Early humans lived in a state of nature without laws or government where everyone was vulnerable to attack. The social contract theory holds that humans formed societies and governments by consenting to give up some freedoms in exchange for protection of their remaining rights. Under this theory, the government's power comes from the people and it exists primarily to serve the people's will.
2. State of Nature
Early humans lived in a STATE OF NATURE
Before Law
Existed
Everyone was vulnerable to attack at any time
3. 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.
4. Social Contract
Social Contract describes the implied relationship
between Citizens and their Government.
The
Social Contract
5. • 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?
7. Tripartite
Checks
&
Balances
Separation of Powers
Art. 1 - Congress Art. 2 - POTUS Art. 3 - Judiciary
Legislative Power Judicial PowerExecutive Power
• President can sign or veto laws passed by Congress.
• Courts can strike down Congressional Legislation or
Executive Administrative Law.
9. 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
10. 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
11. 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
12. 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
13. ex. The Federal Trade Commission Act of 1914
How a Law is
Published1. Slip Laws
2. Session Laws
3. Codification
15 U.S.C. § 41
ß Final Form
14. UCC
• Comprehensive Code of Commercial Law
• Enacted in every state (except Louisiana)
___________________________________________
Uniform Commercial Code
15. 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
16. US Constitution – Article 2
Executive
Vesting Clause
Art. 2, Sec. 1
Executive Administrative Law
17. 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
18. • 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
___________________________________________
42 U.S.C § 281 – NIH
42 U.S.C § 290aa – NIDA
Departments,
Agencies,
Sub-Agencies
ex.
Executive Administrative Law
19. • 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
20. 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.
24. 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
_________________________________________________
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
25. 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
26. à Court order that forces a party to do somethingWHAT?
• Compensate for violation of a Right
• Enforce of a Right
• Impose a Penalty
WHY?
_________________________________________________
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
27. 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
_________________________________________________
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.
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)
30. 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.
31. 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
32. 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
33. 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
34. 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”
35. 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.
36. “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
37. 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
38. “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
_________________________________________________ ____________
40. 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)
41. 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
_________________________________________________
Viewpoint Neutral &
Reasonably Related to
Legitimate Govt. Interest
Rational Basis Scrutiny
42. 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.”
43. 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
44. “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**
45. 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.”
46. 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
_________________________________________________
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.
47. 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
48. 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
49. 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).
50. 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
51. 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.
52. 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
53. 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
54. 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
55. 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.
56. 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.
57. 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
58. 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
59. 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
60. 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
