American Constitutionalism in Historical Perspective (packet)

Powerless minority: not entirely powerless, they do vote, but they lack an organizing force.

Mental Retardation: concerned about community distaste for retarded people, though d/n find it to be as suspect as race. Ct more willing to handle this than w/ mental illness but d/n want to declare it as a suspect class (closer to aging). Should leave this to politics to draw lines.

1. 
   Immutable: has genetic factors, may be immutable.
   
2. 
   Salient: generally not, people may look normal.
   
3. 
   History of Prejudice: there are nat laws combating this so has been clearly recognized as issue.
   
4. 
   Irrelevant to legitimate state purpose: isn’t always irrelevant that you are retarded, may be relevant for the state to differentiate on this basis in order to protect the interests of the mentally retarded. Leads to reluctance to declare this a suspect class.
   
5. 
   Powerless minority: a/n powerless b/c natn’l legislation has been passed on their behalf.
   
   1. 
      Cleburne v. Cleburne Living Center, Inc., 1985: court strikes down local zoning decision requiring a special permit only for a home for the mentally retarded using rational basis analysis. Though the court appears to apply a higher level of scrutiny. The facts suggests the community is targeting the mentally retarded for constitutionally unacceptable reasons and is irrational hatred that we d/n permit. Marshall dissent: mental retardation involves issue of suspectness that deserves intermediate scrutiny. Not just rational basis or strict scrutiny as majority asserts.
      
6. 
   Why not extend heightened scrutiny to cover mental illness? Slippery slope of covering everything, vague definitions of what it constitutes. Long history of stereotyping of mentally ill. But not salient, not immutable (may be treated), politically powerless (large numbers of ppl w/ mental illness, acts passed on their behalf) or irrelevant (limited capabilities so relevant).