Law Final: State Constitutions/Affirmative Action

what do state constitutions do/offer?

• more expansive rights

• privacy rights 

• search and seizure

• environmental rights (only some states see environment as a constit. right)

• health care

• abortion (does not mean abortion is unconstitutional at a federal level

federal preemption

the law of the U.S. to take over state constitutions

• express: congress says in the law itself that it takes over state

• implied: “so pervasive as to occupy the entire field”

What is affirmative action?

• one policy/initiative that is designed to benefit a group that has been historically discriminated and this action is used to “level the playing field”

• brings in the 14th amendment (citizenship to all persons born in the U.S.) and mainly the equal protection clause

• this shifted to the states with the civil war

• every law discriminated

SCOTUS has created the three-tier test of scrutiny. What reviews are on it?

1. rational basis review

2. intermediate scrutiny

3. strict scrutiny

rational basis review

question: “is the law rationally related to any legitimate state interest?”

• easiest level to pass

intermediate scrutiny

• any law that burdens/involves certain protected classes (gender, sexual orientation)

• “is the law substantially related to a state interest?”

strict scrutiny

• “strict in theory, fatal in fact”

• laws that burden suspect classifications (race, religion, national origin, alienage)

• “is the law necessary to achieve a compelling state interest?”

• the law must be “narrowly tailored” so that it can be targeted to only that specific group

why has affirmative actions survived strict scrutiny?

mainly because of compelling state interest in educational diversity