Constitutional Law II

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  1. Substantive Due Process
    Applies when a state law burdens the exercise of fundamental, or non-fundamental rights.

    Substantive due process guarantees that laws will be reasonable and not arbitrary.

    Generally where a law limits the liberty of all persons to engage in some activity, it is a due process question.

    Two standards of review:

    • 1) Strict Scrutiny: Fundamental rights
    • 2) Rational Basis: Non-Fundamental rights
  2. Rational Basis
    If legislation infringes on some rights that are non-fundamental rights, such legislation gets the presumption of constitutionality.

    Therefore, the burden is on the plaintiff to show:

    • 1) The legislation at issue does not have a legitimate government interest (the interest may be hypothesized); OR
    • 2) The means used are not rationally related to advancing the legitimate government interest. The means can be over inclusive, under inclusive, and it does not matter that a less drastic alternative was available.

    Federal Communications v. Beach, economic regulations satisfy the equal protection requirement if "there is any conceivable state of facts that could provide a rational basis for the classification."--Justice stevens, "The court's test is tantamount to no review at all." 

    • - This test is very easy to pass.
    • - Look for claims regarding interference with the autonomy of commercial activity, economic decision making, licensing, running the business, etc.)

    - Most gov'tal action examined under this standard is upheld unless it is arbitrary or irrational.
  3. Strict Scrutiny (when does it apply) (DPC and EP)
    • A. Suspect Classifications:
    • 1. Race
    • 2. National Origin
    • 3. Religion (either under EP or Establishment Clause analysis)
    • 4. Alienage (unless the classification falls within a recognized "political community" exception, in which case only rational basis scrutiny will be applied).
    • B. Classifications Burdening Fundamental Rights
    • 1. Vote 
    • 2. Travel 
    • 3. Privacy
    • 4. 1st Am. rights.
    • 5. Family members living together
    • 6. Access to the Courts
    • 7. Other Rights Recognized as Fundamental
  4. Strict Scrutiny (Actual Test)
    • - Once it is established that the statute at issue substantially interferes with a fundamental right, or suspect classifications, the Court applies strict scrutiny.
    • - The government must show that the challenged classification serves a compelling state interest and that the classification is necessary to serve that interest.
    • - A law will be upheld only if it is necessary to achieve a compelling or overriding gov't purpose.

    • 1) Whether the statute is supported by sufficiently important state interest (must be a specific interest, cannot hypothesize); AND
    • 2) the means used are closely tailored to effectuate only this INTEREST.:
    • i) the means cannot be over-inclusive: "sweeps more broadly than necessary"; or
    • ii) The means cannot be under-inclusive.

    When the means are so substantially over-inclusive or under-inclusive, they raise evidence that the articulated reason to have this statute is a pre-text (the real reason is that the gov't is basically being shitty.)
  5. Substantive DPC (Sequence)
Card Set:
Constitutional Law II
2015-12-14 00:23:15
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