Constitutional Law II Outline

Prof. Brown – Fall 2003

I) Fourteenth Amendment

A) Privileges and Immunities Clause – “No State shall make or

enforce any law which shall abridge the privileges or immunities
of citizens of the United States…”
1) Scope (Slaughterhouse Cases, 83 U.S. 36 (1873) (state
granted monopoly on butchering did not abridge plaintiff’s
right to make a living) (p. 693).)– “[T]those privileges and
immunities that are fundamental; which belong of right to all
citizens of a free society…”
2) What rights are protected?
a) Three general headings - Protection by the
government, right to possess and acquire property, to
pursue and obtain happiness and safety. Slaughterhouse
Cases, id.
b) Crandall v. Nevada, 73 U.S. 35 (1867) (cited by
Slaughterhouse Cases above). – “It is said to be the right
of the citizen of this great country, protected by implied
guarantees of its Constitution, 'to come to the seat of
government to assert any claim he may have upon that
government, to transact any business he may have with
it, to seek its protection, to share its offices, to engage in
administering its functions. He has the right of free
access to its seaports, through which all operations of
foreign commerce are conducted, to the subtreasuries,
land offices, and courts of justice in the several States.”
3) Incorporation – what rights does the Fourteenth
Amendment incorporate against the states?
a) Duncan v. Louisiana, 391 U.S. 145 (1968) (6th
amendment right to a jury trial) (p. 707) – “The question
has been asked whether a right is among those
‘fundamental principles of liberty and justice which lie at
the base of all our civil and political institutions,’ and
‘whether it is 'a fundamental right, essential to a fair
trial’...The question thus is whether given this kind of
system a particular procedure is fundamental--whether,
that is, a procedure is necessary to an Anglo-American
regime of ordered liberty.”
II) Substantive Due Process – “nor shall any State deprive any
person of life, liberty, or property, without due process of law”
A) Economic Interests
4) Reasonable regulation in the interests of the
community is due process - “[R]egulation which is
reasonable in relation to its subject and is adopted in the
interests of the community is due process.” - West Coast
Hotel v. Parrish, 300 U.S. 379 (1937) (p. 727) (minimum
wage regulation does not violate the contract clause or due
process rights).
5) Court may test legislative reasoning for minimum
rationality - “[T]he Constitutionality of a statute, valid on its
face, may be assailed by proof of facts tending to show that
the statute, as applied to a particular article is without
support in reason because the article, although within the
prohibited class, is so different from others in the class as to
be without reason for the prohibition, though the effect of
such proof depends upon the relevant circumstances of each
case…” United States v. Carolene Products, 304 U.S. 144
(1938) (regulation of filled milk deemed to constitute fraud)
(p. 729).
6) Court will not question whether the means chosen by
the legislature are the best means - “[T]he law need not
be in every respect logically consistent with its aims to be
constitutional. It is enough that there is an evil at hand for
correction, and that it might be thought that the particular
legislative measure was a rational way to correct it.”
Williamson v. Lee Optical, 348 U.S. 483 (1955) (p. 731)
7) And will generally defer to those chosen by the
legislature - “Under the system of government created by
our Constitution, it is up to the legislatures, not the courts to
decide on the wisdom and utility of legislation.” Ferguson v.
Skupra, 372 US 726 (1963) (Kansas statute prohibited the
profession of debt adjusting) (p. 731).
B) Privacy Interests
8) Contraception – A “governmental purpose to control or
prevent activities consitutionally subject to state regulation
may not be achieved by means which sweep unecessarily
broadly and thereby invade the area of protected freedoms.”
Griswold v. Connecticut, 381 U.S. 479 (1965) (state’s interest
in preventing extramarital sexual relations did not justify
regulation of contraception for married couples) (p. 811).
9) Abortion – “Only where state regulation imposes an undue
burden on a woman's ability to make this decision does the
power of the State reach into the heart of the liberty
 protected by the Due Process Clause...A finding of an undue
burden is a shorthand for the conclusion that a state
regulation has the purpose or effect of placing a substantial
obstacle in the path of a woman seeking an abortion of a
nonviable fetus.” Planned Parenthood v. Casey, 505 US 833
(1992) (Pennsylvania statute restricting abortion did not
undly burden due process right to abort a nonviable fetus)
(p. 850).
10) Family
a) Cohabitation – “When government intrudes on choices
concerning family living arrangements, this Court must
examine carefully the importance of the governmental
interests advanced and the extent to which they are
served by the challenged regulation…” Moore v. City of
East Cleveland, 431 US 494 (1977) (invalidating a state
statute that prohibited cohabitation by non-blood
relatives) (p. 883).
b) Marriage - “When a statutory classification significantly
interferes with the exercise of a fundamental right, it
cannot be upheld unless it is supported by sufficiently
important state interests.” Zablocki v. Redhail, 434 US
374 (1978) (court struck down state statute requiring
discharge of child support obligations before marriage)
(p. 887).
Right Precedent History Consenus
B Narrow Literal No 24 states
owe (gays) (reproductio demonstrabl still prohibit
n n) e sphere of
protection
Lawren Broad Extrapolatio No Over half
ce (persons) n demonstrabl states had
(autonomy, e repealed
choice, etc.) commitment
to punishing

11) Sexual privacy – “The liberty protected by the Constitution

allows homosexual persons the right to choose to enter upon
relationships in confines of their homes and their own private
lives and still retain their dignity as free persons…[Citing
Casey] ‘These matters, involving the most intimate and
personal choices a person may make in a lifetime, choices
central to personal dignity and autonomy, are central to the
liberty protected by the Fourteenth Amendment. At the heart
of liberty is the right to define one's own concept of
existence, of meaning, of the universe, and of the mystery of
human life. Beliefs about these matters could not define the
 attributes of personhood were they formed under
compulsion of the State.’” [NOTE: Lawrence court cites
international consensus and social meaning, i.e. stigma of
sodomy statute.)
12) Right to die
a) Right to refuse medical treatment - “A competent
person has a constitutionally protected liberty interest in
refusing unwanted medical treatment...A state has
legitimate interest in the protection and preservation of
human life and is not required to remain neutral in the
face of an informed and voluntary decision by a
physically able adult to starve to death...In determining
an incompetent person's right to withdrawal of life-
sustaining medical treatment, a state may properly
decline to make judgments about the quality of life that
a particular person may enjoy and may simply assert an
unqualified interest in the preservation of human life to
be weighed against the constitutionally protected
interests of the person...Important individual interests
are not entitled to less protection under due process
clause because the Government finds itself in the
position of defending individual interests, rather than
seeking to take action against an individual.” Cruzan v.
Director MO Dept. of Health, 457 US 261 (1990) (state
statute requiring clear and convincing evidence of
incompetent’s desire to refuse medical treatment did not
violate due process clause) (p. 904).
b) No right to suicide, assisted or otherwise –
“Asserted right to commit suicide, which itself includes
right to assistance in doing so, has no place in nation's
traditions, for purposes of substantive due process
analysis; consistent and almost universal tradition has
long rejected asserted right, and continues explicitly to
reject it today, even for terminally ill, mentally
competent adults...Washington's assisted-suicide ban
was rationally related to legitimate government interests
in preservation of human life, preventing suicide,
maintaining integrity and ethics of medical profession,
protecting vulnerable persons who might be pressured
into physician-assisted suicide, and protecting disabled
and terminally ill people from prejudice, negative and
inaccurate stereotypes and societal indifference; thus, it
did not violate due process clause.” Washington v.
Glucksberg, 521 US 707 (1997) (Washington state
assisted suicide ban did not violate the due proces
clause) (p. 911).
III)Contract Clause – “No state shall...pass any...law impairing
the obligation of contracts”
A) Three part test test to evaluate whether a state law
impairs contractual rights. There must be a preexisting
contract before the law is passed.
13) Contract must predate law - does the contract preexist
before the law?
a) State action must substantially impair the
contract
i) Substantial effect - does the state actually
substantially affect the operation of the contract?
ii) Impairment – does the action advantage one party
at the expense of the other? A law that simply
regulates all persons but happens to make a
contractual obligation difficult or impossible may not
be an impairment.
b) Purpose of the law must be to assist public – the
law may not favor one party over the other, but must be
designed to assist the public at large. “[T]he state power
may be addressed directly to the prevention of the
enforcement of contracts only when these are of a sort
which the Legislature in its discretion may denounce as
being in themselves hostile to public morals, or public
health, safety, or welfare, or where the prohibition is
merely of injurious practices; that interference with the
enforcement of other and valid contracts according to
appropriate legal procedure, although the interference is
temporary and for a public purpose, is not permissible.”
Home Bldg. & Loan Assoc. v. Blaisdell, 290 U.S. 398
(1934) (state law postponing mortgage sales during the
Great Depression did not violate contract clause.) (p.
945)
c) Reasonably and narrowly tailored to accomplish
its goals - means must be reasonable and narrowly
tailored to accomplish these goals. The means to ends fit
is important.
B) Summary and counterargument to test – “Today's
conversion of the Contract Clause into a limitation on the power
of States to enact laws that impose duties additional to
obligations assumed under private contracts must inevitably
produce results difficult to square with any rational conception
of a constitutional order. Under the Court's opinion, any law that
may be characterized as ‘superimposing’ new obligations on
those provided for by contract is to be regarded as creating
‘sudden, substantial, and unanticipated burdens’ and then to be
subjected to the most exacting scrutiny. The validity of such a
law will turn upon whether judges see it as a law that deals with
a generalized social problem, whether it is temporary (as few
will be) or permanent, whether it operates in an area previously
subject to regulation, and, finally, whether its duties apply to a
broad class of persons. The necessary consequence of the
extreme malleability of these rather vague criteria is to vest
judges with broad subjective discretion to protect property
interests that happen to appeal to them.” Allied Structural Steel
Co. v. Spannaus, 438 U.S. 234 (1978) (Brennan, dissenting)
(Minnesota statute retroactively altering private pensions
violated the contract clause) (p. 953).
IV)Takings Clause – “nor shall private property be taken for
public use, without just compensation.”
A) Legislature may generally determine what constitutes a
public use – “If a legislature, state or federal, determines there
are substantial reasons for an exercise of the taking power,
courts must defer to its determination that taking will serve a
public use.” Hawaii Housing Authority v. Midkiff, 465 US 1097
(1984) (Hawaii land plan to condemn land prior to redistribution
as a means of reducing tax burden did not violate the takings
clause) (p. 958).
B) State preference of a private right aligned with public
interest is not a taking – “Where public interest is involved,
preferment of that interest over individual's property interest is
distinguishing characteristic of exercise of police power affecting
property.” Miller v. Schoene, 276 U.S. 272 (1928) (cutting down
Cedar trees to prevent spread of Cedar rust disease was not a
taking) (p. 963).
C) State action that does not deprive land of reasonable
beneficial use is not a taking - “The restrictions imposed are
substantially related to the promotion of the general welfare and
not only permit reasonable beneficial use of the landmark site
but also afford appellants opportunities further to enhance not
only the Terminal site proper but also other properties.” Penn
Central Transportation Co. v. New York City, 438 US 104 (1978)
(city’s refusal to permit developer to build a high rise office
building above Grand Central Station did not constitute a taking)
(p. 964).
D) Loss of all beneficial use in property is a taking - “When
the owner of real property has been called upon to sacrifice all
economically beneficial uses in the name of the common good,
that is, to leave his property economically idle, he has suffered a
taking” Lucas v. South Carolina Coastal, 505 U.S. 1003 (1992)
(plaintiff could not use his land because of a state statute
designed to prevent beach erosion) (p. 984).
V) Procedural Rights
A) When due process is due
1) Test for whether a public right is subject to due
process
a) Does the governing law limit the state’s discretion to act
with regard to the benefit? (Is the benefit provided at will
or is it conditional?)
i) If yes, then a procedural obligation attaches to the
state’s discretion to exercise its decision.
ii) What procedures are required is a question of
Constitutional law to be decided by federal courts,
not under state law.
2) Due process must be afforded to a vested public right
- “The court has held that a person receiving welfare benefits
under statutory and administrative standards defining
eligibility for them has an interest in continued receipt of
those benefits that is safeguarded by procedural due
process. To have a property interest in a benefit, a person
clearly must have more than an abstract need or desire for
it. He must have more than a unilateral expectation of it. He
must, instead, have a legitimate claim of entitlement to it. It
is the purpose of the ancient institution of property to protect
those claims upon which people rely in their daily lives,
reliance that must not be arbitrarily undermined.” Board of
Regents v. Roth, 408 U.S. 564 (1972) (untenured professor at
state university was not deprived of due process when he
was not reappointed) (p. 921).
3) Procedural due process also protects against
arbitrary government action - Perry v. Sinderman, 408 US
593 (1972) (professor at state junior college may state a
claim under due process where he was not reappointed
contrary to de facto tenure system and without a hearing) (p.
922)
4) An individual cannot be deprived of a public benefit
without adequate procedural safeguards - “While a
legislature may elect not to confer a property interest in
public employment, it may not constitutionally authorize the
deprivation of such an interest, once conferred, without
appropriate procedural safegaurds.” Cleveland Bd. of Educ.
V. Loudermill, 470 U.S. 532 (1985) (security guard at school
who was accused of stealing but not given a hearing stated a
claim for due process violations) (p. 923)
 B) What process is due - Matthews v. Eldridge, 424 US 319
(1974) (p. 930)
1) Opportunity to be heard – “Fundamental requirement of
due process is opportunity to be heard at meaningful time
and in meaningful manner.”
2) Additional process depends on:
a) Nature of the affected interest – “private interest
that will be affected by official action”
b) Value of additional process - “risk of erroneous
deprivation of such interest through procedures used,
and probable value, if any, of additional or substitute
procedural safeguards; and”
c) Government’s interest - “government's interest,
including function involved and fiscal and administrative
burdens that additional or substitute procedural
requirements would entail.”

VI) Right to Equal Treatment – “nor deny to any person within its
jurisdiction the equal protection of the laws”
A) Formal versus substantive equality - Plessy v. Ferguson,
163 US 537 (1896)
1) Formal equality – equality of outcome
2) Substantive equality – equality of treatment
B) Steps in equal treatment analysis
1) Identify the inequality – what is the inequality and who is
affected?
2) Identify the state interest – why has the state chosen to
create the inequality?
3) Determine whether the inequality is applied against a
suspect class or with animus
a) Suspect class characteristics – discrete, insular,
immutable , political powerlessness, history of
oppression/prejudice. [NOTE: Gays are not a suspect
class under Romer and Lawrence.]
b) Factors used to identify animus – Arlington Heights
v. Metro. Housing Development Corp., 429 U.S. 252
(1977) (rezoning was not racially motivated) (p. 523)
i) Impact of official action – “Sometimes a clear
pattern, unexplainable on grounds other than race,
emerges even when the governing legislation
appears neutral on its face.”
ii) Historical background of the decision – “The
historical background of the decision is one
evidentiary source, particularly if it reveals a series
of official actions taken for invidious purposes. The
specific sequence of events leading up the
 challenged decision also may shed some light on the
decisionmaker's purposes. For example, if the
property involved here always had been zoned R-5
but suddenly was changed to R-3 when the town
learned of MHDC's plans to erect integrated housing,
we would have a far different case. Departures from
the normal procedural sequence also might afford
evidence that improper purposes are playing a role.
Substantive departures too may be relevant,
particularly if the factors usually considered
important by the decisionmaker strongly favor a
decision contrary to the one reached.”
iii) Legislative or administrative history – “The
legislative or administrative history may be highly
relevant, especially where there are contemporary
statements by members of the decisionmaking
body, minutes of its meetings, or reports. In some
extraordinary instances the members might be
called to the stand at trial to testify concerning the
purpose of the official action, although even then
such testimony frequently will be barred by
privilege.”
4) Apply the appropriate level of scrutiny
a) Evidence of animus – City of Cleburne Living Center,
473 US 432 (1985) (zoning decision prohibiting group
home for mentally retarded) (p. 488); U.S. Dept. of
Agriculture v. Moreno, 413 US 528 (1973) (law intended
to prevent hippies from buying food stamps) (p. 492);
Romer v. Evans, 517 US 620 (1996) (law preventing
cities from enacting ordinances to protect gays) (p. 493);
Gomillion v. Lightfoot, 364 US 339 (1960) (voting district
that excluded blacks had no legitimate reason for its
shape) (p. 521).
i) Applies to – deliberate discrimination against
anyone based on a factor that is irrelevant to state
interest, e.g. nonsuspect classes (retarded),
politically unpopular groups, wealth and voting etc.
ii) Standard – per se unconstitutional as an
illegitimate interest.
b) Rational basis – Williamson v. Lee Optical, 348 US 483
(1955) (opticians versus opthamologists) (p. 485);
Railway Express Agency v. New York, 336 US 106 (1949)
(advertising versus non-advertising vehicles) (p. 484);
Minnesota v. Clover Leaf Creamery Co., 449 US 456
(1981) (wood versus pulp milk containers) (p. 485);
Washington v. Davis, 426 US 229 (1976) (facially neutral
 test has disproportionate impact) (p. 514); Arlington
Heights v. Metro Housing, 429 U.S. 252 (1977) (rezoning
denial against low income housing alleged based on
race) (p. 523).
i) Applies to – commercial versus non-commercial
distinctions, where a disproportionate impact exists
against a suspect class but there is no intent to
discriminate, etc.
ii) Standard - “Rationally related to a legitimate state
interest.” [NOTE: State may take one step at a time
as long as reasonable. See, e.g.,
c) Intermediate scrutiny - University of California v.
Bakke, 438 US 265 (1978) (reverse discrimination
against white applicants) (p. 553); Reed v. Reed, 404
U.S. 71 (1971) (preference given to male heirs in estate
administration) (p. 598); Frontiero v. Richardson, 411
U.S. 677 (1973) (military conferred extra housing benefit
for married men but not women) (p. 598); Craig v. Boren,
429 U.S. 190 (1976) (lower drinking age for women than
men) (p. 602); United States v. Virginia, 518 U.S. 515
(1996) (p. 611) (VMI case).
i) Applies to – against a quasi-suspect class, e.g.
gender
ii) Standard - “Substantially related to an important
state interest.”
d) Strict scrutiny - Korematsu v. United States, 323 US
214 (1944) (internment camps for Japanese-Americans
during WWII) (p. 501); Adarand Constructors, Inc. v.
Pena, 515 US 200 (1995) (p. 574) (minority preference in
government contracts, shift to strict scrutiny); Grutter v.
Bollinger, 539 US ____ (2003) (handout) (affirmative
action in law schools); Kramer v. Union Free School
District, 395 U.S. 621 (1969) (restriction on voting)
(property ownership requirement to vote for school
board) (p. 744); Harper v. Virginia, 383 U.S. 663 (1966)
($1.50 poll tax was unrelated to voting and constituted
invidious discrimination) (p. 741); Skinner v. Oklahoma,
316 U.S. 535 (1942) (required sterilization for criminals)
(p. 736)
i) Applies to – against a suspect class or with animus,
e.g. facial discrimination against race
ii) Standard – “Necessary to a compelling state
interest” or “Narrowly tailored to advance a
compelling state interest.”

VII)Requirement of State Action

A) No state action - Flagg Bros. v. Brooks, 436 U.S 149 (1978)
(state did not act by contracting storage of evicted tenant's
goods to warehouseman) (p. 1509); Rendell-Baker v. Kohn, 457
U.S. 830 (1982) (even though school received 99 percent of its
funds from the state, state did not benefit and no symbiotic
relationship existed to support a finding of state action) (p.
1533); San Francisco Arts & Athletics, Inc. v. U.S. Olympic
Committee, 482 U.S. 522 (1987) (discriminatory licensing of
exclusive rights to word “olympic” did not constitute state action
because government did not direct encforcement of rights) (p.
1534).
B) State involvement in executing the action - Lugar v.
Edmondson Oil Co., 457 U.S. 922 (1982) (sheriff executed a writ
of attachment against plaintiff without a judgment against him)
(p. 1513).
C) State approve, endorsed, or benefitted from the action -
Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961)
(stated acted by permitting discrimination in a restaurant under
lease in building financed by public funds and owned by the
parking authority discriminated against plaintiff) (p. 1527);
Moose Lodge No. 107 v. Irvis, 407 U.S. 163 (1972) (where club
would lose its liquor license by changing its rules to allow blacks,
state sanction behind discriminatory policies constituted state
action) (p. 1538).
D) State delegation of an exclusive public function