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Minnesota Constitutional Law & Civil Rights

Constitutional Law & Civil Rights

The Role of Constitutions

Constitutions are important documents in this country's system of government. The United States Constitution establishes the three branches of the federal government: the legislative or Congress, the judicial or Supreme Court, and the executive or President. It also defines the powers that each of these branches has and the limitations placed on those powers. The Minnesota state constitution plays a similar role in state government. The federal Constitution is the supreme law of the land, and the Minnesota constitution must provide at least as much protection for civil rights as the federal Constitution. Accordingly, this chapter focuses primarily on the law of the federal Constitution.

Constitutional law is very broad and very complex. It includes the actual constitutional text and amendments, and a huge number of cases which attempt to interpret the words of the state and federal constitutions. In constitutional law, more than in any other area of law, there has been a great deal of interpretation of the original documents. Often, reading the constitution itself is only the very beginning of understanding the law of the constitution on a particular subject. In constitutional law, it is essential to become acquainted with the way courts interpret the documents' provisions. The fact that constitutions are such important documents, and that the courts play such a key role in deciding what the documents say, leads to heated battles over the nomination of justices to sit on the federal and states' Supreme Courts. People care about constitutions and who interprets them because they know that constitutions matter.

Despite the importance of constitutional law in our legal system, many of the thorniest issues in constitutional law are of limited interest to the average consumer. Some areas of law that are affected by constitutional analysis are discussed in separate chapters: Employment Law: Individual , Elder & Social Security Law, and Felony & Misdemeanor Criminal Defense. Of great interest to everyone, however, is the constitutional law of civil rights. Thus, this chapter focuses primarily on the civil rights guaranteed by the federal Constitution, and the limitations that government can place on those rights.

Civil Rights

Civil rights include, but are not limited to, the right to freely practice a religion, the right to be free from discrimination, the right to privacy, the right to travel freely, the right to free speech, and the right to peacefully assemble and express opinions against the government. Most of the civil rights American citizens enjoy today were first granted more than 200 years ago when the original thirteen states ratified the Constitution and the first ten amendments to it, known as the Bill of Rights. Consequently, most civil rights law is constitutional law. In a few instances, civil rights are based on statutes rather than a constitution.

One of the most important concepts in constitutional law is that the rights granted in the Constitution are not absolute. Many powers have limits placed upon them. Most of the rights granted in the Constitution must be exercised responsibly or else they conflict with other rights. Most constitutional law is about defining the limits of powers granted in the Constitution or balancing the rights of individuals whose rights are in conflict.

Equal Protection

The Fourteenth Amendment to the United States Constitution says that no state can deny any person within its jurisdiction the equal protection of the law. While there is no identical provision applicable to the federal government, this right to equal protection is interpreted to apply to the federal government by virtue of the Fifth Amendment's guarantee that the federal government shall not deprive a person of life, liberty, or property without due process of law. Equal protection, in its simplest definition, simply means that laws are supposed to protect people equally. For obvious reasons, however, laws cannot always treat people equally. Government programs to benefit the poor, for example, obviously treat the poor differently from the wealthy. Programs to benefit children treat children differently than adults or they have no effect. Clearly, the government often needs to classify people in order for laws to be effective. Equal protection analysis by courts focuses on whether the classifications the government makes unfairly classify people.

In reviewing a classification, a court applies one of three different standards to a law or action. Each of these standards asks what the goal of a law is and how well the government has chosen a method to reach that goal.

Rational Basis Scrutiny: Rational basis scrutiny is the lowest level of scrutiny the court can apply. Applying this test, a government classification is acceptable so long as it is rationally related to a legitimate government interest. The government interest need not be a particularly good one, so long as it is a goal that the government may legitimately pursue. The classification chosen need not be an especially effective way of reaching that goal, so long as there is a rational connection between the classification and its goal. Because this standard is so low, courts applying this standard almost never overturn the government's classification.

Intermediate Scrutiny: Intermediate scrutiny is a rarely used standard of review. Courts applying this standard overturn a government classification unless it is substantially related to an important government interest. Here, the government's interest must be more than legitimate as required by the rational basis test, and the classification chosen must be more carefully tailored to meet that goal.

Strict Scrutiny: Strict scrutiny is the highest standard a court can apply in deciding whether a government classification violates a person's right to equal protection. To withstand strict scrutiny, a challenged classification must be necessary to a compelling government interest. Here the means chosen must be so carefully tailored that the action is absolutely necessary and no less restrictive means exist. Also, the government's interest must be compelling, not merely optional or important. Courts applying this standard rarely uphold the challenged classification. Given these three very different standards, the most important question in most equal protection cases is which of these standards the court applies in reviewing a classification. Plaintiffs alleging that a classification violates equal protection almost always lose if the court applies a rational basis test and they almost always win if the court applies strict scrutiny. The standard that applies is determined by the kind of classification the court reviews. Most challenged classifications receive rational basis scrutiny. The following classifications receive special treatment.

Suspect Classifications

Suspect classifications are subject to strict scrutiny. A classification is called suspect because it is likely to be based on an illegally discriminatory intent. The clearest example of a suspect classification is race. History shows that most laws that use race as a way to classify people are based on racial discrimination and have no legitimate purpose. Racial classifications are automatically suspect, so the court applies the highest level of scrutiny and almost always strikes down racial classifications. There is no fixed list of which classifications are suspect, but the Supreme Court typically treats as suspect any classification based on a trait Racial and ethnic classifications are the two suspect classifications most often given strict scrutiny. For example, suppose the State of Minnesota creates a law that says African-Americans have to pay more for drivers' licenses than non-African-Americans. The state might claim it passed the law simply to raise more revenues, but a court reviewing the law under strict scrutiny would strike it down because the classification is not necessary to a compelling purpose. The need for more revenues might be a compelling interest, but a racial classification is not necessary to raise those revenues. The state has other ways it can raise revenues, perhaps by increasing the cost of drivers' licenses for everyone. Suppose, instead, the state passes a law that says people over age 40 have to pay more for driver's licenses than people under age 40. Age is not a suspect classification, so a court reviewing the law would not apply strict scrutiny. A court applying the rational basis test would likely find the law constitutional because it is rationally related to the legitimate government interest in raising more revenues.

Classifications That Infringe Fundamental Rights

A number of rights considered fundamental interests also receive the protection of strict scrutiny when a government classification limits these rights. Fundamental interests include most voting rights, marriage, and procreation. For example, suppose a state decides to reduce the amount of money spent on public education by refusing to enroll children born to mixed-race couples. A court reviewing this law would strike it down. Limiting public spending might be a compelling government interest but discouraging mixed-race couples from having children is not necessary to achieve that goal because there are other ways to limit spending that do not infringe the fundamental right to marry and procreate.

Semi-Suspect Classifications

Courts apply intermediate scrutiny to a limited number of classifications. Gender classifications, classifications that distinguish between legitimate and illegitimate children, and racial classifications intended to benefit a disadvantaged racial group are examples of semi-suspect classifications. For example, suppose a state decides to create an affirmative action program for Asian-American firefighters because it had discriminated against Asian-American firefighters in the past. A court reviewing this classification would likely apply intermediate scrutiny and ask whether the program is substantially related to the important government interest in remedying its past discrimination. The court's decision would likely turn on how well the state tailored the program and how fairly it implemented its provisions.

Due Process

The Fourteenth Amendment to the United States Constitution says that no state shall deprive a person of life, liberty, or property without due process of law. As mentioned earlier, the Fifth Amendment similarly requires the federal government to provide due process. The right to due process is actually two separate guarantees�procedural due process and substantive due process.

Procedural Due Process

Procedural due process is the guarantee that the government will not deprive a person of life, liberty, or property without first giving the person some amount of legal process.

The court uses a two-step balancing analysis to decide procedural due process claims. First, it asks whether there is a property or liberty interest at stake. No process is due unless a person has a liberty or property interest at stake. If a court finds that there is a liberty or property interest at stake, it then asks what process the individual deserves, weighing the private interest, the public interest, and the risk of error from the method chosen by the government. The following examples can illustrate this analysis.

Example 1: A person applies for a job with the federal government and is turned down with no opportunity for appeal. The applicant claims he or she was denied procedural due process. A court would likely determine that the applicant was not denied procedural due process as he or she had no liberty or property interest in the job yet. Merely hoping for a job does not equal having a property interest in it so no procedural process is due from the government.

Example 2: A person working for a state agency is fired after receiving repeated warnings about inadequate job performance and given opportunities to improve. He or she claims a denial of procedural due process. Here a court would likely find that the employee has a legally protected interest in keeping his or her job. The court would then ask whether the employee received adequate process weighing the public interest in having competent employees, the employee's interest in keeping his or her job, and the risk of an unfair termination given the process provided. States are aware of their obligation to provide procedural due process, so they establish detailed procedures for employee evaluations. If the person actually received warnings and reviews were fairly done, the court is likely to find there was no denial of procedural due process.

Example 3: A person receiving food stamps is suddenly denied benefits without any right to appeal. He or she claims a denial of procedural due process. Here a court is likely to find the recipient has a legitimate property interest in continuing to receive assistance and that the risk of unfair termination was high because the recipient received no legal process at all.

Substantive Due Process

Substantive due process is the right to be free from arbitrary or unreasonable government actions. Modern Supreme Court decisions have used substantive due process analysis to decide challenges to government restrictions on personal rights.

Privacy

There is no right to privacy specifically mentioned in the Constitution. The words "privacy," "abortion," and "contraception" do not appear in the literal words of the Constitution. However, some court decisions have read a right of privacy into other explicit guarantees, such as freedom of association and freedom from unreasonable searches. The right of privacy includes a right to abortion and contraception. Decisions affecting the right of privacy are almost always controversial and recent cases have cast doubt on how future courts will analyze substantive due process challenges to these rights, but the following general points stand out.

Sexual Orientation

Courts do not interpret the right of privacy beyond abortion and contraception to include all forms of sexual activity and personal autonomy. For example, the Supreme Court upheld one state's law criminalizing homosexual activity. Thus, the right of privacy is not broad enough to protect homosexual activity. This is an area where state laws can provide greater protection for a person's civil rights than the federal Constitution provides. Minnesota has state laws that prohibit many forms of discrimination based on sexual orientation.

Refusing Medical Treatment

Courts have found that the right to refuse medical treatment for one's self is a fundamental right. Thus, many states have passed legislation governing living wills. Living wills are discussed in the Elder & Social Security Law Chapter. Refusing medical treatment is discussed further in this chapter under free exercise of religion.

Military

Persons serving in the military have less protection of their civil rights. Courts use more lenient standards when reviewing actions taken by the United States military because several Supreme Court decisions say that the legal system must give the military broad deference for the military to function. Thus, many actions which would be unconstitutional if taken by private parties or a civilian branch of government are not unconstitutional when taken by the military. This explains why the military is allowed to exclude women from many combat positions, can seize and hold military personnel without extending many of the civil rights protections offered to suspects arrested by state police, and has broad authority to exclude homosexuals from serving their country. Because the courts are usually reluctant to overturn military decisions, civil rights advocates often have to turn to the President, who is commander-in-chief of the military, to change military policy.

State Action

The Fourteenth and Fifteenth Amendments to the Constitution limit what states can do. As previously mentioned, the Fourteenth Amendment says that no state can deny any person within its jurisdiction the equal protection of the law. The Fifteenth Amendment says that states may not deny citizens the right to vote on account of race, color, or previous servitude. These amendments do not reach the actions of private parties. Thus, in order to strike down an action under these amendments, a plaintiff must show that the action is state action. Some examples of state action are clear. When the state, its counties, municipalities, or state-operated institutions act, those actions are clearly state action. Less clear are actions by private institutions receiving public funds. The lines are murky, but in some cases, the actions of such private institutions are considered state action.

Freedom of Speech

The First Amendment to the United States Constitution guarantees the right to free speech. Like other rights already discussed, the right to free speech is not absolute but must be measured against other rights. Following are some examples of how the right of free speech may be limited:

Obscenity

Obscenity is not a protected form of free speech, but most non-obscene speech is protected. The reason obscenity is such a controversial area of constitutional law is that people disagree on where the line is between obscene and non-obscene communications. Courts consider a communication obscene if it meets a three-part test: The definition permits different decisions in different parts of the country or state and at different times because it uses contemporary community standards to judge communications. An item might be obscene in Duluth but acceptable in Minneapolis. An item considered obscene a decade ago might be legally protected speech today.

Private Possession

Private possession of obscene material is not punishable. Private possession of obscenity is protected by the right of privacy, so states cannot punish possession, although they are free to punish the distribution or display of obscene material.

Zoning

Even though they cannot regulate the content of books, magazines, and entertainment, states and municipalities are given very wide latitude to regulate where bookstores, movie theaters, and places of live entertainment can operate. Here the right of free speech conflicts with the state interest in orderly planning, so the two interests must be accommodated.

Child Pornography

The Supreme Court recognizes that individuals have a free speech interest in materials that portray children in a sexually explicit manner. The Court also recognizes that the state has an important interest in protecting children from sexual exploitation. Therefore, any depictions that use actual children in a sexually explicit manner can be prohibited. Depictions that use older actors pretending to be children or that use idealized drawings are protected speech.

Commercial Speech

Commercial speech is speech that advertises a product or service for profit or for a business purpose. Commercial speech is entitled to much less protection than non-commercial speech. Specifically, misleading commercial speech or commercial speech which is a proposal for an unlawful transaction have no protection under the law. Otherwise, the courts give diminished protection to commercial speech weighing the government's interest in restricting a particular kind of speech, whether that interest is directly advanced by the challenged restriction, and whether a less restrictive option is available.

Freedom of Religion

Many people mistakenly believe that the federal Constitution requires a wall of separation between church and state, and are surprised to learn that the phrase "wall of separation" is not found in the Constitution. The Constitution does not mandate a complete separation between church and state. Clergy persons can hold public office, religious colleges can receive public grants, and the government can require a church to install smoke detectors or other safety equipment. Religion and government play important roles in the lives of many people and the two often overlap, yet the Constitution guarantees religious freedom.

The Constitution's guarantee of religious freedom has two thrusts. The federal government is forbidden to establish a state church and individuals are guaranteed the right to freely exercise their religion. Like the other rights discussed in this chapter, these rights are not absolute.

Establishment

The Establishment Clause forbids the establishment of a state church. Cases arising in this area frequently involve whether the state can give aid to a religiously affiliated institution, such as a Christian grade school or a Jewish hospital. Courts usually ask three questions when hearing challenges to government support of religiously affiliated institutions: Using this test, courts have upheld programs that only incidentally benefit religious schools, such as free busing, but struck down programs that directly benefit the schools, such as paying the salaries of private school teachers.

Free Exercise

Cases that allege an infringement of the right to freely exercise one's religion are decided using a three-part balancing test that considers: Cases decided in this area have produced a few general principles. First, strong government interests can completely override a religious belief. For example, a strong government interest in encouraging monogamy was enough to allow the government to forbid polygamy in the 19th century even though some Mormons believed their religion required polygamy. Second, free exercise claims are stronger when they involve one's own actions than when they involve one's children. For example, freedom of religion allows adults to refuse medical treatment, but a state can often intervene on behalf of children and force parents to seek medical treatment for their children, even where medical treatment violates the parent's religious beliefs.