Con Law 2: SOR, BOR, Incorporation, 14th amendment, DP

3 Standards of Review

Levels of judicial review that courts use to determine the constitutionality of laws, especially laws that are challenged for violating constitutional rights

3 SOR

• Rational Basis

• Intermediate Scrutiny

• Strict Scrutiny

How courts decide which standard to apply

1) Does the law affect a fundamental right?

• Yes - Strict Scrutiny

• No - step 2

2) Does the law involve a suspect or quasi-suspect classification?

• Suspect classification (Strict Scrutiny)

  • Race (Brown v Board)

  • National Origin

  • Legal Alien

• Quasi-suspect (Intermediate Scrutiny)

  • Gender

  • Legitimacy of child (born out of wedlock)

• If neither - then step 3

3) Does the law affect a general social or economic policy?

• if general social or economic policies then rational basis

• Does NOT involve fundamental rights or suspect classifications then rational basis by default

Rational Basis

Legitimate gov’t interest and a rational relationship between the legislation and the achievement of that interest (High deference to gov’t and presumed constitutional)

Rational Basis examples

Economic regulatory legislation, fighting words, obscenity, libel of private persons on matters of public concern, illegal aliens, wealth and intellectual disabilities

Intermediate Scrutiny

Important gov’t interest and a substantial relationship between the legislation and the achievement of that interest (Balanced inquiry and moderate deference - evidence is required but courts are not overly skeptical)

Intermediate Scrutiny Topics

Commercial speech, persons born out of wedlock, gender, content neutral speech, gun control and non-political expressive conduct

Strict Scrutiny

Compelling gov’t interest and a close relationship between that interest and the means used (narrow tailoring) to achieve that interest (Presumed Unconstitutional and minimal or no deference to the gov’t)

Strict Scrutiny Topics

Carolene products (laws affecting 1) personal liberties, 2) political process & 3) discrete and insular people), voting, travel, race, legal aliens, political speech, public forums, content based discrimination, freedom of association and libel of public officials

Carolene Products

• Justified using higher level of scrutiny in 3 classes of legislation that are not economic

  • 1. Legislation that infringes liberties described by Bill of Rights

  • 2. Legislation that impedes normal operation of political process

  • 3. Legislation that adversely effects discrete and insular minorities

Bill of Rights

first 10 amendments of the Constitution (initially not included) and begins with “Congress”

1st Amendment

Freedom of religion, speech, press, assembly and religion

2nd Amendment

Right to keep and bear arms in order to maintain a well regulated militia

3rd Amendment

Prohibits forced quartering of soldiers

4th Amendment

Protects against unreasonable search and seizures and requires PC for warrants

5th Amendment

Right to due process, grand jury, freedom from self-incrimination and double jeopardy, right to remain silent and eminent domain

6th Amendment

Rights of criminally accused - fair & speedy trial, impartial jury, informed of charges, confront witnesses and legal counsel

7th Amendment

Right to jury trial in civil cases

8th Amendment

Freedom of excessive bail, fines and cruel and unusual punishment

9th Amendment

Protects enumerated rights NOT listed in the constitution

10th Amendment

Reserves rights to the states that are not delegated to the federal government by the constitution

Incorporation of the Bill of Rights

The Bill of Rights applies to the states through the 14th amendment’s DPC

2 Theories of Incorporation

Total incorporation (Justice Black) - minority

• When 14th amendment was enacted it incorporated everything to the states

Selective incorporation

• ONLY FUNDAMENTAL principles of liberty and justice are incorporated (rights that are the very essence of ordered liberty)

• 2 types:

  • Strong selective: only look @ the US when deterring what is a fundamental right

  • Selective incorporation plus: strong selective PLUS liberties not enumerated

Only a couple BOR amendments have not been incorporated to the states

3rd amendment

5th amendment partially - not incorporated grand jury requirement for felony cases

7th amendment - pertains to federal civil trials

8th amendment - NOW is incorporated (was not until 2019)

Reconstruction Amendments

• 13th Amendment - abolished slavery & involuntary servitude theoretically

• 14th Amendment - requires states to provide due process, equal protection, privileges and immunities for citizens and citizenships of all persons born or naturalized in US

• 15th Amendment - prohibits racial discrimination in voting

Courts use DPC of 14th amendment to apply BOR to states because

Certain liberties in Bill of Rights are so fundamental that for a state to deny them would constitute a denial of Due Process within the meaning of the 14th Amendment

5 clauses of the 14th amendment

1) Citizenship

2) Due Process

3) Equal Protection

4) Privileges and Immunities

5) Remedial

Citizenship clause of 14th amendment

• “All persons born or naturalized in the US and subject to jurisdiction thereof are citizens of US and of states where in they reside”

• Direct response to Dred Scott – held that African American could not sue in federal court because he was not considered a citizen of the US

Due Process clause of the 14th amendment

• “Nor shall any state deprive any person of life, liberty, or property without due process of the law”

  • 5^th Amendment restricts FEDERAL

  • 14^th Amendment restricts STATES

Equal protection clause of the 14th amendment

• “States shall not deny any person within its jurisdiction the equal protection of the laws”

• Applies ONLY in 14th Amendments – no federal EPC

  • Federal government STILL CANNOT deny equal protection à Denial of equal protection is denial of due process and 5th Amendment prohibits federal government from denying due process

• Overturned Dred Scott v Sandford

  • Bolling v. Sharpe – There is no federal Equal Protection Clause to prohibit D.C. from racially segregating schools, but the government cannot deny equal protection by discriminating on the basis of race because that would be a denial of due process, which the 5th Amendment prohibits

  • A denial of equal protection is a denial of due process (equal protection is PART of due process)

Privileges and Immunities clause of the 14th amendment

• “No states shall make or enforce any law which shall abridge the Privileges and Immunities of citizens of US”

  • States CANNOT deprive people of liberties they enjoy by virtue of American citizenship

• Slaughterhouse Cases – greatly limited P&I Clause and 14^th Amendment by saying it ONLY protects privileges and immunities granted by FEDERAL government and not states governments

  • Often said that it is the case that removed P&I Clause from Constitution

Remedial clause of the 14th amendment

“Congress shall have the power to enforce provisions of this article”

Substantive DP to protect NON-economic personal liberties (foreign language)

Meyer v Nebraska

• 1st time SCOTUS said the 14th amendment’s DPC protected NON-economic personal liberties - intro of SDP into the arena of personal liberties

• Law prohibited schools from teaching foreign languages. Teacher continued to teach German and was charged. SCOTUS held law unconstitutional

• Violated non-economic and economic due process liberties:

  • Non-economic: fundamental liberty interest of parent to control his/her child’s education

  • Economic: teacher’s right to contract and do business

• State cannot prohibit teaching of foreign languages to student when teaching requested by parent because this interferes with fundamental liberty interest of a parent to control their child’s education

Substantive DP to protect NON-economic personal liberties (non-public schools)

Pierce v Society of Sisters

• OR law requiring all children to attend public school struct down on both economic grounds and non-economic grounds because of religious concerns and parent’s right to educate their children how they want

  • Parents have right to direct their child’s education

  • Parents have a right, w/in reasonable limits, to decide how to bring up their children

Gitlow v NY (Incorporation BOR - speech)

• SC in dicta said free speech under 1st Amendment was incorporated to states through 14th DPC

• Criminal anarchy statute did not violate Gitlow’s right to free speech because the manifesto he created, created a clear and present danger, which was exception to the 1st Amendment

Near v Minnesota (Incorporation BOR - press)

Court in majority stated that the free press clause of the 1st Amendment applies to state law

Palko v Connecticut (“essence of ordered liberty” test for incorporation)

• Process for incorporation in choosing certain liberties that are based on very concept/essence of an ordered liberty – those liberties that we could not conceive a free society without

  • If you cannot conceive free and fair society without certain right, then it is FUNDAMENTAL and SHOULD be incorporated into the states

  • Also called the FUNDAMENTAL RIGHTS ANALYSIS

    • Uses this analysis to determine whether to incorporate certain provision of Bill of Rights

• Did NOT include double jeopardy of 5th Amendment

Cantwell v Connecticut (Incorporation BOR)

Free Exercise Clause applies to the states

Everson v BOE (Incorporation BOR)

• Establishment Clause applies to the states

• State transportation program that serves public and religious schools does not violate Establishment Clause

Duncan v LA - Criminal procedural clauses of 4th, 5th and 8th amendments (incorporation of BOR)

6th Amendment’s right to trial by jury in criminal case applies to states

District of Columbia v Heller (2nd amendment)

• Second Amendment protects right to keep and bear arms for self-defense

  • Fed gov can still impose reasonable restrictions (i.e. background checks, registration, etc.)

• Individual right to bear arms

  • Not tethered to Milita's right to bear arms

McDonald v City of Chicago (2nd amendment incorporated into state law)

• DP incorporates the 2nd amendment

  • right to keep and bear arms applies to the states because right to self-defense is a fundamental core right

    • Demonstrates fundamental rights analysis – criteria SCOTUS uses to determine if it should incorporate provisions of Bill of Rights into state law

• Right is among P&I of citizens of US

NY State Rifle and Pistol Association v Bruen

Non-core rights such as the right to sell and purchase guns, are subject to intermediate scrutiny

Why incorporation matters if state constitution’s protect civil liberties? Powell v Alabama

AL provided for right to counsel and pay for counsel for indigents in criminal cases, which was more generous on its face, but due process required MEANINGFUL counsel both at trial and leading up to trial