SV 2012 1

State the Problem

Clear State Action
Unclear State Action
Edmonson-Luger Test:
1. The constitutional
deprivation comes from
state authority
2. The party can, in all fairness, be described as a state actor.
Factors:
a. traditional function of government. Marsh v. Alabama.
b. relies on government funds. Burton.
c. aggravated in a unique way because of government. Shelley.
State action!
Constitutional
text
EPC DP
P&I
Take
Precedent
use other pages.
Policy
non-legal
arguments
Theories of
Constitutional
Interpretation
You
Win!
14th Amendment:
All persons born or naturalized in the United States, and
subject to the jurisdiction thereof, are citizens of the United
States and of the State wherein they reside. No State shall
make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States;
nor shall any State deprive any person of life, liberty, or
property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of the
laws.
5th Amendment:
No person shall....nor be deprived of
life, liberty, or property, without due
process of law; nor shall private
property be taken for public use,
without just compensation
Representation
Reinforcement
why should the court act
13th
13th Amendment:
Neither slavery nor involuntary
servitude, except as a punishment for
crime whereof the party shall have been
duly convicted, shall exist within the
United States, or any place subject to
their jurisdiction.
Originalism
Texualist, OG, Purposivist
Progressive
Critical race/feminist arg.
The doll
test, etc.
Apply Rule
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-State
Const.
-Diff
analysis
-Diff.
class
Article IV Section 2:
"The citizens of each state shall be
entitled to all privileges and
immunities of citizens in the
several states."
Amicus
Briefs.
Slippery
Slope
SV 2012 2
Takings Clause
State the Problem
State action!
Constitutional
text
State:
Incorporation
of the 5th A.
to apply to
the states
through the
14th A.
Fed: 5th A
"nor shall
private property
be taken for
public use,
without just
compensation."
Articulate the
Taking
Physical
Loss of title
Regulatory
limited use?
JUST
COMPENSATION
Public Use?
Determine who is
benefitting.
Look at the property
as a whole, and
determine what value
is left.
If little value is left,
maybe a taking.
Penn Central
If zero value is left,
is a taking.
Lucas &Penn
If a lot of value is left,
not a taking.
Penn Central
If taking is temporary
it is not a taking.
Tahoe
Not a taking.
End of analysis
Public:
Economic
devm't,
Kelo;
zoning,
landmark
Private:
Unconst.
END.
What ! would argue
What " would argue
Regulation: could be
a court order, and
even can instigate a
physical taking, but it
still is regulatory.
SV 2012 3
Privileges and/or Immunities
State the Problem
State action!
Constitutional
text
State:14th A
No State shall
make or
enforce any
law which
shall abridge
the privileges
or immunities
of citizen .
Fed: IV s2
"The citizens
of each state
shall be
entitled to all
privileges and
immunities of
citizens in the
several
states."
Restate Issue
What ! would argue
What " would argue
-Access to
Federal
Gov't.
-Navigable
Waters.
Residency Requirement.
(which impedes travel across
state lines)
Portable
(Divorce. College)
Non-Portable
(Consumed In-State)
Rational Basis
Scrutiny
"More categorical
than strict
scrutiny, not no
less strict"
Legitimate Government Interest
Rational Reasonable Means Chosen
Res. Req. OK for
Marriage/Divorse/
College. ex.
wanting to prohibit people from
simply coming ins-state to get
a divorce, and then leave is a
legitimate gov't interest, and
imposing a 1 year residency
requirement is the means
chosen.
almost per se
unconstitutional
Note:
Saenz v. Roe 1999 Revitalized P&I.
California law limited welfare benefits for
new residents in the state to the level of the
state that they moved from.
Holding: Newly arrived citizen of a state are
entitled to the same benefits as other state
citizens.
Note:
P or I/P&I are essentially
defunct, thanks to
Slaughterhouse Cases.
This probably will be a short
analysis.
SV 2012 4
Equal Protection Analysis
State the Problem
State action!
Constitutional
text
State:14
"Nor
deny to
any
person
within
its
jurisdict
ion the
equal
protecti
on of
the
laws"
Fed:
Reverse
incorpo
ration
of the
14th A
by the
5th A.
CLASSIFICATION
!
this v. that
Facially
Discriminating
Facially Neutral
Prove discriminatory
Intent & Effect.
Wash v. Davis
1. Prove
Disparate Effect:
Demographics,
statistics, ratios,
numbers, studies,
etc.; ONLY THEN
2. Prove Discriminatory
Intent:
a. Historical background of the
decision, departure from
normal procedural sequence,
legislative or administrative
history.
b. AND if the discrimination is
difficult to explain on non-
discriminating grounds, that
may be a factor.
Adjudicated
Not Adjudicated
Carolene/Cleburne
1. Whether the class has been
historically subjected to
discrimination.
2. Whether the class has a defining
characteristic that frequently bears a
relation to ability to perform or
contribute to society.
3. Whether the class exhibits
obvious, immutable, or distinguishing
characteristics that define them as a
discrete group.
4. Whether the class is a minority or
politically powerless.
Race/Ethnic
Gender
Illegitimacy
Disability&
Sexuality
Economic/
Wealth
Alienage
Fed.
State
Pass
Fail
Apply Test
Policy
non-legal
arguments
Theories of Constitutional
Interpretation
You
Win!
analogize to:
VMI
Grutter
or
o
r
BECAUSE OF,
NOT IN SPITE OF.
Feeny
What ! would argue
What " would argue
Fundamental
Analogize to
these cases.
Default
Romer
Windsor
Carolene
1.Prejudice against [more legal
than societal]
2.Discrete (immutable) [apart/
separate][identifiable]
3.Insular [off by themselves]
4.Minorities [not the majority]
5.No access to political
process [voting/actual rep.]
Intent of
the 14th A,
Affirmative
action
SV 2012 5
Due Process
State the Problem
State action!
Constitutional
text
State: 14th
"nor shall
any State
deprive
any person
of life,
liberty, or
property,
without
due
process of
law."
Fed:5th A
nor be
deprived
of life,
liberty, or
property
without
due
process
of law."
Restate
Issue
(articulate
'fundamental
right')
Adjudicated
Fundamental
Right
Unadjudicated
Right
Bill of Rights:
(speech, assembly, secure in
persons/prop, excessive bail,
fair trial, arms, petition)
NOT 5th right to grand Jury
NOT 7th to Jury in civil
Bodily Integrity
Refuse medical
care
Have Children
To Marry
Direct education
&upbringing of
children
Marital Privacy
To use Conception
Have an Abortion
Note: This is assuming the issue
is Substantive Due Process. It is
Procedural Due Process when it
deals with:
-Notice; or
-Being heard.
Prove
Fundamental.
Glukesberg/
Palko test.
1. Careful Description of the right.
Strategy: If we want the right,
describe it broadly--sex between
consenting adults v. homosexual
conduct. (mention both in analysis)
2. The right is deeply rooted in
the nations history & Implicit in
the concept of ordered liberty,
such that neither liberty nor justice
would exist if it were sacrificed.
Strategy: If the right existed at CL,
use that. Otherwise, how many
other states/countries have the
right. ALSO--argue that neither
liberty nor justice would exist if
right were sacrificed.
Pass Fail
Strict Scrutiny:
Compelling Government Interest;
Narrowly Tailored Means Chosen.
Rational Basis:
Legitimate Government Interest;
Rationally Related Means Chosen.
Apply Test
Policy
non-legal
arguments
Theories of Constitutional
Interpretation
You
Win!
Note: The court will be
reluctant to expand the
scope of substantive Due
Process at the risk of
resurrecting "The Ghost
of Lochner" where the
SCOTUS substituted their
own policy preferences for
the policies created by a
democratically elected
legislature.
Note: Court in Lawrence found
that 'bare morality' was not a
Legitimate Gov't Interest.
What ! would argue
What " would argue
Voting?
Education?
SV 2012 6
Slavery/ Indentured Servitude
State the Problem
Constitutional
text
13th Amendment:
Neither slavery nor
involuntary servitude,
except as a punishment for
crime whereof the party
shall have been duly
convicted, shall exist within
the United States, or any
place subject to their
jurisdiction.
Is is really
slavery?
What ! would argue
What " would argue
Plessy/Civil Rights said
discrimination and segregation
has nothing to do with slavery
Is it impeding the ability
to quit?
Pollock
End
13th A
analysis
Take
ID?
Hold
housing?
UNCONSTITUTIONAL
2nd Amendment
State the Problem
State action!
Constitutional
text
2nd Amendment:
A well regulated militia
being necessary to the
security of a free state,
the right of the people
to keep and bear arms
shall not be infringed.
If State:
2nd A incorporated
against the states.
Heller.
Is the issue impeding on
the right to self-defense in
the home?
SCOTUS said
regulation on this right
is okay. Heller.
i.e. mentally ill.
Any other right that
this language may
lend itself to?
Argue for
Fundament
al right
through DP
analysis.
Argue that the
regulation that
impedes the
right is
unconstitutional