Constitutional Law

The Standing Limitation—Who Can Litigate?: Constitutional Standing

(1) Art. III requires that a plaintiff seeking to litigate a federal constitutional question demonstrate a personal stake in the outcome by establishing (1) injury in fact; (2) fairly traceable to the defendant's act being challenged; and, (3) redressable by therequested remedy. This assures the requisite adversity and reflects separation of powers concerns.

If there is no conflict or express preemption, the courts must still determine if Congress intended to occupy the field and exclude the state regulation. Courts consider:

(a) need for uniformity; (b) legislative history; (c) the pervasiveness of the federal regulation; (d) historic roles of national and local interest in regulating in the area (presumption of no preemp- tion in areas of traditional state authority); (e) potential for future conflict; (f) availability of a federal agency to maintain continued control.

Sodomy Laws

A state law criminalizing homosexual sodomy violates due process liberty. Liberty protects intimate decisional choices involving consensual adult sexual conduct in the privacy of the home. The state has no legitimate interest sufficient to justify the intrusion into the personal and private life of the individual.

Intentional Discrimination

A state law which purposefully discriminates against interstate commerce, e.g., by hoarding scarce resources against import or export to other states, is virtually per se invalid.

Heightened Review Equal Protection--Criteria of Suspectness

Factors which have been considered in labeling a classification suspect include: the historical purpose of the Equal Protection Clause; the history of discrimination against the class; the stigmatizing effect of discrimina- tion; classification based upon a status which the person cannot control; discrimination against a politically insular minority.

The Right to Care and Protection

Government has no affirmative constitutional duty, absent special cir- cumstances, to provide care and protection for individuals. A limited duty may arise if government assumes custody of an individual.

Due Process: The Incorporation Process-- Selective Incorporation

Only those provisions of the Bill of Rights which are "essential to the concept of ordered liberty" or "fundamental in the American scheme of justice" are made applicable to the states through the Due Process Clause. Rights thus far not incorporated as "fundamental rights" include the Second and Third Amendments, Seventh Amendment right to jury trial in some civil cases, grand jury indictment, excessive bail, 12-person juries and a unanimous verdict for conviction.

Other Classifying Traits

Other classifying traits, e.g., those which operate to disadvantage the poor, the aged, the mentally retarded or gays and lesbians (sexual persuasion) without more, are reviewed under the traditional rational basis test. But if the law suggests prejudice or animus it may be reviewed using "rationality with bite."

Fourteenth Amendment

Persons born or naturalized in this country are citizens of the United States and of the state of their residence. No citizen of the United States can be denied the privileges and immunities of United States citizenship. No state shall deprive citizens of life, liberty, or property without due process of law or deny any person in the jurisdiction equal protection under the laws.

"Fairly Traceable."

Plaintiffs must establish causation by showing that the injury is "fairly traceable" to the defen- dant's action being challenged.

The Tenth Amendment

Powers that were previously exercised by the states which are not delegated are reserved to the states or to the people. There has been persistent controversy over whether the Tenth Amendment is a substan- tive limitation on Congress' ability to legislate as to private parties and the states.

State Taxation and Regulation

States cannot directly tax or regulate the federal government or federal instrumentalities. They cannot discriminate against the federal govern- ment or those who deal with the federal government.

Bill of Rights

The first ten amendments were enacted only to limit the newly created federal government. They do not apply directly against the states. The Due Process Clause is used to apply the guarantees of the Bill of Rights to the states.

The Rise and Fall of Economic Substantive Due Process

Under "Lochnerism," the courts invalidated federal and state laws as arbitrary and unreasonable interferences with the right of contract protected by the due process guarantees of liberty and property. Today, this active judicial review of socio-economic legislation has been re- placed by judicial deference.

Implied Powers

UndertheNecessaryandProperClauseofArt.I,§ 8,Congresscanenact laws which are reasonably designed to achieve its delegated powers.

Federal "Judicial Power" Defined

Unless a case falls within one of the "cases or controversies" identified in Art. III, § 2, an Art. III federal court (as distinguished from an Art. I court) must dismiss the case for want of subject matter jurisdiction.

State Power to Regulate Commerce

Where a subject requires national regulation or where the particular state regulation would excessively burden interstate commerce, the state may not regulate absent congressional authorization.

Discriminatory Purpose

While a discriminatory impact on women is evidence of impermissible intent, it is only a discriminatory govern- ment purpose that will trigger use of the intermediate standard of review.

Right of Travel--Interstate Movement

While the source of the right of interstate travel is unclear, it is a fundamental personal right subject to more stringent judicial pro- tection.

DUE PROCESS OF LAW

While there are a few guarantees of liberty and property in the original Constitution, a central source of personal rights has been the Due Process Clause of the Fifth and Fourteenth Amendments. Fourteenth Amendment due process includes: (1) incorporated fundamental rights; (2) substantive rights limiting what government can do; (3) procedural limits on how government acts.

Achieving Social Welfare Objectives—A National Police Power

While there is no national police power, Congress can achieve social welfare objectives through regulating interstate commerce. If Con- gress exercises its delegated powers, it may regulate matters tradi- tionally regulated by the states.

Fundamental Rights: When a classification significantly burdens the exercise of fundamental personal rights, the government usually must prove that the classifica- tion is necessary to a compelling governmental interest.

a. In cases where the law does not deter, penalize, or otherwise significantly burden the constitutional right, the Court applies the traditional rational basis test. b. Increasingly, the Court has moved to a variable standard of review. The more significant the burden on fundamental rights, the greater the degree of scrutiny used.

Policy Limitations (Judicial Self-Restraint)

a. Rules for Constitutional Review. The Ashwander rules are used to avoid unnecessary constitutional decisions. b. Presumption of Constitutionality. c. Judicial Restraint to Avoid Unnecessary Use of Judicial Review. The Court follows a policy of "strict necessity" before deciding consti- tutional questions. d. Congressional legislation can override prudential (ie., non-jurisdictional) limitations.

The Eleventh Amendment

as interpreted, provides that the judicial power does not extend to suits against a state or its agencies by citizens of another state or of a foreign country or by its own citizens.

Delegation of Powers

Congress can delegate legislative authority so long as it prescribes some standards to guide use of the granted powers.

The Spending Power

Congress can spend, but cannot regulate, for the general welfare.

Inherent Powers

Congress has no inherent domestic legislative powers. This does not preclude the existence of inherent foreign affairs powers.

NATIONAL LEGISLATIVE POWERS

Congress has only such powers as are granted by the Constitution. Under the Tenth Amendment, powers not granted to the national government are retained by the states and the people. The crucial inquiry is whether there is a constitu- tional source of power for congressional legislation.

Commerce Power

Congress has power to regulate "commerce among the states" which has come to mean interstate commerce. However, the commerce power provides the basis for congressional regulation even of local intrastate activities.

The Taxing Power

Congress has the fiscal power of raising monies through taxes. However, this is not a regulatory power and "penalties" may not be imposed in the guise of taxes. 1. Courts today tend to accept any tax as a fiscal measure if, on its face, it is a revenue producing measure. 2. Disclosure requirements will not make a tax into a penalty but such provisions raise problems of self-incrimination.

Constitutional Limitations--Spending Power

The Tenth Amendment is not likely to be a barrier to congressional spending so long as the states remain free to reject the federal grant and its conditions.

Examples of fundamental rights include:

(1) First Amendment Rights—When government classifications significantly burden the exercise of fundamental First Amend- ment rights such as freedom of speech or religion, the classifi- cation is closely scrutinized. (2) The Right of Interstate Travel—When the government imposes a classification which deters, penalizes or otherwise signifi- cantly burdens the fundamental right to travel, the strict scrutiny standard of judicial review applies. In some cases, the Court has held that the law could not satisfy even rationality review. Recently, the Court has used the Privileges and Immu- nities Clause of the Fourteenth Amendment to prevent discrim- ination against newly arrived citizens of the state. (3) The Right of Privacy and Marriage—Only if a fundamental right is significantly burdened will heightened scrutiny apply.

Federal Regulation of States I

(1) State Sovereignty Limitation. Principles of state sovereignty, reflected in the Tenth Amendment, limit Congress' Commerce Clause power to regulate state activities.

Modern Applications Identify the local incidents being taxed and inquire into the actual economic effect of the tax. The tax is valid if:

(1) the activity taxed is sufficiently connected to the taxing state; 2) the tax is fairly apportioned; (3) the tax does not discriminate against interstate commerce; (4) the tax fairly reflects the benefits received.

The question of what process is due is a matter of federal constitutional law for the courts. It is not determined by state law. In determining what procedures are required to assure due process, courts balance the competing interests, usually considering three factors:

(1) the severity of the harm to the litigant if the procedures are not provided; (2) the risk of error if the procedures are not afforded; and, (3) the administrative difficulty and other costs of providing the requested procedures.

Ripeness, Prematurity and Abstractness

(1)The Art. III requirement of ripeness requires that there be present injury or an imminent threat of injury. In determining if a case is ripe, consider the effect of delay on plaintiffs, the effect of judicial intervention on administrative actors, and whether courts would benefit from the delay. (2) Even if jurisdiction is technically present, judicial self-restraint may dictate dismissal of issues as premature and abstract.

Federal Regulation of States II

(2) In National League of Cities, subsequently overruled, the national interest in including the states under the regulation was bal- anced against the intrusion on state sovereignty. Three condi- tions were used in determining if state sovereignty was vio- lated: (a) "States as states" (Direct regulation of state or its agencies); (b) "Traditional state functions"; (c) Impairment of state ability "to structure integral operations in areas of traditional functions".

Federal Regulation of States III

(3) Today, if Congress enacts a law generally applicable to private parties and the states, there is only a minimal state sovereignty limitation. The Tenth Amendment and principles of state sov- ereignty, embodied in our constitutional structure, impose only minimal limits on congressional power, assuming that the national political process is functioning. (a) Federal courts should not determine what are "traditional" or "integral" functions of state government. (b) It is the structure of the federal government itself that protects federalism.

Federal Regulation of States IV

(4) But if congressional regulations impose special burdens on states, state sovereignty and the Tenth Amendment impose limitations. Congress cannot constitutionally command states to regulate or to enforce a federal regulatory program, since this would undermine political accountability and dual sovereignty. In such cases, there is no judicial balancing of national and state interests. But Congress can require states to regulate or face preemption by a federal program.

Affirmative Action

(a) Federal, state and local affirmative action programs are reviewed under the strict scrutiny test. (b) In applying strict scrutiny, a narrowly-drawn race-based program designed to remedy specific, identified racial discrimination is likely to be upheld. (c) An institution of higher education has a compelling inter- est in the diversity of its student body, which can include racial and ethnic diversity. A race conscious admissions program must be narrowly tailored; the process must be individualized, not mechanical. Quotas or racial balancing are unlikely to be upheld. Race may be a "plus" factor; it must not be determinative of the admissions decision. Narrow tailoring does not require exhaustion of every possible race-neutral alternative. Time limits to race con- scious policies are relevant. (d) Race-based student placement programs by elementary and secondary schools were held to be unconstitutional because they were not narrowly-tailored. The Court did not decide whether the schools' interest in the benefits of racial diversity would be a compelling interest. (e) Congressional districting, where race is the predominant factor, is subject to strict scrutiny. Race is the predominant factor when the state subordinates traditional race-neutral districting considerations to race.

Reasonable Conditions--Spending Power

Congress may impose any reasonable conditions for participation in federal spending programs even if this induces states to conform to federal standards. The courts defer to Congress' judgment of reasonable- ness. Such conditions must be explicitly stated so that states can make informed choices.

Abortion after Casey (upheld roe)

A federal law banning partial birth abortion was upheld against a facial challenge despite the absence of any provision exempting mothers whose health was at risk. The Act did not impose an undue burden because there was medical uncertainty as to whether the prohibition on partial birth abortion created significant health risks. The prohibition is subject to as-applied challenges.

Impeachment

A President may be impeached by the House and tried by the Senate for "Treason, Bribery, or other high crimes and misdemeanors."

Express, Implied, and Unenumerated Rights

A more stringent standard of review is used for all express rights, those rights implied from the express rights or the constitutional structure, and other unenumerated fundamental rights recognized by the courts. When the Court holds that a law burdens a significant or special liberty right, the Court uses strict scrutiny or employs a "particularly careful scruti- ny."

The Right to Refuse Treatment

A person has a liberty interest in avoiding unwanted medical treatment. The government's interest may justify the regulatory burden on liberty, e.g., the state's interest in preserving life justifies imposing a heightened evidentiary standard before life support is terminated.

Instrumentalities of Commerce

Congress' plenary power to regulate and protect interstate commerce extends even to local activities that threaten the instrumentalities of interstate commerce and persons and things in interstate commerce.

Heightened Review Equal Protection--Purpose, Not Effect

Before strict scrutiny is used, the challenger must prove that the discrimination was purposeful, either overtly or covertly. While discrim- inatory impact or effect may be evidence of discriminatory purpose, it is usually not sufficient in itself to prove discriminatory purpose. Even if discriminatory purpose is shown, government can avoid strict scrutiny if it can prove that it would have taken the same action even apart from the discriminatory purpose.

Discretionary Abstention: Pending State Proceedings

Absent a showing of bad faith harassment, a federal court should abstain in a suit seeking declaratory or injunctive relief if state criminal or analogous civil proceedings are pending.

Modern Substantive Due Process: Non-fundamental Rights--Legitimate Objective

Any permissible government objective will suffice.

"Injury in Fact."

Any significant factual injury, economic, aesthetic, etc., will suffice. The injury must be "concrete and particularized and actual or imminent, not conjectural or hypothetical."

Express Powers

Art. I, § 8, expressly grants specific powers to Congress.

Mootness

Art. III requires dismissal of a case when, because of changes, the court's determination of the legal issue cannot have any practical effect in achieving the desired result. But there are exceptions to the doctrine: (1) voluntary cessation of the allegedly illegal conduct; (2) unsettled collateral consequences; (3) there is a reasonable likelihood that the constitutional issue is "capable of repetition, yet evading review."

The Supremacy Clause

Art. IV, cl. 2 establishes that national laws that are constitutional override contrary state laws.

Interstate Privileges and Immunities

Art. IV, § 2, prohibits unreasonable discrimination against out-of- state citizens in regard to fundamental interests basic to the liveli- hood of the Nation. There must be a substantial reason for the discrimination and the discrimination must bear a close relation to that reason. To justify discrimination in rights fundamental to national unity, it must be shown that out of state citizens are a peculiar source of the evil. Further, there must not be any less burdensome alternatives. The clause provides an alternative to the Dormant Commerce Clause for attacking state discrimination against out-of-state citizens and may be used when the State is acting as a market participant.

Review of State Action

Art. VI requires state courts to make decisions in conformity with the U.S. Constitution. These "cases arising under the Constitution" are reviewable by the Supreme Court under Art. III.

Achieving Social Welfare Objectives—A National Police Power

Congress' power to regulate the channels and instrumentalities of interstate commerce and persons and things in interstate commerce is plenary, permitting it to prescribe rules for the protection of commerce. Courts will not probe Congress' purpose in regulating interstate com- merce.

Spending as a Contract: Explicit Conditions--Spending Power

Conditions on federal grants must be clear and unambiguous to be enforced.

Fifteenth Amendment

Denial of the franchise because of race or previous condition of servitude by the state or federal government is prohibited.

Modern Substantive Due Process: Non-fundamental Rights--Fundamental Rights Exception

Due Process challenges based on fundamental personal rights invoke a more searching judicial scrutiny.

Discriminatory Means and Effects

Even if a state law serves a legitimate police power objective, the law must regulate evenhandedly. Differential treatment favoring in-state against out-of-state interests constitutes dis- crimination. A local regulation may be discriminatory even if it curtails commerce by other state subdivisions as well as out- of-state interests. A law using discriminatory means or having a discriminatory impact must serve a legitimate local purpose that cannot be served as well by nondiscriminatory means.

Executive Privilege

The Court has recognized the existence of an executive privilege for internal confidential communications based on the separation of powers principle and Art. II. A claim of privilege is presumptively valid and the judiciary determines whether a sufficient need has been shown by the party seeking disclosure.

Preemption

If a state law conflicts with a valid federal law so that it is impossible to comply with both or if it impedes achievement of the federal legislative objective, the state law is invalid under the Art. VI Supremacy Clause.

Discrimination

If a state regulation is labeled "discriminatory" against interstate commerce, it is likely to be held unconstitutional. Economic protec- tionism violates the Dormant Commerce Clause. But laws which benefit public entities over private entities, yet which treat all private companies the same, do not discriminate against interstate commerce.

Discretionary Abstention: Vagueness

If a state statute is capable of a narrow saving construction, federal courts should exercise restraint and abstain from deci- sions on constitutional issues.

The Roe v. Wade Revolution and Reaction

In Roe v. Wade (1973), the Court extended the fundamental right of privacy to protect a woman's decision to terminate a pregnancy. The Court found the privacy right in the Fourteenth Amendment guarantee of personal liberty and applied a "trimester test" to determine whether strict scrutiny was met.

Modern Substantive Due Process: Non-fundamental Rights--Rational Means

In assessing the rationality of the law in achieving the government's objective, the courts will not second-guess legislative fact finding or question the wisdom of the law.

Undue Burdens—Ad Hoc Balancing

In determining if a nondiscriminatory state regulation of interstate commerce is valid, the courts balance the local interests in main- taining the law against the burden on interstate commerce. Some members of the Court reject undue burdens balancing, limiting the Dormant Commerce Clause to a ban on discrimination.

b. Legitimizing State Burdens on Commerce

In exercising its plenary powers, Congress may authorize the state to regulate even where the state law would otherwise violate the negative implications of the Dormant Commerce Clause. But Con- gress must expressly and unambiguously manifest such an intent.

Sex Discrimination

In gender discrimination cases, the Court has referred to intermediate review as requiring "exceedingly persuasive justification." This may include consideration of alterna- tives available to government, making the review closer to strict scrutiny. Use of classifications that intentionally dis- criminate against women based on stereotypes seldom survive intermediate review. If the classification reflects real differences between the sexes, it is more likely to be upheld.

The Rational Basis Test

In most cases, a classification will be upheld if it is rationally related to any permissible government objective. The fact that a classification is under- or over-inclusive will not result in its unconstitutionality. a. Burden of Proof The law is presumed valid and the burden of proof of its invalidity is on the challenger. The burden is usually insurmountable. b. Permissible Government Objective If the classification is rationally related to a permissible government objective, even if it is not the actual objective, it will be upheld. c. Rational Means If any facts can be ascertained that will sustain the classification, the existence of such fact finding by the legislature will be assumed. Only arbitrary classification is proscribed.

Modern Substantive Due Process: Non-fundamental Rights

In reviewing federal (Fifth Amendment) and state (Fourteenth Amendment) laws, the courts usually defer to the legislative judgment. If there is any rational basis that the legislature might have had for concluding that a law would further permissible legislative objectives, it does not violate due process. This deferential standard is used in reviewing most social and economic legislation.

Rationality With Bite

In some cases, the Court has engaged in a more demanding balancing of the competing interests in determining the reasonableness of the chal- lenged classification. This may reflect judicial concern with possible prejudice or animus against the disfavored class.

Judicial Review Defined

Judicial review is the doctrine that the courts have the power to invalidate governmental action which is repugnant to the Constitution.

Heightened Review Equal Protection--Legislation and Administration

Legislation or administrative action which is purposely discriminatory is subject to strict scrutiny. A law or policy may be overtly or covertly discriminatory in purpose. Even if a law or policy is neutral, it may be administrated or enforced in an intentionally discriminatory fashion (unconstitutional "as applied").

What Is Liberty?

Liberty is not limited to freedom from confinement. It includes marriage, raising a family, etc. But reputation, without more, does not constitute a sufficient liberty interest.

Stream of Commerce

Local activities can be regulated if they are part of the "stream" of interstate commerce.

Congressional Immunity

Members of Congress and their aides enjoy absolute immunity under Art. I, § 6, for "legislative acts."

Federal Taxation of States

Non-discriminatory federal taxes, which reasonably reflect the benefits provided the state, are constitutional.

The Dormant Commerce Clause

The Dormant Commerce Clause, as interpreted by the courts, limits state power to enact regulations affecting interstate commerce. States may not discriminate against interstate commerce absent substantial justification. Nor may states place unreasonable burdens on interstate commerce.

STATE POWER IN AMERICAN FEDERALISM

States have inherent police power to legislate for the public health, morals, and well-being of its citizens. But this power is limited by the constitutional division of powers. The people of the entire nation, through the Tenth Amendment, reserved to the states only such powers as they had prior to ratification.

Adequate and Independent State Grounds

Subject Matter Limitation-- What can be litigated: Where adequate and independent substantive or procedural state grounds for a lower court decision clearly exist, the Supreme Court will decline to exercise jurisdiction.

The Political Question Doctrine

Subject Matter Limitation--What can be litigated: Political questions, which are non-justiciable, have their origin in classic, functional, and prudential considerations. (1) Constitutional commitment to another branch; (2) lack of judicial resources and capabilities for deciding the case; (3) prudential or policy considerations relating to the proper use of judicial power.

The Affectation Doctrine--Commerce Clause

Substantial Effects (1) Under the Necessary and Proper Clause, Congress can regulate local activities if it can rationally conclude that such activity has a substantial effect on interstate commerce. The courts gener- ally defer to the congressional judgment. (2) In assessing the effect, Congress may consider the cumulative or aggregate impact of all regulated activities. (3) "Congress can regulate purely intrastate activity that is not itself 'commercial,' in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that com- modity." Gonzalez v. Raich (2005).

Source of Judicial Power

The "judicial power" is vested by Art. III in the Supreme Court and inferior federal courts created by Congress.

Commerce Clause

The Commerce Clause protects the free movement of persons from state to state.

Fundamental Interests

The Court also has used a stricter standard of review to prevent discrimination in access to certain fundamental interests that are not technically constitutional rights but are protected by the Equal Protec- tion Clause when discrimination is involved.

EQUAL PROTECTION

The Fourteenth Amendment Equal Protection Clause and the Fifth Amend- ment Due Process Clause (which is read to guarantee equal protection) prohibit the state and federal government respectively from using unreason- able classifications. Reasonableness is dependent on: (1) the basis of the classification; (2) the character of the interests burdened by the classification; and (3) the government objectives supporting the classification. The courts generally use three principal standards of review: (1) the traditional rational basis test; (2) an intermediate standard requiring that the classification be substantially related to an important government interest; and (3) strict scrutiny requiring that the classification be necessary to a compelling state interest.

Privileges or Immunities of National Citizenship

The Fourteenth Amendment Privileges or Immunities Clause does not make the Bill of Rights applicable to the states. The Clause has been narrowly interpreted to protect only those rights relating to a U.S. citizen's relationship to the national government, e.g., to vote in federal elections. While it is seldom used today, it has recently been used to prevent discrimination against newly arrived residents based on their exercise of the right of interstate travel.

Presidential Immunity

The President is absolutely immune from civil liability for actions within the "outside perimeters" of his official responsibility. But the President does not have a general constitutional immunity for unofficial acts allegedly committed prior to assuming office. Presidential aides have a qualified immunity.

The Second Amendment

The Second Amendment confers an individual right to possess and carry weapons in cases of confrontation. The right is not unlimited but the Court has not determined the scope of permissible government regulation or the appropriate standards of judicial review or the issue of incorporation.

General Welfare--Spending Power

The Spending Clause of Art. I, § 8, cl. 1, is an independent fiscal power to spend for general welfare objectives. It is not limited to the regulatory powers of Art. I, § 8. Congress determines the scope of the general welfare.

Natural Rights

The idea that there are extra-constitutional legally enforceable "natural rights" limiting governmental power has not been accepted by the Court.

Due Process: The Incorporation Process-- Full Incorporation

The incorporated fundamental right applies against the states in the same manner as the Bill of Rights provision applies against the federal government.

Rights to Marriage and Family Life

The institutions of marriage and family, which are deeply rooted in our nation's history and traditions, are fundamental rights subject to the stricter form of judicial review. The Court has protected the right to marry, parents' right to the care, custody and control of their children and the right of close relatives to live together free from excessive government regulation. Particular associations and relationships may be held not to constitute a constitutionally-protected family or marriage.

Modern Substantive Due Process: Non-fundamental Rights--Burden of Proof

The law is presumed constitutional and the burden of proof (which is essentially insurmountable) is on the challenging party.

Rights of Minors: Abortion

The minor woman's right of privacy also protects her contraception and abortion decisions. However, the greater state interest in minors and their usual lesser capacity permit a greater amount of state regulation. Parents cannot be given an absolute veto over the minor's decisions but requiring parental consent or notification, if a judicial by-pass is provided, has been upheld.

Intergovernmental Immunities

The national government has greater immunity from state regulation and taxation and greater power to tax and regulate state functions (Art. VI Supremacy Clause).

Express Rights

The original Constitution contains few express rights limiting govern- mental power.

justiciability

The prudential limitations borne of judicial self-restraint limiting the use of judicial review. The jurisdictional requirements and policy restraints are frequently referred to as?

Right of Travel--Foreign Travel

The right to travel abroad guaranteed by Fifth Amendment due process is subject to reasonable regulation by the national govern- ment.

New Restrictions--Regulating Commerce

There are limits. Consider if the matter regulated is commercial, if there is a jurisdictional nexus to interstate commerce, if there is congressional fact finding, and if the causal relation between the regulated act is remote or attenuated, including whether the regu- lation intrudes on areas of traditional state concern.

Contraception and Abortion--The Privacy Right

There is no express right of privacy in the Constitution, but in early cases involving contraception and abortion, the Court held there is a constitutional right of privacy which limits the power of the government to regulate sexual activities involving marriage and family life.

The Right to Die

There is no fundamental right to commit suicide nor any fundamental right to assisted suicide. Such interests are neither traditionally protected nor implicit in the concept of ordered liberty as to be deemed funda- mental. Criminal prohibition of such practices is rationally related to legitimate state interests such as preserving life, protecting the depressed and vulnerable groups, and avoiding euthanasia.

Abortion Funding

There is no right to abortion funding. Neither the right of privacy nor equal protection requires the state to make the abortion right effective even if maternal funding is provided.

Redressability.

They must also demonstrate a "substantial likelihood" that the injury is "redressable" if the court grants the requested relief. The focus is on the relation of the injury and the remedy.

Thirteenth Amendment

This amendment abolishes slavery and involuntary servitude. Unlike other amendments, it applies to private action.

This use of stricter review has been applied to the following interests:

Voting (1) When the government discrimination significantly burdens the exercise of the franchise, in general or special purpose elections, strict scrutiny is applied. (2) Diluting the Franchise. Dilution of the effectiveness of a vote of a particular class will often be reviewed under a more stringent standard of review than rationality.

Tenth Amendment.

When Congress regulates private action, the Tenth Amendment is not a significant limitation on Congress' regulatory power.

Heightened Review Equal Protection--Suspect Classifications

When a law purposely employs a suspect classification, the classification is subject to strict scrutiny. The ordinary presumption of validity no longer applies and the burden is on the government to demonstrate that the classification is necessary to a compelling government interest.

CONGRESS AND EXECUTIVE POWER

When executive and congressional powers conflict, formalist and functional approaches are used. In determining if separation of powers has been violated, consider whether one Branch is invading the constitutional prerogatives of another Branch or is usurping powers properly shared.

Fundamental Rights

When laws burden the exercise of "fundamental rights" protected by the Due Process guarantee, the courts apply stricter scrutiny. The government bears the burden of showing that the law is narrowly tailored to further an overriding government interest. Often the review is "strict," requiring a showing that the means are "necessary" to a "compelling government interest."

"Almost Suspect" Classifications—Gender and Illegitimacy

When reviewing gender and illegitimacy classifications, courts generally use an intermediate standard of review. The classification must be substantially related to an important government interest.

The Nature of the Subject—Cooley Doctrine: State Power to Regulate Commerce

When subjects of commerce regulation are national in nature, i.e., require a uniform system or plan of regulation, they are not amenable to state regulation. Cooley v. Board of Wardens (1851).

State as Market Participant

When the state acts, not as a regulator, but as a participant in the marketplace, the Dormant Commerce Clause doctrine doesn't ap- ply. Even state discrimination in favor of its own citizens is permissible. Subsidies may involve such nonregulatory market participation. The more state actions affect parties not in privity with the state, the more likely the state will be held to be a regulator.

Procedural Due Process

Whenever the government deprives a person of a significant life, liberty, or property interest, it must afford due process. Whether the interest is a right or a privilege, if it is a due process interest and is presently enjoyed, it is protected.