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Choose THREE discussion board questions to answer from the file attached.

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Session 16 – Thursday, April 8
Topic:
Judicial Interpretation of Due Process & Equal Protection Clauses – Part 2
Most law schools will spend about 1/3 of an entire semester on just 14th Amendment
cases. We’re not going to do that. I only bring it up to emphasize how important the 14th
Amendment is considered to be. Instead, we will accept that the Due Process clause and
Equal Protection clauses are now what matters most when dealing with cases of alleged
fundamental rights or protected classifications against alleged government violations.
We are going to talk today about cases where citizens allege that the government
(national or state) has violated their Due Process or Equal Protection rights. These cases
involve the Judiciary using a special test called the “Scrutiny analysis” or “Scrutiny” test.
This test is applied using the 5th Amendment against the National Government and using
the 14th Amendment against the states. In either case, the test is the same.
We have already covered a number of tests created by the Judiciary to apply their
interpretation of Constitutional Amendments. The test for the 5th and 14th Amendment is
not different in that respect but it initially complex to understand. However, once you
understand the steps, it actually becomes very easy to use. That doesn’t mean that the
courts have easy cases. It just means that once the judges hear the facts of the case, they
will have an easy time choosing which legal standards and burdens of proof to apply.
Once they finally get to that point, then they will have a difficult decision. But the initial
questions in this test relate to what specific legal tools the judges use to determine
whether the government has violated Due Process or equal protection rights.
The courts have an analysis that they run every single situation through. You can think of
it like a flowchart with a series of questions that yield further questions. The flowchart for
the 14th Amendment is called the “Scrutiny” analysis. The court will take the facts of the
situation and run it through the test to see whether the state government has violated
either our Due Process or our equal protection rights. The court will run the same test
when they are dealing with allegations that the national government has violated our Due
Process. However, other parts of the 5th Amendment do not use this test.
Before we get into the test itself, I just want to bring up two topics:
Incorporation and Reverse Incorporation
The Scrutiny analysis test does not relate to Incorporation. Incorporation uses the 14th
Amendment to apply rights from other Amendments against the states. The Scrutiny
analysis test uses the Due Process and equal protection clauses of the 14th Amendment
itself. The 14th Amendment already directly applies against the states. The other
Amendments have always applied against the national government before Incorporation.
If you are using the Scrutiny analysis to apply the Due Process clause of the 5th
Amendment rights against the national government, you never need incorporation. That is
because the 5th Amendment was always applied against the national government.
However, if you are using “equal protection” against the national government then you
would be using “reverse incorporation” since “equal protection” was read into the “Due
Process” clause as a result of judges being influenced by 14th Amendment. However, the
lawyers would not do anything specific here. They may not even mention “reverse
incorporation” by name. All they would have to do is mention that previous courts have
found that a violation of equal protection is a violation of Due Process.
Incorporation has no relation to the Scrutiny test. Reverse Incorporation only factors in
as the original way in which equal protection was read into 5th Amendment Due Process.
Judicially Created:
The next thing to remember about this test is that the Judiciary created it. The language
of the 14th Amendment does not mention terms “scrutiny” or “levels.”
Remember that Section 1 of the 14th Amendment said:
“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.”
These are the words in the two sentences that pertain to Due Process and equal
protection. There is nothing in there about applying different legal standards to different
plaintiffs which is exactly what the Judiciary does with this test. The courts have created
and evolved their own test to interpret and apply the 14th Amendment to actual cases.
There is nothing improper about that concept. There is nothing permanent about it either.
If the Supreme Court decided to change the test that they use, they are well within their
authority. If you do not like the way the test runs, the categories it uses, or anything
related to it, understand that it is not a permanent test. The Supreme Court can change it.
Congress could also change the test using their power under the Enabling Clause of the
14th Amendment. And we can certainly amend the language of the 14th Amendment itself
to be more specific about how to apply the test to cases.
The Scrutiny Analysis test we have now is legitimate under the law but it’s not the only
legitimate test that the courts could create. Furthermore, courts continually redefine
small aspects of the test as new rights and classifications are considered.
Discussion Question: How much power should the Judiciary have to create their own
tests to interpret and apply rights (enumerated or not) from the Amendments to cases? Is
this a violation of Checks and Balances? Is the Judiciary taking Legislative power?
One more thing I want to say is that the “Due Process” we are talking about today is
called “substantive Due Process.” This form of Due Process protects specific rights. Later
in the session I’ll mention the term “procedural Due Process” and explain the difference.
Let’s go into the specifics of the Scrutiny Analysis test now.
“Scrutiny Analysis” of the 5th and 14th Amendment:
The first question you should always ask is whether the plaintiff in the case is suing the
national government or a state government. That lets you know whether to use the 5th
Amendment or the 14th Amendment. Either way, the test will be run the same way.
But if you are using the 5th Amendment against the states or the 14th Amendment against
the national government, the government will file a motion to dismiss and you’ll lose.
Always make sure that you are using the right tool against the right defendant.
The analysis for classifications and rights are similar and can be summed up as:
1) Equal Protection: What classification is government using to treat people differently?
Due Process: What is the fundamental right that is being infringed by the government?
If it’s an Equal Protection case, the issue will be how the government is treating people
differently. For example, if there’s a law saying that only men are allowed to vote, then
the government is treating people differently based upon gender. Gender would be the
classification that the government is using to treat people differently.
If it’s a Due Process case, the issue will be what right has been infringed?
2) What level of scrutiny should be applied as a result?
There are three levels of scrutiny: Strict, Intermediate, Rational Basis.
Each level has specific rights and classifications that the Courts have placed there.
So the answer to question 1 allows the Court to determine what level scrutiny the case
should fall under. I go into detail over the next few pages as to examples of rights and
classifications found under each of the levels.
To go back to our earlier example of Equal Protection, if the Court found that “gender”
was the way the government was dividing people based on a law, then the Court would
consider the case to be under “Intermediate Scrutiny.” Once the Court decides what
classification or due process right is at issue in the case, they then choose the level. This
is usually an easy part of the case for the courts but the levels can be changed over time.
3) Does the government action being challenged meet the level of scrutiny required?
So let’s talk about what scrutiny actually means. There are certain rights and group
classifications protected by the 14th Amendment that are considered to be the most
important and necessary to protect. Whenever the plaintiff claims that one of those rights
are being infringed, the Court places the government actions under intense scrutiny.
Scrutinize means to closely examine or inspect something when there are high stakes.
This is the Court’s way of saying that they have to be the most careful in determining
whether a government action is legitimate when certain rights are at stake. And the
government, in turn, has to be the most careful when potentially infringing those rights.
Since there are three levels of scrutiny, that means that the rights and group
classifications considered more fundamental and important are given more protection by
the courts. For example, the Court will scrutinize the government more when they
potentially infringe on our right to vote vs. our right to get an education. The Court will
scrutinize the government more when they divide people based on race vs. age.
The top two scrutiny levels not only have the rights and classifications considered by the
Courts to be most important, but they have a rule to show for that importance.
The government, the defendant in these cases, actually has the burden of proof to show
that their action did not unconstitutionally infringe a right or classification. On the lower
level, the rational basis level, the citizen has the burden of proof to show that the
government action did unconstitutionally infringe a right or classification.
So while it’s generally easy for a court to choose which right or classification belongs on
which level, it’s also an incredibly important decision. There are some differences
between the top two scrutiny levels too even though both give the government the burden
of proof. It’s harder for the government to win under the strict scrutiny level.
However, if the government is able to meet their burden of proof on the top two levels,
they can win the case. This is still an adversarial process and the government is able to
win these cases much as they were able to win the 1st Amendment tests, we discussed
earlier in the semester. The government just has to prove that there are even more
necessary when a more fundamental right is potentially being affected.
Our 14th Amendment rights are limited much as our 1st Amendment rights are. Just
because the Court may find that the government did infringe a right or classification, that
alone doesn’t end the case. The analysis allows for the government to win when the
Court believes that there was a good enough reason for the government to do what it did.
The government may have an uphill battle of proof, but they can still win the case.
That is why the scrutiny analysis is so important, because there are no clear or consistent
winners between the citizens and government in these situations. The set formula of the
test and the way the judges apply the facts to it determine how the cases come out.
The level of scrutiny analysis can interact with a Justice’s political views and their
interpretation style but sometimes Judges decide these cases purely mechanically.
Procedure matters to justices and can often override their own opinions of how a case
should come out. Most people want judges to avoid bias and follow the rule of law. Of
course, there are always accusations of bias and judicial activism for these types of cases.
That is no different than for tests related to other Amendments as well. But if you are to
look at a modern 14th (or 5th) Amendment case, you will see this scrutiny analysis play
out. Do Judges sometimes come to their decision first and then use the test to get to
where they already intended on getting? Certainly, they do, just like with other tests.
There’s nothing about the 14th Amendment test that is immune to judicial activism.
Also, remember that not EVERY citizen right is handled under this 14th Amendment
analysis. The 5th and 14th Amendments deal with rights that are considered protected by
the Courts but don’t have their own Amendments in which the Court has derived tests.
For example, the rights listed in the clauses of the 1st Amendment have their own tests.
Even other rights listed in the 5th Amendment (like right against self-incrimination and
the “just compensation” clause) have their own judicial tests independent of Scrutiny.
But let’s get to some of the rights and classifications in each of the 3 levels of analysis.
Once again, they are: Strict Scrutiny, Intermediate Scrutiny, and Rational Basis.
Strict Scrutiny – Highest level of scrutiny reserved for the right and group classifications
considered most important by the Judiciary up to this point.
Due Process rights: Custody of children, keep family together, marriage, procreation,
privacy: purchase/use of contraceptives, raise children.
Equal Protection group categories: Race, national origin, alienage. Alienage means
discrimination against non-citizens.
Due Process rights sometimes treated as Equal Protection: Right to travel, right to vote.
The reason these rights can be treated as equal protection is because sometimes people
are prevented from using them based on their group classification.
For example: If everyone in the country over the age of 18 were told that we couldn’t
vote anymore, that would be a violation of due process rights. If only women were told
that they could not vote anymore, that would be a violation of equal protection rights
since the government would be making the distinction using gender while allowing some
people to vote. However, since the right to vote is under strict scrutiny, it would stay
under that category even though gender-based discrimination is under intermediate.
LEGAL STANDARD for strict scrutiny: For the government action to have a chance at
winning, the court must see it as “necessary to achieve a compelling government
objective” – The “least restrictive means” required to achieve that objective. Least
restrictive means is required here to achieve the compelling governmental interest. There
is also a need to show that the purpose claimed of the law is its actual purpose and that
the means of achieving that purpose is narrowly tailored.
BURDEN OF PROOF: The government has the burden of proving the above elements.
The government will try to make its case that it’s actions fell under the above standard
and try to convince the Court to see it the same way.
Instances of racial discrimination will be placed within strict scrutiny and instances of
gender discrimination will be placed within intermediate scrutiny. However, for both
levels, the existence of racial or gender classification discrimination is shown when:
− The classification is clearly expressed as the face of the law. Example: that
“African Americans, or Women, are not allowed to vote.” That’s facially biased.
− If the law is facially neutral, then you need to show that a classification still exists
because there was both a discriminatory intent and an actual impact to the law.
This is harder to prove, especially intent, but is still capable of being proven.
There was a case that made it past the state appellate level 4-5 years ago involving racial
discrimination at a college. The Supreme Court heard the appeal but did not take the case
for themselves because they believed that the Circuit court messed up the analysis. They
remanded the case back to the lower court telling them how to do the analysis properly.
This illustrated two things: 1) That the Supreme Court will allow a lower court to redecide a case once the Supreme Court said they made an error in HOW they did it. 2) The
Justices of the Supreme Court can exercise restraint in having power over lower courts.
They took a more measured, occupational ethical approach here. The Supreme Court said
that the Court of Appeals improperly did not use strict scrutiny and should have used that
level instead since race was a factor. Therefore, the case was sent back to the Court of
Appeals so that they can choose the right category and finish the analysis properly.
Many judges strive to deal with these situations in a systematic and consistent way,
respecting their own precedent. The Court isn’t always an arbiter of political opinions or
fights. Even the more politically minded Justices still acknowledge the overall role of the
court in keeping to a formal way of doing things. In this case, they basically said “you did
it wrong, here’s the process to do this right” and left it up to them to give it another try.
Intermediate Scrutiny –
LEGAL STANDARD: For the government to have a chance at winning, the court must
see their actions as “Substantially related to an important government objective.” There
is no need for “least restrictive means”. But there is a need to show that the purpose of
the law is its claimed purpose and that it is narrowly tailored.
BURDEN OF PROOF: For Intermediate Scrutiny, the government still has the burden of
proof here to show all of that, like strict scrutiny.
Due Process categories: None. Intermediate scrutiny is currently just being used for
Equal Protection. However, that is only because none of the rights have been placed in
the Intermediate Scrutiny category. That is something that could definitely change.
Equal Protection categories: Gender classification, undocumented alien children,
Discrimination against non-marital children. Even though race/national origin is held as
a more protected distinction then gender, the analysis of the law itself is very similar.
Rational Basis –
Rational Basis presents a significant change from the above two levels. On this level,
it’s the citizen who has the burden of proving that the government action violated one of
their Due Process rights or discriminated against their group classification. That means
that if no convincing evidence is produced here by the citizen, or no evidence at all, the
government automatically wins. That is different than the above 2 scrutiny levels where
the government has to produce evidence to convince the court that they should win.
LEGAL STANDARD: For the citizen to have a chance at winning, the court must see the
government actions as not “rationally related to a legitimate government purpose.”
The citizen suing has the burden of proof here in convincing the court that the
government actions are illegitimate. They have to show that there is no conceivable
purpose for the law or that, if there is a purpose, the law is not related to it.
Due Process rights affected: Many economic rights, education, practice of a profession,
physician assisted suicide. That isn’t a fundamental right.
Equal Protection categories affected: Age, handicaps, wealth. Although strict scrutiny is
used for national origin/alienage in general, the rational basis test is used for alienage
when it applies specifically to “concern self-government and the democratic process.”.
That means the government can discriminate against immigrants in situations where the
people serve on juries, vote, are on the police force, or in any situation where “selfgovernment” is implicated. That means that an immigrant doesn’t have a fundamental
right to become President. Immigration in general is rational basis since Congress has the
stated power in Article 1 of the Constitution to regulate immigration.
Let’s talk again about the burden switch as that is a significant aspect of this level.
Do you think the government should be let off the hook for this level? Are the rights
really THAT much less important that the government shouldn’t still have the burden?
After all, if those in this category are still declared rights and protected classifications,
shouldn’t the government have to be the one to prove that they had a good reason when
they have violated them? Just because something isn’t seen as “a fundamental right” does
that mean that the government shouldn’t have to defend its decision to violate it? Even if
a right is in conflict with a more fundamental right the government is seemingly trying to
protect with its action, shouldn’t that still be the government’s burden to prove?
Discussion Question: Should the rational basis level have the burden on the citizen?
Earlier in the session I mentioned that this entire test has been created by the Judiciary.
Let’s go back to that idea now since we have finished looking at the test itself. One
concern is whether the Judiciary has taken the 14th Amendment in the right direction.

First, let’s talk about the rights and classifications themselves.
Once again, I direct all of you to read the very short clauses used by this test:
“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.”
We discussed the 9th Amendment and the right to privacy earlier in the semester. The 9th
Amendment hasn’t been seen as a strong enough or reliable tool to bring in specific
rights. Rights like privacy required something more than just the 9th Amendment. And,
to many people, the right to privacy also required being protected by one specific
Amendment for it to be legitimate as opposed to the Griswold approach.
In many ways, the 14th Amendment has been the answer for the people who want a
specific way to acknowledge rights that are not expressly in the Constitution. The Courts
have found rights, like the liberty of contract in the Lochner case, that are not expressly in
the Constitution but became protected by being read into “liberty” under Due Process.
Even reproductive privacy, like was found in Roe v. Wade, was protected by the Due
Process clause. As a result, you can say that the Due Process clause has itself become a
generator or catalyst of unexpressed rights in a way more functional than the 9th.
However, it is not clear that this was ever intended.
The initial understanding of the Due Process clause was that it was about process or
procedure itself. The Court’s original understanding of Due Process was that it required
the government to follow set and fair procedures for actions that can infringe on liberty.
That definition of Due Process is now called “procedural Due Process” which has to be
one of the most redundant legal terms that you’ll ever hear. It’s distinguished from the
concept of “substantive Due Process” which is what we studied today.
The “procedural” form of Due Process came first but it was not called that then. It was
just called “Due Process.” The idea and usage of Substantive Due Process started to form
in the middle of the 20th Century. It became one of the Judiciary’s strongest tools to
protect rights that were not enumerated. Here is a rather informative article about the
difference between the two Due Process types for those who want to delve deeper.
The fact that the Courts originally only interpreted and used “procedural Due Process”
was evidence to many that substantive Due Process was improperly created. Does it
make sense for the Courts to use the 14th Amendment to acknowledge new rights?
Discussion Question: Should the Judiciary use the Due Process clause to acknowledge
and protect new substantive Due Process rights? Should they leave the decision of what
new rights should be protected up to Congress or the Constitution?
A similar argument can be made about the “Equal Protection” clause. There is nothing in
the language that says anything about specific classifications or groups being involved. It
doesn’t say the Court should split people according to groups. It just says that people
should be equally protected. Of course, that is a rather broad term and it’s perfectly fair
to expect the Judiciary to attempt to make its enforcement more specific.
It’s also a potential value for the Court, who always interacts with the changes in society
quicker and more dynamically than the Legislature (or Constitution), to get a sense as to
what types of groups classifications may be targeted more under the law at any given
time. Not only may Congress be blocked for political reasons from updating the law to
reflect groups that need protection, but Congress may be the branch that is targeting the
groups causing their need to be protected. So it does make sense to have the Judiciary be
allowed to continually re-interpret what types of classifications are more suspect.
However, the very idea of specific group classification could also be seen as the Courts
interpreting the “Equal Protection” clause in a way they shouldn’t be.
Discussion Question: Would you change the way the Judiciary focuses their
interpretation of the “Equal Protection” clause on specific classifications?

Second, let’s look at the way the rights and classifications are prioritized.
Even if people agree that substantive due process made sense and that certain rights can
be legitimately recognized by the courts, we may not agree that the courts should attempt
to prioritize which ones are the most important. We also may not agree that the courts
have actually done that with their existing hierarchy of rights (and classifications).
Should rights even be split into different categories according to which are more
fundamental? Should the Judiciary be the branch to make those decisions?
Discussion Question: Is the Judiciary the proper branch to prioritize the rights that they
have acknowledged through the “Due Process Clause?”
Let’s turn again to Equal Protection. Should some classifications be given more
protection than others? There’s a particular irony in this question.
The analysis was created to preserve “Equal Protection.” Does having three categories
undermine that philosophical ideal? If we are trying to stop the government from
dividing people based on demographical categories they fall into, is the solution to have
the court divide the categories into three different levels of protection where one level
doesn’t even force the government to have the burden of proof in defending its actions? Is
Equal Protection truly achieved with the court dividing people based on their claims?
On the other hand, are there potentially legitimate reasons for supporting this approach?
One argument supporting it is to look at the historical and current treatment of some of
the protected categories. For example – let’s look at “race” vs. “age” as categories.
Race is a “strict scrutiny” protected category – meaning that the government will have to
pass a strict scrutiny test if they create a law that divides people by race. Then let’s look
at age as a “rational basis” protected category – meaning that the citizen will have the
burden of proof in showing that the government creating a law that divides people by age
is not rationally related to legitimate government purpose.
The argument supporting the placement of one group in a higher scrutiny level than
another is that racial discrimination in this country has been more severe and frequent
than age discrimination. As a result, whenever there is even a hint that racial
discrimination may exist in the law, the courts must scrutinize/investigate it more than if
there was a hint of age discrimination. Due to the history of the country, one form of
discrimination has been deemed to be more likely, more dangerous, and therefore more
worthy of the court’s highest attention and skepticism about the validity of the law.
The argument against that is that regardless of history, the court should come to the rights
of everyone equally regardless of the category they fall in. And that it’s dangerous for
the court (or the government) to declare that some groups deserve less attention because
that opens up the system for abuse. What if the courts are actually intentionally
discriminating by saying that those with handicaps belong in the “rational basis” category
and have the burden of proof, making it harder for them to get equal treatment? Once you
allow the Courts the ability to weigh group status over another, you lose equal protection.
Discussion Question: Should the Equal Protection part of the 14th Amendment scrutiny
level analysis test be changed so that every type of demographic group status is treated
the same by the court? If so, which level of scrutiny would apply to all of them?
Discussion Question: Would you modify the Judicial treatment of the 14th Amendment
so that the goal of “Equal Protection” is truly met? Would you make big or small changes
to the way that the courts have created and applied their test?
As you can see, the study of the 14th Amendment isn’t just about the rights and
protections we have, it’s also a way to examine the role of the Judiciary as a whole. And
these are all of the questions we ask before principles like state police power even enter
into the equation. This is why the 14th Amendment remains such a complex and evolving
source of protection for our rights. I just dedicated two specific class sessions to it but
one can teach an entire course just focused on this Amendment and have more to say.
Reading Assignment to be completed before Session 17:

Read the 9th and 10th (IX and X) Amendments to the United States Constitution
https://www.archives.gov/founding-docs/bill-of-rights-transcript

Inside Constitutional Law – Chapter 8: Pages 212 – 235, 333 – 335.

Griswold v. Connecticut:

Read Session 17 notes.
https://supreme.justia.com/cases/federal/us/381/479/#tab-opinion-1945663

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