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CU-Boulder BCOR 3000 - Due Process and Scrutiny

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BCOR 3000 1nd Edition Lecture 5 Outline of Last Lecture I General Approach to Constitutional Cases II Commerce Clause III Commerce Clause Cases IV Supremacy Clause V Freedom of Speech VI Due Process Outline of Current Lecture VII Due Process cont d VIII Equal Protection clause IX 3 Levels of Scrutiny A Strict Race B Intermediate Age Gender C Rational basis X Privacy Rights Current Lecture Due Process Procedural Due Process deals with right to a trial hearing before property is taken etc 20 days to respond If excused have the right to cross examine Substantive Due Process law must be clear enough for a reasonable person to determine its meaning Some vagueness is OK Sometimes the law can t be separated from the substance These notes represent a detailed interpretation of the professor s lecture GradeBuddy is best used as a supplement to your own notes not as a substitute What s the purpose It may be so vague that the substance makes the process not fair Trying to do your best to follow laws but vagueness makes it hard to tell what is legal and what is illegal Examples vagrancy statues Montana speed Limit to vague declared unconstitutional and Illinois town anti gang law The substance can be so unfair vagueness that even the best process in the world cannot make it fair Because unfairness of the law you may still be found guilty even if you tried your very hardest to obey the law Equal Protection Clause Gov t must treat similarly situated persons similarly UNLESS there are legitimate grounds not to Ex Business challenging a statute law or an enforcement of a law Similarly Situated in state vs out of state CU students as a whole are similarly situated OR not similarly situated because one is in state and one is out of state 1 An infringement on a right is not automatically unconstitutional 2 How significant is the infringement 3 Law or action s purpose is balanced against the distinction 3 levels of scrutiny how closely will you examine something 1 Strict race distinctions lots of examination 2 Intermediate age or gender 3 Rational Basis all other distinctions less examination Level of Scrutiny How hard is it to justify the law s distinction Race Distinctions Strict scrutiny applied Only rarely is a race distinction in the law ok SOME affirmative action programs ok but ONLY if certain requirements are met Requirements 1 have to prove you have tried everything else 2 The problem is still there and 3 the program I do have is broader than necessary Ex Gov t gives award contracts minority owned contracts Age Distinctions Intermediate Scrutiny Easier to justify Age drinking age social security age discrimination act draft eligibility Drinking Age 21 Reason for Drinking Age drunk driving statistics more mature of an adult development of your brain immature It s not a question about the best law it s about are there good reasons to support it Social Security treats people differently based on age are there good reason to support this yes Age Discrimination age discrimination protection to people 40 aimed at older workers is 40 a good cut off no there are facts and evidence on older workers so therefore the law has been created Draft Eligibility Gender Distinctions and Legitimacy Intermediate Scrutiny Easier to justify Gender Mandated Insurance Rates It is legal to charge different rates based on gender as long as there are reasons and statistics to prove and back up the evidence Mandated Health Insurance laws mandated for prostate cancer check ups for men and not for women Draft Registration All Other Distinctions Rational basis the law will be constitutional if there is any rational basis for the distinction Very easy to justify Examples Out of State Tuition Liquor Store Sunday closings Car Dealerships Sunday closings Other industry specific law Privacy Rights Constitution does not specifically have a right to privacy Only relatively recently recognized as a constitutional right Statutory rights to privacy RE the gov t Invasion of privacy by individuals Protected solely from interpretation on implying one Protected by statues HIPPA


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