Constitutional Law II Outline PDF

CONSTITUTIONAL LAW II OUTLINE The Incorporation of Fundamental Rights Pre-Civil War Post-Civil War Incorporation Through the Due Process Clause Due Process Substantive Due Process and Economic Liberties Substantive Due Process and Privacy Equal Protection M...

CONSTITUTIONAL LAW II OUTLINE The Incorporation of Fundamental Rights Pre-Civil War Post-Civil War Incorporation Through the Due Process Clause Due Process Substantive Due Process and Economic Liberties Substantive Due Process and Privacy Equal Protection Minimum Rationality Review of Economic Regulation Race Discrimination Sex Discrimination Other Classifications Fundamental Interests Congress’s Civil Rights Enforcement Powers Congressional Power to Enforce Civil Rights Under the 14th and 15th Amendments 1. The Incorporation of Fundamental Rights a. Pre-Civil War i. Justice Marshall presumed the federal Constitution to only apply to the federal government; 5th Amendment does NOT apply to the states (Barron v. Mayor and City Council of Baltimore, wharf ruined by the city) 1. Started by comparing text of Art. 1, § 9 to Art. 2, § 10 (textual argument) a. General text vs. specific references to the states = references to the state gov’t are specific 2. Framers more concerned about federal power than state power (historical/originalism argument) 3. Federal constitution should deal w/ federal gov’t unless explicitly stated otherwise (structural argument) ii. “Citizen” in Constitution does NOT include even freed descendants of slaves (Dred Scott v. Sandford, slave sued for freedom and lost) 1. Non-citizens don’t get access to the courts 2. Interpreted the words at the time they were written (originalism)  a. “All men are created equal,” but the Framers did not consider slaves people 3. Missouri Compromise unconstitutional b/c Congress couldn’t deprive slave owners of their property w/o due process (Amend. V) b. Post-Civil War i. Privileges and immunities clause (PIC) of Amend. XIV does NOT apply to the rights afforded to state citizens, ONLY to the rights afforded citizens of the US (Slaughter-House Cases, butcher monopoly) 1. Purpose of Amend. XIV was to protect freed slaves from southern states’ laws, nothing else 2. Two buckets of rights: a. State citizen rights: i. PI to pursue a trade; civil rights; etc. b. US citizen rights: i. To sue feds; transact w/ feds; use seaports; etc. ii. Pretty narrow band of rights iii. Already protected by other parts of federal constitution… so majority’s reading is redundant 3. PIC of Amend. XIV only protects US citizen rights 4. Amend. XIV was NOT meant to fundamentally change the relationship between the federal and state gov’t; harm federalism (structural argument) 5. Three models of interpreting PIC: a. (1) Miller model (majority) i. Protects only the rights of US citizens against the states, NOT the rights state citizens 1. Different sets of rights 2. Up to the states to protect the state rights of their citizens ii. Rights of US citizens (narrow): 1. Travel to petition federal gov’t 2. Transacting business in federal courts 3. Access to national seaports 4. Right to use the navigable waters of the US even if it intrudes on the waters of a state 5. Right to be protected abroad from foreign gov’ts  6. Right to recognize any rights guaranteed by treaties w/ foreign gov’ts and the US gov’t iii. Rights of state citizens: 1. Natural rights 2. Right to pursue a lawful trade 3. Civil rights 4. Health, safety, morals, welfare iv. Flaws: 1. Forgets that we fought the Civil War b/c of the states’ oppression of blacks; states’ rights are the problem now, not what needs to be protected a. Shouldn’t be so worried about federalism here 2. Although Miller is afraid of judicial activism, this is judicial activism in the other direction, nerfing the PIC like this 3. Still have to make a subjective call about what US citizens’ rights are, so this requires an additional step b. (2) Field/Bradley model i. “Fundamental rights” are all incorporated against the states 1. Selective incorporation, not necessarily all of the BOR will make it ii. Argues that, under Miller’s model, PIC of Amend. XIV didn’t accomplish much of anything c. (3) Thomas/Black model i. Total incorporation 1. All Amends. of BOR (I–VIII) are incorporated automatically against the states 2. Takes the decision out of the hands of judges ii. Framers meant for “privileges and immunities” = the BOR iii. Evidence shows that Amend. XIV was intended to overrule Barron v. Baltimore  1. This is disputed 6. Never overruled Slaughter-House Cases, just moved the (probably correct) theory of the PIC over the DPC under “substantial due process” c. Incorporation Through the Due Process Clause i. Debate in Adamson v. California 1. Justice Black → Total incorporation, originalism a. Don’t cherry-pick particular rights from the BOR, just incorporate the whole thing against the states i. Amends. I through XIII b. History shows this was the intent i. Drafters of the 14th intended to overturn Barron v. Baltimore 1. This point is not universally agreed upon, however c. The alternative, selective incorporation, is much worse i. Leaves too much discretion to the judiciary ii. Subjective; not comfortable leaving judges to decide fundamental rights based on their personal opinions iii. No fixed standard 2. Justice Frankfurter → Selective incorporation, natural law theory a. Incorporate rights on a case-by-case basis b. Should decide based on what rights are important to English-speaking peoples and whether they are essential to a civilized society c. Doesn’t want to unduly limit state autonomy; will only protect the most important (fundamental) rights and leave the rest to the states’ discretion d. Doesn’t care about what the drafters or founders thought i. Cares about what is important to a fair trial e. Judges will have to make judgments i. Judges would be most familiar w/ what rights are most important ii. “Due process” language is a delegation of power to judges  1. “Due process” is vague, judges will have to decide what it means iii. Judges will have to engage in subjective, discretionary decision-making, part of the job ii. Modern incorporation doctrine (McDonald v. City of Chicago, handgun ban by city) 1. Alito (majority)’s view: a. TEST for whether a right will be incorporated; EITHER: i. (1) Fundamental to our scheme of ordered liberty; OR ii. (2) Whether this right is “deeply-rooted in this nation’s history and tradition” b. How do we know whether a right is “fundamental to our scheme of ordered liberty”? i. Just a judgment call c. How do we know whether a right is “deeply-rooted”? i. Appeal to history 1. English Bill of Rights 2. Blackstone/other legal commentators 3. Legislative materials a. Federal laws b. State constitutions/laws 4. American experience 5. Historical context giving rise to concerns about the rights at issue a. Colonists b. Civil War ii. Do NOT look to foreign traditions, only American or pre-America English traditions 2. Thomas (concurrence)’s view: a. Should go through the PIC of the 14th, NOT the DPC 3. Breyer (dissent)’s view: a. Opposing interpretation of history b. Concerned about: i. Judicial restraint ii. Judges don’t have the competence necessary to evaluate empirical policy questions iii. States’ rights; federalism  iv. Democratic/local choice of the people to solve problems unique to where they live 2. Due Process a. Substantive Due Process and Economic Liberties i. Is there an unwritten, un-enumerated, higher law that should be enforced against gov’t violation or infringement? Is natural law/natural justice theory correct? (Calder v. Bull) 1. Chase (majority)’s view: a. Natural law theory i. There are unwritten principles of law that can’t be violated ii. These rights just exist in nature and can be discovered via our power of reasoning 1. Like Justice Field in Slaughter-House Cases 2. By virtue of our Republican form of gov’t iii. Implied, NOT positivist b. Although we give up certain rights when entering the social contract, there are some rights we would NEVER give up i. Law that punishes a citizen for an act that did not violate any law ii. Law that impairs the private contracts of citizens iii. Law that makes a man a judge in his own cause iv. Law that takes property from A and gives it to B c. Afraid of legislatures being abusive; sees the court’s intervention as appropriate i. Our gov’t has expanded beyond any possible conception the Framers had, well beyond the original constitutional pact ii. Must use natural law to protect un-enumerated rights as a check on the growth of un-enumerated powers 2. Iredell (dissent)’s view: a. Positivist view b. Rights = constraints on gov’t power i. Found in the Constitution ii. NOT invisible, natural law  iii. Only positive, written law exists c. Afraid of the courts being abusive i. How do we determine what rights are natural rights? Totally subjective, intuited, and a judge could come out either way on any issue despite using the same theory ii. Judges are not philosopher-kings, they should ONLY be reading the law ii. Economic liberty; right to contract is protected by substantive due process (Lochner v. New York, baker labor laws) 1. NY law limiting number of hours bakers can work was unconstitutional under the 14th Amendment’s DPC a. Right to contract → implied by “liberty” in DPC 2. Peckham (majority)’s view: a. TEST = If it’s a fair, reasonable, and appropriate exercise of police power, it’s constitutional i. If it’s unreasonable, unnecessary, and arbitrary, it’s not constitutional b. Types of possible objections to legislation: i. (1) Pursuing the wrong purpose/end; ii. (2) Pursuing the wrong means to achieve the end c. No reasonable ground for interfering w/ the right to contract here i. Would only have justification if needed state protection, like the mentally disabled or minors ii. State paternalism in labor regulation is NOT a proper purpose/end d. Public health justification IS a proper purpose… i. BUT is not proper means here b/c the court didn’t think it was that unhealthy 1. Court did its own policy evaluation here 3. Harlan (dissent)’s view: a. Liberty to contract is real, but subject to reasonable police regulations i. Disagrees w/ majority’s policy analysis b. Not the court’s role to judge the wisdom of legislation 4. Holmes (dissent)’s view: a. Disagrees that liberty to contract exists  b. Even tyrannical laws must be upheld c. Positivist iii. Due process requires ONLY that the law NOT be unreasonable, arbitrary, or capricious AND that the means selected shall have a real and substantial relation to the object sought to be attained (Nebbia v. New York, setting milk prices) 1. As long as there is a public interest involved and a relation from the means to that end, you can regulate it a. Only requires a reasonable relation to the purpose 2. Court has gained new economic “experience” via the Great Depression, shaking its previous respect of laissez-faire economics a. Acknowledges the economic ripples effects of private contracts iv. Right to contract is NOT an absolute and uncontrollable liberty (West Coast Hotel Co. v. Parrish, women’s minimum wage law upheld) 1. The state may intrude on the right to contract to protect exploited workers 2. Also justified b/c, when employers fail to pay employees a livable wage, the taxpayers will end up carrying the burden of paying for those workers to live through social programs a. Taxpayers end up subsidizing employers’ exploitation of workers 3. DISSENT a. They’re not subsidizing employers b. Look at it the other way → If employers pay above market wage, then employers are the ones w/ the burden of taking care of their workers i. Should be the public’s job, not employers’ v. Rational basis test (US v. Carolene Products Co., “filled milk” ban) 1. Deference to all legislative fact judgments 2. Congress doesn’t need any factual findings or evidence 3. If the policy issue is debatable, then the court will uphold the law 4. The law is presumed constitutional if it’s an economic regulation a. UNLESS: (Footnote 4) i. (1) Violates some specific provision of the BOR;  ii. (2) Is a restriction on the political process; or iii. (3) Directed at religious/racial minorities or where there is prejudice directed at other discrete and insular minorities 1. Concern that the political process/democracy may break down where there is irrational prejudice vi. Reasons the legislature MIGHT have had for passing the law are good enough; court will hypothesize/speculate on the legislature’s behalf (Williamson v. Lee Optical Co., eye exams law) 1. Law can be needless and wasteful in many cases and still be OK a. We don’t know where the line is, but it’s probably pretty lenient 2. Law need not be in every respect logically consistent w/ its aims to be constitutional a. It’s enough that there is an evil at hand for correction AND that it might be thought that the particular legislative measure was a rational way to correct it 3. Court will NOT consider ulterior, illicit motives the legislature may have had b. Substantive Due Process and Privacy i. “Liberty” in DPC includes (Meyer v. Nebraska, ban on teaching foreign languages struck down): 1. Right of language teachers to pursue profession 2. Right of children to gain knowledge 3. Right of parents to control their children’s education a. Can’t force parents to only send their kids to public schools (Pierce v. Society of Sisters) ii. BUT upheld law allowing involuntary sterilization of mental patients (Buck v. Bell) 1. Patients got procedural due process a. Fair hearing, counsel, etc. 2. Patients got substantive due process a. Better for society that we sterilize them b. “Three generations of imbeciles are enough.” iii. Law struck down requiring sterilization of some felons but not others (on EPC grounds) (Skinner v. OK) a. There is a fundamental right of procreation iv. There is a general right to privacy (Griswold v. Connecticut, contraceptives ban struck down) 1. Douglas (majority)’s view: a. Right found in penumbras formed by emanations from the guarantees in the BOR i. 1st, 3rd, 4th, 5th, and 9th Amendments b. Induction/generalization to get → Zone of privacy c. Uses 9th Amendment to bolster interpretation that there are unenumerated rights in the Constitution i. Counters the notion of expressio unius est exclusio alterius → The mention of one thing implies the exclusion of others d. Can’t ban contraceptives for married couples 2. Goldberg (concurrence)’s view: a. Strongly relies on 9th Amendment and fundamental rights rather than the penumbras theory 3. Harlan (concurrence)’s view: a. Living constitution theory i. Tradition is a living thing that evolves over time; NOT static b. Fundamental rights; natural law c. Liberty is a rational continuum, NOT a series of isolated points 4. Black and Stewart (dissent)’s view: a. 9th is NOT about individual rights outside the text i. It’s about federalism ii. History says it was put in to assuage the states and their fears of a powerful national government iii. Protecting un-enumerated rights is the states’ jobs b. (Doesn’t this make the 10th redundant?) v. Right of privacy extends to all individuals, married or unmarried (Eisenstadt v. Baird, more contraceptives) vi. The decision to get an abortion is a fundamental right (Roe v. Wade, TX law struck down) 1. Trimester framework a. Can only outlaw abortion in third trimester unless mother’s life/health are at stake  i. Health exception very broad, even including mental health 2. Privacy found in “liberty” in the 14th Amendment a. This “privacy” = Decisional autonomy/bodily integrity i. The freedom to make fundamental decisions about family planning b. Personal rights protected IF those rights are fundamental OR are implicit in the concept of ordered liberty i. Other rights protected: 1. Marriage 2. Procreation 3. Family relationships 4. Child-rearing 5. Education ii. Pregnancy, abortion, bodily autonomy included in this c. NOT penumbras theory 3. Strict scrutiny = If a right is fundamental, it can only be restricted by the state if: a. (1) The state has a compelling interest (ends); AND i. Compelling interest = interest of the highest order 1. NOT merely legitimate, good, or important b. (2) The regulation is narrowly-tailored to satisfy that compelling interest (means) i. CANNOT be overly-broad c. Burden is on the gov’t to prove d. Ties or doubts about which interest is greater are won by the individual, NOT the gov’t UNLESS the gov’t meets strict scrutiny vii. However, NO right to get a subsidy to exercise a right (various cases, court upheld denial of subsidy to get an abortion) 1. B/c the gov’t did NOT put an obstacle in the path of women seeking abortions viii. If a right is fundamental, the state may only regulate it if it does NOT place an undue burden in the path of people seeking to exercise the right (Planned Parenthood of Southeastern Pa. v. Casey, PA abortion restrictions mostly upheld)  1. If a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a non-viable fetus, it is unconstitutional 2. If making a “facial challenge” (as opposed to an “as-applied” challenge) to a law, a “particular burden” for some is NOT an undue burden a. However, those affected could make an as-applied challenge successfully b. 24-hour waiting period for an abortion, even if it disproportionately affects impoverished women, is NOT an undue burden ix. A state is allowed to impose a clear and convincing evidence requirement in order to allow a surrogate to take you off life support w/o violating DPC (Cruzan v. Director, Missouri Dept. of Health, daughter vegetable) 1. TEST: a. (1) Is there a liberty interest protected by DPC? i. But NOT fundamental right b. (2) Balance the liberty interest against the relevant state interests x. No right to physician-assisted suicide (Washington v. Glucksberg) 1. FRAMEWORK for SDP Analysis: a. Is it a fundamental right? i. If yes → Strict scrutiny 1. Must be narrowly-tailored for a compelling interest ii. If no → Rational basis review 1. Mere liberty interest 2. Weigh interests a. Give deference to the state 3. Challenger must show that the gov’t either: a. Is NOT pursuing a legitimate end; OR b. Is NOT using a legitimate means to pursue their ends b. How to determine if fundamental right?  i. (1) Objectively and deeply-rooted in this Nation’s history and tradition AND implicit in the concept of ordered liberty; AND c. Must carefully describe the asserted fundamental liberty interest i. Want a narrowly-framed right xi. Law against homosexual sodomy violates DPC (Lawrence v. Texas) 1. Stare decisis → Can’t overturn prior incorrect decision if there are other reasons to keep it a. If there is widespread reliance on the ruling, it should be kept b. If the legal foundation for the ruling has eroded or subsequent precedents contradict it, it should be done away with c. If the factual premises the court relied on before were wrong or changed, that’s reason to do away with the ruling xii. Same-sex marriage is protected by the right to marry under SDP (Obergefell v. Hodges, gay marriage) 1. The framing of the right will likely determine the holding 2. Majority (Kennedy): a. Framed as right to marry (broader and older) b. Induction from prior cases; couldn’t have just been the specific marriage rights in those contexts, MUST have been the broader right to marry: i. Loving = Interracial marriage ii. Turner = Prison marriage iii. Zablocki = Marriage for parents w/ unpaid child support iv. Same principle must apply to same-sex couples c. Four reasons marriage is fundamental right: i. (1) Autonomy ii. (2) Unique iii. (3) Protects children/spouse iv. (4) Adds to the social order 3. Dissent (Scalia): a. Framed as right to same-sex marriage (narrower and newer)  b. Must frame the right w/ the “most specific level of generality” i. Like the “careful description” methodology from Glucksberg c. Argues from the ancient, historical understanding of marriage; no right to same-sex marriage in history and tradition xiii. No right to abortion in the DPC of the 14th Amendment (Dobbs v. Jackson Women’s Health Organization) 1. Abortion is distinguishable from prior precedent b/c it involves the destruction of unborn life 2. Stare decisis analysis: a. (1) Is the prior decision erroneous? i. (a) Is the right explicitly in the text of the Constitution? 1. If NOT, go to (b) ii. (b) Is the right there implicitly? (in “liberty”) 1. TEST = Is it deeply-rooted in the Nation’s history and tradition AND implicit in the concept of ordered liberty? a. Glucksberg 2. Look to history at the time of the 14th Amendment a. Late 19th-century analogy needed 3. If NOT, go to (c) iii. (c) Is the right protected by prior precedent? b. (2) Is there another reason to overrule it beyond just being wrong? (5 factors) i. (1) Nature of the error ii. (2) Quality of the reasoning iii. (3) Workability/administrability of the doctrine iv. (4) Corrosive effect on other areas of the law v. (5) Reliance interests (MOST IMPORTANT) 3. Equal Protection a. Minimum Rationality Review of Economic Regulation i. EPC applies equally to the federal gov’t ii. Types of means vs. ends overlap: 1. (1) Complete match (total overlap)  2. (2) Complete mismatch (no overlap) 3. (3) Underinclusive 4. (4) Overinclusive 5. (5) Some match (underinclusive and overinclusive) iii. EPC scrutiny chart Scrutiny level Means req. Ends req. Strict Necessary Compelling Intermediate Close Important Rational basis Rational Legitimate iv. Scrutiny levels in detail: 1. Strict scrutiny a. Race-based classifications b. Law presumed unconstitutional i. State bears heavy burden of persuasion ii. Law usually fails c. (1) Might be okay if objective is compelling d. (2)—(5) Unconstitutional 2. Intermediate scrutiny a. Sex-based classifications b. Law presumed unconstitutional i. State bears lighter burden of persuasion than strict scrutiny c. (1) Constitutional if objective is strong d. (2) Unconstitutional e. (3)—(5) might be acceptable i. Some degree of imprecision is acceptable 3. Rational basis a. All others i. Includes economic classifications for sure b. Law presumed constitutional i. Plaintiff bears burden to show that it’s NOT rationally-related or legitimate ii. Law rarely fails iii. Court will hypothesize justifications c. Only (2) might be irrational; others probably okay d. Under-inclusiveness by itself is NOT fatal under rational basis review (Railway Express Agency v. New York, ads on trucks)  i. Legislature is free to go at the problem piecemeal b. Race Discrimination i. **[OVERRULED] EPC designed to strike down political inequality but NOT social inequality (Plessy v. Ferguson, separate but equal railcars) 1. Difference? a. Political inequality = participation in legal processes i. Voting, jury duty ii. CANNOT segregate (Strauder v. WV, black juror) b. Social inequality = all else i. Education, marriage, theaters, railroads, etc. ii. CAN be segregated as long as they’re: 1. Equal, AND 2. Reasonable and used in good faith for the promotion of the public good, and NOT for the annoyance or oppression of a particular class 2. How do we know if reasonable? a. TEST = Look to established usages, customs, and traditions to determine reasonableness 3. Harlan’s dissent gives two principles of the EPC: a. (1) Anti-subordination; and b. (2) Colorblindness ii. Segregation of schoolchildren based on race violates EPC, even if the schools are “equal” (Brown v. Board of Education) 1. Actual, material harm is good enough on its own a. Educational success, etc. 2. Intangible, dignitary, or psychological harms are also good enough on their own a. Segregation imposes feelings of inferiority b. Imposes social meaning on society 3. Don’t need to measure material harm → Racial classifications are inherently harmful 4. If race is mentioned on the face of the statute and separates them, it’s inherently unequal iii. Ban on interracial marriage violates the EPC (Loving v. Virginia, interracial couple) 1. Racial classification? → Strict scrutiny  a. Even if no harm demonstrated, racial classification is inherently unconstitutional 2. Government cannot create a racial hierarchy a. On the face of the statute OR as-applied to the facts 3. Interpretation of EPC: a. Forward-looking (living constitutionalism?); modern understandings and factual/cultural circumstances i. NOT originalism like the DPC iv. The law CANNOT recognize and make decisions based on racial biases in the people (Palmore v. Sidoti, custody battle) 1. Law must be colorblind v. Nat’l security is compelling objective; internment camps is necessary means to pass strict scrutiny for internment of Japanese? (Korematsu v. US) 1. Overruled by Trump v. Hawaii = Executive branch can’t make racial classifications on the face of the law vi. Types of discriminatory laws: 1. (1) Facially discriminatory a. Subject to strict scrutiny (Brown; Loving) 2. (2) Discriminatory in administration a. Facially neutral but administered/applied unevenly b. Unconstitutional when gov’t couldn’t provide an explanation for the unequal administration (Yick Wo v. Hopkins, laundry licensing denied all Chinese) i. Can’t administer a facially neutral law unevenly w/r/t race 3. (3) Discriminatory effect (impact) a. Must show discriminatory purpose as well as discriminatory effect under this category (Washington v. Davis, DC police test) i. Can argue from the totality of the facts to support inference of racially discriminatory purpose 1. Or from the absence of certain facts ii. Disparate impact is relevant but not enough by itself b. NOT strict scrutiny → Once prima facie case of discriminatory purpose shown, burden shifts to gov’t to  show the racially-neutral selection criteria actually produced the disparate results c. The discriminatory purpose does NOT need to be the primary purpose, just a motivating factor d. Consider a list of factors to infer purpose: i. Impact ii. Historical background iii. Sequence of events leading up to challenged decision iv. Departures from procedural sequence v. Substantive departures vi. Legislative/administrative history vii. In other words, look for something out of the ordinary or suspicious e. Voting is protected especially strongly here vii. Affirmative action programs that set aside seats explicitly for minorities are unconstitutional (Regents of UC v. Bakke, med school) 1. Cannot make ANY racial classification, even if it’s against white people 2. Cannot use racial balancing for its own sake as a goal under strict scrutiny (NO racial quotas) 3. Cannot cite society-wide injustices/discrimination as a justification for a racially-preferential policy a. CAN cite a particular, identified discrimination as justification i. “Identified” = Found under legislative, judicial, or administrative findings 4. Race cannot be outcome-determinative (as in eliminating all chances of competing), but you CAN consider people’s backgrounds as a factor (including race) viii. Strict scrutiny applies to ALL considerations of race, even when done by the states (Richmond v. J.A. Croson Co., contracts to minorities) 1. Same for the federal gov’t (Adarand Constructors, Inc. v. Pena) a. Doesn’t matter if it’s against whites only, ALWAYS strict scrutiny ix. Diversity IS a compelling interest for strict scrutiny (Grutter v. Bollinger, law school affirmative action) 1. We defer to the university’s judgment on educational decisions  2. Even a floating number that is actually fixed (percentage) is racial balancing, which is disallowed by Bakke 3. MUST be and individual assessment on a case-by-case basis, NOT a mechanical formula a. Race cannot be the dispositive factor b. Requires three considerations: i. (1) Serious, good-faith consideration of workable, race-neutral alternatives first; ii. (2) No undue burden imposed on non-minority applicants; AND iii. (3) Must be a time limit on the program 1. 25-years (aspirational) x. Point system giving 1/5 of the points needed for auto-admission based on race is NOT okay under EPC (Gratz v. Bollinger, undergrad program) 1. Not sure if too many points or just b/c mechanical 2. Would be okay if an individual evaluation where the weight is determined on a case-by-case basis xi. CANNOT consider race directly in admissions (Students for Fair Admissions v. Harvard) 1. Diversity is still a compelling interest a. BUT cannot be strict racial diversity i. UNLESS: 1. (1) Identified discrimination; or 2. (2) Risks to safety in prisons (race riots) b. Not measurable + no end to it c. Military academies could maybe establish compelling interests in diversity ascertainable for strict scrutiny? 2. Universities still given deference, BUT subject to constitutional limitations 3. The means of considering race is underinclusive and overinclusive a. B/c stereotyping AND race is a social construct b. ANY negative use of race is unconstitutional w/r/t means 4. CAN consider race through other factors that race might implicate: a. Socioeconomic status, geographic origin, experiences w/ racism (in essay), etc. c. Sex Discrimination i. Analysis: 1. (1) Is it a suspect sex-based classification warranting intermediate scrutiny? 2. (2) Is the government objective important? 3. (3) Are the means substantially related to the achievement/advancement of that objective? ii. Sex-based classifications are subject to intermediate scrutiny 1. Important gov’t objectives AND means must be substantially related to the achievement of those objectives 2. If the means are totally arbitrary w/ no relation to the objective when making a sex-based classification, then it’s unconstitutional (Reed v. Reed, estate administration preference for men struck down) iii. Gov’t cannot rely on even accurate generalizations if the result is to disadvantage one sex (Frontiero v. Richardson, servicewomen had to prove that their husbands were dependents but servicemen didn’t) 1. Mere administrative ease is NOT an important objective 2. Reasons a classification warrants intermediate scrutiny (Step 1) (You only need one of these reasons): a. (1) History of discrimination or social stigma against the group; b. (2) The trait defining the class is immutable and can’t be changed; c. (3) The trait defining the class is ordinarily not related to merit or ability to perform; OR d. (4) The class lacks political power such that we need special judicial solicitude for that group iv. Cannot rely on weak statistical correlations to justify the means for sex discrimination (Craig v. Boren, nonintoxicating beer purchase age discrimination against young men) 1. Suggested that traffic safety or safety generally IS an important objective 2. TEST for the means → Does the means appear to substantially advance the government’s objective? a. No deference for the gov’t i. Not going to hypothesize reasons for the gov’t  b. Logical/factual loopholes and contradictions weigh against substantial relation v. Exceedingly persuasive justification = Intermediate scrutiny 1. Just another way of saying it vi. A benign and compensatory justification is allowed IF there is an actual disadvantage related to the classification (like affirmative action, but must identify actual discrimination statistically) (MS University for Women v. Hogan, nursing school) 1. BUT an objective that reinforces stereotypes about the sexes and their roles in society is illegitimate (NOT an important objective) 2. A means full of loopholes or counterproductive to its objective fails the analysis 3. History is irrelevant a. EPC cases are forward-looking vii. A government actor may have different physical requirements for men and women; equality does NOT mean that everything has to be exactly the same between men and women; some adjustments or accommodations are tolerable (United States v. Virginia, VMI military academy) 1. Separate but equal is more acceptable for sex discrimination than race discrimination a. NOT inherently unequal, like race b. Only need functionally equal opportunities 2. A categorical exclusion from an opportunity based on sex will rarely, if ever, substantially relate to the objective a. Such means almost always fails under intermediate scrutiny 3. Will NOT automatically trust the government’s assertions/justifications on intermediate scrutiny a. Post-hoc rationalizations won’t suffice if the facts/historical context contradict the rationalization 4. Opposing uses of history: a. Ginsburg = History of sex segregation is legacy of discrimination b. Scalia = History of sex segregation is justification for traditional practices  viii. Exclusion of pregnant women is NOT a sex-based classification; rational basis applies (Geduldig v. Aiello, exclusion of pregnant women from state disability program) 1. Pregnancy does have a linkage to sex, but that alone is NOT enough a. Needs to have a really tight, close nexus between the thing targeted and the sex to get heightened scrutiny 2. Burden/benefit chart RULE: a. If there are no similarly-situated men we could place on the other side of the line → Constitutional b. If there are similarly-situated men we could place on the other side of the line but aren’t doing so → Unconstitutional 3. Here, not the case b/c there are no men that can become pregnant and thus be on the burdened side of the chart 4. May be an argument for difference between regulatory burden and subsidy deprivation a. Telling someone they can’t do something is worse than depriving them of a freebie ix. When a law attempts to equalize the sexes based on a relevant biological difference between men and women (not societal/cultural), then it’s only subject to “medium-rare” scrutiny (Michael M. v. Superior Court, punishing men who engage in statutory rape worse than women) 1. Medium-rare scrutiny = More than rational basis but less than intermediate scrutiny x. Must have invidious discriminatory purpose to prove disparate impact for a facially neutral law for sex discrimination claims (Personnel Administrator of Mass. v. Feeney, veteran preference) 1. If yes, then heightened scrutiny; otherwise, it’s rational basis 2. Use the Arlington Heights factors to determine if there is discriminatory purpose d. Other Classifications i. Aliens 1. Legal non-citizen resident alien classifications get strict scrutiny a. Alien classifications get strict scrutiny when: i. Denying welfare benefits  ii. Denying civil service jobs iii. Denying bar membership (lawyer) iv. Denying notary public jobs or state service jobs b. UNLESS it’s a “public function,” then it’s rational basis i. Can exclude from elected office and being police officers, teachers, and probation officers under this exception 1. B/c being a citizen is relevant to the function 2. Illegal aliens do NOT receive heightened scrutiny a. EXCEPTION: Unless children of illegal immigrants w/r/t free public education (see fundamental interests below) ii. Age classifications get rational basis review iii. Wealth classifications get rational basis review iv. Bare congressional desire to harm a politically unpopular group (mere animus) is NOT a legitimate interest under rational basis review (USDA v. Moreno, food stamp hippie communes) 1. Two steps: a. (1) Do the means seem terribly unrelated to the purposes? i. If yes → Should make you suspicious; go to (2) ii. If no → Stop, probably okay under rational basis b. (2) Is there animus in the Congressional record? i. If so, then NOT a legitimate interest v. Cognitive disability is NOT a suspect class; rational basis (Cleburne v. Cleburne Living Center, home for the cognitively disabled) 1. Factors to determine whether a class is suspect: a. (1) History of discrimination against the group? b. (2) Characteristic beyond the individual’s control? i. “Immutability” c. (3) Characteristic related to the person’s ability to contribute to or participate in society? i. Merit d. (4) Is the group politically powerless? 2. Don’t need all of the factors, necessarily 3. Negative attitudes or fear, unsubstantiated by evidence, is NOT enough for rational basis review and may even point to animus  a. Courts can’t fix private prejudices, but it also can’t give them legal effect by ruling in consideration of them (see Palmore v. Sidoti, custody case, racism, colorblindness) 4. A very loose fit or under-inclusive fit of means to ends gives rise to the inference that you only acted based on hostility or animus for the group in question vi. If a law is both overinclusive AND underinclusive, then this gives rise to the inference that the law is driven by animus and is unconstitutional (Romer v. Evans, CO prohibits antidiscrimination laws for gay people) 1. Do NOT necessarily need direct evidence of animus 2. Found that gay people should not be considered equal w/o special civil rights protections 3. Gay people not necessarily suspect class yet vii. Evidence of animus can be found (US v. Windsor, struck down DOMA): 1. Sharp deviation from long-recognized principle in American legal history and tradition 2. Legislative history 3. Disproportionately adverse effect on the class across the board 4. Title of the law e. Fundamental Interests i. If a law and classification concern a “fundamental interest”, then you cannot treat people differently w/r/t that interest UNLESS you beat strict scrutiny 1. What’s the difference between a fundamental right and fundamental interest? a. Fundamental right → State must honor the fundamental right unless it can meet strict scrutiny i. State has an obligation to provide the right b. Fundamental interest → State doesn’t have to allow people to engage in the activity at all; BUT if a state allows some people to engage in the activity, it has to allow everyone unless it can meet strict scrutiny i. State has a conditional obligation ii. State does not have to provide the right, BUT, if it does provide it, must provide it equally 2. Don’t need a substantive constitutional provision to find a fundamental interest  3. Don’t need suspect class to get strict scrutiny as long as you have a fundamental interest ii. Voting in state elections is a fundamental interest (Harper v. VA State Board of Elections, poll tax struck down) 1. If there’s no relation between the fundamental interest and the classification, the law is unconstitutional 2. Strict scrutiny is warranted where a classification is used to invade or restrain fundamental liberties 3. NOT a fundamental right, however 4. TEST to determine what is a fundamental interest: a. If an activity is preservative of all other rights, even w/o an explicit constitutional guarantee, the activity is fundamental b. Remember, EPC is forward-looking (current events) iii. Voter photo ID requirement does NOT get strict scrutiny (Crawford v. Mario County Election Board) 1. EXCEPTION to fundamental interest rule: a. If the burden imposed is de minimis, then the fundamental interest only demands interest balancing, NOT strict scrutiny 2. You must balance the interests to determine whether a law imposes enough of a burden on a fundamental interest iv. What IS a fundamental interest? 1. Voting in state elections 2. Some kinds of access to courts a. Such as the right to appeal in criminal cases 3. Interstate migration/travel 4. Procreation v. What is NOT a fundamental interest? 1. Welfare benefits 2. Food 3. Housing 4. Education (sort of) 5. Driving? vi. In determining whether something is a fundamental interest, the court considers whether getting involved with that area would require the court to make policy decisions best left to the legislature (San  Antonio ISD v. Rodriguez, disparate funding to TX public schools based on property taxes) 1. NO fundamental interest in giving everyone the exact same level of public education a. This might be different if the schools totally excluded someone from education or didn’t provide a basic level of education 2. Courts prefer not to find new rights a. Especially broader rights or those w/o a textual basis vii. A quasi-fundamental interest + a quasi-suspect class = Warrants intermediate scrutiny (Plyler v. Doe, can’t charge full tuition for illegal immigrant kids to get public education when citizen kids get it for free) 1. Education still NOT a fundamental interest BUT really important 2. Kids of illegal immigrants would be put into a permanent under- class in a caste system if denied education 4. Congress’s Civil Rights Enforcement Powers a. Congressional Power to Enforce Civil Rights Under the 14th and 15th Amendments i. What means can Congress use to enforce civil rights? 1. Remedial measures? a. Remedial = Laws enforcing rights that we agree exist AND for constitutional violations that we agree occurred b. Congress CAN do this 2. Preventative measures? a. Preventative = Anticipates and prevents constitutional violations before they happen b. Prohibits more than what is explicitly unconstitutional; can bar some action that doesn’t violate the Amendments c. Rational basis standard d. Congress can do this, but this power is narrower 3. Substantive measures? a. Substantive = Either making determinations as to what constitutes a constitutional violation or disagreeing with what the court has found to be a constitutional violation b. Congress CANNOT do this ii. English-speaking requirements or literacy tests for voting are NOT per se unconstitutional (Lassiter v. Northampton County Election Board) iii. Congress is NOT limited only to remedial measures (South Carolina v. Katzenbach) iv. The Court need only find a rational basis for a preventative measure (Katzenbach v. Morgan) 1. Need only be “appropriate” legislation to enforce under § 5 of the 14th Amendment a. “Appropriate” = helpful i. Very broad 2. Court more lenient on Congress’s substantive measures if it happens to agree with them v. Congress CANNOT enact substantive measures to enforce civil rights (City of Boerne v. Flores) 1. Substantive = Congress is either contradicting the courts as to what constitutes a violation OR is making a new determination the courts haven’t spoken on 2. § 5 only gives Congress the power to enforce 14th Amendment, NOT to make its own interpretations 3. Congress CAN act in a remedial or preventative fashion 4. Congruence and proportionality test a. There must be congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end b. STEPS: i. (1) What is the evil that Congress is trying to prevent? 1. Must be a constitutional violation 2. NOT just some generic evil ii. (2) Is Congress actually targeting this constitutional evil? 1. Or something else? iii. (3) How great is that evil? 1. Need evidence of pattern of discrimination/harm done by the states iv. (4) Are the means proportional to that evil? 1. CANNOT be overinclusive vi. States must be treated equally to one another; equal sovereignty of the states (Shelby County v. Holder, struck down law requiring some states to preclear changes in voting laws w/ federal gov’t)  1. Congress CANNOT offend equal sovereignty of the states w/o a very good reason to target these particular states 2. States historically in control of their own elections, Amend. X 3. Although the legal premises don’t change, our factual premises change with the times a. Living Originalism? vii. Cannot be overinclusive by applying to entire country when only some states are guilty of discrimination (US v. Morrison, college football SA) 1. Examples of overinclusiveness: a. Targeting private actors i. Constitutional Amendments XIII–XV can ONLY be enforced against state actors, NOT private actors 1. Private actors → NO constitutional evil; need to go about it another way b. Applying the remedy to all states instead of just the states that we have evidence of discrimination for 2. Lack of deference shown to Congress here and in Shelby County viii. Sovereign immunity → States usually immune from lawsuits by private citizens seeking damages/attorney’s fees 1. Commerce Clause does NOT pierce sovereign immunity a. B/c 11th Amend. came after Commerce Clause, giving 11th Amend. priority 2. 14th Amendment DOES pierce sovereign immunity a. B/c 14th came after 11th, so 14th trumps 11th b. But still limited by congruence/proportionality test ix. Congruence test → How large of a problem does the Court consider the discrimination to be? To see what’s required, look at the classification (Kimel v. Florida Bd. of Regents, struck down ADEA as to state employers) 1. If suspect class → Heightened scrutiny 2. If NOT → Rational basis; need lots of evidence of widespread discrimination x. Means CANNOT be disproportionate compared to the harm (Bd. of Trustees of the U. of Al. v. Garrett, struck down ADA as to state employers)  1. If would be very expensive to comply AND not much evidence of discrimination AND would shift burden to employers to show they made accommodations, THEN would be too much xi. However, if you combine rational basis class under 14th Amend. AND a fundamental right, THEN Congress’s sphere of power is expanded (TN v. Lane, access to courts for disabled upheld) xii. Sex classifications warrant heightened scrutiny, expanding Congress’s power (NV Dept. of Human Resources v. Hibbs, upheld FMLA w/r/t family leave) 1. BUT self-care is NOT protected under FMLA the same way as family leave b/c not the same heightened scrutiny implications (Coleman v. Ct. of Appeals of MD)