Major Issues 4 Role of the Courts 4 Which branch authoritative interpreter of the Cx. 4 C/m difficulty 4 The Supreme Court and the Constitution 4

Incorporation Doctrine

Generally

20th C. idea that due process means the right to live in a society governed by laws.

Bill of rights incorporated into 14th A. due process for States

14th A. framers.

some probably believed privliges and immunities were the first eight ammendments, some not, some didn't think about it. - Chem

Baron v. Baltimore (1830)

bill of rights restricts federal not State conduct.

Bill of rights does not apply to the States

Slaughter House Cases (1873)

Narrowly interprets the privilieges and immunities clause..

removed as a basis for applying the bill of rights to the states.

Warren court

1, 4, 5, 6, and 8th.

Substantive Due Process

Generally

Ghost of Lochner

Judicial activism is bad

Lochner's mode of activism was bad

Historical

Lochner and Freedom of Contract

activist court limits State police power

ends with West Coast Hotel

Skinner v. OK

Modern

FN4

representation/renforcement (p690)

Ely.

prevention of political process failure

encouragement of representation of minorities

prevent tyranny of majority

two tier analysis

Right of Privacy/Abortion

Griswold v. Connecticut (1965) (p811)

Douglas, J.

Protects the privacy of married couples.

Skinner as precedent

sees penumbras and emanations from bill of rights

1,3,4,5,9

Avoidance of 14th A forces reliance on other text

ghost of Lochner

Goldberg, J.

9th A. isn't surplussage not a font of rights either.

like the xth A., supports rights found in 14th A p&i.

Harlan, J.

Libertarian

autonomy/"liberty" in 14th A.

urges strict scrutiny

fundamental

Stuctural Argument

3rd A. intrusion by soldiers

historical experience

what were framers trying to achieve, what did they have in mind?

a la Marshall.

people are the sovereign, avoiding intrusion of government, autonomy is essential to the people's ability to govern.

Eisenstadt v. Baird (1972) (p822)

protects like Griswold

protects unmarried couples under EP clause

rational basis used

Roe v. Wade (1973) (p823)

Fundamental right to terminate pregnancy

Blackmun, J.

refuses to resolve the life controversy when science, morality, philosophy cannot.

Fundamental Right

14th A., 9th A., Wherever you find it

they find in the 14th.

unfortunate

Two Interests

Pregnant woman's health & safety

Potential life

Both become compelling

Trimester Analysis

1st - no special regulation

safer than carrying to term

2nd- broader interest in Woman's health

more risk

3rd- compelling interest in both

state may proscribe abortion

After Roe

State moral restrictions masquerading as health & safety

Minors w/ judicial bypass

Fundamental religious/moral reaction

Targets doctors/clinics

Creation of political movements

Since: collapsing of trimester framework with advance in science

Planned Parenthood v. Casey (1992)(p851)

Kennedy, Souter, O'Connor (Reagan/Bush Appts. cater to religious right)

Special case, woman not alone in pregnancy

free from "undue burden" from the state before viability test

Not SS

narrow tailoring and compelling interest gone

gives section to substantive due process

great weight to stare decisis

reliance on nation gov'd by Roe

State's interest extends into the 1st trimester

Informed consent YES

24 hour wait YES

Consent with judical bypass YES

Recording YES

Spousal Notice NO

domestic violence

undue burden

Viability not trimesters

Extra expense splits abortion across class lines.

Bowers v. Hardwick (1986) (p896)

Test

Implicit in concept of ordered liberty

Due process

Deeply rooted in Nation's history & tradition.

Self-narrowing investigation

White, J.

Classification of right decides case

"engage in homo sodomy"

Right to be let alone - Blackmun

Romer v. Evans (1996) (p638)

Animus alone motivates Amendment two

Bare desire to harm.

Kennedy, J.

Fails Rational Basis review

Another Cleburne

Gays have political power (no)

Loving

Classification is on its face invidious

In tension with Bowers

Not decided on substantive due process grounds

Lawrence v. Texas (Now)

Probably gets decided on EP grounds

Substantive DP issue debated

Hopes to overturn Bowers

Can States pass laws just on moral disapproval?

Rick Santorum Argument

If this right is granted, all things are okay in the bedroom; incest, bigamy, adultery.

Has some weight.

Better to decide on EP grounds?

" is whether that fundamental right extends outside the marital context into other unmarried couples who form bonds and have -- and -- for whom sexual intimacy plays an equally important role in their lives.

Fundamental Interests Equal Protection

Generally

procreation, voting, access to courts, and travel

Strict-scrutiny test used to violate under EP clause of 14th A.

hesitant to expand list

Procreation (YES)

Buck v. Bell (1927)

Holmes, J.

Three generations of imbeciles is enough

Skinner v. Oklahoma (1942) (p. 736)

Douglas, J.

Discriminates among people with regard to exercise of fund. right.

strict scrutiny.

chicken stealers v. embezzlers irrational

Education (NO)

San Antonio School Dist. v. Rodriguez (1973) (p.795)

Powell, J.

property tax based revenue leads to differences in local tax rates and school funding.

Court rejects the creation of substantive right

Court finds no loss of right with absolute deprevation

Court rejects class of rich/poor

district system does not correpsond tightly enough to income.

some poor in rich districts and vis versa

No heightened scrutiny without absolute deprivation

No equal protection argument

wealth discrimination gets rational basis review

Marshall, J.

advocates sliding scale of scrutiny. p801

as the non-cx right nexus with cx-right becomes closer, the degree of scrutiny should rise

Plyer v. Doe (1982) (p. 804)

Brennan, J.

TX - Undocumented children prohibited from attending unless they pay

public education not fund. right

not class for heightened scrutiny

Rational Basis Plus (see Cleburne)

harm of complete denial of education

permanent underclass

furthers no "substantial" (legitimate?) goal of the State

Narrow precedent for immigrant children & education

Affirmative Action

Battle for Meaning of EP

Color Blind

O'Connor & Scalia

race is irrelevant

color blind

constantly recreating racial categories

At least 4 votes after Adarand

Anti-Subordination/Remedial

Marshall

Can't create equality out of inequality

stay out of political process

Historical

History

Regents of U.C. v. Bakke (1978)(p554)

Numerical set-asides at Davis medical school

Brennan, White, Marshall, Blackmun want intermediate scrutiny.

burger, Stewart, Rehnquist, Stevens violates CRA 64

Powell, J.

Must be within competence of school when remedial

strict scrutiny

ss even when remedial

set aside un-cx.

one factor, plus, like Harvard, okay

Davis has no interest in remedying prior discrimination

although the State does

Diversity might be compelling interest

valid but set aside not justified.

Fullilove v. Klutznick (1980)

Upholds AA at Federal level.

10% of federal Public Works funds to minority owned business

AA, latino, asians, indians, eskimos, aleuts

still no majority for level of scrutiny

fully remedial

unique position of congress to remedy

Stewart, Rehnquist

gov't should never act on race.

City of Richmond v. J.A. Croson Co (1989) (p557)

O'Connor, J

Adopts strict scrutiny for States

"standard of review not dependent on the race of those burdened"

City hasn't a compelling interest in remedying racial discrimination

Same classifications as Fullilove

AA 50% of population, .67% of contracts

City's findings are insufficient

Remedy to particular class harmed

cannot ride on Congress’ findings.

shouldn't have included the classification from Fullilove

not narrowly tailored

consider race neutral means

Marshall, J. (dissent)

shouldn't be s.s in remedial context

Perhaps 14thA. S. 5 has strength States don't have.

Metro Broadcasting v. FCC

diversity is an interest in station licensing

benign classifications need intermediate scrutiny (overruled)

Adarand Constructors v. Pena (1995) (p574)

Strict scrutiny for federal actions in all racial classifications

no deference to federal gov't

remands for ss analyis not intermediate.

leaves undecided the status of diversity as a compelling interest

O'Connor, J.

Skepticism

racial criteria get ss

Consistency

benefit or burden, same analysis

Congruence

5th A. same as 14th

Overrules Metro Broadcasting on level of scrutiny

Thinks some programs can pass s.s.

Stevens, J. (dissent)

is difference between benign and invidious

Federal gov't actions should not be judged as States or localities.

Before Michigan

Standard of Review

Strict scrutiny

Compelling Gov't Interest

Remedial

Bakke

Do institutions have a stake in remedy general discrimination

How about their own discrimination?

Croson & Adarand

SS for feds, findings must be incredibly perfectly tailored

Diversity

Are broad societal objectives within Michigan's role?

Pro

Gurin Study

acclimate to real world

Military Brief

essential to national security

Con

Stigma

harm to majority

racialized treatement

Standing

Does Grutter have standing? How can they prove they have been harmed.

Narrow Tailor?

Is michigan plan narrowly tailored?

"Critical mass" meaningful

point system narrow

State Action Doctrine

Generally

Cx applies only to the government.

No state action doctrine in 13^th A.

Private conduct is not reached by the Cx

No protection from private wrongs.

Civil Rights Cases - CRA 75 un-Cx

U.S. v. Morrison (2000) (p199)

Violence Against Women Act '94

Congress can't regulate private, non-commercial activity.

Reasons

Personal Liberty

less law = more liberty

Other Bodies of Law Protect

tort, contract

problem , C.L. has no EP clause

Gov power > Private

Entanglement Exceptions

Government authorizes, facilitates, or encourages private, un-Cx conduct

Generally

some inconsistencies.

activism before CRA64

narrowing of doctrine after CRA64

no real test for how much

Enforcement

Shelly v. Kramer (1948)

"To A until such time as he marries a non-white person."

Slippery Slope - isn't everything state action

Regulation

Burton v. Willimington Parking Authority (1961) (p.1527)

Gov't in biz with racists

Public property

could have put 14th A. into contract with Eagle Coffee Shoppe

Slippery Slope

put 14th A. into State Incorporation documents

Subsidy

Is intent the test

Norwood v. Harrison (1973) (p1530)

State Action

Mississippi gives free textbooks to all schools, including segregated ones.

Intent to undermine integration

Rendell-Baker v. Kohn (1982) (p1533)

No State Action

School for "problem" students, 99% federally funded

Teachers fired without due process

Public Function

Generally

Private entity performs

traditional

exclusive government function

Is balancing the test?

Marsh v. Alabama (1946) (p1544)

Company town of Chickasaw, Alabama

Balancing established, never really pursued

Jackson v. Metro Edison (1974) (p1540)

Private utility turns off power without d.p.

would this be different if only A.A. were turned off

Equal Protection Attack Outline

Is there state action?

Violation of Fundamental Rights

Source in Bill of Rights

Source Implied Rights

Incorporation Doctrine

Federal Due Process

Privacy, Procreation, Family

No right to Education

Source of Rights

Due Process Clause

Implied in DP

History and traditions of nation

FN4

Other Sources

Goldberg's 9th A.

The People - structural argument

Execute the Type of Review

Strict Scrutiny

Or Abortion = "undue burden"

EP Protected Classes

Levels of Scrutiny

Rational Basis - Default - poverty

Strict Scrutiny - Race, ethnicity, national origin

Intermediate Scrutiny - gender

RB Plus - mentally retarded

Gays & Lesbians

Bowers

Facially Discriminatory or Impact

Facial - Loving

Invidious Intent

Impact

McClesky

Multiple Purpose

Race Cases - Strict Scrutiny Applied

Compelling state interest (Korematsu)

Narrowly tailored

No other means

Applies

Affirmative action

Gender Middle level applied

US v. VA Test

Combo

Fundamental Rights Denied to Classes

Find a right

Locate the class

Is use of the class appropriate to achieve gov't interest?

Skinner v. Oklahoma

Eisenstadt (secures privacy for unmarried couples)

Continuum analysis

Plyler v. Doe.

Power to Enforce

See 14th A.

Carolene Products Footnote Four

Stone, J.

There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten Amendments, which are deemed equally specific when held to be embraced within the Fourteenth. It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation. [right to vote, restraints upon the dissemination of information, interferences with political organizations, prohibition of peaceable assembly] Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious, or national, or racial minorities. whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.