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Midterm Review
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Midterm Format
Optional four-hour, take-home, open-book exam. Will only affect your final grade in the course if your midterm grade is higher than your final exam grade.
Students can take the exam at any time during the week of March 11-15. No class on March 12.
Two parts to the exam. Character count of 10,000 characters for each part. Part 1: Short answer questions. Part 2: Essay question.
Possible topics: Everything from the semester to date, except for the criminal procedure unit we started this week.
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What topics have we covered so far?
- State and Federal Power
- Theories for Construing State Constitutions
- Equality and Equal Protection
- Procedural Due Process
- Substantive Due Process
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State and Federal Power
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The Commerce Clause
Gonzales v. Raich 545 U.S. 1 (2005)
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The Spending Power
NFIB v. Sebelius 567 U.S. 519 (2012)
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Exclusive State Power
United States v. Lopez 514 U.S. 549 (1995)
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Anti-commandeering principle
Printz v. United States 521 U.S. 898 (1997)
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Federal Limitations on State Power
U.S. Term Limits Inc. v. Thornton 514 U.S. 779 (1995)
Gregory v. Ashcroft 501 U.S. 452 (1991)
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Theories for Construing State Constitutions
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What are some reasons to follow the U.S. Supreme Court’s interpretation of a similarly worded provision?
What are some reasons not to follow the U.S. Supreme Court’s interpretation of a similarly worded provision?
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Cases - Similarly Worded Provisions
Sitz v. Department of State Police 506 N.W.2d 209 (Mich. 1993)
State v. Hempele 576 A.2d 793 (N.J. 1990)
State v. Wright 961 N.W.2d 396 (Iowa 2021)
Blum v. Merrell Dow Pharmaceuticals Inc. 626 A.2d 537 (Penn. 1993)
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Four-Part Test (in Pennsylvania)
- text of the Pennsylvania Constitutional provision;
- history of the provision, including Pennsylvania case law;
- related case law from other states;
- policy considerations, including unique issues of state and local concern, and applicability within modern Pennsylvania jurisprudence.
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Cases - Differently Worded Provisions
Racing Association of Central Iowa v. Fitzgerald 675 N.W.2d 1 (Iowa 2004)
State v. Jorden 156 P.3d 893 (Wash. 2007)
State v. Mixton 478 P.3d 1227 (Ariz. 2021)
State v. Scottize Danyelle Brown 930 N.W.2d 840 (Iowa 2019)
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State court rulings that address both federal and state bases for decision
Ohio v. Robinette 653 N.E.2d 695 (Ohio 1995)
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Sequencing
In what order should a state court resolve state and federal constitutional claims?
- “Primacy” approach
- “Dual sovereignty” approach
- “Interstitial” or “Secondary” approach
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Equality
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Why put equality in a state constitution?
What’s the purpose?
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Conceptions of Equality
Equal treatment → Non-discrimination from the state
Equal opportunity → Minimum state obligation to address existing inequality
Equal outcome → State guarantee to fix existing inequality
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Tiers of scrutiny
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Rational basis
Applies when no suspect classification is at issue.
To survive judicial review, the law must serve a legitimate government interest and there must be a rational connection between the law’s means and that interest.
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Intermediate scrutiny
Applies to quasi-suspect classifications such as gender.
To survive judicial review, the law must further an important government interest and must do so by means that are substantially related to that interest.
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Strict scrutiny
Applies to suspect classifications such as race, national origin, and religion.
To survive judicial review, the law must further a compelling government interest and law must be narrowly tailored to achieve that interest.
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Equality: Race
Sheff v. O’Neill 678 A.2d 1267 (Conn. 1996)
Malabed v. North Slope Borough 70 P.3d 416 (Alaska 2003)
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Equality: Gender
Commonwealth v. Penn. Interscholastic Athletic Ass’n 334 A.2d 839 (Pa. Commw. Ct. 1975)
State v. Rivera 612 P.2d 526 (Haw. 1980)
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Equality: Age
Driscoll v. Corbett 69 A.3d 197 (Pa. 2013)
Arneson v. State 864 P.2d 1245 (Mont. 1993)
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Equality: Sexual Orientation
Gartner v. Iowa Dep’t of Public Health 830 N.W.2s 335 (Iowa 2013)
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Equality: Economic
AFSCME Iowa Council 61 v. State 928 N.W.2d 21 (Iowa 2019)
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Due Process
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Procedural Due Process
Substantive Due Process
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Procedural Due Process
State v. Veale 972 A.2d 1009 (N.H. 2009)
M.E.K. v. R.L.K. 921 So.2d 787 (Fla. App. 2006)
Procedural Due Process Inquiry
- Is this a legally protected interest?
- If so, what process is due?
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Substantive Due Process
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Federal Backdrop
Due Process Clause of the Fourteenth Amendment protects
- Rights specified within the bill of rights
- “Fundamental” rights that are not specified within the Constitution.
Fundamental rights are only recognized if they are “deeply rooted in our history and tradition” and “essential to the nation’s concept of ordered liberty.”
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Questions to guide us
How should we understand the differences between policy preferences and constitutional interpretation?
How should a constitution be interpreted?
What constitutional provisions are a legitimate source for a particular right? What is too much of a stretch?
What should be the role of history in our understanding of constitutional provisions? How should stare decisis factor into the analysis?
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Right to Privacy
What is it? Do we want a constitutional right to privacy? What should the right protect?
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Substantive Due Process: Reproductive Autonomy
Strict Scrutiny Does the law further a “compelling governmental interest,” and is it “narrowly tailored” to achieve that interest?
Undue Burden Does the law have the purpose or effect of imposing an “undue burden,” defined as a “substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability?”
Rational Basis Does the law serve a “legitimate” government interest, and is there a “rational connection” between the law’s means and that interest?
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Substantive Due Process: Reproductive Autonomy
Davis v. Davis 842 S.W.2d 588 (Tenn. 1992)
In re T.W. 551 So.2d 1186 (Fla. 1989)
Hodes & Nauser, MDs, P.A. v. Schmidt 440 P.3d 461 (Kan. 2019)
Planned Parenthood of the Heartland Inc. v. Reynolds ex rel. State 975 N.W.2d 710 (Iowa 2022)
Allegheny Reproductive Health Center v. Pennsylvania Department of Human Services (Pa. 2024) (Wecht, concurrence)
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Potential constitutional sources of right to reproductive autonomy
- Due process - Right to privacy - Inalienable natural rights - Equal protection / ERA - Religious liberty / freedom of conscience - Explicit provision that recognizes right to reproductive autonomy
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Substantive Due Process: Right of Intimate Association
State v. Saunders 381 A.2d 333 (N.J. 1977)
Commonwealth v. Bonadio 415 A.2d 47 (Pa. 1980)
Commonwealth v. Wasson 842 S.W.2d 487 (Ky. 1992)
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Substantive Due Process: Civil Union and Same-Sex Marriage
Baker v. State 744 A.2d 864 (Vt. 1999)
Goodridge v. Department of Public Health 798 N.E.2d 941 (Mass. 2003)
