Tests For Constitutionality of Law or Ordinances

Balancing of interest test

  • a test used for weighing which right is more important (i.e. liberty rights are more important than property rights)sample:A applied for a job in B’s company; B will accept in condition that A will not join unions, A accepted the offer.
    Officers of union invited and A joined;
    B removed A due to violation of a contract;
    A argued that she signed it because she needed a job

    A and B have right to contract (property right) vs. A’s right to join an association (liberty right);
    – liberty right prevails

    Is signing the contract a waiver of right?

    Problem: labor code, illegal contract – yellow dog contract; cannot prevent an employee to join labor union;
    Policy of state: encourage unionism; industrial peace; to protect greater interest of workers

Test for a valid Ordinance

  1. It must not contravene the Constitution or any Statute
  2. It must not be unfair or oppressive
  3. It must not be partial or discriminatory
  4. It must not prohibit but may regulate trade
  5. It must be general and consistent with public policy
  6. It must not be unreasonable

Test for reasonable/valid Classification

  1. It must be based on substantial distinctions which make for real differences
  2. It must be germane to the purpose of law
  3. It must not be limited to existing conditions only
  4. It must apply to all members of the same class

Three levels of scrutiny of judicial review

  1. Rational Basis Test/Reasonable Connection Test
    – When there is a reasonable connection between the classification and state interest or purpose of law
    – Used when issues involve property rights
    – Need to identify the Medical, Empirical, Scientific, and Statistical bases whether the intention is germane to the purpose of law
  2. Clear and Present Danger Test / Strict Scrutiny Test / Dangerous Tendency Test
    – liberty right – involves restriction to freedoms
    – involving speech; free exercise of religion; travel; privacy
    Note: religion and speech are rights higher than life and liberty
  3. Intermediate Scrutiny Test / O’Brien Test
    – When issues involve gender neutrality or equality
    – when it involves important state interests
    – Content Neutral Regulation

The Precautionary Principle

  • When there is a good reason to believe that there is a threat of serious and irreversible damage to health or the environment, the lack or full scientific certainty shall not be a valid excuse to postpone the employing cost-effective measures to prevent the damage.3 elements to use the precautionary principle:
    • uncertainty of threat – no application if it can be prevented because of certainty
    • such uncertainty may lead to serious threat  or damage to health or enviornment – if not serious damage, no application
    • there is irreversible damage – no application of this principle if it can be reversed

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