biz law (1)
TRANSCRIPT
State of Nature
Early humans lived in a STATE OF NATURE
Before Law Existed
Everyone was vulnerable to attack at any time
Social Contract Theory
Social Contract • Humans were born into an unorganized & lawless “State of Nature” • In the interests of self-preservation & civilization, humans agreed to organize & chose to create governments
Bellum omnium contra omnes “The War of All Against All”
• The State (Government) exists only to serve to will of the people • The People are the source of all political power
“The state of men without civil society (which state we may properly call the state of nature) is nothing else but a mere war of all against all; and in that war all men have equal right unto all things” - Leviathan
Thomas Hobbes
Citizens surrender some freedoms & submit to the rule of the majority for the protection of their remaining rights.
Social Contract
Social Contract describes the implied relationship between Citizens and their Government.
The Social Contract
• A body of enforceable rules that govern the relationships between individuals, & which establish the rights, duties, & privileges that are consistent with the values & beliefs of a society & its ruling group
• There are numerous sources of American law
Rule of Law
What is Law?
Federal
State/Local
____________
PRESIDENT
CONGRESS
Illinois LEGISLATURE
GOVERNOR
Hierarchy of U.S. Law
Tripartite Checks
& Balances
Separation of Powers
Art. 1 - Congress Art. 2 - POTUS Art. 3 - Judiciary
Legislative Power Judicial Power Executive Power
• President can sign or veto laws passed by Congress. • Courts can strike down Congressional Legislation or Executive Administrative Law.
Sources of
Legal Authority
Organic Law
• A law that violates the U.S. Constitution, if challenged, will be declared [by the Courts] unconstitutional, & will not be enforced no matter what its source.
Constitution Bill of Rights +
The Founding Documents
All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives
US Constitution – Article 1 Legislative
Vesting Clause Art. 1, Sec. 1
Legislative Statutory Law
Enumerated Powers
of Congress
Art. 1, Sec. 8
The Congress shall have the power to: • Lay and Collect Taxes • Borrow Money • Regulate Commerce** • Coin Money • Raise and Support Armies • Provide and Maintain a Navy
• Make all Laws which shall be Necessary and Proper for carrying into execution the foregoing powers
US Constitution – Article 1
____________ Necessary &
Proper Clause Art. 1, Sec. 8,
Cl. 18
Legislative Statutory Law
President can sign bill into law or veto it.
Bill introduced in HOR
Bill introduced in Senate
Referred to House Committee or
Subcommittee
Vote by Full House Committee
House Floor Debate & Vote
Referred to Senate Committee or
Subcommittee
Vote by Full Senate Committee
Senate Floor Debate & Vote
A House-Senate conference committee
then writes a comprehensive bill.
That bill goes back to both Houses.
House & Senate vote on final
passage of bill. Approved bill is
sent to the President.
How a Bill Becomes Law
ex. The Federal Trade Commission Act of 1914
How a Law is Published
1. Slip Laws
2. Session Laws
3. Codification
15 U.S.C. § 41
ß Final Form
UCC
• Comprehensive Code of Commercial Law • Enacted in every state (except Louisiana)
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Uniform Commercial Code
ex. Uniform Commercial Code 810 ILCS 5/ et seq.
ex. Cemetery Oversight Act 225 ILCS 411/ et seq.
ex. Code of Civil Procedure 735 ILCS 5/ et seq.
ILCS
US Constitution – Article 2 Executive
Vesting Clause Art. 2, Sec. 1
Executive Administrative Law
Executive Agency/Dept.
Creation • Congress creates administrative agencies by passing
statutes that contain ENABLING LEGISLATION • Name • Composition • Purpose • Powers
ex. 15 U.S.C. § 41
A commission is created and established, to be known as the Federal Trade Commission”
• Day-to-Day enforcement & administration of the law is assigned to various Executive Departments & Agencies
Executive Administrative Law
• Title 42: The Public Health & Welfare • Chapter 43: The Department of Health & Human Services
• Subchapter 1: General Provisions • Section 3501: Establishment of Department
Health Insurance Portability & Accountability Act of 1996
42 U.S.C § 3501 – Dept. of Health & Human Services
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42 U.S.C § 281 – NIH
42 U.S.C § 290aa – NIDA
Departments, Agencies,
Sub-Agencies ex.
Executive Administrative Law
• After an Agency is created with Enabling Legislation,
Congress vests that Agency with the power to make LEGISLATIVE RULES & REGULATIONS • Published in the Federal Register
• ex. 78 Fed. Reg. 58683 • Codified in the Code of Federal Regulations (C.F.R.)
• ex. 41 C.F.R. § 300
• Agencies Investigate & Prosecute violations of law
• Administrative Law Judges hold hearings & render decisions
Administrative Process
Executive Administrative Law
Administrative Procedures Act
A federal statute that governs the procedures and practices of administrative law.
Legal Information Institute – Cornell Law School
§ 3 of the APA, 5 USC § 552, addresses the procedural formalities that agencies must employ when making decisions. There is a distinction made between (i) general regulations made through the process of rulemaking and (ii) case-by-case decisions made through the process of adjudication.
§ 10 of the APA, 5 USC §§ 701-706, deals with judicial review of administrative agency decisions. Reviewing courts determine whether agency officials acted in compliance with relevant federal statutes and whether the agency’s actions were “arbitrary, capricious, or an abuse of discretion.”
Governs the way in which Federal Administrative Agencies propose, establish, & enforce regulations:
Established a process for Federal Courts to directly review Agency acts & decisions:
“A Bill of Rights for the hundreds of thousands of Americans whose affairs are controlled or regulated in one way or another by Agencies of the Federal Government. It is designed to provide guarantees of Due Process to Administrative Procedure” – Sen. Pat McCarran (D-NV)
Also: Illinois APA 5 ILCS 100/ et seq.
Judicial Common Law
Common Law
Legal REFEREES
• Whether someone’s actions create criminal culpability • Whether someone’s actions violated someone else’s rights • Whether a Legislative Statute is Constitutionally permissible • Where an Executive Regulation is Constitutionally permissible • Whether a lower court ruled improperly on an issue
Courts hold proceedings & render binding decisions about:
Courts = Legal Referees
Judiciary Court
Structure
SUBSTANTIVE
PROCEDURAL
Law that describes, regulates, & creates legal rights & obligations
Law that establishes the methods of enforcing the rights established by substantive law
ex. 21 U.S.C. § 812 – Marijuana: Schedule I drug Cocaine, Heroin, Opium: Schedule II drugs
ex. 28 U.S.C. § 1331– Federal Question original jurisdiction
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CIVIL
CRIMINAL
Law dealing with the definition and enforcement of Private & Public Rights
Law that defines and punishes wrongful actions committed against the Public
ex. Tort Law (i.e. Battery, Assault, Negligence, etc.) & Contract Law
ex. Murder, Arson, Burglary, Rape, DUI, Vandalism, Littering
Classifications
1. Trial Court CIVIL: Plaintiff (π) v. Defendant (∆) CRIM: State (Prosecutor) v. Defendant (∆)
Appellant v. Appellee Petitioner v. Respondent (also Trial level)
2. Appeal
• Losing Party at the Trial Court level • Seeks to have a Higher Court reverse OR set aside the Trial Court’s decision
Parties
à Court order that forces a party to do something WHAT?
• Compensate for violation of a Right • Enforce of a Right • Impose a Penalty
WHY?
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Monetary compensation for π’s losses, injury, and/or pain OR restitutionary measures designed to restore π’s status to what it was prior to the violation of their rights
• Injunction • Specific Performance (Contract) • Rescission (Contract) • Declaratory Judgment
Civil Remedies
“DAMAGES”
When Money Damages are Inadequate
Among the States =
What constitutes Interstate Commerce?
Commerce Clause Art. 1, Sec. 8,
Cl. 3
“To regulate Commerce with foreign Nations, and AMONG THE SEVERAL STATES, and with the Indian Tribes”
INTERSTATE COMMERCE
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1. CHANNELS of I.C. 2. INSTRUMENTALITIES of I.C. 3. THINGS in I.C.
and
4. ACTIVITIES HAVING A SUBSTANTIAL EFFECT on I.C.
Channels, Instrumentalities,
Things
INTERSTATE COMMERCE
CHANNELS
INSTRUMENTALITIES
THINGS
Railroads, Highways, City Streets; Telephone, Gas, Electric, & Pipeline Systems; Radio & TV Broadcasting Stations; Rivers, Canals, & other Waterways; Airports; RR, Bus, Truck, or Steamship Terminals; Freight Depots, Bridges, Bays, Harbors, Docks, Wharves, Piers Ships, Vehicles, & Aircraft
Goods & People
29 C.F.R. § 776.29
4 Supreme Court Commerce Clause
Eras
1. Early-1890s: Broadly Defined, Minimally Used 2. 1890s-1934/7: Narrowly Defined, States’ Rights (10th)
(Lochner era) 3. 1934/7-1990s: Expanded Scope, Limited States’ Rights
(Post-Lochner era) 4. 1990s-Present: Narrowing, Revive States’ Rights ???
(Modern era)
Even if a person’s activity is entirely local,
and
Even though it may not be regarded as commerce,
It may still be reached by Congress if it exerts a substantial economic effect on Interstate Commerce.
Wickard v. Filburn, 317 U.S. 111 (1942)
Commerce Clause Art. 1, Sec. 8,
Cl. 3
INTERSTATE COMMERCE
The Commerce Clause has been interpreted broadly to permit the National Government to regulate non-enumerated things.
Lochner Era
LOCHNER ERA Period of American legal history in which the Supreme Court (SCOTUS) struck down state & federal laws that attempted to regulate things like working conditions, wages, hours, etc.
Notable Cases
Lochner v. New York (1905)
Adair v. United States (1908)
Coppage v. Kansas (1915)
Hammer v. Dagenhart (1918)
Adkins v. Children’s Hospital (1923)
Nebbia v. New York (1934)
State law limiting weekly working hours
Fed. law prohibiting “yellow dog Ks”
State law prohibiting “yellow dog Ks”
Fed. regulation of child labor
Fed. Minimum Wage law
Fed. regulation of Coal Industry
West Coast Hotel Co. v. Parrish (1937) Fed. Minimum Wage law END of Lochner Era
Carter v. Carter Coal Co. (1936)
State law regulating milk prices
Heart of Atlanta Motel 379 U.S. 241 (1964)
Civil Rights Act of 1964
ISSUE: Did the Commerce Clause authorize Congress to enact the 1964 CRA to outlaw Private Racial Discrimination?
SCOTUS Ruling: Yes, under the Commerce Clause, “the power of Congress to promote I.C also includes the power to regulate the
local incidents thereof, including local activities.”
• Passed to outlaw PRIVATE racial discrimination • Challenged in Federal Ct. by Owner of the HOA Motel • Owner argued that his motel was a “purely local” business & NOT Interstate Commerce
U.S. v. Lopez 514 U.S. 549 (1995)
SCOTUS Ruling: No, “The statute now before us [prevents] the States from experimenting and exercising their own judgment . . . and it does so
by regulating an activity beyond the realm of commerce”
• Passed by Congress under the Commerce Clause
• Made it illegal to knowingly possess a firearm within
1000 ft. of a school
ISSUE: Did the Commerce Clause authorize Congress to enact the 1990 GFSA for the safety of schoolchildren?
Guns-Free School Zones Act of 1990
U.S. v. Morrison 529 U.S. 598 (2000)
SCOTUS Ruling: No, We “reject the argument that Congress may regulate noneconomic, violent criminal conduct based solely on
that conduct’s aggregate effect on Interstate Commerce”
Violence Against Women Act of 1994
• Passed by Congress under the Commerce Clause (+ 14th E.P.)
• Gave Victims of Sexual-Violence the ability to sue their attackers for damages
ISSUE: Did the Commerce Clause allow Congress to enact the 1994 WAVA to provide a remedy for victims of sexual violence?
“The Constitution requires a distinction between what is truly national and what is truly local”
Gonzales v. Raich 545 U.S. 1 (2005)
Controlled Substances Act of 1970
• 1970 CSA made marijuana possession completely illegal under all circumstances*
• In 1996, California passed Prop 215 • Prop 215 gave terminally-ill patients legal
access to medical marijuana • ∆s Monson & Raich had cancer and legally grew pot at home for personal medical use • ∆ Monson’s home was raided by the DEA • ∆s challenged the constitutionality of the CSA
ISSUE: Does the Commerce Clause authorize Congress to prohibit terminally-ill patients from growing medical marijuana purely
at home for their own personal consumption?
SCOTUS Ruling: YES, “Unlike those at issue in Lopez and Morrison, the activities regulated by the CSA are quintessentially economic”
** Since Gonzalez v. Raich, 14 more states have legalized medical marijuana in defiance of the CSA & the Court’s ruling.
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States,
are reserved to the States respectively, or to the people”
State Police Powers
• Enforce Criminal Laws (Generally) • Pass laws to promote:
• Public Order • Health • Safety • General Welfare • Morals
10th Amendment
DORMANT Commerce Clause
States are not permitted to regulate Interstate Commerce.
The Commerce Clause has been interpreted by the Supreme Court to mean that the Federal Government has exclusive authority over regulating Interstate Commerce.
• Generally, state laws that discriminate against Out-of-State economic interests are ruled unconstitutional • Laws that treat In-State & Out-of-State economic interests differently are considered “discriminatory” • Interstate Burden vs. Local Benefit Test
• Congressional Authorization • Market Participant
Dormant Commerce Clause
“The states have no power . . . to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by Congress to carry into execution the powers vested in the general government”
McCullough v. MD 17 U.S. 316 (1819)
Supremacy Clause
Art. 6, Cl. 2
This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding
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State Marijuana
vs. Supremacy
Clause
Despite the Supreme Court’s ruling in Gonzales v. Raich, 23 states & the District of Columbia have rejected Federal Marijuana Law (21 U.S.C. § 812)
(above pictograph source: http://medicalmarijuana.procon.org)
Free Speech
“Congress shall make no law . . . abridging the freedom of speech”
The Freedom of Speech is not absolute, however.
Types of Unprotected Speech include: • Inciting imminent Harm (yelling “fire” in a theater) • Fighting Words • Threats • Obscenity (Miller test) • Child pornography • Torts
• Defamation • Invasion of Privacy • Intentional Infliction of Emotional Distress (IIED)
Regulating Speech
Free Expression may be subject to Reasonable T.P.M. Restrictions
Test
1. Forum Type?
2. Content-Neutral?
Public: traditionally associated w/ Public speech/expression Ltd./Designated Public: has been opened up for Public S/E
Nonpublic
YES NO
Private Forums
Narrowly Tailored to achieve a Significant Govt. Interest & Leaves Open Alternate Channels of Communication
Necessary to achieve a Compelling Govt. Interest & Narrowly Tailored in the Least Restrictive Means
Intermediate Scrutiny Strict Scrutiny
Private citizens may restrict speech on their property
Not traditionally associated w/ public S/E Has not been opened up for public S/E
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Viewpoint Neutral & Reasonably Related to Legitimate Govt. Interest
Rational Basis Scrutiny
Citizens United v. FEC 558 U.S. 310 (2010)
Bipartisan Campaign Reform Act of 2002 • Law to regulate the financing of political campaigns
“The law before us is an outright ban, backed by criminal sanctions. Section 441b makes it a felony for all corporations—including nonprofit advocacy corporations—either to expressly advocate the election or defeat of candidates or to broadcast electioneering communications within 30 days of a primary election and 60 days of a general election.”
“ . . . Political speech must prevail against laws that would suppress it, whether by design or inadvertence. Laws that burden political speech are “subject to strict scrutiny,” which requires the Government to prove that the restriction “furthers a compelling interest and is narrowly tailored to achieve that interest.”
“We find no basis for the proposition that, in the context of political speech, the Government may impose restrictions on certain disfavored speakers. Both history and logic lead us to this conclusion.”
“The Court has recognized that First Amendment protection extends to corporations … [and] this protection has been extended by explicit holdings to the context of political speech.”
“Corporations and other associations, like individuals, contribute to the ‘discussion, debate, and the dissemination of information and ideas’ that the First Amendment seeks to foster.”
Commercial Speech
• Speech where the speaker is engaged in commerce • The audience is actual or potential customers • The speech is commercial in nature
Content-based regulation of Commercial Speech is subject to INTERMEDIATE SCRUTINY
Commercial speech is granted less 1st Amendment protections than Non-commercial speech
*As opposed to Non-commercial speech, which requires content-based regulations to withstand Strict Scrutiny*
False or Misleading Commercial Speech is not protected by the 1st Amendment & can be outlawed entirely
“Congress shall make no law respecting an establishment of religion”
The Establishment Clause
“Congress shall make no law . . . prohibiting the free exercise thereof”
The Free Exercise Clause
• Prohibits the Government from establishing an official state-sanctioned religion.
• Prohibits the Government from showing a preference for one religion over another.
Freedom of Religion
• Protects the right of American citizens to hold (or not) any religious belief and engage in religious rituals
• Also seems to allow for the violation of laws so long as the violation is made for religious purposes**
Burwell v. Hobby Lobby 573 U.S. ___ (2014)
GINSBERG: (dissent) “In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.”
Religious Freedom Restoration Action of 1993
GINSBERG: (dissent) “Lacking a tenable claim under the Free Exercise Clause, Hobby Lobby and Conestoga rely on RFRA, a statute instructing that “[g]overnment shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability” unless the government shows that application of the burden is “the least restrictive means” to further a “compelling governmental interest.” 42 U. S. C. §2000bb–1(a), (b)(2).”
GINSBERG: (dissent) “The First Amendment’s free exercise protections, the Court has indeed recognized, shelter churches and other nonprofit religion-based organizations. No such solicitude is traditional for commercial organizations. Indeed, until today, religious exemptions had never been extended to any entity operating in “the commercial, profit-making world.”
Due Process
“No person shall . . . be denied of Life, Liberty, or Property without Due Process of law”
“Nor shall any state deprive any person of Life, Liberty, or Property without Due Process of law”
5th Amendment
14th Amendment
Applies to the Federal Govt.
Applies to the States
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The Due Process Clause contained in both the 5th & 14th Amendments includes both Procedural Due Process & Substantive Due Process.
*Due Process refers to the conduct of legal proceedings according to established rules & principles for the protection & enforcement of personal rights, including notice & the right to a fair hearing before a neutral tribunal.
Without Due Process
English court having both civil and criminal jurisdiction at the King’s discretion and noted for its secretive, arbitrary, and oppressive procedures, including compulsory self-incrimination, inquisitorial investigation, and the absence of juries. The Star Chamber was abolished in 1641 because of its abuses of power.
Any secretive, arbitrary, or oppressive tribunal or hearing
Black’s Law Dictionary 1537 (9th ed. 2009)
Black’s Law Dictionary 864 (9th ed. 2009)
• A judicial inquiry; in a derogatory sense. • A persistent grueling examination conducted without regard to
the examinee’s dignity or civil rights. • In an inquisitorial system, the court takes an active part in the
prosecution/investigation, as opposed to an adversarial system where the primary role of the court is that of impartial referee.
Without Due Process
William Wallace being stretched to “confess” to his crimes In the movie BRAVEHEART
Without Due Process
Without Due Process
DUE PROCESS prevents stuff like this from happening by requiring a fair hearing in front of a neutral judge
Applying PDP
Procedural Due Process protects individuals when they are arrested or incarcerated.
Procedural Due Process also applies in a number of civil rights contexts where freedom of movement or the
exercise of a fundamental right is curtailed.
4th A – No unreasonable Searches or Seizures 5th A – No Double Jeopardy, No Forced Confessions (Miranda) 6th A – Right to counsel during Critical Stages once Adversarial Judicial Criminal Proceedings have commenced
An inmate has a liberty interest in not being transferred from prison to a mental institution; an inmate is entitled to notice, a hearing, & appointment of counsel before such a transfer. Vitek v. Jones, 436 U.S. 407 or 445 U.S. 480 (1980).
A prisoner has no liberty interest in not being transferred from prison to prison, so no notice or hearing is required before such a transfer. Olim v. Wakinekona, 461 U.S. 238 (1983).
A state may not terminate parental rights, thereby extinguishing a parent’s liberty interest in raising his or her child, unless it shows by clear & convincing evidence that a parent is unfit. Santosky v. Kramer, 455 U.S. 745 (1982).
Procedural Due Process
The minimal requirements of notice and a fair hearing, if the taking of Life, Liberty, or Property may occur.
Has the government intentionally deprived
a person of Life, Liberty, or Property? No Procedural
Due Process Issue
YES
NO
Private Interest Affected
Govt. Interest + additional fiscal &
administrative burdens of additional
safeguards
Risk of erroneous deprivation of that
Private Interest under current
procedures
& & = Procedures Required to take L,L,P
PDP v. SDP
Under Procedural Due Process analysis, a court is asked to determine the constitutionality of the procedures used when a government deprives an individual of Life, Liberty, or Property.
ex. A state law which terminates an individual’s welfare benefits without notice or a pre-termination hearing.
Under Substantive Due Process analysis, a court is asked to determine the constitutionality of a law or governmental action which abridges the rights of a class of individuals.
ex. A state law that prohibits women from having an abortion.
Substantive Due Process
Requires laws & governmental acts to be fair & reasonable & in furtherance of a legitimate state interest.
• The Constitution protects all individuals from laws & government action that abridge Fundamental Rights
• SDP places limitations on what the Government may do in its legislative & executive capacities
Lochner Era
LOCHNER ERA Period of American legal history in which the Supreme Court used SDP to strike down state & federal laws that abridged the “liberty to contract”
Notable Cases
Lochner v. New York (1905)
Adair v. United States (1908)
Coppage v. Kansas (1915)
Hammer v. Dagenhart (1918)
Adkins v. Children’s Hospital (1923)
Nebbia v. New York (1934)
State law limiting weekly working hours
Fed. law prohibiting “yellow dog Ks”
State law prohibiting “yellow dog Ks”
Fed. regulation of child labor
Fed. Minimum Wage law
Fed. regulation of Coal Industry
West Coast Hotel Co. v. Parrish (1937) Fed. Minimum Wage law END of Lochner Era
Carter v. Carter Coal Co. (1936)
State law regulating milk prices
Types of Rights
Enumerated Fundamental Rights
Non-Enumerated Fundamental Rights
Low-Level Liberty Interests
1st: Speech, Religion, Assembly, Press, Redress Grievances 4th: No unreasonable Searches or Seizures 5th: No double jeopardy, compelled confessions, eminent domain 6th: Counsel, Notice, Speedy Trial, Confront Witnesses 8th: No excessive bail or fines, No Cruel & Unusual punishment
Applied as aspects of liberty under the 5th & 14th A. DP Clause
Not listed in Constitution, but deemed Fundamental by SCOTUS
Care, Custody, Control of Children • Choice of School
Privacy • Marriage (only Man & Woman) • Procreation • Abortion • Contraception (for everyone)
Vote • Restricting Ballot Access • No Poll Taxes
Interstate Travel Political Association
Strict Scrutiny: Compelling Govt. interest, narrowly tailored, least restrictive means; Burden shifts to Govt. once π shows an abridgement of a fundamental right
Police Officer’s Choice of Hairstyle Kelley v. Johnson, 425 U.S. 238 (1976) Registration of Rx Drug users on State list Whalen v. Roe, 429 U.S. 589 (1977)
No fundamental right to public education; state’s funding scheme is constitutional if it provides adequate minimum educational offerings in each school San Antonio Pub. School Dist. v. Rodriguez, 411 U.S. 1 (1973)
Non-fundamental rights may be abridged upon a showing of rationality by the State
Rational Basis Scrutiny: Legitimate Govt. Interest, Rational Basis for Law/Act
Applying SDP
Identify which government is acting
Ascribe constitutional weight to the affected interest
Federal
State 5th Amendment
14th Amendment
Identify the interest abridged by Law or Governmental Act
Place the abridged interest in the Constitution.
• Assert that it is an aspect of L,L, or P under the appropriate Due Process clause
Fundamental Right? Low-Level Liberty Interest?
Set the appropriate level of Scrutiny
Balance the abridgement of the individual right against the proffered
Government interest
FR = Strict Scrutiny All Others = Rational Basis S.
SDP v. EP
Under Equal Protection analysis, the Court reviews legislation to see if the government is intentionally discriminating against a class of people entitled to special constitutional protection.
ex. A state law that prohibits minors from buying cigarettes.
Under Substantive Due Process analysis, a court is asked to determine the constitutionality of a law or governmental action which abridges the rights of a class of individuals.
ex. A state law that prohibits certain kinds of advertising on billboards.
Focus of scrutiny is on the CLASSIFICATION
Focus of scrutiny is on the INDIVIDUAL RIGHT being abridged.
Equal Protection
“No state shall . . . deny to any person within its jurisdiction the equal protection of the laws.”
14th Amendment Equal Protection Clause only pertains to STATES & political subdivisions of states!
“Though the Fifth Amendment does not contain an equal protection clause, as does the Fourteenth Amendment which applies only to the States, the concepts of equal protection and due process are not mutually exclusive” Bolling v. Sharpe, 347 U.S. 497 (1954)
However, the 5th Amendment Due Process clause has been interpreted by the SCOTUS to include 14th A. Equal Protections
Applying EP
Law intentionally treats people differently
Facially Discriminatory Law à Identify Class
Suspect Class Quasi-Suspect Class Non-Suspect Class
Race Ethnicity Alienage (Sometimes) Fundamental Rights
Gender Illegitimacy
Age, Marital Status, Wealth, Mental Status, Sexual Orientation, Socio-Economic Status, Alienage (sometimes)
Strict Scrutiny Intermediate Scrutiny Rational Basis S. Necessary to achieve Compelling Govt. Interest, Narrowly Tailored in the Least Restrictive Means
BURDEN: Shifts to Govt. after π shows discrimination against Suspect Class
Substantially related to an Important or Significant Govt. Interest BURDEN: Shifts to Govt. after π shows discrimination against Quasi-Suspect Class
Rationally related to a Legitimate Govt. Interest Law is presumed to be valid BURDEN: Stays with π
The U.S. Constitution does not explicitly mention a general right to privacy
The association of people is not mentioned in the Constitution nor in the Bill of Rights. The right to educate a child in a school of the parents' choice -- whether public or private or parochial -- is also not mentioned. Nor is the right to study any particular subject or any foreign language. Yet the First Amendment has been construed to include certain of those rights.
However, the Supreme Court has given various doctrinal bases for the existence of Constitutional rights of privacy.
The right of freedom of speech and press includes not only the right to utter or to print, but the right to distribute, the right to receive, the right to read. Without those peripheral rights, the specific rights would be less secure.
In other words, the First Amendment has a penumbra where privacy is protected from governmental intrusion.
Various guarantees create zones of privacy.
The right to privacy . . . Is a legitimate one.
Griswold v. Conn. 381 U.S. 479 (1965)
Constitutional Privacy Rights
Sources of Privacy Rights
Non-Enumerated Constitutional Privacy Rights:
Marriage: Zablocki v. Redhail, 434 U.S. 374 (1978) Procreate: Skinner v. Oklahoma, 316 U.S. 535 (1942) Contraception: Griswold v. Conn., 381 U.S. 479 (1965) Unmarried C: Eisenstadt v. Baird, 405 U.S. 438 (1972) Minors C: Carey v. Pop. Services Intl., 431 U.S. 678 (1977)
Congressional legislation aimed at protecting privacy:
Privacy Act 5 U.S.C. § 552a Freedom Of Information Act (FOIA) 5 U.S.C. § 552 Illinois FOIA 5 ILCS 140/ et seq. Health Insurance Portability & Accountability Act 42 U.S.C. § 1320d-6 Right to Financial Privacy Act 12 U.S.C. § 3402 Electronic Communications Privacy Act 18 U.S.C. § 2511
Work hard, Be honest, Be respectful, Love learning.
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See you next week!