is colorblind. No differentiation on the basis
of race at all.
§
Anti-Subordination – Government cannot affirmative discriminate on the basis of
race, but cannot forget the history. Government has a role in affirmatively
promoting a closing of the gap between the races. Under this view assisting the
minority is allowed.
B)
Korematsu
v. United States (1944)
1)
Military order excluded all persons of Japanese ancestry from certain
portions of the Pacific Coast. Court upheld the order.
2)
Court said that all legal restrictions which curtail the civil rights of
a single racial group are immediately suspect. Courts must subject them to the
most rigid scrutiny. Pressing public necessity may sometimes justify the
existence of such restrictions, but racial antagonism never can.
3)
Court held that the pressing public necessity of preventing espionage or
sabotage justified the classification.
C)
Washington v. Davis
(1976)
1)
FACTS
§
DC police
force required applicants to pass a test that measured verbal ability,
vocabulary, reading, and comprehension.
§
Four times as
many blacks as whites failed the test.
§
No claim of
intentional discrimination or purposeful discriminatory acts. Claim was highly
discriminatory IMPACT in screening out black candidates.
2)
HELD
Use of the test was VALID.
Disparate impact is NOT sufficient for violation of equal protection. There
must be a purpose or intent to discriminate. Disparate impact ALONE does not
trigger strict scrutiny.
3)
ANALYSIS
§
Court upheld
the test under rational basis test. Test was reasonably and directly related to
police recruitment.
D)
Arlington
Heights v. Metropolitan Housing Development
(1977)
1)
Housing Development Corp. requested that a mostly white Chicago suburb
rezone property to permit construction of low-income housing, which would be
occupied in part by racial minorities. Suburb refused.
2)
Trial court found that the refusal was motivated in part by
concern for the integrity of the zoning plan, rather than racial
discrimination. Supreme Court held that the plaintiffs failed to prove racial
discrimination was a motivating factor.
3)
Arlington Factors
for determining whether racial discrimination was a motivating purpose: (p.
652)
§
Historical
background of the decision to classify, particularly if it reveals a series of
official actions taken for invidious purposes.
§
Sequence of
events leading up to the law (deviation from the usual procedure)
§
Legislative or
Administrative history
E)
Burdens
Plaintiff must make a prima
facie case that there is something funny going on, then the burden shifts to the
government to show that it is neutral. If the plaintiff presents enough
evidence that a court could infer discrimination then the burden shifts to the
government. Government then must prove either no discriminatory intent OR that
the same decision would have been reached if no discriminatory intent was
present. Preponderance of the evidence standard for the government. Then the
court will apply strict scrutiny or rational basis.
F)
Denning’s
View of Multi-Factor Tests
Denning says that these
multi-factor tests make it expensive for plaintiffs to bring claims. If all the
plaintiffs had to prove was disparate impact, then make the government prove
neutrality, it would be easier (less expensive) for plaintiffs to bring claims
because the government would have to pay.
V
Official Racial Segregation
A)
Road to
Brown
1)
Dred Scott
v. Sanford (1857)
§
Court said
that persons who are descendants of Africans are not and could not become U.S.
Citizens.
§
This was
overruled by the 13th, 14th, and 15th
Amendments.
2)
Plessy v.
Ferguson (1896)
§
Court upheld
laws that required railroads to provide equal but separate accommodations for
the white and colored races and subjected passengers who used the wrong
accommodations to criminal liability.
3)
Missouri ex
rel. Gaines v. Canada (1938)
§
White
university system included a law school and the black system did not. Missouri
would pay reasonable tuition at an out-of-state school to enable black students
to attend law school.
§
Court said
this was a violation of equal protection. The basic consideration was the
opportunities that Missouri itself furnishes to white students and denies to
black students.
4)
Sweatt v.
Painter (1950)
§
University of
Texas refused to admit a black student to its law school because a black law
school was available.
§
Court said
this was a denial of equal protection because the black school was
quantitatively and qualitatively inferior.
5)
McLaurin v.
Oklahoma State Regents (1950)
§
Black student
admitted but forced to sit separately in cafeteria, in library, etc.
§
Court said
violation of equal protection.
B)
End of
“Separate but Equal” - Brown v. Board of Education of Topeka (1954)
1)
Unanimous decision.
2)
Plaintiffs claimed that segregated public schools are not equal and
cannot be made equal therefore plaintiffs were deprived of equal protection of
the laws.
3)
Court said that to separate students from others solely because of race
generates a feeling of inferiority as to their status in the community that may
affect their hearts and minds in a way unlikely ever to be undone.
4)
Court held that separate educational facilities are inherently unequal
therefore were a violation of equal protection.
C)
Application
to Federal Action
– Bolling v. Sharpe (1954)
Court held segregated public
schools in D.C. (under federal law) were an impermissible infringement of the
substantive liberty protected by the due process clause of the Fifth Amendment.
It is now well-settled that equal protection applies with equal force to the
federal government.
D)
Implementing Brown
1)
The Court has consistently held that Brown is violated only by
acts of intentional racial discrimination, and thus courts lack any remedial
power in this area in the absence of an unjustifiable intentional discrimination
that constitutes a constitutional violation.
2)
Green v.
County School Board (1968)
§
School
district with two schools adopted a freedom-of-choice plan that permitted
students to choose the school they wished to attend. After 3 years one school
was still all black and one was still all white.
§
Court said the
plan was INVALID. The end sought by Brown was a unitary, nonracial
school system. School boards operating state-compelled dual systems were
charged by Brown with the affirmative duty to take whatever steps might
be necessary to convert to a unitary system in which racial discrimination would
be eliminated root and branch. The burden on a school board today is to come
forward with a plan that promises realistically to work and to work now.
3)
Swann v.
Charlotte-Mecklenburg Board of Education (1971)
§
Court said
that once a right and a violation have been shown, the scope of the district
court’s equitable powers to remedy past wrongs is broad. But judicial powers
can be exercised only on the basis of a constitutional violation.
4)
Keyes v.
School District No. 1 (1973)
§
Court said
that de facto segregation violated the EPC only when it was produced by
intentionally invidious discrimination. Where no statutory dual system of
segregated schools has ever existed, plaintiffs must prove that segregated
schooling exists AND that it was brought about or maintained by intentional
state action.
E)
Limits of
Judicial Remedial Power
Milliken v. Bradley (1974)
§
The scope of
the remedy is determined by the nature and extent of the constitutional
violation.
§
Before school
district boundaries can be crossed for remedial purposes, it must be shown that
there has been a constitutional violation in one district that produces a
significant segregative effect in another district. Without an interdistrict
violation and interdistrict effect, there is no constitutional wrong calling for
an interdistrict remedy.
F)
End of
Judicial Supervision
1)
Once the constitutional violation has been completely cured, judicial
power to monitor the defendant should cease.
2)
Board of
Oklahoma City Public Schools v. Dowell (1991)
§
Unitary status
is achieved and judicial control should cease when
o
All vestiges
of past discrimination have been removed and
o
The schools
are in good faith compliance with any existing court orders
3)
Freeman v.
Pitts (1992)
§
Vestiges of
segregation that are the concern of the law must have a causal link to the de
jure violation being remedied. But resegregation that is a product NOT of state
action but of private choices does NOT have constitutional implications.
VI
Affirmative Action
A)
Regents
of the University of California v. Bakke
(1978)
1)
FACTS
§
University of
California at Davis Medical School set aside 16 of its total of 100 seats for
minorities (blacks, chicanos, asians, and Indians). White applicants could not
compete for those 16 spots, they could only compete for 84 spots, whereas
minority applicants could compete for all 100 spots.
2)
HELD
Court held that race can be
considered in university admissions, but not in the way that UC Davis Medical
School considered it. Court ordered that Bakke be admitted to the medical
school.
3)
POWELL’S OPINION
§
Strict
scrutiny applies to all classifications based on race, even those that are
“benign” in that they discriminate in favor of a minority. Government must
prove compelling governmental interest and that the classification is necessary
(narrowly tailored) to accomplish the governmental goal.
§
Purposes
offered by UC Davis Medical School:
o
Assure that a
certain percentage of the student body is comprised of minorities. INVALID
PURPOSE. Court says that preferring members of any one group for no reason
other than race or ethnic origin is discrimination for its own sake and it
forbidden by the Constitution.
o
Countering the
effects of “societal discrimination.” INVALID PURPOSE. Without evidence of
specific discrimination that constitutes a constitutional violation (like in the
school desegregation cases) the government does NOT have a compelling interest
in correcting the discrimination by harming another group.
o
Increasing the
number of physicians that will practice in minority communities, the “role
model” approach. INVALID PURPOSE.
o
Obtaining the
educational benefits that flow from a diverse student body. VALID PURPOSE.
§
Court says
that the means used by UC Davis Medical School are NOT necessary (or narrowly
tailored) to achieve their goal of diversity.
o
Assignment of
a fixed number of spots for minorities is NOT a necessary means.
o
The fatal flaw
in the program is that it disregards individual rights.
4)
BRENNAN’S OPINION
§
Brennan would
not use strict scrutiny, but rather a form of intermediate scrutiny.
§
The government
must show an important and articulated purpose for its use of race in
classification AND any statute must be stricken that stigmatizes any group or
that singles out those least well represented in the political processes.
§
Brennan says
UC Davis’s goal of remedying past societal discrimination is a VALID purpose and
is sufficiently important to justify the use of race-conscious criteria.
Brennan then says that the classification does NOT stigmatize any group. Bakke
was not stamped as inferior. Use of racial preferences for remedial purposes
does not inflict a pervasive injury upon individual whites.
5)
STEVEN’S OPINION
§
Stevens would
avoid the constitutional issue and deal only with the Title VI statute.
6)
HOW TO READ BAKKE
§
There is no
majority opinion. Powell’s opinion was his own. To decide the rationale, try
to find the least common denominator which most of the justices would have
agreed upon.
§
Brennan’s
group probably would have signed on to Powell’s opinion rather than strike down
the whole program, so Powell’s opinion pretty much is the opinion to go with.
B)
Wygant v.
Jackson Board of Education
(1986)
1)
Court held that racially preferential layoffs violated equal protection,
but could not form a majority as to the reasons.
2)
Powell said strict scrutiny and societal discrimination was not a
compelling interest, a showing of prior discrimination by the governmental unit
involved was required before allowing limited use of racial classifications in
order to remedy such discrimination. Also, even if it was a compelling
interest, that the layoff plan was not narrowly tailored.
C)
City of
Richmond v. J.A. Croson Co.
(1989)
1)
FACTS
§
City of
Richmond required that general contractors to whom the city awarded construction
contracts to subcontract at least 30% of the dollar amount of the contract to a
minority subcontractor.
§
City showed
that very few contracts had been awarded to minority businesses and there was
virtually no minority business involvement in contractor’s associations.
§
City’s purpose
was to remedy effects of past discrimination in the construction industry.
§
There was NO
evidence of race discrimination on the part of the city in awarding contracts.
2)
HELD
No compelling interest. Not
narrowly tailored.
3)
ANALYSIS
§
No compelling
interest. An amorphous claim that there has been past discrimination in a
particular industry is not a compelling governmental interest. States may take
remedial action when they have evidence that their own practices are
exacerbating a pattern of discrimination, but they must identify that
discrimination with some specificity before they may use race-conscious relief.
§
Not narrowly
tailored. No consideration of race-neutral means to increase minority business
participation other than use of a race-based quota. The only goal to which the
quota could be narrowly tailored is outright racial balancing, which is not a
compelling interest. No need for a quota because they already have to consider
contracts on a case by case basis.
4)
O’CONNOR OPINION
§
Nothing in the
opinion precludes a state or city from taking action to rectify effects of
identified discrimination within its jurisdiction.
5)
SCALIA CONCURRING
§
Agrees that
strict scrutiny should apply to all race-based classifications.
§
Disagrees with
the dicta that suggests that governments may in some circumstances discriminate
on the basis of race in order (in a broad sense) to ameliorate the effects of
past discrimination.
§
Says that at
least where state or local action is at issue, only a social emergency rising to
the level of imminent danger to life and limb (ex- prison riot requiring
temporary segregation of inmates) can justify an exception to the principle that
the Constitution is colorblind.
6)
MARSHALL DISSENTING
§
Race-conscious
classifications to further remedial goals must serve important governmental
objectives and be substantially related to achievement of those objectives.
This program is constitutional under those standards. Remedying past
discrimination is an important goal.
D)
Metro
Broadcasting v. FCC
(1990)
Court held that benign
racial preferences used by the FEDERAL government would be subjected to
intermediate scrutiny. This made it so that state preferences would be subject
to strict scrutiny and federal preferences to intermediate scrutiny. This was
overruled by Adarand.
E)
Adarand
Constructors, Inc. v. Pena
(1995)
1)
FACTS
§
US Dept of
Transportation gave additional compensation to contractors that hired
subcontractors who were controlled by “socially and economically disadvantaged
individuals.” This was required by federal law.
§
Adarand is not
one of these subcontractors and was not awarded a contract even though it had
the low bid because of the additional compensation given to the contractor to
hire a minority subcontractor.
§
Adarand claims
that the law requiring additional compensation violates the Fifth Amendment
obligation not to deny equal protection of the laws.
2)
HELD
§
Strict
scrutiny should be applied to all racial classifications whether by states or
federal government.
§
Remanded.
F)
Grutter
v. Bollinger
(2003)
1)
FACTS
§
University of
Michigan Law School’s admissions policy requires officials to look beyond grades
and test scores to other criteria that are important to the school’s education
objectives.
§
School seeks a
“critical mass” of underrepresented minority students.
§
School’s
interest is the educational benefits of a diverse student body.
§
Critical mass
means meaningful numbers or meaningful representation sufficient to encourage
minority students to participate in class discussion and not feel isolated.
2)
HELD
§
Diversity in
education is a compelling state interest.
§
Program is
narrowly tailored because it involves “individualized consideration” of each
student.
3)
ANALYSIS
§
Court “defers”
to the school’s judgment that diversity is a compelling educational objective.
(Weird – in strict scrutiny the Court shouldn’t really be deferring to anything)
§
To be narrowly
tailored, a race-conscious admissions program cannot use a quota system.
University may consider race as a plus in a particular applicants file without
insulating the individual from comparison with all other candidates for
available seats. Program must be flexible enough to consider all pertinent
elements of diversity in light of the particular qualifications of each
application to place them on the same footing for consideration.
4)
REHNQUIST DISSENT
§
Law school’s
program is NOT narrowly tailored. Law school is just trying to achieve racial
balancing.
§
Court applies
strict scrutiny too deferentially. It’s really not strict scrutiny.
§
Percentage of
minorities admitted is the always the same as the percentage which applied.
§
Also, the plan
is not narrowly tailored because there is no time limit on the school’s use of
race.
5)
KENNEDY DISSENT
§
Court doesn’t
really apply strict scrutiny. Individual determination is NOT preserved at the
end of the admissions process. For the last 15-20% of the seats race is outcome
determinative for many members or minority groups.
6)
SCALIA CONDURRING/DISSENTING
§
Critical mass
is a sham to cover racially proportionate admissions.
7)
THOMAS CONCURRING/DISSENTING
§
No pressing
public necessity to have a public law school, much less an elite public law
school. Marginal improvements in legal education (from diversity) do not
qualify as a compelling interest.
§
Lots of
race-neutral alternatives available, but the Court doesn’t require the school to
consider any of those.
§
Don’t use the
LSAT. Schools know minorities perform poorly on it, but then still use it and
want to correct for it by using racial discrimination in the admissions
process.
G)
Gratz v.
Bollinger (2003)
1)
FACTS
§
University of
Michigan Undergraduate Admissions uses a point system in which an applicant
received 20 points based upon membership in an underrepresented minority group.
The total amount of points needed for automatic admission was 100-150.
2)
HELD
§
Diversity is a
compelling objective.
§
Program is NOT
narrowly tailored.
3)
ANALYSIS
§
Program not
narrowly tailored because it does not provide individualized consideration. The
distribution of 20 points has the effect of making race decisive in many cases.
§
The fact that
individualized consideration might present administrative challenges does NOT
render constitutional an otherwise problematic system.
4)
SOUTER DISSENTING
§
The admissions
program is closer to what was approved in Grutter than what was rejected in
Bakke. No quota. Lots of factors taken into account. Valid.
VII
“Enhanced” Minimal Scrutiny
The Court often declares
that in applying minimal scrutiny it will not strike down legislation because
its purpose is unwise. But sometimes the court says that it is applying minimal
scrutiny but it’s actually applying some type of heightened scrutiny.
A)
United
States Department of Agriculture v. Moreno
(1973)
1)
FACTS
§
Food Stamp Act
excluded from participation in the food stamp program any household containing
an individual unrelated to any other individual. The Act originally stated that
any group of people living together as one economi |