1. Marbury v. Madison

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7. Dissent Reasoning: This is not a case about a fundamental right to sodomy. It is a case about the right to be left alone. The right of an individual to conduct intimate relationships in the intimacy of his or her own home is at the heart of the Constitution’s protection of privacy.

1. Kelley v. Johnson, (1976); pg. 571, briefed 11/25/95
2. Facts: Kelley was a police officer who wanted to wear his hair in a length and style contrary to local police standards.
3. Procedural Posture: Kelley brought an action to invalidate the local regulation. The lower courts sustained the attack, requiring the police department to establish a “genuine public need” for the regulation.
4. Issue: Whether a regulation of police officer’s personal appearance is constitutional.
5. Holding: Yes.
6. Majority Reasoning: Rehnquist applied a much more deferential standard of review ot the regulation - “rationality.” The liberty interest of personal appearance is distinguishable from that involved in Roe. Even if ther 14th amendment protected a liberty interest in personal appearance, it is outweighed under the rationality standard by the public interest in maintaining police officers readily recognizable to the public by providing uniform standards of appearance. Although a like regulation of the general public might be too intrusive, Kelley was not a “member of the citizenry at large.”
7. Dissent Reasoning: The dissent reasoned that the regulation did not pass even the rational relation standard because an individual’s personal appearance is central to personal autonomy and integrity.

1. Cruzan v. Director, MO. Dept. of Health, (1990); pg. 575, briefed 11/25/95
2. Facts: Cruzan was rendered a vegetable by a car accident in 1983. She was kept alive by life support equipment that gave her nourishment through a tube. Her parents sought to have her removed from the life support equipment. A Missouri statute allowed a responsible party to pull the plug only if there was “clear and convincing evidence” of the patient’s intent. The only evidence of Cruzan’s intent was statements to former roomates that she would not want to live if she were a “vegetable.”
3. Procedural Posture: The trial court found that Cruzan’s intent was “clear and convincing” and ordered the hospital to remove the life support equipment. The state supreme court reversed.
4. Issue: Whether the state statute requiring the high evidentiary standard of “clear and convincing evidence” in a right to die case is constitutional under the 14th amendment substantive due process “liberty” interest.
5. Holding: Yes.
6. Majority Resaoning: There exists a right to refuse medical treatment under the liberty interest. This right does extend to an incompetent person who is in a vegetative state. However, the person’s constitutional rights must be determined by balancing his liberty interest against the relevant state interests. The state has a strong and unqualified interest in the preservation of human life. The evidentiary standard of “clear and convincing evidence” is not unconstitutional because it puts the burden of error on those who seek termination of life. If the state is wrong, then the person continues to live, awaiting changes in the law or in medical science which may change the error. If the party is wrong, the error can not be corrected. This statute is similar to the standard required for regular wills.
7. Concurrence Reasoning: [O’Connor] reasoned that the court only decided whether the standard of “clear and convincing” evidence was constitutional under these facts. The court has not yet made the more challenging decision of crafting appropriate procedures for determining when the surrogate should be allowed to make decisions for the incompetent. That question will be left for now to the “laboratory” of the states. [Scalia] felt that the court had no business in this field at all. There was no constitutional basis for the right to die, and the court was no better able to determine the correct balance of state and individual interests than was the state citizenry. The safeguard against violation of individual constitutional rights is the Equal Protection Clause which requires that the same laws apply to the democratic majority as are applied to any individual.
8. Dissent Reasoning: [Brennan] felt that the evidentiary burden of “clear and convincing” evidence was an impermissible burden on the individual’s right to refuse medical treatment. Since a fundamental right was at issue, the proper standard should have been a form of strict scrutiny. The state statute could only be upheld if it is closely tailored to effectuate only those interests which are legitimate. Here, the state interest could not outweigh that of the individual. [Stevens} felt likewise that the state interest could never outweigh that of the individual.
1. Goldberg v. Kelly, (1970); pg. 584, briefed 1/14/96
2. Facts: A welfare recipient’s benefits were terminated without an evidentiary hearing.
3. Issue: Whether 14th amendment procedural due process required that a welfare recipient be afforded “an evidentiary hearing before the termination of benefits.”
4. Holding: Yes.
5. Majority Reasoning: [Brennan] Welfare benefits are a matter of statutory entitlement. They are not mere charity but a means to promote the general welfare. Thus, termination of benefits without a hearing may deprive an eligible recipient of his “liberty” and “property”.
6. Notes: In Bell v. Burson, a driver’s license was held to be an entitlement under state law, and so a state could not suspend a driver’s license without a hearing to determine fault in an accident.

1. Board of Regents v. Roth, (1972); pg. 585, briefed 1/14/96
2. Facts: Roth was a non-tenured college professor hired to teach for one year at a state university. During that year he made comments against the university officials. He was not rehired for the next year, and no reason was given. State law provided that no reason need be given. Most teachers would be rehired.
3. Procedural Posture: Roth brought an action for violation of his first amendment rights (being fired for making criticisms) and for a violation of his 14th amendment procedural due process guarantee (for being fired from a position of status without a hearing or a reason). The District Court granted summary judgment for Roth on the procedural due process claim, and the court of appeals affirmed.
4. Issue: Whether Roth had a constitutional right to a statement of reasons and a hearing.
5. Holding: No.
6. Majority Reasoning: The 14th amendment protections apply only to “liberty” and “property.” Although Roth’s employment was important, it does not fall under the nature of “liberty” or “property.” The failure to rehire Roth was only one employment prospect for one year, and it did not damage his reputation (or it may have been found to be protected “liberty” under Wisconsin v. Constantineau). He was still free to seek other work. Roth has not shown that his failure to be rehired was based on his critcisms. It is also not a property interest because Roth, by his employment contract, does not have any legitimate entitlement to the employment.
7. Dissent Reasoning: [Marshall] There are cases holding that the state governments are restrained by the constitution from acting arbitrarily with respect to government employment. Every citizen who applies for a government job is entitled to it unless the government can establish a reason for denying the employment. Otherwise, the people’s faith in the government is undermined by apparently arbitrary decisions.
8. Notes: Contrast Perry v. Sindermann, in which the court held that the plaintiff was entitled to a full trial court hearing on the first amendment issue (government can not deny rehire for criticism). Also, even if the teacher did not have formal tenure, if there was an unwritten practice among the administration to rehire, there still could be a deprivation of property. In Paul v. Davis, the court [Rehnquist] held that mere defamation is not a violation of “liberty” (reputation is not a liberty interest per se), unless it is accompanied by some more tangible interest such as employment. Thus, a person labeled a “shoplifter” by local police did not have any constitutional protection from the defamation, only a remedy in tort law. However, in Vitek v. Jones, a state prisoner was found to have a liberty interest in not being involuntarily transferred to a mental institution if his condition could be adequately treated in the prison. An “objective expectation” based on the state law and normal official practice was created, and it could not be violated without a hearing. The liberty interest can arise not only from the 14th amendment due process clause, but also from state law itself. In determining what sort of a hearing is required to satisfy due process, the court [Powell] held in Mathews v. Eldridge, that “due process is flexible and calls for such procedural protections as the particular situation demands.” The balancing approach was taken which considered 1) the private interest that will be affected by the official action, 2) the risk of an erroneous deprivation of such interest throught the procedures used, and the probable value, if any, of additional or substitute procedural safeguards, and 3) the government’s interest including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail.

1. Railway Express Agency v. New York, (1949); pg. 612, briefed 1/23/96
2. Facts: Railway operates a fleet of trucks, on which it sells advertising. The city of New York has an ordinance that forbids the sale of advertisements on the side of trucks. The city’s justification for the ordinance was that advertisement on the street is a public safety and traffic hazard.
3. Procedural Posture: Railway was convicted and appealed on equal protection grounds.
4. Issue: Whether the banning of advertisements on the sides of trucks for hire, while allowing advertisements related to the owner of the truck’s own business, violates the equal protection clause of the 14th amendment.
5. Holding: No.
6. ∏ Argument: The advertisements on the sides of hired truck are no more dangerous than those on the sides of a non-hired truck. Thus, it provides unequal protection because the classification does not bear a rational relationship to the purpose of the law.
7. ∆ Argument: Even though it does not eliminate vehicular advertising, it does eliminate advertising for hire, and to that extent cuts down on the hazard sought to be controlled.
8. Majority Reasoning: The local authorities have their own reasons for drawing the classification as they do. If they feel that the advertising for hire presents a greater hazard than those who advertise their own business, then the court can not second guess the wisdom of their judgment. The classification has a relation to the purpose of safety, and does not result in the kind of discrimination from which the equal protection clause affords protection [doesn’t apply to economic protection]. It is not a requirement that all evils of the same genus be eradicated or none at all.
9. Concurrence Reasoning: [Jackson] was concerned that when government chooses to eliminate only part of a problem, there is a greater danger that they are acting arbitrarily. Banning advertising altogether would bring more close scrutiny than only banning ads for hire, thus it is more likely that there is some arbitrariness in the classification. The court has often announced that the classification must have an appropriate relation to the purpose. Here, the classification can only be viewed as relating to the purpose if one assumes that tolerating advertising for hire is undesirable since advertising is a danger. Still, it is not the court’s job to second guess the legislature for this type of economic regulation.
1. Massachusetts Bd. of Retirement v. Murgia, (1976); pg. 623, briefed 1/23/96
2. Facts: Mass. had a law that provided for mandatory retirement of police officers upon reaching age 50. The stated purpose was the protection of the public by assuring that police officers are physically fit.
3. Procedural Posture: Unknown.
4. Issue: Whether classification of police officers by age is a violation of the equal protection clause.
5. Holding: No.
6. Majority Reasoning: Age is not a suspect classification for police officers, and so strict scrutiny is not triggered. Thus, the more relaxed rational basis test will be applied. Classification by age is not perfect in deciding who is physically fit to be a police officer, but perfection is not required. Age bears a rational relationship to fitness, and so the law is valid. The fact that the state does not use individual testing instead of an across-the-board mandatory retirement does not make the law irrational, only imperfect.
7. Dissent Reasoning: [Marshall] felt that the two-tier approach was too rigid because it forced the court to choose rational relationship test too often when the cases did not arise to the level of strict scrutiny. A sliding scale approach would be better, which focuses on the relative interests of the persons being discriminated against, and the legislature’s purpose.
8. Notes: In Vance v. Bradley, the court was deferential to the legislature in upholding mandatory retirement of Foreign Service personnel at age 60. Even though the classification was both under-inclusive and over-inclusive, the court stated that the burden was on the challenger to show that the legislative facts on which the classification is based could not reasonably be believed to be true by the legislature.
1. Strauder v. West Virginai, (1880); pg. 637, briefed 1/23/96
2. Facts: A black defendant was tried by a jury of all white males. A State law provided that only white males could sit on a jury.
3. Procedural Posture: The defendant tried unsuccessfully to remove to federal court, and was convicted.
4. Issue: Whether the state law prohibiting non-white males from sitting on a jury was a violation of equal protection.
5. Holding: Yes.
6. Majority Reasoning: The purpose of the equal protection clause was to provide protection for the civil rights of blacks. This law clearly discriminates against blacks. Furthermore, any classification of jurors by race would be unconsitutional, whether it be nationality based or otherwise. That is not to say that the state may not prescribe qualification for its jurors, it just may not do so with respect to race. [But age, sex, and education was okay. This is the first exercise of racial protection under the equal protection clause.]

1. Korematsu v. United States, (1944); pg. 638, briefed 1/23/96
2. Facts: Shortly after the bombing of Pearl Harbor, the president issued an order allowing the military commanders to exclude persons of Japanese ancestry from areas identified as military areas.
3. Procedural Posture: Korematsu was convicted of violating the exclusionary laws.
4. Issue: Whether classification and exclusion based on Japanese ancestry during the WWII was a violation of equal protection.
5. Holding: No.
6. Majority Reasoning: All legal restrictions that curtail the civil rights of a single racial group are immediately suspect, triggering the “most rigid scrutiny.” There must be a “pressing public necessity” for the classification. Here, it was impossible to segregate out the loyal from the disloyal persons, so exclusion of the whole class was justified due to the public dangers involved. The Congress has given the power to the military to make these military based decisions. They are not based on racism.
7. Dissent Reasoning: [Murphy] Contended the the racial classification was not even rationally related to the end of protecting from invasion because it was over inclusive. It is an unreasonable assumption that all persons of Japanese ancestry have the capacity to engage in espionage. The Army had the more effective alternative, which would accord with due process, to hold individual loyalty hearings to determine who was a risk. [Jackson] felt that the decision was even more onerous. A military commander may breach the constitution temporarily every now and then, but for the Supreme Court to rationalize it is to make racism part of the Constitutional doctrine, ready to be used in the future by anyone who can show military expediency.
1. Loving v. Virginia, (1967); pg. 641, briefed 1/23/96
2. Facts: A Virgina statute prohibits interracial marriages between whites and blacks. The appellants are an interracial couple who went to D.C. to get married and then returned to Virginia.
3. Procedural Posture: Appellants were convicted, but the trial judge suspended their sentence for 25 years on the condition that they leave Virginia and not return together for 25 years.
4. Issue: Whether forbidding interracial marriages is a violation of the equal protection clause.
5. Holding: Yes.
6. ∆ Argument: The meaning of equal protection is that state penal laws must apply equally to whites as well as blacks in the sense that each member is punished equally. The intent of the framers of the 14th amendment does not show that they intended to make miscegenation laws unconstitutional.
7. Majority Reasoning: This law is based on the promotion of white supremacy, and the purity of the white race. There is no support in the historical context for the proposition that equal protection meant only that penal laws must apply equally to both races. The racial classification here triggers the “most rigid scrutiny”, meaning that they must be shown to be necessary to the accomplishment of some permissible state objective. There is no legitimate purpose here. Restricting the freedom to marry based on racial classifications violates the central meaning of equal protection.
8 Concurrence Reasoning: [Stewart] “ it is simply not possible for a state law to be valid under our Constitution which makes the criminality of an act depend upon the race of the actor.”
1. Palmore v. Sidoti, (1984); pg. 643, briefed 1/23/96
2. Facts: A divorced white woman was awarded custody of her child until she remarried a black man.
3. Procedural Posture: The trial court awarded custody to the father based on the idea that it was in the best interest of the child to protect the child from the discrimination and prejudice that would accompany her remaining with her mother in an interracial family.
4. Issue: Whether racial classifications are a constitutional justification for the removal of an infant child from her mother.
5. Holding: No.
6. Majority Reasoning: Racial classifications trigger strict scrutiny. The classification must be justified by a compelling governmental interest and must be necessary to accomplish a legitimate purpose. Here, the state interest in protecting a child is substantial. It is true that racial discrimination does exist. However, the existence of private prejudices can not be tolerated by the Constitution, and so are never a justification for racial classifications.
1. Brown v. Board of Education (Brown I), (1954); pg. 649, briefed 1/23/96
2. Facts: Brown was a black child who was denied admission to public schools in her community because of her race. She was not denied access to schools for blacks set up under the “separate but equal” doctrine of Plessey.
3. Procedural Posture: Class action brought on the behalf of all black students in the U.S..
4. Issue: Whether the racial classifications in public school admissions are a violation of equal protection, notwithstanding the “separate but equal” doctrine of Plessey.
5. Holding: Yes.
6. Reasoning: There is no conclusive evidence that the framers of the 14th amendment had any idea, or desire, one way or the other to prevent blacks from attending public schools alongside whites. Regardless of whether two separate schools may be called “equal” with respect to the “tangible” factors of buildings, curricula, qualifications of teachers, etc, by definition they can not be equal with respect to the intangible factors of the ability to take advantage of the environment of the school. In practice, separation of the races promotes the idea of inferiority of the minority race. It generates a feeling of inferiority among the minority race which affects their motivation and eagerness to learn. In public education, separate but equal has no place, and is a denial of equal protection.
7. Notes: On the same day that Brown was decided under the 14th amendment, Bolling v. Sharpe was decided under the 5th amendment with respect to the District of Columbia (federal schools). Although there is no “equal protection” clause in the 5th amendment, the due process clause of the 5th amendment affords similar protection with regard to classifications based on race. “Segregation in public education is not reasonably related to any proper governmental objective, and thus it imposes on [Black] children of the District of Columbia a burden that constitutes an arbitrary deprivation of their liberty in violation of due process.”

1. Goesaert v. Cleary, (1948); pg. 658, briefed 1/28/96
2. Facts: A Michigan state law provided that no women could obtain a bartender’s license unless she was the wife or daughter of the male owner.
3. Procedural Posture: Challenged under equal protection.
4. Issue: Whether the law violates equal protection; i.e. whether women have a constitutionally protected right to choose to bea bartender.
5. Holding: No.
6. Reasoning: [Frankfurter] Michigan could ban all women from being bartenders if it wished. The Constitution does not require legislatures to reflect sociological insight, or shifting social standards, any more than it requires them to keep abreast of the latest scientific standards. Since there may be a reasonable and valid desire in the legislature to protect female bartenders, the court can not second-guess the legislature and decide that the real purpose here was for male bartenders to monopolize the industry.

1. Reed v. Reed, (1971); pg. 658, briefed 1/28/96
2. Facts: Idaho had a law designating men to be the administrators of estates, and not women. The state’s reasoning was that it prevented a burden on the probate courts of having to decide each case based on a hearing on the merits of whether the petitioning woman or petitioning man was better suited to be the administrator.
3. Procedural Posture: The state courts had sustained the law as a legitimate means of reducing the burden on the courts.
4. Issue: Whether the law is in violation of equal protection.
5. Holding: Yes.
6. Reasoning: [Burger] applied a mere rational basis standard to strike down the law. He refused to find that sex was suspect classification. Although the reduction of the burden on the probate courts was a legitimate end, the classification was a completely arbitrary method of acheiving that end. The equal protection clause was meant to prevent exactly this kind of a arbirary means-ends relationship.

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