DML Con Law S21 Takeaways 7.14.19 PDF

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Personal Liberties Married and unmarried couples have a constitutional right to use contraception. See Griswold v. Connecticut; Eisenstadt v. Baird. - The right to contraception between married couples derives from the zones of privacy protected by various provisions of the Bill of Rights. Equal protection prevents the state from denying this right to unmarried couples. A pregnant woman has a constitutional right to terminate her pregnancy. See Roe v. Wade. - But the State has interests from the outset of the pregnancy and therefore may regulate, and at some point forbid, the abortion. See Planned Parenthood of Southeastern Pennsylvania v. Casey. - Viability is the dividing line. o Before fetal viability, the State may regulate the abortion but may not impose a regulation that imposes an undue burden on the mother (i.e., that has the purpose or effect of placing a substantial obstacle in the woman’s path to an abortion). Id. o After viability, the State may regulate and even prohibit the abortion, but must make exceptions for the life or health of the mother. Id. o Also, the Government may “use its voice and its regulatory authority to show its profound respect for the life within the woman.” Gonzales v. Carhart (upholding federal partial-birth abortion ban, which did not impose an undue burden). In Whole Woman’s Health v. Hellerstedt, Justice Breyer’s opinion found that the undue burden test requires consideration of the benefits and burdens of a particular regulation, and a law will constitute an undue burden if the law has little or no health benefits. - But in June Medical Services v. Russo, this version of the undue burden test was put in jeopardy. Justice Breyer’s plurality opinion applied the benefit-burden variation of the undue burden test once again, striking down a Louisiana admitting privileges law that was nearly identical to the Texas law invalidated in Whole Woman’s Health. o But in a concurring opinion supplying the fifth vote, Chief Justice Roberts argued that the benefit-burden analysis was inappropriate. o Instead, the Court should simply apply the substantial obstacle analysis, as well as whether the law was rationally related to the state’s interest in promoting childbirth. o It appeared as though there were only four votes for Justice Breyer’s approach (including Justice Ginsburg, who is no longer on the Court), but five votes for a more deferential approach, similar to that of the Chief Justice. I o It is likely that Justice Barrett will adhere to a more deferential approach, as well. Therefore, going forward, it seems unlikely that the benefit-burden analysis will remain in place, and that, to the extent that the undue burden test is preserved, it will favor a more deferential approach to state abortion regulations. - If the Chief’s approach is used, then the following analysis applies: first, determine whether the state has a rational basis for the law; if so, then determine if the law places a substantial obstacle in the woman’s path to an abortion. - Justice Thomas dissented in June Medical, arguing that Roe and Casey should be overruled. It is not clear that there yet five votes on the current Court to do so. Justices Alito, Gorsuch, and Kavanaugh dissented, and would overrule Whole Woman’s Health, because it is inconsistent with Casey. Individual Rights

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The original Constitution contains several provisions for the protection of individual rights (e.g., habeas corpus cannot generally be suspended, no ex post facto laws, no bills of attainder, no laws impairing the obligation of contracts, privileges and immunities protected when entering a new state). But the absence of a Bill of Rights brought substantial criticism from Anti-Federalists. Shortly after the new Constitution was ratified, there was a meaningful push for a Bill of Rights. Today, the federal Bill of Rights offers substantive protections in the first eight amendments to the Constitution. But the Supreme Court held that the federal Bill of Rights only applies against the federal government, not the States. See Barron v. Baltimore. In 1868, the adoption of the Fourteenth Amendment ensured protection of certain rights against interference specifically by the States – privileges or immunities, due process, and equal protection.

Procedural Due Process -

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The Due Process Clauses of the Fifth and Fourteenth Amendments provide that “no person shall be deprived of life, liberty, or property without due process of law.” U.S. CONST. amends. V, XIV. These clauses have been afforded both substantive and procedural meanings. o Procedural due process focuses on the adequacy of the procedures that the government uses to take away someone’s life, liberty, or property. o If the government deprives a person of a life, liberty, or property interest, then it must do so through a process that is “due” to the person. A property interest is a benefit created by the government to which a person has a reasonable expectation of entitlement. See Board of Regents v. Roth. o It does not matter whether the benefit confers a cognizable “right” or a mere “privilege,” nor do we look simply at the subjective importance of the benefit to the individual. o We look to state law – statute, common law, contract law, etc. – to determine whether the law creates such an expectation. A liberty interest can be a creature of either state law that creates a reasonable expectation of entitlement, or of constitutional law. o It can consist of freedom from physical restraint, the exercise of some fundamental right, or a change in one’s legal status. See Wisconsin v. Constantineau; Vitek v. Jones. Once a life, liberty, or property interest exists, the government can only take it away by providing a “due” process. o The process that is due is determined by weighing three factors:  1) the private interest of the individual in specific procedures that will ensure the reliability and fairness of the deprivation;  2) the government’s interest concerning the burdens and costs that additional procedures may entail; and  3) the risk of an erroneous deprivation of the interest if there are no additional procedures. See Matthews v. Eldridge.

Note: The Court has not been consistent about which deprivations require a pre-termination hearing and which require a post-termination hearing. See Massey & Denning at 459-60. Substantive Due Process

The term “substantive” due process has been described as an oxymoron – due “process” is about procedure, not substance. Nonetheless, there has long been debate over whether the Constitution protected unenumerated fundamental rights, and whether the Fourteenth Amendment protected any. After the passage of the Fourteenth Amendment, some believed that the Privileges or Immunities Clause would serve as a source of protection for fundamental rights against State action. - In particular, one way to view the Clause is to say that it covers the same ground as the Privileges and Immunities Clause of Article IV (which would not render Article IV redundant because it supplies only an anti-discrimination principle – interpreting it co-extensively with the Privileges or Immunities Clause of the Fourteenth Amendment would make it substantive). - This was rejected in The Slaughterhouse Cases, which held that the Privileges or Immunities Clause was not co-extensive with the Privileges and Immunities Clause of Article IV, and instead protected only a narrow subset of distinctly federal rights. o Consequently, a new theory was needed, and it would involve use of the Due Process Clause as a source of protection for fundamental rights – both unenumerated rights and those enumerated in the Bill of Rights. Exam Tip: Because of the construction given to it in Slaughterhouse, the Privileges or Immunities Clause is now essentially a dead letter, with one notable exception that applies only to the right of interstate travel. See Saenz v. Roe. On an exam, you should never use the Privileges or Immunities Clause as a method of protecting any substantive rights, outside of the context of the right to travel. Justice Thomas, however, is the most vocal defender on the current Court of using the Clause to protect fundamental rights. See McDonald v. City of Chicago (Thomas, J., concurring). His views have never been adopted. Incorporation -

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Today, nearly all of the (enumerated) rights in the Bill of Rights are protected against State action through the Fourteenth Amendment’s Due Process Clause. But with the exception of due process itself, the Fourteenth Amendment does not specifically mention any of the same rights that are contained in the Bill of Rights. o Therefore, those rights are protected against State action when they are incorporated – that is, if the right or procedure is fundamental to our Anglo-American scheme of ordered liberty (selective incorporation). See Duncan v. Louisiana. Selective incorporation of this kind also means that once a right is incorporated into the Fourteenth Amendment, it applies against the States to the same extent that it applies against the federal government (jot-for-jot). See Ramos v. Louisiana (fully incorporating right to unanimous jury).

Note: Though nearly all of the Bill of Rights has been incorporated, the Third Amendment, the Fifth Amendment’s grand jury requirement, and the Seventh Amendment have not been incorporated. Unenumerated Rights Economic Due Process Rights -

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For many years, the Supreme Court recognized an unenumerated “liberty of contract” that required invalidating certain state laws that interfered with economic rights of business managers to set working conditions for employees. See Lochner v. New York. Today, Lochner has been rejected and economic substantive due process claims, including those under the old “liberty of contract,” are subject only to the rational basis test – asking whether the

law is rationally related to a legitimate government purpose. See Williamson v. Lee Optical Co.; Ferguson v. Skrupa. Equal Protection -

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The Fourteenth Amendment provides that no State shall “deny to any person within its jurisdiction the equal protection of the laws.” o Although there is no analogous clause in the Bill of Rights that would apply to the federal government, the Supreme Court has held that equal protection principles apply against the federal government through the Due Process Clause of the Fifth Amendment. See Buckley v. Valeo. In general, this is an anti-discrimination principle. o But laws and government actions very often discriminate, and cannot possibly be unconstitutional merely on that basis. o What matters is whether similarly situated persons are treated the same, and whether the government has an adequate justification for the distinctions that it makes.  In United States v. Carolene Products Co., Justice Stone’s Footnote 4 explained that some government actions require more searching judicial scrutiny, notably those that conflict with specific prohibitions in the Constitution; that inhibit the democratic process; or that classify by race, religion, or against other “discrete and insular minorities.” Equal protection law therefore requires us to ask: o 1) what is the nature of the government classification (does it discriminate on the basis of a fundamental right? Against a suspect class? Against a quasi-suspect class?); o 2) what level of judicial scrutiny applies to the classification at issue? (discrimination against fundamental rights and suspect classes gets strict scrutiny; discrimination against a quasi-suspect class gets intermediate scrutiny; discrimination that involves none of these gets rational basis review); and o 3) does the government action satisfy the scrutiny?

Rational Basis Review -

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Government actions that do not discriminate against fundamental rights or suspect or quasisuspect classes receive rational basis review – is the law rationally related to a legitimate government interest? o This is ordinarily an easy standard for the government to meet, as any conceivable legitimate interest is usually sufficient, and the burden is on the challenger. See U.S. Railroad Retirement Board v. Fritz. o And the government action can be underinclusive, overinclusive, or both, as the Court has said that the government may address one problem at a time and need not legislate or act with perfect specificity as to every problem. See Williamson v. Lee Optical Co.; New York City Transit Authority v. Beazer. But some cases governed by rationality review will demand a more searching form of scrutiny, and will be less deferential to the government. o Notwithstanding the government’s stated objectives, the court will be less deferential where the action reflects a bare desire to harm a politically unpopular group. See Romer v. Evans.

Note: This form of review – “rational basis with teeth,” or “covert heightened scrutiny” – can be difficult to apply. How does one determine whether the government has a “bare” desire to harm a politically

unpopular group, as opposed to a desire to enforce legitimate interests, resulting simply in the effect of the group being disadvantaged? And how do we know whether a group is “politically unpopular”? Do we look at historical treatment of the group? Public sentiment toward them? Representation in government and industry? Strict Scrutiny and Race -

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Strict scrutiny – is the law narrowly tailored to serve a compelling government interest? – applies to actions that discriminate against a fundamental right or suspect class. o Race is a suspect classification, in light of the immutability of race; the history of racial discrimination; and the lack of access to political power and failures of the political process in achieving racial equality. Racial discrimination may be done on the face of the government action, or it may be reflected in the way that a race-neutral law is applied, or it may be reflected in the effects that are produced by a neutral law. See Yick Wo v. Hopkins. o But to trigger strict scrutiny, the government action must purposefully discriminate on the basis of race. See Washington v. Davis. o A mere discriminatory effect, without a discriminatory purpose, is not enough. Although early cases approved of some official racial segregation through the “separate but equal” doctrine, see Plessy v. Ferguson, some subsequent cases found the separate facilities to be unequal. See Sweatt v. Painter. o Finally, the Court’s landmark 1954 ruling in Brown v. Board of Education ruled that racial segregation in public education was unconstitutional and that “separate educational facilities are inherently unequal.” o The Court subsequently ruled that racial integration of schools would be supervised by federal district courts and proceed “with all deliberate speed.”

FYI: Brown is likely the most venerated case in Supreme Court history, and perhaps the only absolutely venerated case. Every judicial philosophy is now deemed inadequate if it cannot account for the holding in Brown, and candidates for judicial (and other) office are regularly asked whether they agree with Brown. Affirmative Action -

Affirmative action programs based on race must be subjected to strict scrutiny, whether those programs are state or federal. See Adarand Constructors v. Pena. o In the higher education admissions context, affirmative action programs can survive strict scrutiny only where  1) race is used to achieve diversity, which is a compelling interest; and  2) race is considered as a “plus” in the applicant’s file, which is subjected to individualized consideration through holistic review. See Grutter v. Bollinger. o The use of race therefore cannot ensure admission through a quota, set-aside, or numerical value point system. See Gratz v. Bollinger. See also Fisher v. University of Texas at Austin (Fisher II) (some deference owed to University’s judgment about the necessity of using race to achieve a diverse student body).

Gender Discrimination -

Classifications based on gender are subject to intermediate scrutiny (the government action must be substantially related to an important government purpose). See Craig v. Boren.

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The government must show an “exceedingly persuasive justification” to survive this review. See United States v. Virginia. o But the government may be permitted to account for real differences between men and women, as well as remedy past discrimination. See, e.g., Michael M. v. Sonoma County Superior Court (upholding statutory rape law that applied only to males). o The government cannot, however, rely merely on gender stereotypes.

Note: Some have described the “exceedingly persuasive justification” standard as essentially employing “intermediate scrutiny with teeth,” or “covert strict scrutiny.” In other words, this is a very demanding standard – more demanding than traditional intermediate scrutiny. Other Classifications -

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Classifications based on illegitimate (non-marital) birth are quasi-suspect. See Clark v. Jeter. Classifications based on lawful alienage are suspect and subject to strict scrutiny, o except where the classification is done by the federal government, see Matthews v. Diaz, o or where a state reserves certain positions for United States citizens, where the position lies at the heart of representative government (i.e., democratic political institutions). See, e.g., Ambach v. Norwick. But see Sugarman v. Dougall (state cannot bar aliens from all civil service employment). Age and wealth are not protected classes, and classifications based on those categories are subject only to rational basis review. See Massachusetts Board of Retirement v. Murgia; Harris v. McRae.

Equal Protection Fundamental Rights -

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Some rights are fundamental for both equal protection purposes and for purposes of the underlying constitutional provision that protects them (e.g., due process). o A few rights, however, are fundamental only for purposes of equal protection law.  These include:  the right to vote, which focuses on State laws that discriminate in ways that result in denial or dilution of one’s vote;  the right of access to the justice system, which focuses on financial barriers to the courts;  and the right of interstate travel (or migration), which focuses on one’s o right to travel from State to State, o be treated as a welcome visitor when visiting a State, o and be treated equally to other residents who moving from one State to another.  The Supreme Court has indicated that it will not extend equal protectiononly fundamental rights beyond these narrow categories. See San Antonio Independent School District v. Rodriguez (refusing to recognize education as a fundamental right for equal protection purposes). With respect to the right to travel, one component of the right to travel – the right to move from one State to another and to be treated the same as other residents of the new State – is derived in part from the Privileges or Immunities Clause of the 14th Amendment. See Saenz v. Roe. This understanding of the Clause survived The Slaughterhouse Cases.

The Second Amendment

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The Second Amendment provides that, “A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed.” U.S. CONST. Amend. II. The leading case on the meaning and scope of the Second Amendment is District of Columbia v. Heller. o According to Heller, the Second Amendment protects an individual right to keep (possess) and bear (carry for purposes of confrontation) arms in the home.  It is not necessary that the arms be kept and borne for purposes of military service only, nor is it necessary that the protected arms be useful only in military service. o Heller held that the purpose of the Second Amendment was to prevent the disarming of a citizen militia in favor of a standing army or select militia.  This is w...