CONSTITUTIONAL LAW II
3 basic purposes of the Constitution
-- (1) establishing a ntl gvt and dividing authority between the 3 branches (separation of powers)
-- (2) establishing federalism—dividing powers btwn states and national gvt; establishing limited but supreme federal power (preemption with the Supremacy Clause)
-- (3) protecting individual rights (amendments; original document did not include individual rights (other than in the preamble—life, liberty, and the pursuit of happiness) because the founders figured the structure would be sufficient to protect those rights)
The “dead hand” problem refers to the reign of the values of the founders implicit in the Constitution that still rule today.
Countermajoritarian problem of judicial review: the Justices’ views are privileged over the majority of the people; these 9 people are responsible for deciding really difficult constitutional questions which the entire nation when the citizens do not directly vote for these justices.
Ch. 9 EQUAL PROTECTION
Overview
-- 14th Am: no state shall “deny to any person within its jx the equal protection of the laws.”
-- Incorporated by 5th Am due process to apply to the federal gvt in Bolling v. Sharp.
-- The legitimacy of fundamental values adjudication under the guise of EP is not at all clear.
-- Almost all laws are classifications; where to draw the line is difficult.
-- At least, there is a rationality requirement.
-- 3-part framework
(1) What is the classification (e.g., gender, age, race)? 2 types of classification: facial discrimination or facially neutral laws
(2) What is the appropriate level of scrutiny? 3 main levels: rational basis, intermediate scrutiny (gender discrimination, non-marital children), and strict scrutiny (racial discrimination).
(3) Does the gvt action meet the level of scrutiny? Means and ends.
GOAL / FIT (means/ends)Strict scrutiny (compelling) / “Narrowly tailored”/”necessary”
Intermediate scrutiny (important) / “substantial relationship”
Rational basis (legitimate) / “rational relationship”
-- Pre-Warren Court EP
Traditionally, equal protection supported only minimal judicial intervention in most contexts outside race discrimination. For non-racial classification, the Ct ordinarily read the command of EP to require only that gvt not impose differences in treatment “except upon some reasonable differentiation fairly related to the object of regulation.” Railway Express. Such reasonableness review focused on the means used by the legislature; it insisted merely that the classification in the statute reasonably relate to a legitimate legislative purpose.
Judges allowed legislators flexibility to act on the basis of broadly accurate generalizations and tolerated considerable overinclusiveness and underinclusiveness in classification schemes.
-- Warren Court’s “New” EP and the2-Tier Approach
In the 50s and 60s, the Ct’s EP std was “minimal scrutiny in theory and virtually none in fact.”
- Williamson v. Lee Optical (1955)—Ct rejected an EP and a SDP challenge to a regulation scheme for opticians.
- McGowan v. Maryland (1961)—Ct upheld against EP challenges state Sunday closing laws exempting certain businesses.
- McDonald v. Bd of Election Commissioners (1969)—Ct rejected a claim by qualified voters in a county jail while awaiting trial that the state could not deny them absentee ballots when they were provided to other classes of persons. Mere access to an absentee ballot did not implicate any “fundamental interest” in voting. Ct applied PLV, allowed a one step at a time rationale, and applied the traditional std: The distinctions drawn by a challenged statute must bear some rational relationship to a legitimate state end and will be set aside as violative of EP only if based on reasons totally unrelated to the pursuit of that goal. Legislatures are presumed to have acted constitutionally even if source materials normally resorted to for ascertaining their grounds for action are otherwise silent, and their statutory classifications will be set aside only if no grounds can be conceived to justify them.
The Warren ct launched an EP revolution by finding large new areas for strict rather than deferential scrutiny.
2-tier approach: Some situations evoked the aggressive ‘new’ EP, with scrutiny that was ‘strict’ in theory and fatal in fact; in other contexts, the deferential ‘old’ EP reigned, with minimal scrutiny in theory and virtually none in fact.
- Legislation qualifying for strict scrutiny required a far closer fit between classification and statutory purpose than the rough and ready flexibility traditionally tolerated by the old EP: means had to be shown “necessary” to achieve statutory ends, not merely “reasonably related.”
- EP became a source of ends scrutiny—“compelling” state interests were required
- Areas for appropriate strict scrutiny were found by searching for 2 characteristics: the presence of a suspect classification; or an impact on fundamental rights or interests.
-- Post Warren Court EP
Cabining the fundamental interests branch of EP: The Burger Ct said “thus far and no further” wrt the most amorphous aspect of Warren Ct doctrine: the use of strict scrutiny where fundamental interests were affected.
The discontent with 2-tier formulations: Some justices sought formulations that would blur the sharp distinctions of the 2-tiered approach. Some, especially Stevens, claimed that a single std applies to all EP cases. Others, esp Marshall, advocated a continuum or sliding scale.
2 innovations blurred the lines of the 2-tier approach
- (1) rationality review was sometimes applied with “bite” rather than extreme deference to legislative classifications and virtually automatic validation—especially if some inappropriate ground of “animus” was at work.
- (2) In some areas the Ct put forth new intermediate stds for EP review that, while clearly more intensive than conventional rationality review, are less demanding than strict scrutiny. E.g., Craig v. Boren—sex discrimination challenges evoke an “intermediate” level of review; US v. Virginia—gender classifications require an “exceedingly persuasive justification.”
The early Burger Ct (early 70s) invalidated laws on EP grounds w/o asserting grounds for heightened scrutiny.
- US Dept of Agriculture v. Moreno (1973)—Purporting to apply a rationality std, the Ct struck down a provision of the federal food stamp program for assistance to households limited to groups of related persons. The exclusion of unrelated persons was found to be irrational: it was “imprecise” and “wholly without any rational basis.”
In the late 70s, the Burger Ct seemed most often to retreat to a deferential variety of rationality review akin to that of the Warren era.
- New Orleans v. Dukes (1976)—overruled Morey v. Doud (1957), the only decision between the late 30s and 70s in which the Ct had struck down an economic regulation on EP grounds. Ct sustained a New Orleans provision which exempted pushcart food vendors who had continually operated the same business for 8 yrs prior to January 1972 from a prohibition against such vendors in the French Quarter. Rational distinctions in economic regulations may be made with substantially less than mathematical exactitude.
- Massachusetts Bd of Retirement v. Murgia (1976)—very deferential std; PLV; rejected an EP challenge to a state law providing that a uniformed police officer shall be retired up on his attaining age 50. The State’s classification rationally furthers the purpose of protecting the public by assuring physical preparedness of its uniformed police.
- NYC Transit Authority v. Beazer (1979)—statements by several Justices indicated that the members of the Burger Ct were not so clearly committed after all to such a deferential stance. Rejected the lower ct’s view that, because 75% of patients who have been on methadone treatment for at least one year were free of illicit drug use and because the exclusion applied to non-safety sensitive jobs, the exclusion had “no rational relation to the demands of the job to be performed.” Strong dissent by White and Marshall: The rule’s classification of successfully maintained persons as dispositively different from the general population is left without any justification and, with its irrationality and invidiousness thus uncovered, must fall before the EP clause.
Since the 80s, the CT for the most part applied deferential stds for EP challenges to socioeconomic legislation, but occasionally put greater bite into rationality review.
- Rehnquist Ct
- Fritz case below
Scrutiny of Means in Economic and Social Legislation: The Rationality Requirement
“Underinclusive” and “Overinclusive” Classifications
-- EP focuses on that general requirement of “rational” means in the context of legislative classifications. EP requires that there be some rational connection between classifications and objectives. A minimal fit or congruence must exist btwn the classifying means and the legislative ends. (The traditional EP std does not demand anything approaching a perfect fit.)
-- Underinclusiveness or overinclusiveness will weigh in favor of a lack of rational basis.
-- Some critics say there should not be any review of legislation for rationality.
-- Different standards for rationality:
(1) “The classification must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.” FS Royster Guano Co. v. Virginia (1920). [less deferential; demands tighter fit]
- This formulation is rare but has never been wholly abandoned.
(2) “When the classification is called in question if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed.” Lindsley v. Natural Carbonic Gas Co. (1911). [more deferential; looser fit required]
- This approach was prevalent from the 1940s-60s (e.g., Williamson v Lee Optical (1955)).
-- Tussman & tenBroek, “The EP of the Laws” (1949 California Law Review article)
The measure of the reasonableness of a classification is the degree of its success in treating similarly those similarly situated. A reasonable classification is one which includes all persons who are similarly situated wrt the purpose of the law.
We can speak of the relation of the classification to the purpose of the law as the relation of the Trait to the Mischief. In the usual problem we are really dealing with the relation of 2 classes to each other. The first class consists of all individuals possessing the defining Trait (T); the second consists of all individuals possessing, or rather, tainted by, the Mischief (M) at which the law aims. T is the legislative classification. M is the class of those similarly situated wrt the purpose of the law.
5 possible relationships btwn T and M:
- (1) All Ts are Ms and all Ms are Ts
× most reasonable
- (2) No Ts are Ms and no Ms are Ts
× most unreasonable
- (3) All Ts are Ms but some Ms are not Ts
× “under-inclusive”
× All who are included in the class are tainted with the mischief, but there are others also tainted whom the classification does not include.
× Since the classification does not include all who are similarly situated wrt the purpose of the law, there is a prima facie violation of the EP requirement of reasonable classification
× The Ct has defended under-inclusive classifications on such grounds as: the legislature may attack a general problem in a piecemeal fashion; some play must be allowed for the joints of the machine; the law does all that is needed when it does all that it can.
- (4) All Ms are Ts but some Ts are not Ms
× “over-inclusive”
× exemplified by the quarantine and the dragnet
× Tussman & tenBroek claim there is a stronger prima facie case against over-inclusiveness because it reaches out to the innocent bystander
× The critical issue in the cases is the degree to which a legislature shall be permitted to generalize or to deal with a problem one step at a time, and thus to fall short of perfect congruence.
- (5) Some Ts are Ms; some Ts are not Ms; and some Ms are not Ts
× includes both under-inclusiveness and over-inclusiveness
× can be challenged separately on both grounds
× sustaining of this classification, therefore, requires both the finding of sufficient emergency to justify the imposition of a burden upon a larger class than is believed tainted with the Mischief and the establishment of “fair reasons” for failure to extend the operation of the law to a wider class.
× Hirabayashi v. US (1943)—the classification of American citizens of Japanese ancestry for the purpose of meeting the dangers of sabotage can be challenged both on the grounds that it is underinclusive (since other groups of people might also sabotage the government) as well as overinclusive (not all American citizens of Japanese ancestry are dangerous). The government argued that the legitimate purpose of the curfew orders was to protect citizens in a time of war against Japan.
Railway Express Agency v. NY (1949)
-- The court sustained §124 of the NYC Traffic Regulations provided: “No person shall operate on any street an advertising vehicle; provided that nothing herein contained shall prevent the putting of business notices upon business delivery vehicles, so long as such vehicles are engaged in the usual business of the owner and not used merely or mainly for advertising.”
-- NYC’s goal was to reduce traffic safety; the signs are distracting.
-- This is underinclusive legislation (all Ts are Ms but some Ms are not Ts) because it could include, but does not include, autos with the owners’ company advertisement on the auto; those, too, are distracting.
-- The Ct says that this type of piecemeal solution to the problem of traffic distraction is rational; the gvt does not have to have an all or nothing solution and it may hit groups one step at a time.
-- Rational basis allows great deference to the legislature.
-- Jackson Concurrence
any conceivable purpose for classification is not allowable; a legitimate purpose for the classification should be required
SDP v. EP: Invalidation of a statute or an ordinance on SDP grounds leaves ungoverned and ungovernable conduct which many people find objectionable. The Court should be more exacting with the EP clause because classification allows the ct to address problems on a smaller scale. Invocation of the EP clause does not disable any governmental body from dealing with the subject at hand. It merely means that the prohibition or regulation must have a broader impact. The EP clause is a salutary doctrine that gvts must exercise their powers o as not to discriminate between their inhabitants except upon some reasonable differentiation fairly related to the object of regulation.