Incorporation/ State Action Doctrine
what was the vehicle for incorporation? (essentially, what amendment and what clause of the constitution allowed incorporation to occur?)
the due process clause of the fourteenth amendment
what are the two types of due process:
(1) procedural due process of law -> due process of law (how the government goes about things)
(2) substantive due process of law -> the word "liberty" implied fundamental rights (i.e., freedom of contract, privacy, etc.)
name the three levels of scrutiny
rational basis scrutiny
intermediate scrutiny
strict scrutiny
U.S. Department of Agriculture v. Moreno
a law that terminates food-stamp benefits for a class of persons comprising unrelated people living in the same household is unconstitutional.
What was Emperor during the Flavian Era?
Vespasian
what is the applicable test to determine whether or not a right is incorporated through the use of "liberty" in the due process clause of the 14th amendment?
only those provisions of the bill of rights that are implicit in the concept of ordered liberty are covered by the due process clause of the 14th amendment. Specifically, the right must be "fundamental to our scheme of ordered liberty and deeply rooted in this Nation's history and tradition.
during the Lochner Era, what rule emerges?
freedom of contract. The liberty mentioned in the amendment is deemed to embrace the right of the citizen to be free in enjoyment of all his faculties. That is, freedom of contract is a fundamental right.
fifth amendment
Palmore v. Sidoti
removing custody of a woman's child from her because she entered into an interracial relationship violates the equal protection clause of the fourteenth amendment
who was the 8th president of the United States
Martin Van Buren
What does Barron v. Mayor & City Council of Baltimore establish/clarify?
the fourteenth amendment applies to state action, not private conduct
economic substantive due process today
rational basis scrutiny is applied (rational, legitimate reason)
what are four factors that the court may look to in order to determine what level of scrutiny to apply?
-immutable characteristics
-the ability of a group to protect itself through the political process
-history of discrimination against the group
-likelihood that the classification reflects prejudice as opposed to permissible government purpose
Ames City is a racially diverse city in the State of Ames. Recently, the new superintendent of the Ames City School District announced a hiring initiative aimed at filling the ranks of Ames City teachers, which had been depleted by recent retirements. The superintendent announces that she expects that the new cadre of teachers will “look like Ames City,” will furnish role models for Ames City’s students, and will be diverse enough to serve the needs of minority students in the Ames City school district. To that end, she announces a goal of 30 percent minority teachers in the new round of hiring.
Which of the following would be most helpful in defending the constitutionality of the superintendent’s initiative?
B. From Bakke we know it is impermissible to assume that only members of minorities can serve as role models for other minorities. Therefore, A wouldn’t be very helpful. That argument was again rejected in Wygant, when the Court refused to permit teacher layoffs to be made according to race, when the collective bargaining agreement specified a “last hired, first fired” rule. Moreover, C suggests racial balancing for race’s sake, something that every Court since Bakke has condemned as impermissible under the Equal Protection Clause. Further, D smacks of an effort to remedy societal discrimination; again, since Bakke, that has been off limits to governments. That leaves B, which is the best answer. If it can be proven that the Ames City schools systematically denied minority teachers opportunities, remedial measures may be taken. There should be some evidence, of course, that the “hiring goal” bears some relationship to the extent, scope, and duration of the discrimination it is designed to remedy.
who was the first chairman of the People's Republic of China (hint: his reign was marked by a famine)
Mao Zedong
What is the test for the public function exception to the state action doctrine? Provide an example of case from 1946.
the private actor must be doing something "traditionally, exclusively" done by the government or it must be private property put to public use.
i.e., Marsh v. Alabama (holding that if you have signed up to be a town, you must honor Constitutional rights)
what is a regulatory taking (very broadly)? what factors are significant when considering regulatory takings?
when a regulation effectively destroys the value of property (i.e., a person cannot use land to build anything because of environmental regulations)
-economic impact of the regulation on the claimant
-the extent to which the regulation has interfered with investment-backed expectations
-the character of the governmental action
what is an overinclusive law?
it applies to those who need not be included in order for the government to achieve its purpose
On the merits. Voters in the State of Ames approved an initiative amending the state constitution to prohibit state universities from considering any factor other than high school grade point average and SAT or ACT score in making admissions decisions. Opponents of this initiative sue, claiming that the purpose is to prohibit admissions offices from taking race into account as part of an effort to secure for Ames’s universities the benefits of a diverse student body. The initiative, they claim, violates the Equal Protection Clause. A reviewing court would likely:
A.
Hunter and Mulkey held that the state cannot permit its lawmaking processes to be employed in the service of private discrimination, that the state’s involvement was sufficient to support a finding of state action. Therefore, as an initial matter C is not the correct answer. There is state action here, and the restrictions of the Fourteenth Amendment apply. Seattle School District did hold that what the Equal Protection Clause guarantees is that racial minorities be permitted to participate fully in the political life of a community, that singling them out for particular disabilities is not permitted. But D isn’t the best answer either, because it merely states the matter in question. Crawford held that making it equally difficult for all persons to secure particular types of legislation would pass muster. According to the facts, no other criteria are permitted to be considered—musical ability, legacy status, athletic ability—and so race is not the only criterion excluded. While this facial neutrality is not sufficient to insulate the initiative from challenge, the lack of numerous exceptions carving out all criteria but race suggests that the measure does not simply target minorities. That means that B is not the correct answer, leaving A, the best answer.
The Court, in fact, recently decided a case whose facts are similar to the preceding question. When Michigan voters amended the state constitution to prohibit the use of racial preferences in university admissions, as well as in public contracting and public employment, opponents sued, arguing that the provisions violated the Equal Protection Clause, citing Mulkey, Hunter, and Seattle School District. Schuette v. Coalition to Defend Affirmative Action, 572 U.S. 291 (2014). Six members of the Court rejected the challenge. In a plurality opinion, Justice Kennedy distinguished the earlier cases, writing that the question the Michigan case posed was “not how to address or prevent injury caused on account of race but whether voters may determine whether a policy of race-based preferences should be continued.” Schuette, 572 U.S. at 311. By enacting the ban, according to the plurality, “the Michigan voters exercised their privilege to enact laws as a basic exercise of their democratic power,” using “the initiative system to bypass public officials who were deemed not responsive to the concerns of a majority of voters” who preferred not to have the state grant racial preferences. Id. Justices Scalia and Thomas concurred, calling for Hunter and Seattle School District to be overruled because both were, in their opinion, “[p]atently atextual, unadministrable, and contrary to our traditional equal-protection jurisprudence. . . .” Id. at 322 (Scalia, J., concurring).
For his part, Justice Breyer also concurred, writing to express his belief that the Constitution permits, but does not require, “narrowly tailored race-conscious programs designed to bring about greater inclusion and diversity.” Id. at 333 (Breyer, J., concurring). “But,” he cautioned, “the Constitution foresees the ballot box, not the courts, as the normal instrument for resolving differences and debates about the merits of these programs.” Id. at 344 (Breyer, J., concurring). He likewise distinguished Hunter and Seattle, noting that in the earlier cases “minorities had participated in the political process and they had won. The majority’s subsequent reordering of the political process repealed the minority’s successes and made it more difficult for the minority to succeed in the future.” Id. at 336 (Breyer, J., concurring). Here, however, the voters simply moved decisionmaking authority from an unelected body (the faculty that made admissions policy) “and placed it in the hands of the voters.” Id.
Justice Sotomayor, joined by Justice Ginsburg, dissented. In her view, the Michigan referendum was on all fours with earlier cases, like Hunter. “A majority of the Michigan electorate,” she wrote, “changed the basic rules of the political process in that State in a manner that uniquely disadvantaged racial minorities.” Id. at 338 (Sotomayor, J., dissenting) (footnote omitted). “Our precedents,” she continued, “do not permit political restructurings that create one process for racial minorities and a separate, less burdensome process for everyone else.” Id. at 341 (Sotomayor, J., dissenting).
What Iranian Prime Minister did the United States and the United Kingdom plan a "coup" against in 1953?
Mohammad Mosaddegh
What is the basic, broad test for the Entanglement Exception to the State Action Doctrine? Give an example of a case. (Hint: we talked about this case in Property)
state has authorized, encouraged, or facilitated private conduct.
i.e., Shelley v. Kraemer (holding judicial enforcement of racially restrictive covenants violates the state action doctrine established by the fourteenth amendment)
just compensation for taking
fair market value at the time of taking. There is no appreciation. Owner takes a loss, not a gain.
what is a reason that can never be a "legitimate" government interest in the context of rational basis scrutiny?
discrimination. See U.S. Department of Agriculture v. Moreno (holding "a bare congressional desire to harm a politically unpopular group cannot constitute a legitimate government interest").
The State of Ames licenses florists. Under its statute, no one may “arrange flowers” without a florist’s license. Moreover, no one may sell flower arrangements without employing a licensed florist. The licensing process requires one to pass a written test, which has a lower passage rate than the Ames bar exam. The Food King, Inc., is a large supermarket chain with stores in Ames. Most Food King grocery stores have an in-store “florist shop,” where employees arrange flowers and sell them to customers. The Food King does not employ a licensed florist in its Ames stores and is cited for violating the licensing statute. The Food King sues, claiming that the law is unreasonable and irrational. It notes that the law insulates existing Ames florists from competition from stores like The Food King. Ames responds that its measure is intended to protect the consumer against fraud. Can The Food King prevail in its suit?
A.
ANALYSIS. Since the end of the Lochner era, the Court reviews economic regulation under a rational basis standard. Under that standard, to pass constitutional muster, a government needs to pursue a legitimate end, and its regulation must be rationally related to that end. Moreover, a rational basis for the regulation will be presumed by the court. This is a deferential standard of review, to be sure, but it is a form of judicial review. So B is incorrect. Rational basis review, however, is much more relaxed than that undertaken by the Court during the Lochner era. In those cases, the Court saw its role as determining for itself whether a particular exercise of the police power was reasonable or unreasonable. Because the Court has abjured that role, D is not the correct answer. Nor is C, which really goes to whether the licensing statute is wise public policy. Since 1937, in cases like Ferguson v. Skrupa, the Court has made clear that passing on the wisdom or public-spiritedness of legislation is not in its wheelhouse. That leaves A, which correctly applies the standard of review. Consumer protection is a legitimate end of the police power, and licensing to ensure quality and competence in service providers is certainly a rational means to achieve that end. Whether consumers really need protection from faux florists is regarded by the contemporary Court as a policy matter for the legislature.
who was the first prime minister of India?
Jawaharlal Nehru