Constitutional Law II: Second Review Professor Morrison Spring 2006.
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Transcript of Constitutional Law II: Second Review Professor Morrison Spring 2006.
Constitutional Law II: Second Review
Professor MorrisonSpring 2006
Spring 2006 Constitutional Law II: Review 2
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Subjects Covered
Equal Protection State Action Congressional Enforcement
Equal Protection
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Equal Protection
Provided by 14th Amendment Applies against “state action” (see
below) Parallel doctrine limits federal
government under 5th Amendment, but probably not as strong
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All laws classify (discriminate)
Every law classifies between those covered by the law and those not covered In some cases classification is more
obvious Question is whether the classification
has a sufficient justification to pass constitutional scrutiny
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Three basic tests
Strict scrutiny Intermediate scrutiny Basic scrutiny
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Strict Scrutiny Applies to classifications based on race
Brown v. Board of Education Also applies to some classifications based
on alienage In re Griffiths But not to those involving exercise of political
rights or public office Foley v. Connelly Or on some federal actions Hampton v. Mow
Sun Wong; Matthews v. Diaz Also applies to some cases involving
fundamental rights (see below)
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Strict scrutiny
Law must have Compelling public purpose No less burdensome means (more
recently: “must be narrowly tailored”)
Burden is on state to demonstrate this
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Intermediate scrutiny
Applies to gender discrimination Craig v. Boren
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Intermediate scrutiny
Law must have Important governmental purpose Be substantially related to it Craig v.
Boren More recently: “exceedingly persuasive
justification” U.S. v. Virginia
Burden is on state to demonstrate this
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Basic scrutiny
Applies in all other cases Railway Express v. New York
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Basic scrutiny
Law must have A legitimate public purpose Rational relationship to it
Burden is on challenger to demonstrate this
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Other suspect (or semi-suspect) classes
Alienage (see above) Legitimacy
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Other classifications are not suspect
Age Wealth
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Fundamental rights
Also invoke strict scrutiny Political rights (ballot access,
voting, equal representation) Access to the courts Family rights (right to marry, etc.)
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Are these tests fixed steps or a flexible incline? Are these pigeonholed standards,
or is there a flexible standard? Effect on democratic institutions Problem cases (don’t fit nicely):
Alienage (see above) Illegitimacy—”heightened scrutiny” Cases like Cleburne v. Cleburne Living
Center
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Invoking higher levels of scrutiny Show discrimination on the face of the
law Purpose to discriminate
Yick Wo v. Hopkins Washington v. Davis
Mere disparate impact is not enough Distinguish constitutional and statutory claims
Keyes v. School District Facts can establish discriminatory purpose
Note evolution of standards
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Remedies To create (restore) proper relationship
If racial discrimination case, can include remedies that seek to offset that wrong, even if based on race. Swann v. Charlotte-Mecklenberg
Cannot involve orders against additional entities not party to the discrimination. Milliken v. Bradley
When effects of prior discrimination have been corrected, injunction can be ended. Board of Ed. of Oklahoma City v. Dowell
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Affirmative action In education, diversity may be a
sufficiently compelling public interest Gratz
But the action must still be “narrowly tailored” Grutter
In other areas, the compelling interest may be harder to show Croson, Adarand
State action
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State action
14th amendment says “No state shall …” Only limit is on states and their
agents and instrumentalities Private persons (and companies) not
limited by 14th amendment unless they are agents of the state
Private parties can be limited by other laws
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Typical state action
The state itself A state agency
E.g., a state university A unit of local government created
by the state An employee of one of the above,
acting on its behalf
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State action: public function
Public function Marsh v. Alabama Including primary elections Terry v.
Adams But not shopping centers Lloyd v.
Tanner And not privately-owned public utilities
Jackson v. Metropolitan Edison Function must be one that ONLY the
state can perform
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State action: Symbotic relationship
“Symbotic relationship” Burton v. Wilmington Parking Authority
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State action:State enforcement of claims
State enforcement of restrictive covenants is not permitted Shelley v. Kraemer
But private action pursuant to law is allowed Contrast Evans v. Abney and Newton v. Abney
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State action: State enforcement of claims
Similarly under due process: Use of state agency to enforce a
claim (e.g., repossession) requires due process Lugar v. Edmonson Oil
But private action (e.g., sale of goods for failure to pay storage charges) does not Flagg Bros. v. Brooks
Distinguish a sheriff and a “repo man”
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State action: Receipt of public money not enough
The mere fact that a party receives state funds is not enough, by itself, to create state action. Rendell Baker v. Kohn
Congressional Enforcement of
Civil Rights
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“Enforcement clauses” of 13th 14th and 15th amendments
Congress is given power “to enforce” 13th, 14th, and 15th amendments
Laws sometimes enacted under these provisions but sometimes under other authority Reason: 14th amendment doesn’t reach
private action, so Congress seeks other authority, e.g., commerce clause
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13th Amendment
Prohibits slavery Interpreted to include power to eliminate
“badges and incidents of slavery” Federal laws enacted under it may thus
reach private actors. Jones v. Alfred Mayer Co.
But only applies to racial discrimination (because of its association with slavery)
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14th Amendment
State action requirement limits its usefulness Private action must be reached
through Commerce Clause, 13th Amendment, or otherwise
Can apply to all denials of equal protection and due process
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Enforcement of the 14th Amendment
Congressional action must be Proportional Congruent
City of Boerne v. Flores; U.S. v. Morrison
Congress must enforce, not define, the right
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Other enforcement clauses
15th Amendment. Voting. Katzenbach v. Morgan
19th Amendment. Women’s suffrage.
23rd Amendment. Voting in D.C. 24th Amendment. Poll tax 26th Amendment. Voting age of 18.
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11th Amendment
Text prohibits suits in U.S. courts against a State, if brought by residents of other States or of foreign countries
By extension, also prohibits suits in U.S. courts against States, if brought by citizens of that State. Hans v. Louisiana
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11th Amendment Precludes suits in federal court against a
State under the Constitution or under federal laws enacted under the powers granted in the text of the Constitution itself.
Also prevents Congress from creating a cause of action in state court. Alden v. Maine.
Also prevents administrative adjudication. Federal Maritime Comm’n v. South Carolina Ports Authority
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11th Amendment Does not preclude—
Use of federal law as a defense in a suit brought by the state
Appeal of a state case to federal court Suit against an officer or employee, or
against an entity created by the State Ex parte Young
Suits against cities, counties, etc. Suits against the Attorney-General, etc.
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11th Amendment Also does not preclude suits under
amendments after it; or under statutes enacted under authority granted by those amendments
So— Cannot sue State if statute enacted under
Commerce Clause Can sue State if enacted under 14th
Amendment Can sue State officials, subject to limitations
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Minnesota law Minnesota has waived its sovereign
immunity (and the protection of the 11th Amendment) with respect to— Age Discrimination in Employment Act Fair Labor Standards Act Family and Medical Leave Act Americans with Disabilities Act
Minn.Stat. sec. 1.05