Con Law Outline.docx - Type of Right Fundamental history...

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Type of Right Level of Review Governmental Interest Means Test Fundamental - history & traditions of country - collective conscience of people -If specifically called out in constitution, fundamental - usually case-determining Strict Scrutiny (Narrow level of review: gov’t must show compelling reason for passing the law) Compelling Reason Narrowly Tailored Means (Make law as narrow as possible so as to infringe fundamental rights as little as possible) Ordinary Williamson : right invaded was NOT fundamental Rationality Review Legitimate Gov’t Interest (Morality is a legitimate interest, NOT compelling) Rationally Related To the legit gov’t interest I. EQUAL PROTECTION 5 th amendment – imputes equal protection under the umbrella of due process (fed) o Federal application: Can deny due process without denying equal protection but CANNOT deny equal protection without ALSO denying due process. o Due process analysis (1) how big is the right? (2) reason and means to achieve the government’s goal? 14 th amendment – equal protection from government (state and local) o Arose in response to slavery. Aimed at preventing discrimination. o Equal protection analysis (1) Suspect v. ordinary class (2) level of review Equal protection – protects the powerless from the powerful A. Rationality Review in Ordinary Discrimination “Ordinary discrimination” (economic, etc.) low standard of review; gov’t has broad discretion 1. Is there deferential treatment? Must be a legitimate governmental interest. 2. The line being drawn between the two groups must be rationally related to the legitimate governmental interest. Railway Express Agency v. New York (1949) – NY law prohibited ads on cars except company vehicles. Legitimate interest in preventing traffic distractions. Upheld despite being arbitrary (ads on taxis =/= company vehicle ads?) rationally related enough Similar to Williamson v. Lee Optical – loose test applied to rationality review in the due process context: as long as the legislature could have thought it was reasonably configured and rationally related to the interest, it was good enough. An under-inclusive state law doesn’t necessarily violate Equal Protection New Orleans v. Dukes (1979) – Pushcart ban exempted vendors who had operated for 8+ years. Despite discriminating against younger vendors, it was rationally related to the government’s legitimate interest in protecting the touristy charm of New Orleans. No narrowly tailored requirement in lowest level of review
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Government has a lot of leeway with respect to economic rights Massachusetts Bd. of Retirement v. Murgia (1976) – Mandatory retirement at 50 for legitimate interest in protecting health and safety (by way of officer physical fitness). Age NOT a suspect class b/c no history & tradition of inequality: rationality review James v. Valtierra (1971) – rejected equal protection challenge to CA law creating stringent procedures for creation of low-income housing.
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