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Course: Constitutional Law Spring 2002
School: University of Detroit
Year: 2002
Professor: unknown
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Also available: First amendment outline.

Constitutional Law Course Outline – Spring







  1. Article I: Creates a Legislative Branch – a “representative democracy” (not “direct”)

  1. House of Reps: by population

  2. Senate: 2 per state

  3. Art I, §8 gives Congress specific enumerated powers: Congress cannot pass laws just because they think it is a good idea



  1. Article II: sets forth powers of Executive Branch

  1. Presidential Powers = Art II, §2



  1. Article III: The creation of the courts – the Executive Branch



  1. Marbury v. Madison: when a statute is unconstitutional, the US Sup Ct has the authority and the duty to declare it unconstitutional and to refuse to enforce it.



  1. State courts that decide federal questions go to the US Sup Ct on appellate review. US Sup Ct may review state ct questions not in conformity with the constitution, but it may not review questions merely adjudicating questions of state law.

  1. Martin v. Hunter’s Lessee: Us Sup Ct may review the constitutionality of a decision made in the States highest ct as long as federal question.

  1. promotes uniformity

  2. states are not completely sovereign

  3. the last highest court the decision was adjudicated in

  1. US Sup Ct jurisdiction is only as provided for by Congress and the mere fact that a federal question is involved is not sufficient enough to make it reviewable.



3. Deference is given to Congress when enacting laws

  1. economic regulations receive the most deference and have to be rationally related: Carolene Products

  2. strict scrutiny if racial or constitutional rights






  1. When the US Sup Ct will not participate in deciding a case. US Sup Ct will not decide questions relating to separation of powers issue because a duty has been delegated to a different branch, or questions of prudential consideration.



  1. Nixon v. US establishes a 3-part test to decide if the question is justiciable:

  1. Does the Constitution assign the matter to be decided to another branch?

  1. in Nixon, the Constitution says “sole power” to impeach

  2. Constitution has safeguards for impeachment:

  1. 2/3 vote

  2. power split b/w houses – bicameralism

  3. Powell: Congress does not have the power to establish additional qualifications for its members other than the qualifications specified in the Constitution.

  4. Is there a judicially manageable standard?

  5. What harmful effects could come from the court deciding this question?



  1. If any of these questions are present, then the Court can decide the question



  1. Standing: is the party with a genuine interest in the outcome litigating?

  2. Ripeness: timing: is the case ready to be heard? is there a threat of future harm?

  3. Mootness: had the claim been resolved before it got to the US Sup Ct?







  1. The most likely basis for Congress to enact a law of this kind would be under its power to regulate IC pursuant to its enumerated power in Art. I, §8.

  • Thus, the issue is whether the statute is a valid exercise of its commerce power and congressional authority.



  1. Congress has the authority to regulate IC and to regulate private behavior in the states if it affects IC.

  1. Congress will be given deference to regulate IC if:

  1. there is a rational basis to believe the activity will substantially affect interstate commerce

  2. either alone or in the aggregate will affect IC: Wickard; Jones & Lauglin Steel

  3. there is a legitimate purpose

  4. it is necessary & proper



  1. However, recently the US Sup Ct has limited t Congress’s power to regulate activities which have traditionally been under state & local control and do not affect interstate commerce: Lopez.



  1. Congress may regulate commerce that affects more than one state – plenary power: Ogden

  1. Congress can regulate channels of commerce: Lottery case

  2. Congress may regulate people & things in commerce if it has a rational basis for believing that the activity will have a substantial affect on IC: Heart of Atlanta; Ollie’s BBQ

  3. Even local activities that are not commerce can be regulated if Congress believes that the aggregate effect will affect IC



  1. Congress may pass a law regulating commerce if it believes that the activity is harmful & it uses the channels of IC: Ames (Lottery case); loan shark cases

  1. Is it like these cases – is Congress controlling the channels of IC? If “yes” then is valid exercise of congressional control – can’t use commerce to do bad things.

  2. Perhaps the activity has an undesirable social behavior.



  1. If Congress has a rational basis for believing that the activity will affect IC adversely, then it may regulate, even though it is a local activity: Jones & Laughlin Steel

  • Jones & Laughlin Steel said that the relationship b/w interstate & intrastate is direct.


  1. Cumulative effect doctrine & aggregate theory is that Congress may regulate an activity if the aggregate affect would substantially affect IC: Wickard



  1. Congress can alos use this rationale to regulate discrimination because the activities, some directed nationally, others purely local will aggregately have a substantial affect on IC: Ollie’s BBQ, Heart of Atlanta


  1. However, if the activity is one that is left to the state & local governments & does not have a substantial affect on IC because it is a social policy, the Congress cannot use the Commerce Clause to attempt to regulate.


  1. It is important under this analysis to look at the words of the statute to see if there is a jurisdictional nexus: Lopez – Congress may regulate:

  1. channels of IC

  2. instrumentalities of IC

  3. those activities which “substantially affect” IC







  1. Art. I, §8 grants Congress the power to lay & collect taxes to pay debts, provide for the common defense, & to provide for the general welfare of the nation.



  1. Taxes will be upheld if they produce a substantial revenue & the regulatory provisions that accompany the tax are valid because they have a reasonable relationship to the enforcement of the tax.

  1. HX of this has changed because previously in Bailey, the Court didn’t allow Congress to use the tax power to regulate child welfare issues, however, this case was considered during the same time frame as Hammer.

  2. Commerce power is given great deference when a rational relation & substantial effect on IC, that Congress uses the Commerce Clause to encourage or discourage behavior & to regulate.

  1. State may claim that the tax is an improper regulation of behavior

  2. The argument usually fails because Congress will find another way to have it be valid – use enumerated power of Commerce Clause

  1. The Court will not inquire into Congress

  1. motive

  2. tax must produce some revenue to be legitimate

  3. if regulates by proper structure, then it is valid

  4. reasonably related to the enforcement of the tax



  1. Spending power: Congress has the authority to spend for the general welfare of the nation – Art. I, §8

  1. This decision is left for Congress to decide – the Court will defer to Congress on whether spending was of sufficient national interest to fall under “national welfare.”

  1. it may only spend for general welfare

  2. may not command private or public behavior to promote the general welfare



  1. Under this clause, Congress may invite the states to take action by offering financial inducements & may impose conditions on those states who accept federal aide. The modern test for judging the validity of spending clause legislation is from South Dakota v. Dole:

  1. The condition or the program must be in pursuit of the general welfare of the nation – remember Congress is granted deference and US Sup Ct will not decide.

  • Is it a carrot & not a stick?

  • Congress may place conditions on the spending, but these conditions must be explicit so that the state knows what it is doing & does so on a voluntary basis.

    1. Statute in Dole is only a 5% decrease in the funds, which is not viewed as coercion

    2. Imposing a 25% reduction as a consequence for non-compliance may cross the line from consent or inducement to coercion

    NOTE: explain on exam why or why not coercion

    1. The condition must be related to a federal interest in the project or the program receiving the money – why would the government be interested in spending on this?

    1. is it a legitimate federal interest?

    2. does the condition reasonably further the particular federal interest?

    1. Condition can’t require the entity or the person to give up another Constitutional right

    1. condition must be in pursuit of general welfare

    2. must be stated unambiguously so state can make a choice

    3. condition must be related to a valid federal interest



    3. Older cases defined what general welfare was:

    1. Butler provided a narrow definition & that agricultural problems are of local concern & not general welfare of the nation

    2. Steward Machine concluded, however, that unemployment & poverty are general welfare & thus the federal government may spend

    1. discretion of the choice of what is general welfare is left up to Congress

    2. unless clearly wrong, the US Sup Ct won’t interfere

    3. similar to deference shown in the Commerce Clause







    1. To what extent can the federal government regulate the states?

    1. may not force the state to execute or carry out a mandate: Printz

    2. if an essential state governmental activity, then it is immune

    • however, if participating in a function that private entities do as well, then not immune



    1. Garcia ruled that if a state is involved in an activity that private entities are involved in as well and the activity is rationally related to commerce, then Congress may regulate the activity through the Commerce Clause

    1. State is protected by the political process

    1. However, the dissent is Garcia argued for the rule in National League of Cities that Congress may not regulate activities that are:

    1. usurping state sovereignty

    2. traditional state functions

    3. must be strong federal interest to regulate

    1. the problem is that it is extremely subjective

    2. the law will likely be enforceable through Garcia and the Commerce Clause

    1. under National League of Cities, the court engages in a balancing test of federal & state interest



    1. Federal Mandates: Congress may use the Commerce Clause to regulate the states, but it may not commandeer state legislative process: NY v. US


    1. Congress may not issue or mandate a state or local government to enforce its regulations – it may induce through spending power, but may not order or mandate: Printz

    1. purchase behavior through spending clause that you can’t mandate



    1. Term Limits: Art. I establishes the qualifications for Senate & House members & the states are prohibited from adding to these qualifications

    1. Congress may not require additional qualifications, either

    1. only way would be to amend the Consititution

    1. Art. V: Congress proposes amendment

    2. Legislature of 2/3 of states have to ratify

    3. Then, Legislature of ¾ states must agree to the amendment



    1. Government is divided into branches to prevent accumulation of government power in one branch



    1. The Constitution is explicit about some checks:

    1. Presidential power to veto

    2. Senate may confirm or deny presidential appointment

    3. Senate declare war; President power to wage war

    1. implied checks, like judicial review, removal of officers

    • historical practices



    1. Executive power

    1. The President may make the laws, but he may not carry them out: Youngstown Steel

    1. J. Jackson in his concurrence the 3 zones the President can act in:

    1. “green light:” when Congress has expressly told the President what he may do or he is acting pursuant to an expressed power

    2. “yellow light:” when the power is uncertain & may be concurrent b/w executive branch & Congress

    • How do you know if executive branch was authorized to act? Look for an emergency, how Congress has acted in the past, or predecessors that have done it the same way.

    • “red light:” executive branch acted on a power that was not express or implied – must show a very strong reason why he acted on own executive power



      1. Constitution expressly authorizes under Art II, § that President:

      1. is Commander in Chief

      2. may negotiate treaties



      1. Appointments Clause: appoint, subject to confirmation from the Senate, federal judges & other principal officers

      1. This is solely the executive power

      2. Art II, §2

      3. however, the appointment of inferior officers may be given by Congress to the President (w/o Senate approval) for courts & executive heads

      4. Morrison: independent prosecutor appointed & can only be removed by executive branch for good cause – this is valid because it doesn’t interfere with the President’s duties



      1. Take care that laws are faithfully executed



      1. Art I, §7: sign bills into law or veto

      1. Chada: the houses of Congress are bicameral, thus, a descision in one house that authorizes a one house veto is unconstitutional

      1. Presentment to President required

      2. Bicameralism

      3. Effects the rights, duties & relations

      4. Decision got rid of Legislative veto



      6. Congressional Authorization:

      1. Congress may not appoint any executive officers

      2. Congress may, however, specify the qualifications for executive officers of the inferior department

      3. Buckley: not a valid congressional appointment – Congress can’t appoint the Federal Election Commissioner because that is an executive branch power

      4. Yakus: as long as Congress provided to the executive branch a stated legislative objective, a prescribed method to do it, & standards in administering, then the congressional appointment power to an executive branch is valid



      1. Removal Powers

      1. Power not in the Constitution. Congress may restrict the President’s power to remove inferior executive officers, but may not restrict the President’s unilateral power to remove principal executive officers, or impose removal restrictions which impede the President’s ability to perform his duties under the Constitution.

      1. Bowsher: Congress may not remove executive officers. If Comptroller General retains that power, it means that he’s a member of the legislative branch

      2. Meyers: look at the functional characteristic of the officer to determine who would have removal power

      1. If a purely executive officer, the Congress can place no restrictions on the President’s removal power

      2. If the officer is quasi-legislative or quasi-judicial, then limits may be placed on the President’s removal power as long as the limits do not interfere with his constitutional duties

      1. Congress has no removal power of executive officers

      2. Congress can confer to President the unilateral power to remove inferior officers



      E. Executive Action

      1. President may not act unless he has constitutional or congressional power: Youngstown Steel

      1. Presidential power at the maximum when he acts pursuant to an expressed act of Congress or implied

      2. Is at the lowest power when it is incompatible with an express or implied congressional will

      3. There is a “zone of twilight” where the Congress has not given the power or has denied it to the President

      1. silence by Congress may indicate acquiescence

      2. executive branch has broad powers concerning foreign affairs, & if Congress has allowed similar actions to be taken by the President, then it indicates acceptance: Dames & Moore

      3. President has broad power of foreign affairs & international relations are within his domain. Congress also vested this power to the President because of the joint resolution: Curtiss-Wright

      1. What about war power?

      1. action to protect Americans

      2. aiding national allies

      3. President may not need congressional authority, however, there is disagreement to how broad this authority is







      1. Legislative Immunities:

      1. absolute immunity as long as the decision is premised on a legislative act

      1. integral to the communication & process of the members of the house & senate

      1. speech & debate

      2. voting

      3. committee work

      4. other official business



      1. Executive Immunity:

      1. courts have created because it is not in the Constitution

      2. absolute immunity for Presidential acts that are a function of the office

      3. also from civil suits for acts performed in the course of his official duties

      1. executive officers subordinate to the President have qualified immunity limited to actions taken in good faith connected with official duties



      1. Executive Privilege:

      1. evidentiary issue

      2. limited scope

      3. protect President in judicial or legislative proceedings

      1. however, can’t interfere with the judicial criminal investigation & withhold evidence by claiming this privilege: Nixon

      2. balance the need for the information with the reasons for the asserted confidentiality

      3. if essential to justice, then no privilege







      1. The Constitution grants Congress the power to regulate IC through the Commerce Clause (Art I, §8, cl 3). The issue is whether this precludes the states from regulating activities that affect IC.

      1. The regulated activity must not currently be regulated by Congress because there would be a Supremacy Clause issue. Additionally, DCC questions arise when a state seeks to regulate an activity which Congress has been silent on.



      1. Analysis of DCC:

      1. Traditional approach: the court has used a wide variety of approaches in analyzing these questions

      1. Cooley: the court looked at whether the regulated activity was a national or local subject

      1. if national concern, the Congress controlled because of the uniform application needed of the regulation

      2. if local concern, then the state could regulate as long as the local control did not interfere or conflict with the congressional control the state could regulate

      1. The problem with this approach is that it is difficult for the court to ascertain what is local & non local in character.

      2. The court also used an investigation to see if the burden on commerce from state regulation was direct or indirect: Disanto. However, this approach was also not effective to determine if the state could regulate, so the modern approach was developed...



      b. Modern approach: the court has developed this through a series of cases

      1. Is the purpose of the law legitimate or valid? Generally won’t strike down at this level...

      1. If the law has a good purpose or intent, it will generally be upheld. Legitimate purposes include:

      1. health, safety, welfare

      2. consumer protection

      3. environmental or natural resource conservation

      4. often safety is what the state says is the purpose of the law & the compelling state interest

      1. However, if the purpose of the law is bad, then the court will not uphold the state enactment. Economic protectionalism is an example. If the law is designed to protect or prefer in-state goods or residents, then it will be struck down – the law is against free trade:

      1. economic protectionalism

      2. saving local resources for local consumers

      3. isolate a state from burdens of commerce

      4. if the benefits are illusory & not achieved, the court will strike the law down: Hunt



      1. Are the means chosen reasonable?

      1. if the means chosen are unreasonable & do not bear a rational relationship to the purpose, then they will be struck down

      2. generally, laws are not struck down here because deference is given to the state legislature. The wisest & best method of achieving the purpose doesn’t have to be demonstrated.

      3. need to show not wholly arbitrary law & that it was the best law to fulfill the purpose...deference to legislative findings



      1. Does the law discriminate against IC?

      1. if the court concludes that the law discriminates against IC, then it is likely to actively scrutinize the means employed by the state to accomplish its purpose

      2. must distinguish if the law is overt discrimination or has an impact or effect of discriminating because that will determine the test

      3. then, the burden will shift to the state to demonstrate not discriminatory



      1. Overt Discrimination: overtly distinguish b/w out-of-state & in-state goods

      1. A ban on the import or export of goods is a clear example. It gives the residents of a state a preference or an exclusive opportunity to obtain the goods or use the services.

      2. Philadelphia v. NJ: the court invalidated NJ’s ban on solid wastes coming in.

      3. However, if it is a quarantine, it might be upheld because of essential means to protect heath, safety & welfare



      1. Discriminatory Effect (Covert Discrimination): the law on its face does apply to both non-residents and residents, however, it has a discriminatory effect on non-residents

      1. Hunt; Dean’s Milk: even though appliedto both local & non-local businesses, the law had an effect to discriminate against out-of-state residents


      1. creating a subsidy is OK if the state expends money to promote local business, however, not when when the subsidy is funded by non-residents and the locals get the benefits: West Lynn Creamery

      2. Hunt: the law imposed a burden on Washington & stripped it of its apple nitch it had carved. The state’s argument of consumer protection failed.



      d. Court will invalidate a law that says it has a legitimate purpose & the

      means were reasonable, but the court thinks that other means were

      available that were less burdensome & less discriminatory against IC.



      e. Finally, if the law discriminates overtly (Philly) or covertly (Hunt), then

      the court will shift the burden to the state to show that it is not

      discriminatory. However, if the court concludes that there is an

      incidental discriminatory effect, then the courts will balance...



      4. Should the court use Burdens v. Benefits balancing test?

      1. Modern courts use the balancing test from Pike. This test says that if the discrimination has an incidental effect on IC, then it will not be invalidated unless it imposes an excessive burden compared to the benefits of the law.

      2. Uses active scrutiny, not deference

      1. Kassel - truck length case: the burden is too much on IC & state was attempting to isolate itself. Be cautious when the state says the law is for safety reasons!

      2. CTS - stock regulation case: the law was even handed & applied to everyone. Should do a discrimination analysis here.





      1. If the state enters the market & acts as a participant and not a regulator, then normal commerce clause rules do not apply.

      1. this occurs when the state enters the market & acts like a private entity and buys or sells goods & services



      1. The leading case is Reeves, where the court upheld a statute that preferred local instate customers to those who reside out of state.

      1. The Commerce Clause only regulates states when they act in a governmental capacity

      2. Is more like a subsidy & thus it is OK for the state to do



      1. In South Central Timber, Alaska’s argument that it was a market participant failed because, although it is permissible to require that the timber be purchased in the state, the statute regulated the subsequent use of timber by requiring it to be processed in the state, also.

      1. It is permissible to require a contractor with the city to hire only local workers: White



      1. Important battle ground for state preference for residents in the sale of state owned resources

      1. J. Rehnquist: wants deference for the states 7 want the market participant doctrine extended

      2. Those who want active scrutiny favor limiting this doctrine & only applying it to free trade






      1. Discuss this issue when there is an action that forbids or restricts out-of-state residents from participating in something. Discuss it in connection with DCC, Market Participant, and sometimes an Equal protection claim, however P&I only applies to people, not corporations like equal protection does.



      1. Issue: whether the action discriminates against out-of-state residents and violates Art IV, §2.



      1. Rule: states are forbidden under Art IV, §2 from denying fundamental rights to person from other states, like employment, but not from recreational rights: Hicklin; Baldwin. The state will bear the BOP to demonstrate the discriminatory legislation was enacted because:

      1. the out-of-state persons are the source of evil; &

      2. the discrimination is the substantial reason for the legislation (Hicklin)

      Finally, the state will be barred from arguing the market participant exception in the Commerce Clause because there is no market place exception in P&I. Camden



      1. Analysis:

      1. Art IV, §2 provides that each shall give out-of-state citizens the same rights & privileges as it does to those citizens in its own state

      1. this section only applies to persons & corporations may not assert this claim



      1. Forbids a state from denying a fundamental right to an out of state person: Hicklin

      1. employment

      2. practicing your profession

      3. engaging in business

      • because it deals with fundamental rights, if the state doesn’t meet its BOP (see below) then the court will use active scrutiny



      1. Doesn’t cover recreational rights like hunting & fishing: Baldwin



      1. Analysis the court will engage in if it determines there is a cause of action for a P&I claim: Hicklin

      1. do the out-of-state people contribute to the problem – are they the source of evil?

      2. does the discriminatory legislation have a substantial relationship to the problem?



      1. The state will argue the Market Participant exception & that it is not subject to the Commerce Clause discrimination prohibition because it is acting as a market participant & not regulating. However, this will fail because the court has held there is no Market Participant exception to P&I.

      1. Camden ruled that there is no Market Participant exception to P&IO because the clause bars any state conduct that discriminates against out-of-state persons on fundamental concerns

      1. Distinguish this case from Equal Protection: only a person can claim P&I, not a corporation

      1. Corporation would assert Equal Protection violation

      2. Would only get rationally related standard because being a non-resident is not a suspect classification







      1. Establishment Clause

      1. Prohibits any law from respecting an established religion & prohibits the government from endorsing a religion.

      2. Wall b/w church & state

      3. Government action that relates to religion will violate this clause unless it meets all 3 parts of the Krutzman test:

      1. Government must have a secular legislative purpose

      2. Government interest can’t be to promote or advance a religion

      3. Government can’t be entangled in a religion



      1. Free Exercise Clause

      1. Government is barred from making any law that prohibits the free exercise of religion – can’t interfere with the way religion is practiced

      2. Can’t regulate belief or conduct

      3. If the intent of the government is to interfere with the way one conducts religion, the court will use strict scrutiny where the government must prove a compelling interest: Hobbie

      4. Smith dealt with faith-based behavior & what to do when a religious practice contradicts when with an established criminal law. Court here used deference & did not require the state to prove compelling governmental interest. It was a neutral statute.





      1. This part of due process is concerned with whether the government comported with procedures

      2. Due Process clause of the 5th Amendment applies to the federal government & the 14th Amendment in cases with states



      1. Issue: Whether the P was deprived of procedural due process & was denied a life, liberty or property interest.



      1. Rule: The modern rule from Roth and Matthews is to determine whether there was a due process violation. First, it must be determined if there was a loss & whether it was “property” or “liberty” because these are the only losses to which due process pertains. Second, the court must determine whether the person suffering the loss of property or liberty received the process he was due. When evaluating the procedure used, the court uses the 3-part Matthews test:

      1. the weight of the individual’s interest

      2. the existing procedures & if they are adequate. If not, would other procedures be better?

      3. the government’s interest – would there be a burden of large cost increase if other procedures were used?



      1. What is the nature of the interest: property or liberty?

      1. Property:

      1. can be traditional interests in real or personal property

      2. can be property if meets Roth standard of a legitimate claim of entitlement & not a unilateral interest

      1. claim of entitlement will be based on a state law or rule which promises or makes a commitment – “shall” receive language

      2. a clear promise then can assert a legitimate claim of entitlement

      3. Goldberg and Matthews hold welfare & disability benefits are legitimate claims of entitlement because specific standards of being eligible were in place

      4. Meachum and Roth are unilateral expectations because prison & job security are discretionary


      1. Liberty:

      1. Privileges long recognized for a pursuit of happiness & freedom from restraint: Roth

      2. Loss of a job is not a liberty interest: Roth

      3. Reputation is not a liberty interest because no alteration of the P’s state – must have more than damage to his reputation: “reputation +” test. Must be combined with additional action by the government


      1. Was the person deprived of property or liberty afforded the process he was due?

      1. Court will use the 3-part Matthews balancing test

      1. Individual’s interest & how serious is the loss? Must assess the individual interests & what is being lost, for how long, and how much. This is subjective. In Goldberg, the loss of welfare was serious.

      2. The accuracy of existing procedures 7 how much additional procedures could enhance? Is an oral hearing needed (Goldberg) or will medical records be sufficient (Matthews)?

      3. The burden to the government if it is interested? Would implementing oral hearings be too costly?







      1. Whether the Constitution applies to the action, thus allowing the P to sue under a due process violation or another constitutional claim, since actor is a private(non-governmental) entity.



      1. Rule: The private party may not be sued under the Constitution if the challenged conduct results from private choice and this rule applies even if the private entity makes its decision in an environment heavily regulated by the government. The private party may only be sued under the Constitution if it is participating in a public function or there has been a joint participation or encouragement from the government for a private party to act in a public manner. Jackson; Rendell; Lebron



      1. Analysis:

      1. If the harm to the P was by a private party, the P would not have a cause of action under the Constitution.

      2. To avoid this dilemma, the P will argue that the actor is a public entity & an actor of the state and the Constitution applies.

      3. The court has allowed private parties to be sued under the Constitution when:

      1. Public Function doctrine: a private actor is a governmental actor if:


      1. there is a sufficient delegation of a sovereign function to the private entity; or

      2. if the private entity is fulfilling an essential public or uniquely public function

      1. If there has been a sufficient joint participation or encouragement from the government for the private actor to participate



      4. The private party may not be sued under the Constitution if the challenged conduct

      results from private choice: Jackson. The rule applies even if the private entity makes its decision in an environment heavily regulated by the government: Rendell






      1. Issue: Whether the law deprives a person (natural or legal) of the due process of the law (the substantive portion guaranteed in the 14th Amendment) thus depriving the person of life, liberty, or property.

      1. Person must have been denied life, liberty or property to assess this claim

      2. Is it a fundamental right? i.e sex, marriage, family

      3. Liberties may be restricted as long as legitimate purpose & the means and the ends are rationally related and it is not a fundamental right

      1. Constitutional enumerated rights get heightened scrutiny

      2. Intent of Framers of the Constitution is important to determine if a fundamental right

      3. Natural law, God given rights

      4. Traditionally rooted in history, thus deserving of heightened scrutiny: Hardwick

      5. A penumbra that is derived from the Constitution: Griswold

      1. Rule: As long as the law is not wholly arbitrary & has a legitimate purpose that is rationally related to the means, the court will defer to the legislature and the law will be valid: Nebbia; Carolene Products. However, if the court determines that a fundamental right is being deprived, then it will engage in higher level of scrutiny: Dolan; Carolene Products. Fundamental rights include issues of privacy. The court has concluded that if the government invades the zone of privacy, or a penumbra, then it is a violation of substantive due process unless the government action is necessary to a achieve a compelling governmental objective – thus strict scrutiny is used: Griswold; City of east Moore



      1. Analysis:



      1. The original approach the court used to determine if there was a violation of substantive due process was articulated in Lochner. Here, the court struck down the limit on the amount of hours bakers could work because it was an abridgement of the liberty to contract, thus a violation of due process.

      1. court refused to consider the legislative findings of fact & denied that the law enacted for a health, safety or welafare purpose

      2. court used strict scrutiny & required a compelling state interest for the law to be valid – requires a closer connection b/w the law’s purpose & the means chosen

      3. court found freedom to K was a fundamental right & thus applied strict scrutiny

      4. J. Holmes’ dissent declared that this was an economic issue & therefore required deference and was not for the court to decide – an approach the courts moved toward.



      1. The more modern approach is that the courts should give the legislature more deference: Nebbia; West Coast Parrish

      1. requires a substantial means-end relationship

      2. policy decisions, then court should defer to the state

      3. as long as the means bear a reasonable relationship

      4. sustains imperfect laws

      5. liberty is subject to be regulated if it protects society from evils or HSW issues, then legislation will be upheld as long as rationally related to the purpose & the means.



      1. The modern rule is that deference will be given and the purpose & means will be presumed legitimate when the regulation applies to economic issues. However, if the law impinges on a fundamental right, then higher scrutiny is applied: Carolene Products

      1. presume it is the correct law & rely upon the political process

      2. however, if the law involves BOR, then use strict scrutiny



      1. However, there is a question if the court is moving back to a more heightened scrutiny: Dolan. The court here used a more strict approach & not deference to declare a zoning ordinance invalid. Not a discrete & insulate minority that needed protection & more active scrutiny, yet the court used this approach anyway.

      1. shifted the burden to the city, like active scrutiny, to show the nexus b/w the condition imposed and the city’s interest

      2. doesn’t assume the law is valid & doesn’t give deference to the city



      1. The previous information was dealing with economic regulations where the court used rational relation & deference, however, what if P is claiming a substantive due process claim on something akin to a right of privacy? Economic interests generally get deference, however, fundamental cases use strict scrutiny.

      1. Skinner invalidated a statute that required criminals to be neutered – the court said this is a deprivation of the fundamental right to marry & procreate.

      2. Griswold invalidated a law that prohibited birth control. The court declared that the BOR guarantees to protect privacy interests and that there are penumbras or zones of privacy. The right of married persons to use condoms is one such right. Thus the court uses heightened scrutiny.

      3. Family life & how to reside together as a family is a fundamental right & the state may interfere only when there is a compelling interest, thus use active scrutiny. Moore v. City of East Cleveland; Belle-Terre

      1. Ordinances that don’t let extended families live together infringe on the fundamental right of family.

      2. Belle-Terre not overruled because the court found that unrelated people had no right to live together (fraternity house)

      1. decisions set up what is family & thus a fundamental right. It is family related by blood that is protected

      2. family is deeply rooted in tradition







      1. Generally EP claims will overlap SDP claims



      1. P will be alleging that the law violates EP because it provides benefits (“goodies”) or burdens (“baddies”) unequally without justification – why is there a difference in treatment?

      • P’s claim will be based on the 14th Amendment which provides that “no person shall be denied equal protection of the law.” The 14th applies to both the states & the federal government, however, not to private parties. P may assert that the law is either under or overinclusive, meaning that it does not regulate enough of the people who contribute to the problem or that it regulates too many.



      1. Rule: Courts normally defer when a statute is challenged as violating EP & will sustain the ordinance/statute if it is rationally connected to a legitimate purpose & objective: Railroad Express. However, if the law involves a suspect classification, such as race, or interferes with the exercise of a fundamental interest, the court will use active scrutiny to determine whether the law is essential to accomplishing a compelling objective.



      1. Analysis of Economic Questions: cite to Railroad Express; Moreno; Romer. This is the lowest standard the court will use – rationally related & deference given to legislation. Unless a suspect class, quasi-suspect class, or a fundamental right is at issue, the court will use this standard. Age is not a suspect class.



      1. Deference to the legislation

      1. rely on the political process

      1. must be rationally related to a purpose

      1. don’t have to supply evidence that this was actual purpose

      2. will look to history

      1. BOP on P to show that the law is “wholly arbitrary”

      2. “One step at a time” approach will not be invalidated

      1. law will not be invalidated because it attempts to regulate only one aspect of the problem - is not underinclusive & deference will be given to the legislature: Railroad Express

      1. However, a law will be invalidated if the legislature attempted to use economic reasons to regulate an illegitimate purpose & be discriminatory against unpopular groups. Will not give deference & will be subject to a slightly higher review.

      1. the state attempted to regulate unpopular groups (hippies & gays), however, “a bare desire to harm a politically unpopular group cannot constitute a legitimate governmental purpose.” Moreno; Romer


      1. Issue: Whether the law provides a benefit or burden unequally based on suspect classification & thus violates the EP clause of the 14th Amendment.



      1. Rule: Courts normally defer when a statute is challenged as violating EP & will sustain the ordinance/statute if it is rationally connected to a legitimate purpose & objective: Railroad Express. However, if the law involves a suspect classification, such as race, or interferes with the exercise of a fundamental interest, the court will use active scrutiny to determine whether the law is essential to accomplishing a compelling objective.



      1. Analysis of Suspect Class: if the court determines that the law is using classifications to deny EP, it will use active scrutiny and the court will determine whether the law was adopted for a compelling state purpose & that the classification was essential for that purpose and no other alternatives to achieve the purpose were available.

      • if a law is actively scrutinized, the government will have to demonstrate a compelling state interest in achieving the purpose of the law and that the means are essential & there was no other way.



      1. Is it a suspect class?

      1. Cleburne stated that suspect classifications include race, national origin, gender & illegitimacy. When a suspect class is involved, use strict scrutiny. Otherwise EP only requires a rational basis b/w the legitimate purpose & the means.

      • Mentally retarded is not included & the court refuses to extend strict scrutiny that far instead declaring the ordinance invalid because it is not rationally related.

      • Age is not a suspect classification, thus use rational basis standard. Must be a history of unequal treatment or a discrete & insular group to be a suspect classification: Massachusetts Bd. of Retirement v. Murgia

      • When using strict scrutiny & are a suspect class, the state must show:

        1. compelling state interest

        2. necessary means & no other way to do it

        3. strict scrutiny nearly always fatal

        • Adarand Construction, however, says not always fatal as long as the race-based action furthers a compelling governmental interest & is narrowly tailored, it will be upheld. Korematsu


        1. Is the law discriminatory on its face?

        1. Loving v. Virginia held the anti-miscegenation statute violated EP even though it was applied to both blacks & whites. The legislative history shows the statute was enacted to keep the races separate & that there is no compelling interest to validate this compelling state interest under active scrutiny.

        1. Loving was based on a denial of the fundamental right to marry

        2. If the statute’s purpose is invidious & discriminatory, then invalidate

        • look at natural law, history, text of Constitution & implied ideals in the Constitution to determine whether the EP will extend

        • Plessy and Brown v. Bd of Education rejected the “separate but equal” doctrine from Plessy & relied on expert opinion to demonstrate separate educational facilities are inherently equal.


          3. Does the law have discriminatory impact or effect that doesn’t involve an overt


          1. Facially discriminatory statute will be struck down as violation of EP

          2. If the ordinance is neutral on its face, however, when administered it is discriminatory, then it will violate EP. Yick Wo held that the statute was applied unequally against Chinese Americans.

          3. In some situations, the law & its administration appears neutral – here, a higher requirement of proof of discrimination is necessary.

          1. Must show intent to discriminate & that it was the purpose of the law: Washington v. Davis

          1. disproportionate number of blacks is not alone enough to show discriminatory intent

          2. extend to housing, jury selection, and zoning

          • statutes not invalidated merely because disproportionate harsh impact on blacks or minorities.

          • It is enough if the sole motivation of the statute is to discriminate: Arlington Heights



            4. How do you prove EP was violated & that it was the intent to discriminate?

            1. evidence of intent to discriminate

            2. history & administrative history

            3. discriminatory impact, though disproportionate is not enough



            5. If fundamental rights are violated, then strict scrutiny applies.












































































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