Con Law II Iowa

Equal Protection Textual

"No state shall ... deny to any person within its jurisdiction the equal protection of the laws." -a case applies to fed through 5th ament due process -although unclear / dubious

Intermediate scrutiny, substantial relatetedness

- Another way to think about substantial relatedness is that the government doesn't have to do as little gender classification as humanly possible the way it would with race. But its gender classification does still have to be pretty important for the goals it's pursuing - Why this lower standard? Well, a number of possible justifications come to mind:

Equal Protection 2: Sex / Gender Intermediate Scrutiny / similarities with race

-sex refers to biological, gender social role Similarities: with race: burden of proof government, and cant use after the fact invented justification

Property Interests. Goldverg v. Kelly (dealing with welfare)

. Public assistance benefits (welfare)= a property interest

But why not economic fundamental rights? Should they exist, under our ordinay (Glucksberg) analytic framework?

.... Any what about the problem of rent-seeking legislation? Should the court use the constitution to guard against it? Eye doctors couldn't replace lenses without new prescription...optometrists could get more $ due to lobbying.

EPC, Originalist argument for 14th amendment And how do we extend?

1. 14th amendment just required confederate states to put a stop to racial terror. 2. ...

Property Interests Summarized (3 ways to get it)

1. Created by state law. But once found, state law procedures do not control, how much process is due, constitution does. This is important. 2. Important interest 3. Entitlement. Justifiable reliance / expectation and specific fact finding vs open eneded policy decision. Specific fact finding helps create the entitlement.

suppose I have a constitutional disagreement with the content of the tax law?

First of these is always permissible, you can bring an independent challenge to the law if you have standing. This isn't a procedural due process issue.

Two Conceptions of Equal

1. classification approach - "equal just means the same" five is equal to two plus three. Hence to treat two people equally is just to teat them the same. Leads to classciaiton view: the clause forbus unjustifiably reating people differently . 2. substantive: to treat people equally (or give the the equal protection of the laws ) is to treat them how equals might be treated. Here equals means moral equals or social equals or legal equals. Leads to subordination view: the clause forbids the elgal support of social subordination . group a is above group b. ie since a is above b if there is a rule helping b that is ok

Discovering New Fundamental Rights:

1. separation of powers reluctance / federalism (finding fundamental right takes away from legislature / states) 2. three broad ideas that get invoked: history/tradition (considered a fundamental right, presupposed by constituion), importance / necessity/centrality (basic to living in society, enjoying other rights), political / social consensus (other states doing)

The Matthews Balance Test

1. significance of private interest 2. risk of erroneous deprivation 3. significance of the government interest

theories of incorporation and what one do we use

1. total incorpoporation (justice black and friends): the bill of rights applies to the states,, full stop 2. partical incporation: only the really important stuff applies to the states: (that is the position that won) 2.5 assimilate the whole thing to substanticve due process and just say the states cant inftinge the "liberty" protected by the due process clause indpenedent of whether a given liverty shows up in the text of the bill of rights.

5th Amendment

5th Amendment. No person shall be deprived of life, liberty, or property without due process of law. States is 14th.

ununmerated rights could come from

9th amendment

Mathhews Test in Hamdi

Actual test à 1. detention authorized 2. Then used Matthews test (assuming innocence / giving the benefit of doubt). A little bit of effort to hear the individual can have a big marginal impact with little harm for the government. Note:Thomas dissent -federal governments war powers canot be balanced away by the court - feeds into Matthews test scalia subsension of writ or treason clause . treason clause is exclusive remedy to deal with emeney combatants that are us citizens

Suppose the city of Iowa City concludes that any law student who has just taken a tax class has probably gone looking for loopholes in his or her taxes, and so they pass a law imposing a special fairness assessment of $500 to make up the difference on every Iowa Law student who has taken tax. Is there a procedural due process challenge to that law?

Again, suppose you've taken tax, and consider three different kinds of challenge. Now it starts to look a little bit more individualized, like what they're *really* doing is just targeting a particular group of people and engaging in adjudicative fact-finding about them rather than legislation.

Hamdi v. Rumsfeld (2004). Plaintiff is an America citizen who was caputured by US forces for being apart of Taliban and classified as "enemy combatant" which congress authorized US to do P says violation of fifth and 14th mendments. Says he is in fact no an emeny combatant and did not receive military training . P has made no concessions that he was engaged in an armed conflict agiast the united states. US says they used the appropriate and necessary force provided by the authorization. He is only entitled to a limted judicial inquiry into this dententions inquirty and not to a searching review of the facts. He was in a battlefield and no further fact finding is necessary.

Although congress authorized detention of combatants in the narrow circumstances alleged here, due process demands that a citizen held in the United states as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decision maker High risk of erroneous deprivation State of war is not a blank check when it comes to the rights of the nations citizens. Dif than aliens.

Be careful of what in fundamental rights

Be careful about fundamental rights talk in context of incorporation, not using the term in quite the same way as scrict scrutiny fundamental rights.

Procedural Due Process concept as it relates to law

Fundamental in law. Difference between government power under law and government power not under law. Every country must have this if they have "law"

What approach has won for EPC?

Classification."equal just means the same" five is equal to two plus three. Hence to treat two people equally is just to teat them the same. Leads to classciaiton view: the clause forbus unjustifiably reating people differently .

scrutiny and gender vs sexuality

Gender would put in inmediate, sexuality hasn't been defined

historical (lower standard for gender)

Congress tried to enact an equal rights amendment specifically providing for equal rights for women. It didn't get ratified by enough states. Arguably, that failure makes it less democratically legitimate to turn around and apply strict scrutiny to sex/gender classifications. - Pragmatic: there are some actual meaningful biological differences that more-or-less track sex lines (like reproductive role, obviously); the same cannot be said for race, according to most credible scientists. So maybe that justifies being a little less cautious about sex classifications ---although the answer to this justification might be "well, that doesn't preclude strict scrutiny, because consideration of biological differences could come in on the narrow tailoring prong"

Rational basis

Default rule if another standard doesn't apply Extremely deferential Chart with all three looks helpful Gov. almost always win (ie administrative convenience). Needs to be a legitimate interest that is rationally related, burden on challenger.

Sex / Gender dif from race how?

Differnce: important interest (inatead of compelling), and substantially related match (opposed to narrowly tailored) Important vs compelling isnt particularly clear Generally can say Every compelling is also important, but not every important is comleking . Exception: gov can rednder gender

Scalia dissent in Romer

Dissent. Justice Antonin Scalia (J. Scalia) states that the majority in this opinion is essentially saying that one who is accorded equal treatment under the laws, but cannot as readily achieve preferential treatment is one who is not accorded equal treatment and that this line of reasoning is silly. J. Scalia also adds that discrimination of the basis of sexual orientation is subject to rational basis review. He cites Bowers v. Hardwick (upholding the criminal law of a State prohibiting homosexual conduct) for this proposition and says that since Amendment 2 was designed to prevent the gradual decline of sexual morality favored by most Coloradans (DEMOCRACY), Amendment 2 is an appropriate means to a legitimate ends and therefore constitutional.

Milliken Dissent

Dissent. Justice Byron White (J. White) argues that the Supreme Court of the United States (Supreme Court) is asking District Courts to consider administrative convenience over violations of constitutional rights. The "core of [his] disagreement is that deliberate acts of segregation and their consequences will go unremedied." J. White argues that the remedy espoused by the District Court is not impossible, merely inconvenient and convenience is not as important as preserving individuals' rights to an integrated education. -ALSO: MICHIGAN EDUCATION SYSTEM IS UNITARY AND UNDER THE GENERAL SUPERISION OF THE STATE BOARD OF EDUCATION . DISTRICS ARE AGENCIES OF THE STATE (DOUGLAS) -SINCE MICHIGAN BY ONE DEVICE OR ANOTHER CREATED BLACK AND WHITE SCHOOL DISTRICTS - IT HAS TO WASH ITS OWN HANDS OF ITS OWN CREATIONS (DOUGLAS) ContentBox-Law -Only way to solve problem -ANY LESS Comprehensive a solution than a metro wide plan would result in an all black school sutem immediately surrounded by white system

THIS IS AN EXAMPLE OF WHAT: substantative challenge: this rule treats me differently in a way that is substantively not justified (use when govt agent has applied to general rule that is substantively unfair, insufficient reason to treat this way than everyone else differently)

EPC (singling out groups not individuals generally):

Hypo: Bad at math? Think IRS is taking extra money? Although not really. Hearing???

Get it but after the fact

history of economic fundamental rights

History: Court struck down a bunch of economic regulation on fundamental rights theories (giving economic fundamental rights) But: depression, New Deal, Roosevelat started twisted arms. Court packing (aletering justices on court)... Remember all that stuff from federalist #78 about the court having no real power. Turns out Hamilton was right Led to raitonal basis

What process is due? What gives test? Key issue?

Key concept is notice and opportunity to be heard. Mathews v. Eldridge gives the test. Key issue is when is notice and oporunity heard (pre or post reprivation)

Say gov't infringes right to vote, (ie do something ridiculous in order to vote like sing), that infringes right to vote. THEN

Law gets script scrutiny

How to lose rational basis

How to lose rational basis? 1. Total arbitrariness (ie treated differently for no reason at all) 2. Animus (acting out of distaste towards a particular class of people, gay rights context). 3. "Rational basis with bite" (supreme court has never said its exists, but means that gays / disabled people /cognitive disabilities / stereotyping essentially, court says doing rational basis but doing something stricter) Court not really deferential to city like other rational basis cases.

Fisher dissent

If univiersites cannot use race as f actor, they will just resort to camofluage to do so -no reason to be blind to the lingering ffects of an ovrerly discriminatory past - only one of many factors

FYI Remdedies in gender vs race

It turns out, probably (based on some old cases that may not survive if it ever comes up in the Roberts court), that the government is allowed to be more solicitious of the subordinated when it comes to gender than when it comes to race. That is, broad social remedial purposes are permissible under intermediate scrutiny, but not strict scrutiny: the government can take the initiative to remedy social gender-based injustice. (think cant do it in miliken, but can do women)

Dissent in San Antonio

Justice Marshall argues that education is so important to the exercise of rights protected by the First Amendment and to participation in the political process to create a significant nexus between education and these rights, making it fundamental Thus, heightened scrutiny

Procedural due process as separation of powers:

Legislate makes general law judiciarly / executive apply laws to individuals if the legislature starts operating directly on individuals , that's bad, no, naighty, need judicial scrutiny first A legislature is contrained by the democratic process. So we only allow it do things that the democaratic process can effectively control. If it regulates everyone, then everyone has an incentive to keep it in line. Thus, we have particular wrries about legislation that only applies to one person (bill of attainder, talking) or only applies to a small group of people (NOT ALL VOTERS CARE...) Invoking judicial structiny: infringments on voting rights / free speech. Preducice against minotiries

Bi-Mattalic - One answer to the taxes / property issue

Never your property to begin with

two big questions going of this. 1. is the public use clause a real resitrcition?

No Kelo case, court applies something vaguely rational basisey to the public use clause, if the legislature could have thought that there was some public ourose, that counts as a public use. Permit economic development takings that transfer between private parties.

Pluraility vs majority

No majority opinion. (note that this is increasingly common in modern supreme court cases) - Marks v. United States, 1977: Plurality: the holding is "that position taken by those members who concurred in the judgments on the narrowest grounds." Here's some helpful commentary on the problem this raises.

Back up, question about Bi-Metallic, then: suppose someone shows up in court after the 40% tax increase, and says "the city calculated my 40% tax increase wrong, and wouldn't give me a hearing." Does the opinion in Bi-Metallic rule it out?

No, because then we've moved from general law to individual applicaiton, or, in ad law jargon again, from regulation to adjudication.

Look at all practice questions

Online

See all charts etc

Online, and pract. questions

THIS IS AN EXAMPLE OF WHAT: I didn't get a hearing before the government applied this rule to hurt me (not attack on substantive result, use when picked on by general law that is applied indivually without a hearing or govvt official is using general power (arrest)

PDP: Preocedural Challenge

Regulaotry takings (penn central). facts / test

Penn cental . the owneers of grand central station wanted to build a skyscraper (ruin land mark), the city said no. devleppers sued. Penn Central Balancing Test: 1. The economic lsses inflicted on the owner. 2 the interference in the owner's investment backed expectations for use of the land (this basically means did the owner rely on a preexisting regulatory framework to sink a bunch of money in it, before the government yanked the rugoutfrom under 3. The character of the government action (meaningless).

Dissent in Overgefell

Petitioners make strong arguments rooted in social policy and what seems right. Yet the Court is not a legislature. Whether same-sex marriage is a good idea is not a matter for the Court to decide. Judges do not have the power to say what the law should be. States should be able to define marriage through the democratic process. Same-sex couples remain free to live together, to engage in intimate conduct, and to raise their families as they see fit. There is no violation of the 14th Amendment.

Review

Posted Online

Washington v. Davis (The District of Columbia Police Department administered a test to applicants for positions as police officers. The test measured verbal ability, vocabulary, and reading comprehension. A higher percentage of the black applicants than the white applicants failed the test. Respondents, unsuccessful black applicants, claimed the test constituted a violation of equal protection, because it had the effect of disproportionately disqualifying blacks for police service. Respondents did not allege discriminatory purpose on the part of the government. The District Court ruled against the Respondents.)

Proof of a disproportionate impact is not enough, standing alone, to ground a finding that a law amounts to unconstitutional discrimination. Justice Byron White (J. White) said our cases have not embraced the proposition that a law can be a violation of equal protection on the basis of its effect, without regard for governmental intent. Disproportionate impact is not irrelevant, but it alone does not trigger the rule that racial classifications are subject to the strict scrutiny standard of review. The police force's efforts to recruit black police officers are evidence that the police department did not intentionally discriminate on the basis of race. Also there is changing racial composition of the recruit classes. The exam is rationally related to the legitimate government purpose of ensuring that police officers have acquired a particular level of verbal skill.

Economic Fundamental Rights ge t

RATIONAL BASIS SCRUTINY (except when property, in which case, due process +takings clause protect)

What is the main suspect classification?

Race

Driving 120 in a school zone? Know guilt, general law, getting a hearing but why wasting time? Speeding ticket is singling out unlike taxes although general law What is distinction

Regulation (don't get a hearing on general laws, bimattlic case) and adjudication (laws being applied to indivdiaul people...speeding ticket)

Obergefell v. Hodges (2015) Michigan, Kentucky, Ohio, and Tennessee define marriage as a union between a man and a woman. 14 same-sex couples and two men whose same-sex partners died brought suit in their respective states claiming that the states are denying them the right to marry or to have marriages from other states recognized.

Result (Reversed): The Fourteenth Amendment requires a State to license a marriage between same sex couples and recognize same-sex marriages performed out-of-State. Fundamental rights protected by the Fourteenth Amendment includes personal choices central to individual dignity and autonomy, including intimate choices defining personal identity and beliefs. This has led to the Court previously holding the right to marry is protected by the Constitution. Marriage has evolved over time and these changes have strengthened marriage. The Court gives four reasons why this right to marry applies with equal force to same-sex couples: 1.) The right to personal choice regarding marriage is inherent in the concept of individual autonomy. 2.) The right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals. 3.) The right to marry is that it safeguards children and families (stigma of being lesser) and thus draws meaning from related rights of childrearing, procreation, and education. 4.) Traditions make clear that marriage is a keystone of the Nation's social order.

Fisher v. Texas (Texas considers race as a factor in admissions process to increase minority enrollment)P is caucasuan and rejected for 2008 admission . Said vilation of equal protection clause. Of 14th amendment.

SC- vacates fifth circuit judgement for approproiate analysis - need to prove it is narrowly tailored with no deference and use sctrict ascrutiny -HOWEVR STRICCT SCRUTINY APPLIES (three previous cases had done so) -using racial categoeis and classifications -no deference on narrowly tailored, but deference on goal of diversity - fifth circuit gave defence for narrow tailor equirement - cant just define diversity as some specificed percentage of a race (unconstitutional / quotas) -good faith not enough to get over strict scrutiny (appeal ct said different) - if there is a compelling interest, burden shifts to university for scrit scrutiny

Heller 2008 (guns) scalia writing for majority said

Second Amendment: Heller: 2008, scalia writing for courtdeclared 2nd ament protected individual right to bear arms and struck down dc hand hun law Heller: Key question: " how does all that militia stuff shape the meaning." Sacalia said originalist account of how the 2nd amendment (bear arms unabiguiously used in conext of non-military, get together with buddies and fight off tyrannical king), concluded that it proects an individual right, plus at the time of the 14th mendment, those framers were worried about things like the states disarming black citizens

• suppose I disagree with the IRS's claim that the tax law Congress passed is applies to me?

Second of those is a procedural due process issue. But it's one about the law's individual application to me, so it's permissible. The complaint here isn't about the enactment of the taxes by the legislature, but about its enforcement by the agency.

Brown v. Board of Education. Facts: black students denied admission to white schools according to race (multiple cases , answering all of them)

Segregation denies children equal protection of 14th ammendment. -Serpate but equal (plessy vs furguson, transportation ) is not good enough what congress had in mind at time of 14th amendment cannot be determined with any degree of certainty. Plus times have changed (ie white education was done privately, now public) education of blacks non existent this case going beyond the tangible factors (buildings, curricula , etc) Education is perhaps the most important function of state and local governments (attendance laws and money spent). Fonndaiton for good citizenship To separate children from others of similar age ad qualifications soley because of rae henerates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unliekely ever to be undone . effcts motivation to learn Separate but equal educational facilities are inherently unequal.

McDonald v. Chicago (-The challenged ordinances effectively banned possession of handguns by private citizens. )

Self-defense was a basic right and was the central component of the Second Amendment right, and the Court had recognized that the Second Amendment right applied to handguns, which were the preferred firearm to keep and use for protection of one's home and family. -A plurality of the Court found it unnecessary to disturb existing precedent that narrowly read the Fourteenth Amendment Privileges or Immunities Clause to protect only rights that owed their existence to the federal government. (slaughter house cases...) -However, the framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms as a fundamental right necessary to the nation's system of ordered liberty (deeply rooted in nations history and tradition, self defense is a basic right) -The Fourteenth Amendment was not solely an anti-discrimination rule. -The plurality therefore found that the Second Amendment right to keep and bear arms was incorporated and made applicable to the states by the Due Process Clause of the Fourteenth Amendment.

Gender is what kind of classification? What about most kinds of classifications

Semi, most are not suspect at all

romer and states reason (rational)

States atual reason isn't supposed to be relvevant, just need any reason

Procedural Due Process: The Algortithm (3 steps)

Step 1: Is plaintiff challenging individualized state action? No: No PDP claim. The democratic process is the process that's due. Yes: Move to Step 2 Step 2: Is there a life, liberty, or property interest? No: No PDP claim. Yes: Move to Step 3 Unsure? Some rules of thumb: Has the state created an entitlement? Do people rely on it? Is there an important interest at play? Is it the sort of issue where the decision could be right or wrong? Step 3: Apply Matthews Balancing How important is the individual interest? What's the government interest in avoiding more process? Would additional process make the government decision more accurate?

Romer v. Evans (Brief Fact Summary. Colorado voters adopted Amendment two to their State Constitution, precluding the government from adopting measures that would protect homosexuals from discrimination. The state trial court enjoined enforcement of the act.)

Synopsis of Rule of Law. A bare desire to harm a politically unpopular group cannot constitute a legitimate governmental interest. Justice Anthony Kennedy stated that Amendment two relegates homosexuals to a solitary class and withdraws from them, but no others, legal protections arising from discrimination. Its reach includes the State's public accommodation laws, as well as laws prohibiting discrimination in the housing, insurance and education markets. A law making it more difficult for one group of citizens to seek assistance from the government than another is a denial of the Equal Protection of the laws in the most literal sense (i.e. the means do not fit whatever ends sufficiently to pass rational basis review). Moreover, the means of Amendment two are so broad in relation to its ends (to prevent the deterioration of sexual morality) that we cannot credit them. The Supreme Court of the United States (Supreme Court) is left with the conclusion that Amendment two constitutes a classification for its own sake. "Class legislation is obnoxious to the Fourteenth Amendment." (i.e., the ends are illegitimate). "rational basis with a bite" say they are using rational but doing more it seems

San Antonio School District vs. Rodriguez (1973) The State of Texas provides for free primary and secondary education for the children of the State. The state provides a set amount of funding for each district based on the number of students in the district. The district makes up the difference in operating expense with funds from local property taxes. This reliance on property taxes results in a large disparity in per student spending between property rich and property poor districts. Respondents allege that this denies the children in poor district Equal Protection of the laws in violation of the Fourteenth Amendment.

Synopsis of Rule of Law. Education is not a "fundamental right" for purposes of Equal Protection analysis. There is still minimum education being provided for. If education is a fundamental right, classifications affecting access to education are subject to strict scrutiny. There is no mention of education in the Constitution. Thus, there is no explicit constitutional guarantee. The question is now one of whether education is implicitly a fundamental right. The Court notes that Respondents do not argue that there is some quantum of education that is fundamental and which the class is not receiving. Nor do they argue that the class is entitled to the best education provided by public schools in Texas (getting a basic level of education) Without explicit or implicit constitutional protections, the fiscal decisions of the State of Texas are beyond review of the Court, unless they lack a rational basis. Such a lacking is not found by the Court. Thus, the Court applied the rational basis test to require the Texas law to be rationally related to a legitimate government interest. Broad discreation for taxation, no expertise to get invovlved with local matter.s. probably no perfect alternative . rational: efforts were devoted to establishing a means of guaranteeing a minimum statewide educational program without sacrificing the vital element of local participation. How local tax dollars are spent. Some inequality is not enough to striked down a rational basis.

Reynolds v. Sims (Equal rights) Brief Fact Summary. The Plaintiffs alleged that the last apportionment of the Alabama legislature was based on the 1900 federal census and that the population growth in the intervening six decades has now made representation discriminatory against areas with fast-growing populations.

Synopsis of Rule of Law. In most instances, districts should be apportioned to allow each voter to have one, undiluted vote. The Supreme Court of the United States (Supreme Court) notes that "[l]egislators represent people, not trees or acres." If the State gives voters in one part of the State much more weight in the vote of their legislators, the right to vote of voters in underrepresented parts of the State has been diluted. Although the federal legislature has a separate apportionment (where its 2 senators for each state at federal level) for its two houses, there is no such need at the State level (counties created by statute). Hence, apportionment of state legislatures needs to reflect a one-person, one-vote policy. The Supreme Court gets around the non-justiciability of political questions by framing the argument as an Equal Protection issue: "To the extent that a citizen's right to vote is debased, he is that much less a citizen."

Bi-Metallic Co (the Plaintiff, challenged a uniform forty percent tax increase on the ground that it was not afforded an opportunity to be heard)

Synopsis of Rule of Law. Individuals do not have standing merely as members of the public at large or the general taxpayer population to challenge government action or imposition of taxes. "Where a rule of conduct applies to more than a few people it is impracticable that every one should have a direct voice in its adoption. The Constitution does not require all public acts to be done in a town meeting or an assembly of the whole." Impractical, plus officers are voted in and out (generalized grievance / seperation of powers). Congress, etc has power to make general legislation, not power to make individualized laws

Roe v. Wade Brief Fact Summary. Appellant Jane Roe, a pregnant mother who wished to obtain an abortion, sued on behalf of all woman similarly situated in an effort to prevent the enforcement of Texas statutes criminalizing all abortions except those performed to save the life of the mother.

Synopsis of Rule of Law. Statutes that make criminal all abortions except when medically advised for the purpose of saving the life of the mother are an unconstitutional invasion of privacy. The right to personal privacy includes the abortion decision, but the right is not unqualified and must be considered against important state interests in regulation. The abortion laws in effect in the majority of the States are of relatively recent vintage, deriving from statutory changes generally enacted in the latter half of the 19th century. At common law abortion performed before quickening (the first recognizable movement of the fetus in utero) was not an indictable offense, and it is doubtful that abortion was ever a firmly established common law crime even when it destroyed a quick fetus. Three reasons have been advanced for the historical enactment of criminal abortion laws. The first is that the laws are the product of a Victorian social concern to discourage illicit sexual conduct, but this argument has been taken seriously by neither courts nor commentators. The second reason is that the abortion procedure is hazardous, therefore the State's concern is to protect pregnant women. However, modern medical techniques have altered the situation, with abortions being relatively safe particularly in the first trimester. The third reason is the State's interest is in protecting the prenatal life. However, this is somewhat negated by the fact that the pregnant woman cannot be prosecuted for the act of abortion. For the stage prior to the approximate end of the first trimester, the abortion decision must be left to the medical judgment of the pregnant woman's attending physician, and may not be criminalized by statute. For the stage subsequent to the approximate end of the first trimester, the State may regulate abortion in ways reasonably related to maternal health based upon the State's interest in promoting the health of the mother. For the stage subsequent to viability (able to live outside womb), the State may regulate and even proscribe abortion, except where necessary for the preservation of the mother's life, based upon the State's interest in the potential of the potential life of the unborn child.

• suppose I agree that the law is substantively constitutional---it's within congress's power---agree that the IRS correctly applies it to me, but think it's unconstitutional to enact them without providing for a hearing on enactment, where I can argue against it?

Third of these is what Bi-Metallic rules out. Even though by passing a tax law to take a chunk of my paycheck, Congress is in fact depriving me of property, the principle of Bi-Metallic holds that procedural due process doesn't apply. This is, in administrative law jargon, regulation rather than adjudication.

Lochner v. new YorkA New York labor law required employees to work no more than sixty hours in one week. (bakers) Does the due process clause of the Fifth Amendment and Fourteenth Amendment protect liberty of contract and private property against unwarranted government interference?

Synopsis of Rule of Law. The 1897 Labor Law limiting the hours that an employee in a biscuit, bread, or cake bakery or confectionery establishment may work is an abridgement to their liberty of contract and a violation of due process. This law is an abridgment to the liberty of contract and a violation of due process. The general right to make a contract in relation to his business is part of the "liberty" of the individual protected by the Fourteenth Amendment. No state can deprive any person of life, liberty or property without due process of law. The right to purchase or sell labor is part of that liberty protected. The only way a state may counter this right is to show they are exercising a valid police power with their regulation. Those powers relate to the safety, health, morals and general welfare of the public. The Court rejected the labor law justification of the statute on police power grounds because this was not a valid exercise of police power. First, that power is extended to the protection of "public welfare" and not the readjustment of bargaining power between employees and employers. The effect of this legislation was to regulate labor conditions and not to protect workers. The effect of such statutes, not just the stated or proclaimed purpose, is determinative in whether this statute is repugnant to the United States Constitution. Second, there is no valid health of safety rationale in this case. Bakers were not endangered like miners were in the Holden v. Hardy case. Mining is a profession that needed regulation, but this is not. The state could accomplish its goals with means that did not interfere with the freedom to contract (inspectiom / cleaness standards). Because the police power exercised here is not strong, the Court suspected that there were legislative motives behind the enactment of this law. New York was using its power to upset the free market. Nothing that bakers are a unintelligent class or need special protection.

Milliken v. Bradley (1974) Facts: P brought class action saying Detroit public system is racially segrated as a result of policies and actions by state and city

Synopsis of Rule of Law. The District Courts cannot redraw the lines of integrated school systems to achieve racial balance in a segregated school system absent an interdistrict violation or effect. Chief Justice Warren Burger (J. Burger), writing for the majority, notes that there are many practical difficulties in the proposed plan. It is unclear what the status of currently elected school officials would be in the new "super district;" how taxes would be levied and distributed and who should make curriculum decisions. The scope of the remedy is determined by the nature and scope of the constitutional violation. In the present case, the discriminatory acts of a single district must be a substantial cause of interdistrict segregation. Thus, if district lines were drawn on the basis of race, or if discriminatory acts of one district caused segregation in another, an interdistrict remedy may be in order. However, this is not the case here.RECORD SHOWS DE JURE SEGREAGTED CONDIITIONS ONLY IN DETROIT S Milliken drew the line at redistricting integrated districts, unless there was an interdistrict effect with a segregated district. Equal Protection in the context of school desegregation does not guarantee any particular makeup of a school's student body, but instead requires that schools adopt non-discriminatory policies. Furthermore, in crafting remedies to address violations, district judges must first establish constitutional violations within all of the affected districts and craft remedies capable of judicial enforcement.

Griswold v. Connecticut (Brief Fact Summary. Appellants were charged with violating a statute preventing the distribution of advice to married couples regarding the prevention of conception. Appellants claimed that the statute violated the 14th Amendment to the United States Constitution.)

Synopsis of Rule of Law. The right of a married couple to privacy is protected by the Constitution. Held. The First Amendment (freedom of religion could be argument) has a penumbra where privacy is protected from governmental intrusion, which although not expressly included in the Amendment, is necessary to make the express guarantees meaningful. The association of marriage is a privacy right older than the Bill of Rights, and the State's effort to control marital activities in this case is unnecessarily broad and therefore impinges on protected Constitutional freedoms. . The right to privacy in marriage is not specifically protected in either the Bill of Rights or the Constitution. Nonetheless, it is a right so firmly rooted in tradition that its protection is mandated by various Constitutional Amendments, including the 1st, 9th and 14th Amendments.

Geduldig v. Aiello Brief Fact Summary. California operated a disability insurance system that paid benefits to employees of private employers when workers compensation did not cover certain disabilities that prevented those employees from working. However, many pregnancy related disabilities were excluded from coverage because of expenses to the program.

Synopsis of Rule of Law. Underinclusive legislation is appropriate under the Equal Protection Clause, so long as the line drawn by the State is "rationally supportable." Legitimate interest in maintaining self-supporting nature of program (policy decisions) The list of conditions covered by the disability insurance system is not exclusive (anyone can get). Furthermore, there are conditions not covered by the system that affect both men and women. The excluded conditions do not affect women alone. The savings given the program by the exclusion of such conditions benefit both men and women. That is, inclusion of the excluded conditions would result in lesser amounts of funding for all other conditions (otherwisebwould sacrifice self supporting anature of program, plus anyone can get coverage) Used rational basis seemingly, "rationally supportable" logic

Difference between 5th amendment and 14th

The Fifth Amendment has an explicit requirement that the Federal Government not deprive individuals of "life, liberty, or property," without due process of the law and an implicit guarantee that each person receive equal protection of the laws. The Fourteenth Amendment explicitly prohibits states from violating an individual's rights of due process and equal protection. Equal protection limits the State and Federal governments' power to discriminate in their employment practices by treating employees, former employees, or job applicants unequally because of membership in a group, like a race, religion or sex. Due process protection requires that employees have a fair procedural process before they are terminated if the termination is related to a "liberty," like the right to free speech, or a property interest.

fundamental rights? any exceptions to non-strict scrucinty

There are but need to find these out

Ok, what about if they just look at one class? Someone tips off the legislature that one student cooked up a tax-cheating scheme in one class, so they raise taxes on that particular class?

This is clearly adjudication, clearly outside the legislative role. This is the sort of thing we have protections like the bill of attainder clause, the takings clause... and procedural due process to stop.

Three problrems with discovering fundamental rights

Three big problems with this: 1. absence of a doctrinal home 2. substantive due process and other oxymorons 3. scrict scrutinuy ?really? ( hardly ever get it on fundamental rights)

2. . Other than outright transfer of property from citizen to government what else is a taking? (three of them)

Three possibilities,: physical invation, unconstitutional conitions (well give you a building permit but only if you use thisother land you own to build a park across town) c. too much regulation

Equal Protection IV (fundamental rights)/Substantive Due Process Two Routes to script scrutiny:

Two routes to scrict scrutiny: classificaition (what he had been talking about until here) . 2. Fundamental rights (when govt infringes this)

Levels of scrutiny underlying idea

Underlying idea is a balancing test: there has to be legitmate governmental justification for every classification, and the levels of scrutiny balance the nastiness of the classification (where suspect classifcations are the nast ones) against the weightiness of of the government need to make the classification

Key point in Virginia

VMI saying something inherent in women that makes them not able to go, and no evidence saying otherwise

United States v. Virginia (Virginia Military Institute (VMI) was the only single-sexed school in Virginia. VMI used a highly adversarial method to train (male) leaders of the future. There was no equal educational opportunity to that of VMI in the State for women.)

Virginia Military Institute (VMI) was the only single-sexed school in Virginia. VMI used a highly adversarial method to train (male) leaders of the future. There was no equal educational opportunity to that of VMI in the State for women. Virginia has shown no "exceedingly persuasive justification" for excluding all women. "Benign" justifications offered in defense of absolute exclusions will not be accepted automatically. The notion that admitting women would downgrade VMI's stature and destroy the school's adversity system was hardly proved. Generalizations about the way women are or what is appropriate for them will no longer serve to justify denying opportunity to those whose talents and capabilities make them exceptions to the average description. Moreover, VWIL does not qualify as VMI's substitute. VWI's student body, faculty, course offerings and facilities do not match VMI's (no phycial rigor or mental stress, no alumni network that is the same)

Loving v. Virginia (Black women and white mangot married in Washington DC. They returned to Virginia and established marriage. Indicted for violating law . went back to dc and filed a motion in the state trial court to acate the judgment.)

Virginia's statutory scheme to prevent marriages between persons solely on the basis of racial classifications held to violate the Equal Protection and Due Process Clauses of the Fourteenth Amendment. Legislative history not enough Based solely on race. So subkected to most rigid scrutiny, and if they are ever to be upheld, they must be shown to be necessary to the accomplishment of some permissible state objective, independent of the racial discrimination which it was the object of the 14th emendment to eliminate. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. -cant say everyone being treated equally

Standard in Miliken

a court confronted with a law that has a disproportionate effect on a racial minority, must first determine if the law is race specific. If it is, either because the law is facially discriminatory or because the law was motivated by a racial discriminatory purpose, the law will probably be invalidated under the strict scrutiny standard of review. If the law is non-race specific, the court will apply the rational basis standard of review, regardless of the law's impact on racial minorities.

Clevand v. Loudermill (school employee and government job, did they have a property interest?)

a school employee had a property interest in his government job

2. substantive due process (made up idea?, a lot of problems)

a. -is like give me your left right hand b. choke it down, poor neglected 9th amendment, unenumerated rights c. constitution says other rights possiblya a. courts don't use, use substantive due process

Benefits of diversity / compelling interest

a. Benefits of diversity i. De segregated schools reflective of real world ii. Cultural ecompetence

1. Doctrinal Home?

a. Equal protection (classification of how long you're a resident in order to vote) or due process (roe vs. wade, just couldn't have abortions, not really a classification so more due processish) b. We invoke both, if youre in court you probably should too c. Singling out people/groups for rights deprivation vs just restricting the right

3. how often do we actually apply strict scrutiny? (in enumerated and unenumrarted)

a. Practicially speaking, very incoonsisently in the enumerated rights (strict is default rule, sub doctrines and stuff, exceptions) b. More often scrict, but not toally consistnly, in unemurated rights c. why should we ever apply strict scruntiny??? 1. Justice black "congress shall make no law means congress shall make no law" interfering/ abridging with press 2. NOT congress shall only make laws narrowly tailored to a compelling interest

notes about race / plus factor

after Grutter v. Bollinger said race was allowed to be used as a plus factor (explicit consideration of race), but not in gratz v. Bollinger that automatically awared points to applicaints from certain certain minorities.

bill of rights / incorporation and states history / textual hook

at founding, only applied to congress. But then we had a civil war and people quickly thinking "maybe we ought to make sure the states actually protect individual rights" (incorporation question) Textual hook→ priviledge and immunities clause (no state shall make or enforce any law which shall abridge the prividiledeis or immunies of citizens of the united states) seems nice. But the slaughterhouse cases aid no. priv and immunites DID NOT encorporate bill of rights. that was a mess but its still good law So as usual. Court fell back on the due process clause.

What is a fundamental right?

enumerated rights (speech, religion), PLUS unemerated including a. personal/family/intimate (privacy, marriage, childbearing), b. policial, democratic, citizenship (voting, interstate travel, access to courts). Could probably throw in some parental stuff

Note about impact and evidence

evidence of intent will be a showing of what jhappened (Miliken conucurrance)

Strict Scrutiny (see flowchart..)

government must have a compelling interest Has to be government's actual motivation, not something that is made up after the fact/for purposes of litigation (difficult evidentiary questions often get breezed over) Classification must be narrowly tailored to achieve that interest -classification must be necessary to achieve that interest, there cant be a way to do it without the claffisifciation -classification must be effective (to what extent? Its not clear) at achieving that interest government bears the burden of proof rule of thumb: in strict scrutiny cases, government has an uphill battle / is quite likely to lose (but not always)

Additional Miliken Notes

what counts as segregation? -People of one race in a school without people of the other races - Dissent says however: identify one school with a race, substantial disproportionality (nullifies brown) majority wants intentional government acts i. contrast " state of affairs" and "causal" i. -GO WITH causual 3. causation / remedies in equal protection cases a. confine the remedy to the agent who did the wrong b. undo the effects of the unconstitutional act a. act 48 b. why no area-wdie remedy? i. Area where it has its largest effect ii. Evidentiary issues? No segregative act there iii. Civ pro issues iv. 4. " local control" 1. act vs actor conception of remedy key lesson: remedy limited to the act itself

grutter:

idea of diversirt is a compelling interest -affirmative action program can help cross racial understanding - promote better learning out comes - better prepares students for increasingly diverse work force

Incorporaitons and guns is

incorporating bill of rights

Equal Protection Fundamentally Concept

is a way to classify people in groups on the basis historically / current social categories. Basic idea is government cant condition rights of people for being part of these groups (equal protrction clause). Government has to do exceedingly strong justifications to classify on this basis

Board of Regents v. Roth- Property interest holding

no property interest..need legitimate claim of entitlement not just an abstract need for a property interest

no taking takings. plus nolan test

non incidental physical invasion is pretty uch always a taking (eg government imposing a public access easement) Unconsitutional condutions: the black - ;etter rule (Nollan Dolan Standard is: condition has to have some necus to the community impact of the development and has to be proportional to that impact.

Liberty and fundamental rights standard (Glucksburg)

ourt has held that "liberty" under the Due Process Clause should be understood to protect only those rights that are "'deeply rooted in this Nation's history and tradi- tion.' " Washington v. Glucksberg

One place where bill of rates establishing enumerated fundamental right.

property

fundamental rights use....

rational? gay rights case it is rational with a bite Griswold privacy seems to be rational BUT ROE v. wade Where certain 'fundamental rights' are involved, the Court has held that regulation limiting these rights may be justified only by a 'compelling state interest,') (this is strict) voting using rational baker case...talking about other means seems like strict ASK so what is standard in dealing with fundamental rights

4th amendment

searches and seizures, privacy

Suspect Classification

sneaking the subordination approach back in through the back door: " these kinds of classiifcations are particulary nasty, so well look extra carefully at thm" -must have something like this, because all law classifies -how to decide? Originalism (this thing was written to stop racial oppression, so clearly race has to be a suspect classification? Carelene products footnote ("discrete and unsular miniorities"), history / present of oppression

Suspect classification is ____ scrutiny Semi suspect____ Everything else___ scrutiny

strict, intermediate, rational basis

What of VMI had done a proper replacement with womens institutue? -s

tate does not have compelling interest in perpetuating racist / sexist views of others

orginalism (lower standard for gender)

the 14th amendment was actually aimed at race, so it ought to have the strictest standard Carolene products: although there's a history of official discrimination against women as well as lots of present social discrimination, women at least in principle are less politically vulnerable than racial minorities, since, after all, women make up a numerical majority of the population. So the need for constitutional protection is perhaps somewhat lesser.

t or f: abortion is more due process opposed to equal protection

true