Rational Basis Scrutiny Research Articles

The Right to a Public Trial, Conditional Courtroom Entry and Tiers of Constitutional Scrutiny

The constitutional test the SupremeCourt has prescribed to review courtroom closures for compliance with the Sixth Amendment’s right to a public trial is in the nature of strict scrutiny. The Courtrequires an “overriding interest” to justify the closure, and a narrow, minimally restrictive scope to the closure. Many lower courts have imposed a less demanding test for “partial” closures, which admitto the courtroom some, but not all, of the public. These courts require a less demanding justification before closing the courtroom to certain individuals—the justification need be only “substantial,” rather than “overriding.” This standard is in the nature of intermediate scrutiny, as applied in other constitutional contexts. There is a third type of “closure,” however, beyond the complete closures the Supreme Court has reviewed, and the partial closures encountered by other courts. This third type is the imposition of entry conditions on would-be audience members, such as requiring a form of identification. These generally applicable conditions may not actually exclude anyone but could conceivably dissuade some audience members from attending a trial. For instance, an attendee might prefer not to provide identification to court personnel and might be turned away as a result. In keeping with the doctrinal model already followed by the courts—applying “tiered scrutiny” to courtroom closures—conditional courtroom entry should be reviewed according to the most lenient of the tiers, rational basis scrutiny. A sliding scale should apply to public trial scrutiny, “Waller” scrutiny, the most demanding, when all are excluded. “Substantial reason” scrutiny, less demanding, should apply when some are excluded. Andrational basis scrutiny, much less demanding, should apply when no one need be excluded, but for their non-compliance with a general rule. A lesser standard should apply in the case of entry conditions because they differ from other closures and cause minimal prejudice to the purposes of the right to a public trial.

The Americans with Disabilities Act and the Constitution of the United States (Dissertation)

This dissertation seeks to answer whether the Constitution of the United States prohibits government entities from committing various types of discrimination against people with disabilities: (1) disparate treatment (2) failure to make reasonable accommodations, alterations, and modifications and (3) failure to properly integrate persons with disabilities, which includes an unjustified institutionalization component. To answer this question, this dissertation will use various well accepted modalities of constitutional analysis first solidified by the constitutional pluralist, Professor Phillip Bobbitt, and continuously used throughout American jurisprudence. As such, the methodology of this dissertation can be said to be socio-legal and legal-historical. Using the various modalities of constitutional pluralism, this dissertation shows that the Ninth Amendment provides protection for various unwritten rights; and that these rights can be protected under the following rubric: (1) A plaintiff identifies a putative right with varying degrees of specificity depending on how widely protected or respected the putative right is in the nation; (2) The plaintiff must then show that the right is generally accepted by the nation—either in its customs or statutes; and (3) That right must reflect some other principles found in the Constitution or jurisprudence associated with those clauses. It will be shown that the concepts of discrimination discussed above meet each of these elements. To fully discuss this thesis, this dissertation will be divided into three books. Book I discusses the history of disability rights. This is done to place disability rights in its proper constitutional and legal-historical context. It will discuss, inter alia, eugenics, institutionalization, and certain views about the concept of “disability” more generally. Book II will discuss the law, the Constitution, and legal interpretation. It will begin with a discussion on analytical jurisprudence and offer a definition of “law” for purposes of this dissertation. It will then conduct an overview of constitutional law; and will examine why courts should interpret the Ninth Amendment the way I suggest above. Book III will discuss disability rights laws in general, with a heavy focus on the federal Americans with Disabilities Act, which has been replicated throughout the nation. Book III will also apply my Ninth Amendment analysis to the three theories of discrimination discussed above—disparate treatment, reasonable accommodation, and integration. Book III will then offer a discussion as to why these three theories should be constitutionalized through the Ninth Amendment. The first main reason why conditionalization would be beneficial is that while the ADA binds the states and local entities, only a small fraction of the federal government is bound by it. The other two most important reasons why courts should constitutionalize these three theories of disability discrimination relate to congressional power. First, recognizing that these theories are protected by the Constitution, would mean that they cannot be undermined by Congress. This is especially poignant because of recent congressional attempts to undermine certain parts of the ADA. Constitutionalizing these rights, however, would not undermine Congressional power to protect those with disabilities. Rather, such constitutionalizing would actually expand Congressional power under Section 5 of the Fourteenth Amendment. Related to Section 5, constitutionalizing these three theories of disability discrimination would greatly assist in the abrogation of sovereign immunity. Currently, the easiest way to abrogate state sovereign immunity is to find that state action has violated both a federal statute (like the ADA that is based on section 5 of the Fourteenth Amendment) and some constitutional right. At present, disability rights plaintiffs are only protected by rational basis scrutiny, which means abrogation is often difficult, because state action against those with disabilities is likely to pass constitutional muster. Lastly, Book III will acknowledge that “what the courts give the courts can take away.” Thus, even recognizing that the courts should interpret the Ninth Amendment to protect the three theories of disability discrimination listed above, the same courts could overrule such interpretation. As such, the last portion of Book III will discuss the need for a Constitutional Amendment that explicitly protects people with disabilities, as an alternative to my Ninth Amendment theory.

The Structure of Rational Basis and Reasonableness Review

The Structure of Rational Basis and Reasonableness Review

Rethinking Copyright's Relationship to the First Amendment

This Article offers a new account of copyright’s relationship to the First Amendment. Until now, discourse about copyright and the First Amendment appears focused on applying a single standard of review. The Supreme Court has effectively taken the position that courts need only apply rational basis First Amendment scrutiny to copyright law. Some scholars have disagreed, arguing that intermediate scrutiny should be applied to all of copyright. By contrast, this Article argues that the proper level of First Amendment scrutiny depends on the type of copyright provision under review. In particular, courts should apply strict scrutiny to the few portions of the Copyright Act that embody viewpoint-based regulation of speech, intermediate scrutiny to the more numerous provisions that employ content-based regulation of speech, and rational basis scrutiny to the Copyright Act’s content-neutral provisions. This suggestion draws inspiration from recent Supreme Court decisions applying strict scrutiny to aspects of trademark law. These cases show that basic free speech principles apply to intellectual property, thereby raising doubt about the wisdom of applying only rational basis First Amendment scrutiny to copyright. The Article uses these principles and insights gained from copyright’s historical relationship to the First Amendment to construct a framework that gives courts the ability to curb the use of copyright as censorship or naked economic giveaway while preserving Congress’ ability to implement appropriately reasoned copyright policies that serve the public interest.

The Freedom to Not Disclose: A First Amendment Analysis of the National Bioengineered Food Disclosure Standard

On January 1, 2020, large food manufacturers will be required to disclose the presence in their products of ingredients produced with bioengineering. It is unclear how courts would resolve a First Amendment challenge to this requirement, or what standard of review they would apply. The Court established in Zauderer that rational basis scrutiny applies to disclosure requirements which cure deceptive or misleading speech. Federal circuits are currently split on whether the same level of scrutiny applies to disclosure requirements, like this one, that further different government interests. This article argues that rational basis should not apply in these cases because the Court's First Amendment jurisprudence provides for the unique treatment of deceptive speech and demands precise and well-reasoned regulations in the area of the First Amendment. This article concludes that courts should instead apply Central Hudson's intermediate scrutiny test to disclosure requirements, such as this one, that are not aimed at curing deceptive or misleading speech. Under this level of scrutiny, courts should hold that the Bioengineered Food Disclosure Standard violates the First Amendment.

Assault Weapon Bans: Can They Survive Rational Basis Scrutiny?

In the last two decades, legislatures and courts have been increasingly willing to argue that a certain class of firearms termed “assault weapons” are not protected by the Second Amendment, and may be regulated or banned even though functionally identical firearms are not generally subject to such laws. Do such underinclusive bans survive even the lowest level of scrutiny: rational basis?

A Matter of Context: Casey and the Constitutionality of Compelled Physician Speech

Under the Supreme Court's compelled speech cases, the context of government-mandated disclosures determines the standard of review. Pursuant to Casey, Zauderer, and Whalen, compelled disclosures in the medical context, such as speech-and-display ultrasound laws, are subject to - and survive - a form of rational basis scrutiny.

The People Themselves: Popular Constitutionalism and Judicial Review (review)

Reviewed by: The People Themselves: Popular Constitutionalism and Judicial Review Thomas E. Carney (bio) The People Themselves: Popular Constitutionalism and Judicial Review. By Larry D. Kramer. (New York: Oxford University Press, 2004. Pp. xii, 363. Cloth, $29.95.) In The People Themselves, Larry D. Kramer presents as complete a critical analysis of the principle of judicial review as one may find. His description of the development of judicial review spans the history of the United States. He begins with a discussion of the early English constitutional experience. This allows him to construct the paradigm carried through the book: the U.S. Constitution was established as a "customary constitution," a system in which the people were capable of constitutional interpretation. This customary constitution, he points out, was reflected in the idea of popular sovereignty that gained prominence among citizens of the new nation in the period immediately following the Revolution. He then proceeds to the drafting and ratification of the Constitution. He reviews the primitive roots of judicial review as it developed in the 1780s with the writings of such figures as Supreme Court Justice James Iredell, who stated clearly the right of judges to declare void laws contrary [End Page 493] to a state's constitution. But such statements, Kramer argues, were quite distinct from what we know as judicial review, so that in 1787, as the Framers began work on the U.S. Constitution, the principle of judicial review was still, at best, fuzzy. In Kramer's view, the language of the Constitution did not clarify the role of judicial review. There is little evidence that the delegates to the ratifying conventions had any clearer a vision than the Framers of judicial review as a power inherent in the judicial branch of the proposed government. Popular constitutionalism evolved further with the development of the first political parties. The early Courts of the 1790s viewed judicial review "as a 'political-legal' act on behalf of the people, a responsibility required by their position as the people's faithful agents" (98). In the throes of the battles between the Federalists and Democratic-Republicans, Marbury v. Madison established the power of the Supreme Court to determine the constitutionality of federal law, but in this case, Kramer points out, the Court did not claim that this power was unique to the Court. In the years that followed, departmentalism—the belief that each branch of government had the right to decide the constitutionality of a law—came to dominate public political discourse. Presidents Thomas Jefferson, Andrew Jackson, and Abraham Lincoln advocated this theory. The advancement of judicial review/judicial supremacy was seriously challenged in the mid-nineteenth and early twentieth centuries. The High Court's infamous decision in Dred Scott v. Sandford brought a staunch rebuke by northern newspapers that questioned the right of the Court to usurp the rights of the other two branches as well as of the people to make this decision. During the Progressive Era, Kramer points out, the Supreme Court has most often been depicted as promulgating the interests of corporations and the wealthy while disregarding popular opinion. These actions brought a stern warning by President Theodore Roosevelt that "if the people are not to be allowed finally to interpret the fundamental law, ours is not a popular government" (216). Moving to the New Deal, Kramer points out that the Court fashioned a "settlement." In regard to claims that legislative enactments were void because Congress lacked authority to act, "the determination of constitutionality was left for Congress and the Executive to make, subject only to a highly deferential 'rational basis scrutiny' in the courts" (219). In reference to violations of personal freedoms, however, the Court maintained an active level of scrutiny. The terms of this settlement, Kramer concludes, remained intact until the mid-1990s. [End Page 494] Embedded in the historical narrative of this work are two themes. First, the modern concept of judicial review was not the intent of the Framers, but the result of a historical development that included such interpretations as "departmentalism" and the New Deal bifurcated system of judicial review. The second theme is his dominant one: that a significant level of tension has existed...

Lawrence v. Texas and the Limits of the Criminal Law

This article looks to the Supreme Court's proportionality jurisprudence under the Eighth Amendment to substantiate four claims. The first claim is that the Lawrence Court was correct to hold that the enforcement of popular morality as such does not constitute a legitimate state interest in the context of criminal punishment. The second claim is that even if Lawrence is read to apply only rational basis scrutiny to laws regulating sexual intimacy, the Court has provided techniques by which to dismiss minimal and speculative harms as rationalizations for criminalization and punishment. The third claim of the article is that the Eighth Amendment provides an independent source of substantive limitations on the scope of the criminal law, alongside and in support of liberty and privacy concerns. The fourth claim is that important constitutional values, including the viability of proportionality review itself, would be compromised by endorsement of the enforcement of popular morality as an acceptable goal of punishment independent of retributive and consequentialist principles. To support these claims the article offers an original interpretation and application of the Court's Eighth Amendment cases, engages with objections to that line of cases by Justice Antonin Scalia, and refutes new and seemingly compelling arguments in favor of legal moralism emerging from the expressive theory of criminal law.

Eldred and Lochner: Copyright Term Extension and Intellectual Property as Constitutional Property

Since the ratification of the constitution, intellectual property law in the United States has always been, in part, constitutional law. Among the enumerated powers that Article I of the Constitution vests in Congress is the power to create certain intellectual property rights. To a remarkable extent, scholars who have examined the Constitution's Copyright Clause have reached a common position. With striking unanimity, these scholars have called for aggressive judicial review of the constitutionality of congressional legislation in this area. The champions of this position - we refer to them as the IP Restrictors - represent a remarkable array of constitutional and intellectual property scholars. In this terms's Eldred v. Aschroft, leading IP Restrictor Lawrence Lessig, representing petitioner Eric Eldred, sought to convince the Supreme Court that the IP Restrictors' view of the Copyright Clause was the correct one. By a vote of 7-2, the Supreme Court rejected Eldred's claim and upheld the statute. But while the Court rejected the IP Restrictors' vision, it did not offer a satisfactory competing conception of the Copyright Clause and how the courts should construe it. Critically, even though the standard of review was of central significance, the Court applied a deferential form of rational basis scrutiny without explaining why this was the appropriate standard. This paper develops the case for deferential review of congressional legislation in the area of intellectual property and, at a deeper level, offers a new paradigm for understanding the Copyright Clause. We propose that from the vantage point of constitutional law, intellectual property should be treated as a form of constitutional property. Deference to congressional judgments is warranted because congressional legislation affecting intellectual property is analytically similar to congressional legislation affecting other forms of property. Courts subject congressional legislation affecting traditional forms of property to deferential review because of concerns about institutional competence and respect for majoritarian decisionmaking. These two concerns in conjunction with proper regard for holistic constitutional interpretation should also lead courts to deferential review of congressional legislation affecting intellectual property. In developing our position, we draw on constitutional history and, in particular, the lessons of Lochner v. New York. In defense of their vision of the Constitution, the IP Restrictors and the dissenters in Eldred make claims about the original understanding that, to an astonishing extent, echo those made by proponents of Lochner-era jurisprudence. We argue, however, that these claims fail for two reasons. First, the IP Restrictors and the dissenters disregard the limited scope of judicial review at the time of the Founding. Additionally, the IP Restrictors and dissenters disregard the range of views among the Founders about monopolies.

The Section 5 Mystique, Morrison, and the Future of Federal Antidiscrimination Law

The article seeks, first and foremost, to demystify conceptions concerning the Section 5 of the Fourteenth Amendment power of Congress. Properly understood, Section 5 enactments raise no issue of separation of powers. The infirmity of the statute struck down in City of Boerne v. Flores, 521 U.S. 507 (1997), was not due to its provenance in Section 5. Rather, the statute sought directly to enlist the judiciary in implementing a congressional substitute for the equal protection analysis the courts would perform; in effect, Congress was commandeering the courts to do its bidding in the course of engaging in constitutional adjudication. Unlike the statute at issue in Boerne, Section 5 legislation generally should be understood as providing supplementary protection of groups, supplemental regulation of conduct that implicates no separation of powers concerns. Thus, while Congress unquestionably exercises substantive authority under Section 5, it enjoys no definitional authority over the Constitution's meaning. Section 5 enactments do raise federalism concerns, and the Supreme Court properly should inquire whether the ends of the legislation can be said plausibly to "enforce" the self-operative provisions of the Fourteenth Amendment. But enforcement authority is not limited to codifying, or providing additional sanctions for, conduct that courts on their own would find unconstitutional. Congress enjoys a remedial authority to act in a prophylactic fashion to prevent violations ever from occurring; to establish an environment conducive to the practical enjoyment of equal protection and due process. On the issue of permissible ends of Section 5 legislation, the question ordinarily should be whether the Court has acted in an area that the Court has identified as (or will agree is) one warranting heightened constitutional concern. Classifications the Court has subjected to intermediate or strict scrutiny are such areas, while classifications that are held to merit only rational basis scrutiny generally are not. However, classifications in the latter category may be proper subjects of Section 5 laws when they are found to implicate constitutional values (as recognized by the Court). The Court's "congruence and proportionality" test plays a useful role in cases, like Kimel v. Florida Bd. of Regents, 120 S.Ct. 631 (2000), where despite the invocation of Section 5, the absence of findings and the size of the gap between what the statute requires and what the Fourteenth Amendment requires of its own force raise the question whether Congress was, in fact, animated by Fourteenth Amendment concerns in passing the law. The test is unnecessary in cases like Boerne; it is inappropriate in cases like United States v. Morrison, 120 S.Ct. 1740 (2000), for it results in judicial scrutiny of the means Congress has chosen to advance an otherwise legitimate Section 5 objective. At one level, we should welcome the renewed attention to Congress's Section 5 authority, for an appropriate set of ground rules can serve both to quiet legitimate concerns that Congress impermissibly will overtake state functions and to initiate a new era of candor, encouraging Congress to legislate in the service of equality and due process norms under Section 5 rather than under the guise of regulation of commercial activity under the Commerce Clause. Morrison gives pause, however, and presents a threat to the capacity of the national legislature of address national problems through national solutions.

The Supreme Court and the Constitutional Right to Privacy

Since its creation in 1965, the constitutional right of privacy has been difficult to understand, even contradictory. This may be explained as the result of the incremental implementation of the sweeping language of Griswold v. Connecticut, with privacy coming into conflict with other rights such as the freedom of the press. In addition, the initial criticisms of Griswold’s synoptic privacy reasoning intensified when Roe v. Wade provoked potent political opposition. These influences combined with the changing membership on the Supreme Court to produce an evaporation of privacy language from recent decisions, most notably Webster v. Reproductive Health Services and Cruzan v. Director, Missouri Department of Health. Furthermore, the Court is transforming Roe's declaration of privacy as a “fundamental right” protected by “strict scrutiny” into a “liberty interest” protected by the relaxed standard of “rational-basis scrutiny.” Finally, Rehnquist and Scalia want to give a narrow historical interpretation to any “liberty interest,” thus limiting the application of privacy to other areas of constitutional law.