Professional Documents
Culture Documents
V.
3. YES
a. Public/traffic safety (Railway Express)
b. Public morals (NYC Transit Authority v. Beazer
methadone) (Bowers)
4. NOT
a. When purpose is a bare desire to harm
i. US Dept of Agriculture v. Morenofood
stamps harms hippies
ii. Romer v. Evansharm to homosexuals
by refusing to protect
iii. Cleburnementally disabled home
5. Protects class of one
a. Village of Willowbrook v. Olechretaliatory
easement
iii. Are the means rationally related to the legit ends (very
deferential std)
1. Anything that is not arbitrary and unreasonable
2. Underinclusiveness ok (Railway Express)
3. Overinclusiveness ok (New York Transit Authority
methadone)
4. Under- and over- inclusiveness ok (NYTA)
5. Piecemeal process ok (Railway Express)
6. NOT
a. Arbitrary and unreasonable
i. Alleghany Pittsburgh Coalproperty tax
based on recent sale
1. See Nordlinger for counter
(difference is that Nordlinger a
challenge to the tax law,
Allegheny a challenge to the
administrative practice)
b. Too broad to imply anything but bare desire to
harm (Romer)
7. Protects class of one
a. Village of Willowbrook v. Olecheasement
arbitrary
Conclusion
Question presented
Key Facts
Analysis
a. ID THE PROPER CONSTITUTIONAL PROVISION
i. State law: 14th Amendment (since Brown)
ii. Federal law: 5th Amendment (Adarandsame doctrine applies
to 5th as 14th)
1. Courts read EP into the 5th Am Due Process Clause.
According to Bolling v. Sharpe, some discrimination may
be so unjustifiable as to be violative of due process.
b. EP violation? Show discriminatory intent:
i. On face of statute
1. Craig v. Borennear beer sold to women 18+ but to
men 21+ b/c of traffic safety
2. US v. VMIprohibiting women from attending VMI
ii. Facially neutral; must show
1. Discriminatory impact
a. Look at same things above
2. Discriminatory purpose behind law
a. Look at same things above (apply Washington)
b. NOT Discrimination:
i. Geduldig v. Aiellopregnant v. nonpregnant people was not discriminatory
c. Standard of Review
i. Intermediate Scrutiny (Craig v. Borennear beer case): To
withstand constitutional challenge, previous cases establish
that classifications by gender must serve important
governmental objectives and must be substantially related to
those objectives.
ii. Why Intermediate? Compromise btwn
1. Strict scrutinyhistory of discrimination, sex is an
immutable characteristic, legislation moving in the
direction of ending gender discrimination (Brennan in
Fronterio)
2. Rational Basis14th Am meant only to apply to race
discrimination (Strauder v. W. Va.), biological
differences, original intent, not a discrete and insular
minority (John Ely)
iii. Important governmental ends (VMI says law requires an
exceedingly persuasive justificationmust not rely on
overbroad generalizations about the different talents,
capacities, or references of males and females)
1. YES
Conclusion
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Due Process
I.
Question Presented: Does ________ violate the Due Process Clause
of _________?
II.
Key Facts
III.
ID the Right/Frame the Right
a. Level of Generality2 ways to determine (DO BOTH)
i. Glucksbergcareful description of the right, phrased
narrowly
ii. Lawrence or Caseyhigh level of generality
b. Why is defining the right important? Because it will trigger SS or RR
IV.
Is the right fundamental?
a. Enumerated Right in C?
i. If State case, incorporated?
b. Incorporating Selective Incorporation Plus (Harlan/Frankfurter in
Adamson standard)liberty and due process is open-ended which
courts must interpret the meaning of.
i. Cardozo in Palko Fundamental Fairness Test
1. Liberty and justice depend on protecting the right
2. Implicit in the concept of ordered liberty
3. So rooted in the tradition and conscience of our
people as to be ranked as fundmamental
ii. Harlan in Griswold says fundamental rights test is a rational
continuum. Must look to:
1. Precedent
a. Privacy
i. Meyer v. Nebraskaright to raise
children as you wish
ii. Pierce v. Society of Sistersright to
raise kids
iii. Skinner v. Oklahomaright to procreate
(sterilization)
iv. Lovingright to marry
v. Griswold v. CTright to privacy in
marital relationship
vi. Eisenstadt v. Bairdprivacy right
extended to individuals seeking
contraception
vii. Roe v. Waderight to control
body/choose an abortion
1. Privacy is an essential
component of liberty
b. Right to refuse medical treatmentCruzan v.
Director, MO Dept. of Health
i. But must be an informed, voluntary
choice a person makes for him/herself
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V.
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v. Presumption of unconstitutionality
vi. BOP on gov
c. RR (the default level of scrutiny under Carolene)
i. Court will defer to government economic and social
regulations unless they infringe on a fundamental right or
discriminate against a group that warrants special judicial
protection (Carolene)
ii. The means must rationally or reasonably further the
underlying governmental ends and the governmental ends
must be legitimate (Railway Express v. New York)
iii. Why use? Governments must have the power to curtail
rights in order to operate
iv. Test (Railway Express)
1. Start with presumption of constitutionality of the law
a. BOP on challenger
2. Are the ends legitimate
a. Purpose will be legitimate if it advances a
traditional police power: protecting safety,
public health or public morals
b. Any conceivable legit purpose, even if not the
govs actual purposeas long as the govs
lawyer can identify a conceivable legit purpose,
this will work
i. Where, as here, there are plausible
reasons for Congress action, our inquiry
is at an end. It is constitutionally
irrelevant whether this reasoning in fact
underlies the legislative decision
because this Court never has insisted
that a legislative body articulate its
reasons for enacting a statute. (US
Railroad Retirement Board v. Fritz)
c. NOT
i. When purpose is a bare desire to harm
1. Lawrencemoral disapproval not
enough
d. Protects class of one
i. Village of Willowbrook v. Olech
retaliatory easement
3. Are the means rationally related to the legit ends (very
deferential std)
a. Anything that is not arbitrary and unreasonable
b. Underinclusiveness ok (Railway Express)
c. Overinclusiveness ok (New York Transit
Authoritymethadone)
d. Under- and over- inclusiveness ok (NYTA)
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14
Commerce Clause
I.
II.
III.
IV.
V.
VI.
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VII.
VIII.
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SEPARATION OF POWER
I.
II.
III.
IV.
V.
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