pancakes3 wrote: ConfusedL1 wrote: pancakes3 wrote:
TheWalrus wrote:Under Double Jeopardy and Blockburger, if you are acquitted of burglary, can you be subsequently tried for armed burglary? They have a different element, the armed part, and I'm kind of confused to how that works.
each crime needs a distinctively different element from the other. all of burglary's elements can be found in armed burglary, so it fails blockburger.
This works both ways right? I.e. if you were charged for armed burglary and acquitted you can't be charged for burglary.
My understanding is that you can't go up OR down the chain if the elements match up.
Puffman1234 wrote:Can someone explain this to me? Con law substantive due process/equal protection question.
This was a question on the Themis simulated MBE:
Concerned about problems caused by overpopulation, a state legislature enacted a statute imposing
criminal penalties on any person who is the biological parent of more than two children. The stated
purpose of the statute was to preserve the state’s natural resources and improve the quality of life for the
state’s residents. After the statute took effect, a married couple who already had two children conceived a
third. After the wife gave birth to this child, the couple was arrested and convicted under the statute.
Which of the following is the strongest argument for voiding their convictions?
Two answers were clearly wrong. The remaining two were
(1) The statute places an unconstitutional burden on the fundamental privacy and procreative rights of married persons.
(2) The statute denies the couple their Equal Protection Rights.
The answer was #1, which I picked. I thought about picking #2, though. In the Themis answer explanation they say that the EP answer is not correct because the class is not suspect so all that needs to be satisfied is the rational basis test. I was thinking about this as I went to sleep last night.
In the Themis outline, it states that non-suspect-class-based discrimination is still subject to strict scrutiny where the use of the classification burdens fundamental rights. So, for this question, strict scrutiny seems like it should apply to the equal protection claim. While "people with 2 children" is not a suspect or quasi-suspect class, the classification is being used to burden this non-suspect-class' fundamental rights.
Also, the outline suggests that where a problem suggests that all person's fundamental rights are being burdened, we should go for substantive due process, but that when only some person's fundamental rights are being burdened, we should go for equal protection. Isn't the latter exactly what's happening in this question? Anyways, don't these two claims just overlap? I don't think you have to show that a law would universally deny a fundamental right to everyone else to show that it's violating YOUR substantive due process rights, do you? If you went to court on these facts you'd just allege both claims, and both would be viable, if somewhat redundant?
So in this question, both substantive due process and a equal-protection-burdening-of-fundamental-rights should be avenues for a claim, shouldn't they, and actually, EP is a better fit if you're supposed to go for EP when non-suspect-classifications burden fundamental rights?
1) you can't really pin the suspect class on "people with more than 2 children" since that's the consequence of the law rather than the class being discriminated against. everyone's being affected by this law. a law that says "you can't eat broccoli" doesn't create a suspect class of broccoli-eaters.
2) SDP is used heavily to justify marriage/privacy/right to procreate stuff so alarm bells should be going off for SDP.
I agree that there has to be an extra layer of classification over "people whose fundamental rights are burdened," but in this case the class is "people who have more than two biological children." A person with one or no biological children wouldn't be affected so there's a classification beyond those whose rights are burdened. The Themis answer seems to acknowledge this, because it states that "people with more than 2 biological children" is a non-suspect class for EP purposes and that therefore the only EP test to apply is rational basis. I don't think that's right.
In your example, if eating broccoli were a fundamental right and the law said "people with more than 2 biological children cannot eat broccoli" but it didn't forbid anyone with one or no biological children, or any number of non-biological children, from eating broccoli, that wouldn't mean there wasn't a classification. It'd just be a non-suspect classification, which also burdened that non-suspect classification's exercise of fundamental rights while not burdening any other people's fundamental rights.
As far as I can see the only time a law will ever truly burden fundamental rights without any reference to some form of classification, be it suspect or not, is if it bars EVERYONE from something. If a state passed a law that said "NOBODY can have kids" that's 100% pure substantive due process. But if it made ANY non-suspect classification on who that law would apply to, then a member of that class (assuming standing) would have an as-applied substantive due process claim and an EP burdening-the-fundamental-rights-of-a-suspect-class claim.
That's just my take on it. If I'm totally wrong then I'd like to know why. If I'm not totally wrong then I hope the MBE questions are better written.