Rights set out in original document 1. 2. 3. 4. 5.

Habeus Corpus No Bills of Attainder: Statutes aimed at criminalizing a particular person/particular persons behavior No ex post facto law: after the fact / retroactive punishment States: Do not impair the obligation of contracts a. May do so prospectively b. Intended to prevent states from getting involved in bankruptcy Article IV Section 2: Priviliges & Immunities Clause: State A may not act prejudicially towards State B a. Guarantees personal mobility. STATE TONYA, NICOLE OZZY NJ 11TH

#1-#3 SPEAK TO STATES OR FEDERAL GOVERNMENT? ORIGINAL JURISDICTION CITIZENS OF ONE STATE AGAINST

ANOTHER

IE

AND

SUE

I. JUDICIAL REVIEW / FEDERAL JUDICIAL POWER

Article III: Defines the power of the Federal Courts

A. The Power to Review

1. Const. does not expressly create the power of judicial review a. Marbury v. Madison 1803: Creates the authority of the Federal Courts to review the constitutionality of federal legislative and executive actions It is the province and duty of the Judicial Dept to say what the law is. Constitution is supreme over Federal Statutes 2. Early 19th c. series of decisions: SCotUS created authority to review constitutionality of State & Local govt decisions 3. Requirement of Cases and Controversies to be justiciable it must be a Case or Controversy

B. Limitations on Jurisdiction
1. Congress Art. III power to limit SCotUS and lower court federal jurisdictions Article III 1: Supreme Court is only court explicitly created by Const.
o Its for Congress to flush out the rest of federal judiciary.

Article III 2, Clause 1: Scope / Subject-Matter of judicial power

a. Present Statutory basis for SCotUSs jurisdiction i. Original Jurisdiction: Article III 2 and 28 U.S.C.A. 1251- Invoked sparingly but always percolating 1. State v. State controversies Limited mainly to this. 2. In which the State is a party States can only be a party if they consent.
3. Ambassadors of the U.S.

4. Concurrent jurisdiction (original but not exclusive jurisd) a. Actions in which ambassadors or consuls of foreign states
b. c. United States v. States Actions by a State against the citizens of another state or against aliens

ii. Courts of Appeal, Certiorari 1254 1. Certiorari optional review

2. Certified Questions expedited matters

a. Pre 1988: (2) Mandatory Review (Review by appeal) SCotUS avoided making decisions by
various means and (2) Review by Certiorari in SCotUS
1

b. Post 1988: SCotUS review is discretionary, certiorari approach b/c caseload was so huge and
they needed more screening of cases. So SCotUS gets to control its own docket.

b. Supreme Courts original Jurisdiction i.

Marbury v. Madison: Rule: Implicitly, Article VI 2 gives SCotUs authority to review acts of Congress and determine their constitutionality. But Congress does not have power to enlarge power of SCotUS beyond this a. SCotUS did not have original jurisdiction to issue writs of mandamus

b. In 13 of Judiciary Act Congress attempted to give SCotUS original jurisdiction in cases not
explicitly delegated to it by the Const., which Congress had not right to do ultra vires

c. Supreme Courts Appellate Jurisdiction i. Art. III 2, Clause 2: The Exception Clause: Where case originates: Original v. Appellate jurisdiction
3. Congress cant expand original jurisd of SCotUS, but can ask it to share jurisd.(org but not exclusive)

ii. Ex Parte McCardle (1869): Congress passes law giving judges pwr to grant writs of habeus corpus allowing
appeals to go directly to Cir Ct then directly to SCotUS. During this time McCardle is in military custody for libel, files for writ but by time it gets to SCotUS, Congress repeals law.

1. Rule: Congress may selectively vest and divest SCotUS of appellate subject-matter jurisd 2. Side Note: Guantanamo Cases habeas corpus appellate cases that SCotUS hears, but are sui
generis (unique unto themselves)

d. Lower Federal Court original and appellate jurisdiction i. Article III 1 Clause 2: gave Congress the ability to create all lower courts (by Statute), so they have ability to
selectively vest and divest these courts of their subject-matter jurisd.

ii. Martin v. Hunters Lessee (1816): Congress must vest all judicial power. So they must create inferior courts so
that all judicial power in original and appellate jurisdiction is all there. State and Natl govt are not = sovereigns. The Supremacy Clause gives SCotUS power to override state courts to secure a uniform system of law.

iii. Sheldon v. Sill (1850): Const. (Art. III. 2. Clause 1) describes the outer limits of Judicial Power, but doesnt
explicitly state how much the Circuit Courts get. If Congress has power to create lower courts and grant jurisdiction, Congress also has the power to take jurisdiction away. Courts cant claim jurisdictional power not granted to them by statute. iv. Can Congress threaten federal courts with taking away power? Sure they can. (School busing, abortion, etc.)

2.Justiciability a. Constitutional Limitations (Cases and Controversies) versus Courts Prudential Self-Limitation i. Art. III limitation: no jurisd if not C or C (this is the outer universe) To be justiciable it Must be Case or Controversy ii. Prudential Self-Limitations: Courts have ability to limit their own jurisd as a matter of good judgment. A very developed and complicated jurisprudence.
SCotUS can say: It may be a C or C, but this particular case may not present the best . V. Important pre-1988 Had to give public reasons why it did not take Case A, but took Case B. SCotUS Decisions are more important than Common Law Cases
2

Common Law Decisions: represent general rules and binding in their jurisd. Illustrate principles of law. SCotUS: Represent a gloss of the current meaning of the Constitution. The cases ARE the law.

iii. Cases or Controversies Requirments 1. No Advisory Opinions 2. Ripeness 3. Mootness 4. Standing b. Rule Against Advisory Opinions
i. SCotUS is a court of law and we do not decide the validity of texts outside Cases or Controversies.

ii. No collusion Cherokee test cases were manufactured by Statute so Supreme Court would decide on them 1. Muskrat v. United States (1911): Congress passes law that affects Cherokee status and land
ownership. To test its Const. validity, Statute provides for a test case allowing members of the Cherokee nation to bring a suit with right of appeal to SCotUS. Congress handpicks s

a. RULE: The exercise of the judicial power is limited to "cases" and "controversies." No
Statutorily manufactured test cases, b/c SCotUS doesnt want to do dry runs on legislation to ensure their Const. This would amt to making advisory opinions, which SCotUs may not do. b. c. Declatory Judgments, however, are okay as long as they present an actual controversy Collusion: Congress handpicked s and paid for all legal fees. Conflict of Interest

c. Ripeness; Mootness; Colluisve suits

i. Ripeness: May the fed ct grant pre-enforcement of a Statute or Regulation? 1. To challenge a law, usually you have to violate it.

2. Declaratory Judgments when challenges law w/o violating. Ct must assess if this is really a CorC
a. 3. Hardship will suffer w/o pre-enforcement review

Fitness of the issues and the record for Judicial Review: Is the Fed Ct better off waiting for actual case before deciding? Or is it purely a question of law?

4. Boyd v. International Longshoremen: Statute says all aliens must re-apply for entrance to US if they
leave continental US. Aliens who want to fish in Alaska territory ask INS for interpretation of statute. By time it gets to SCotUS, INS says fisherman apply. SCotUS says, we have to wait for someone to actually violate the statute to hear the case.

a. RULE: to fulfill ripeness requirement, the issue must be ripe at the time the suit enters the
Federal Court System. It doesnt matter if its ripened by the time it gets to SCotUs.

ii. Mootness: If events after filing of suit/injury end the s injury, the case shall be dismissed as moot.
1. must present a live controversy, that is ongoing injury at every step in adjudication
3

2. Exceptions: Wrong capable of repetition, IE Roe v. Wade. Has to be a wrong against YOU? 3. DeFunis v. Odegaard (1974) sued Law School claiming he was denied admission despite higher
scores than some minorities who were admitted. By the time SCotUS hears case, has been admitted to the school and is one semester from graduating.

a. HOLDING: Issue is moot and therefore SCotUS will not rule on it. The controversy between
parties had "clearly ceased to be 'definite and concrete'

d. Standing i. Is the is the proper party to bring the matter to the court for adjudication?
ii. Four requirements for standing

1. Injury personally suffere and likelihood of future harm

2. Causation and Redressability

3. No 3rd party standing cannot bring the claims of others who are not before the court 4. No generalized grievances IE, I sue the govt as a citizen/taxpayer objecting to policy e. Political Question Doctrine
Congress and Prez to address and not for SCotUS to second guess.

. . . . A p. important topic. . . .

i. There are Allegations of const. violations that federal courts will not adjudicate .Political questions are for 1. An example of Prudential self-limitation by SCotUS a. Baker v. Carr (1961): s bring EP claim under 14th b/c since 1901 TN leg failed to pass leg
to redraw voting districts, resulting in highly disproportionate representation from county to county. HOLDING: Issue was justiciable b/c it does not raise a political question but a 14TH Amend question of one person, one vote. As long as issue is framed as a Constitutional issue, it works.

2. Issues that are left to the Legislature to resolve

a. b. c. Cases under the Art. IV Republican Form of Govt Clause Challenges to Prezs conduct of Foreign Policy, IE Challenges to Vietnam War dismissed Challenges to Impeachment & Removal Process

d. Challenges to Gerrymandering (Jurassic Park Just b/c you CAN, doesnt mean you Should) i. Whether or not SCotUS will hear gerrymandering is a Prudential Self-Limitation on.
SCotUS will only hear cases that represent ii. Racial/Ethnic Gerrymandering

1. Gomillion v. Lightfoot: Law altering the shape of the city of Tuskegee to

remove all but 4 or 5 black voters but only one single white voter is unconst under 15th Amend right to vote. If something falls squarely under 14th or 15th, then Court CAN get involved.
4

2. Shaw v. Reno States cant draw districts to HELP racial/ethnic groups

gain voting control iii. Political Gerrymandering

1. Gaffney v. Cummings 1973 Court refrains from ruling on validity of

political gerrymandering

2. Davis v. Bandemer: 1986 Redrawing plan that diluted votes was

justiciable under Equal Protection b/c it minimized electoral strength. But rejected this issue as a violation b/c too subtle to decide. But, if there was Extreme political gerrymandering the court would step in.

3. Vieth v. Jubelierer 2004 Rejected Davis. Nonjusticiable b/c theres No

judicially discernable/manageable standard to apply. Congress can step in if they want. *Is this the State the of Law?*

II. SEPARATION

OF

POWERS (AMONG

THE THREE FEDERAL BRANCHES)

A. Interrelationship of Executive and Congressional Branches 1. Introduction: Constitutional and other Sources of Executive and Congressional Power Two sources of Power: o Constitution Article I 8 Power to Congress Article II 2 Power to President o Interstitial Rule-Making Article I 8 Clause 18 - Implied Powers give Congress power to create Fed agencies a. Enumerated, Implied and Inherent Powers i.
Article 1, 1 Bicameral Legislative Power: All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

ii. Article I 7 Clause 3: Presentment Clause: every Order, Resolution, or Vote to which the Concurrence
of the Senate and House of Representatives may be necessaryshall be presented to the PotUS.

iii. Article 1, 8 Enumerated Powers. Clauses 1-17 specifically enumerate Congresss powers
Clause 1: Taxation Congress holds purse strings to limit Prez power & funds

b. Congress Elastic Clause i. Art. 1, 8 c. 18 Elastic Clause All Necessary and Proper = Implied Powers

*Not a source of power in itself but gives Congress power to execute all foregoing enumerated pwrs Allows stretch of Congress and Federal powers Clause 18 gives Congress additional implied powers question is how elastic? Implied powers: MCulloch v Maryland (Hamilton, established national bank not mentioned in the Const. but still necessary and proper.)
5

c.

Inherent Presidential Powers

i.

Article II: Structure suggests that executive power vested in Prez is broader than the Enumerated powers granted to Congress.

limits)

Article I: All leg pwr herein granted shall be vested in a Congress (enumerated powers) Article II: The executive Power shall be vested in the President . . . (lots of room to decide scope /

Foreign Affairs: Executive Agreements is biggest example of Inherent Prez Powers Natl security and protection of citizens abroad

Domestic: not so much

2. Structure of the Executive Branch

a. Article II Only creates the President and the Vice President, No discussion of Structure of the rest of Executive Branch b. Like the Federal Judiciary, Congress will flesh out the rest of the Executive Branch by Statute. c. Article I 7 Clause 3: Presentment Clause i. Statutes require approval of Prez or 2/3 vote in both houses to override veto d. Presidential appointments of executive officers need to be confirmed by Senate e. Quasi-Judicial function

3. Delegation of Power from Congress to the Executive Branch a. As a necessary aspect of execution of laws
i. President can make appointments of Officers, but Congress vests appointment power of inferior officers

ii. Prez has to take care that laws be faithfully executed - Power to execute self-operative provisions of Const iii. Application: Bare-boned statutes are handed over to administrative departments Hey, put some flesh on this skeleton Put some federal regulations on this statute to give it more specific meaning. So for
every Statute there is a corresponding set of regulations drafted by exec branch and approved by Congress

iv. Quasi-Legislative Powers: Congress delegates rule-making pwrs to Exec Agencies & creates the funds
for agencies. . . Power granted through N&P Elastic Clause.

v. Interstitial Rule-Making a fancy word to that used to describe what they did.
1. 2. 3. Regulations have same force and effect as the Statutes enacted by Federal Govt (Congress) itself. Code of Federal Regulations (CFR) Many of these regulations include Legislative Veto Mechanism

vi. Foreign Affairs: Implicit that he has power to conduct the Foreign Policy of the US? 1. Make treaties
6

2. 3.

Appoint and Receive Ambassadors (decides which foreign govts are legit) What about Executive Agreements? Presz can enter into armistices that dont rise to level of treaties a. B/c theyre Temporary, and sometimes time is of the essence, and sometimes we dont want to dignify the actions of a govt with a treaty (IE, Iran) and Trivial Matters that dont need to be in a treaty (IE, How to handle International Mail to and fro)

4.

Yet none of this is explicitly described in Art. II, but no one seems to argue with it

b. The Delegation Doctrine; Historical Perspective and present-day Limitations

i. In theory, Executive Branch is supposed to execute powers of United States

ii. Historical Background: After FDR and New Deal Fed Govt got complicated, and departments that
were allowed to flesh out laws themselves. B/c Prez and Congress arent experts enough to figure out all the meaning of all this stuff themselves iii. Old RULE: Congress cannot delegate its power

iv. Schecter Poultry (sick chicken case): Court holds that in order to delegate further, Congress must have
articulate some sort of intelligible principle.

1. NRA (National Recovery Administration) Under New Deal - Create any statute you think will
stimulate the US economy. NRA began to create extremely specific statutes including second grab at chicken coup if 1st chicken was sick. Case tested how constitutional this statute was.

2. Court citing the Bracton theory stated that if the Constitution gave Congress power to create
statutes, then congress does not have power to delegate further to create quasi-legislation.

3. The Court proposed the use of the modified Bracton theory as the baseline for the modern day
Delegation Doctrine: Delegated power cannot be re-delegated to executive agencies for this type of rule making unless there is some sort of intelligible principle.

v. New Rule: Congress may delegate its powers, because thats the world we live in. As long as the statute
contains an Intelligible standard to guide Executive action.

c. Congressional Oversight Committees and Presidential Signing Statements

i. Oversight Committees: We like this bill, Yay or nay

1. Congressional oversight refers to oversight by the United States Congress of the Executive
Branch, including the numerous U.S. federal agencies.

2. Congressional oversight refers to the review, monitoring, and supervision of federal agencies,
programs, activities, and policy implementation

ii. Short-cut mechanisms to express approval / disapproval of Legislation

1. 2. Avoids time consuming to approve each rule and regulation created by admin agency So admin agencies in their quasi-leg capacity review rules before they go into full effect

3. If no oversight committees, Congress would have to go back, repeal statute and enact a new one

iii. Signing Message: If Prez given bill out of Congress and likes A, B, C, D but doesnt like E, He can sign
the entire bill into law but then issue statement saying, Btw, I dont like E, I think its unconst., and Im going to advise my people not to execute them.

4. Other Checks and Balances a. The Presidential Veto: Normally applied to whole statute i. Line-Item Veto See Below. b. The Legislative Veto: If Congress doesnt like the Regulations the Administrative Agencies make, they dont want
to go back to Square One and draft a whole new Statute. So instead, let us have a look-see before it has the force and effect of law Legislative Veto Mechanism is a provision included in most Interstitial Rules i. INS v. Chadha (1983): Immigration and Nationality Act allowed Immigration Judge to suspend deportation and AG to submit to Congress a suspension of deportation for any alien set for deportation. Congress my Unicamerally overrule AGs suspension and deport. SCotUS says, No, you cant do it this way. An act that authorizes just ONE house of Congress to invalidate a decision of the Executive Branch is an unconst. Violation of Separation of Powers 3. 4. Statute avoids the Presentment Clause: no opportunity for possible veto by president No bicameralism

ii. After Chadha, Legislative Veto Mechanisms are no longer valid No more shortcuts, no matter what the
modern realities. The Judicial and Executive branches do not work for you, Congress!

5. Chadha is a bit of an odd example to illustrate Executive Branchs quasi-legislative function. Here the
Executive Branch (the Article I Immigration Judges) is serving more of a Quasi-judicial function. iii. Contingent Delegations: Still allowed. Mechanisms in statutes that tells executive branch, If you see situation A, you should do this. . . (This is what the Chadha case really looks like.)

c. Congress Spending Power; The Line-Item Veto and Presidential Impoundment i. Line Item Veto: Granted to Clinton for Budget Control Bills to gain control of a bloated natl budget.
Congress says, sign it and you tell us which sections you dont like and take it out.

ii. Clinton v. City of New York (1998) SCotUS is NOT impressed: not for Congress to delegate to Pres the
power to line item veto the text of bills. Line Item Veto is Unconstitutional

iii. Presidential Impoundment: In some situs, Prez may refuse to spend money that Congress authorizes and
appropriates for programs. Validity of this power is still a bit unclear.

1. Power to Impound > Power to Veto. Unlike Line Item Veto, no action is sent back to Congress to
override. President can adjust amts of $ impounded. With LIV: Prez can just say yes or no.

2. Example: Nixon hated that Congress gave money to EPA, didnt want EPA in the executive
branch and literally tried to freeze out the agencies by refusing to give them $

3. Impoundment Control Act: Prez can drag his feet to spend $, but Congr has ability to nudge him.
a. Reflects power struggle b/t Leg & Exec: Congress in charge of purse strings for agencies and can abolish agencies if it wants to. Prez can choose not to spend $$ for agency

d. Appointment and Removal of Executive Officers

i. Appointments:
8

1. 2.

Appointments to positions are made by President: Ambassadors, Fed Judges, Officers for the US All positions in the Govt are created & funded by Congress a. b. Cong may vest the appt of inferior officers in others Inferior Officers: one who could be fired by an Officer of the US. i. Example: AG can fire a federal judge. c. Congress may not give itself appointment power

3.

All positions must be confirmed by a majority vote in the Senate

ii.

Removals

1. Congress sometimes want to shield Exec Offs from arbitrary removal so as to allow them to
perform their quasi-Judicial or quasi-Legislative powers.

2. Unless removal is limited by a federal statute, the Prez may fire any Exec branch official. At high
levels Prez is deemed to have unfettered discretion to remove officers. (IE, I need someone better than Hillary at her job. = OK)

3. All other Levels: Congress can effectively insulate the offices below the high-ranking cabinet
offices, including ones that are affecting quasi-judicial and quasi-legislative powers by specifying what the grounds for dismissal are. But Congress cannot participate in that removal process. (And thats what happened in Bowsher) a. Congress is allowed to insulate officers who are indepent of Prez, like independent counsel who investigates Presidential wrong-doing

4. *Bowsher v. Synar (1986): Statute allowed Comptroller Gen to make mandatory budget cuts if
maximum allowable deficits were exceeded and also allowed Congress to remove Compt Gen. The Statute, by giving Congress the power to treat CG as if hes a member of exec branch and the power to remove him from office gives Congress unconst power of an Executive function.

5. *Free Enterprise Fund v. Public Company Accounting Oversight Board (2010): Another
wrinkle. Sarbanes-Oxley created a double-layer of insulation for members of PCAOB board. Board Mems are inferior officers apptd by SEC Commissioners and SEC Commissioners are apptd by Prez. Members can be removed for-cause, but Act does not give Prez any power to determine if cause exists. Unconst violation of Separation of Powers.

6. Effects? Free Enterprise Fund addresses an issue that has been lurking in the background
creation of a v. large and complex Fed Beaucracy, much of which is exercising quasi-Jud/Leg powers = Emergence of a de facto 4th Branch of Govt of Independent Agencies, which the Constitution never anticipated and therefore Court isnt able to recognize its existence. a. Congress is saying, We created your executive office, let us have a look see.

b. And President is saying, Why are you depriving me of my power by trying to exercise control over my Branch? c. So Court here is trying to finally starting to address the issue of over-independence of these independent agencies.

5. Presidents Inherent Powers

9

Article II 1: The Executive power is vested in the President of the United States Prez has powers inherent in the position that are not specifically enumerated in Constitution.

a. Domestic versus Foreign Affairs i. In Re Debs (1895): Pullman Strike in RR hub of Chicago posed threat to natl economy so Prez Cleveland
seeks an injuction to prevent strike. Eugene Debs says the injunction is Unconst b/c Congress gave Prez no statutory authority to bring injunction against labor Strike

1. Holding: Injunction Constitutional. Not only did Prez have inherent authority that went
beyond anything delegated by Congress or enumerated by Art.II, but particularly in anything that seems specifically Natl (or Intnatl).

2. Note: Commerce Clause would have authorized Congress to delegate such power to President
Contingent Delegation Grover, if you see a labor strike, you are authd to seek injunction. Youngstown v. Sawyer(1952): SCotUS attitude about Prez Inherent Pwr changes somewhat. Prez issued Executive Order directing Sec of Commerce to take possession of steel mills to prevent a nationwide strike. Prezzes of Steel Mills bring suit saying that seizure wasnt authorized by any Act of Congress or Const. provision. SCotUS says Prezs order directing Sec of Commerce to seize mills was Unconstitutional, but highly divided on Why. 1. Congress is allowed to enact legi seizing mills, but Prez cant use Exec Order to do same thing 2. Commander-in-Chief role is being stretched too far. Were at war, but this is mostly a domestic issue and not an emergency 3. *Three Zones of Analysis (Jacksons Concurrence, p. written by Rehnquist) a. Congress approves of what President has done (express or implied) ok for Prez to act b. Twilight Zone Congressional Inaction (were really going to have to look ad hoc at the circumstances). But Jacksons tilt seems to be that inaction generally = approval. (Korean War Prez needs strong power to step in & make decisions. If Congress is going to be indifferent in times like this, then lets allow Prez to do it) c. Congress disapproves of what President has done (express or implied) Not OK b. With Congressional support, acquiescence, or disapproval (*Jacksons three zones of analysis?) i. Dames & Moore v. Regan (1981): After Iranian hostage situation Carter blocks removal of all Iranian govt prop from US. brings against Iran b/c Iran banks owe him $3.5M. Hostages are released in exchange for termination of all litigation b/t govts (go to arbitration instead). Reagan suspends all claims. 1. HELD: Prez is authorized to suspend litigation by informal Executive Agreement

ii.

6. Foreign Affairs a. Executive Conduct of Foreign Affairs

i. President, as Commander-in-Chief, has broad powers to use Amer troops in foreign countries President may make proclamation prohibiting sale of arms to Bolivia/Paraguay. says embargo is unconst.

ii. United States v. Curtiss-Wright Export Corp. (1936): Congress passes joint resolution stating that if he wants, 1. HELD: Prez proclamation and Congressional Res were valid exercises of Contingent Delegation 2. But SCotUS gives many other foreign-affairs-related reasons why Proclamation is valid to get
around the Intelligible Delegation Principle in the Schecter Sick Chicken case

a. Basically they say that Prezs powers is something different in foreign affairs than in
domestic stuff. Give Prez more leeway when conducting foreign affairs b. They may be inferring that Prez may have acted w/o Congressional resolution
10

c. Whenever the power of Prez in Foreign Affairs is questioned, language of this case
will be invoked. Even though the quotable parts are almost all dicta

i. A power which does not require as a basis for its exercise an act of Congress
ii. Exercised in subordination to the applicable provisions of the Const.

b. Treaty Power and Executive Agreements U.S. Constitution

Federal Statutes and Regulations

Federal Treaties

Statutes and Treateis are COEQUAL subordinates to the Const. And latest expression of a Sovereign Will trumps an earlier

Executive Agreements

All State Law

i. Art II 2 Power to make treaties is expressly delegated to Prez 1. Treaty: an agreement b/t US and foreign country that is negotiated by Prez and effective when ratified by the Senate a. b. c. State laws that conflict with treaties are invalid. If conflict b/t a Treaty and a Federal Statute, the one adopted Last in Time prevails Treaties are invalid if they conflict with the Const.

ii. Executive Agreement: an agreement b/t US and foreign country that is effective when signed by Prez and head of foreign nation no Senate ratification necessary.

1. May be used for any purpose, but usually in 3 instances

a. Time is of the essence b. Dont want to recognize the govt or sanction their activities c. Involve matters that are not of the level of treaty signing EAs prevail over State Law but NEVER over Federal Law.

2.

iii. Art. VI makes treaties supreme law of the land. If Treaty is Valid Statute is valid as nec and proper
means to execute treaty

1. Example: US-BR make bird treaty Congress executes treaty by passing Migratory Bird Act iv. Missouri v. Holland (1920): MO says that US-BR treaty prohibiting the capture and kill of Migratory birds
violates 10th Amendment b/c in absence of the Treaty theyd be free to regulate birds w/in their borders

1. Held: Act does not violate 10th Amend. Because states agreed to Consts provision granting
Treaty power to Prez and Congress. (There is a bootstrapping effect of the Treaty Power it enlarges federal power over states by making treaties that must be enacted thru Leg.)
11

a. Problem with this reasoning is that it makes 10th Amendment read like a Residuary
Clause in a will and conceivable makes Federal Plenary Power Unlimited

i. Ex: 100 to A, 200 to B and everything else to C. Whats everything else? v. Reid v. Covert (1952): SCotUS invalidates Executive Agreement b/t Br and Jp providing for Court Martial
of civilians who have committed capital offenses abroad as violation of 5th and 6th Amend. (US doesnt want them subj to BR or JP law, but BR and JP dont want them sent back to US either.) SCotUS rules that Prez can make treaties and EA, but he may not do so free of the Bill of Rights

vi. American Insurance Association v. Garmendi: EAs are superior to State Law. European Ins. Cos set up
a superfund to contrib. $ for Holocaust deaths so as to lower resistance to entering Amer. Market. Prez makes EA w/ Germany saying this superfund is ok.

vii. Medellin v. Texas (2008): International Court of Justice tells US that state courts are violating Vienna
Convention by not notifying consuls when foreign nationals are arrested and this entitles them to have their convictions review. Prez W issues a Prez Memorandum saying that state courts should give effect to ICJ decision. Medellin files another habeas petition to have his conviction review, but State denies.

1. HELD: Ws memo was an invalid attempt to enforce a non-self-operative treaty that had not
been ratified by Congress. B/c Congressional ratification necessary, Ws memo has no binding authority on State Courts.

c. Committing Military Forces to Action i. The War Powers Resolution (1973): Prez can intro forces into hostilities w/o dec of war, but must issue report
to Prez pro tempore of Sen and Speaker of House 1. Has 60 days to terminate use of force unless Congress authorizes force, extends 60 days or is unable to meet b/c of attack on US Status of this is up in the air? Works as a one-house veto mechanism (Chadha?) Prez wants support of Amer. People and views/vote of Congress may more adequately reflect this? SCotUS may view this as guideline indicating Congressional attitude towards how Prez should do stuff. May be too political to make a decision on . Not enough constitutional guidelines for Court to make a judgment on this.

2. 3. 4.

ii. Why war isnt decd more often is prob for same reason Executive Agreements are used instead of Treaties dont want to dignify the enemy with a declaration of War.

iii. Iraq Wars Both Bushes asked Congress for Contingent Delegations authorizing use of the armed forces
goes beyond War Pwrs Resolution, in that it first goes to congress before initiating action.
d. Detention of Enemy Combatants, Citizens and Aliens; War Crimes Trials

i. Hamdi v. Rumsfeld (04): US citizens detained as enemy combatants are entitled to only lmtd process. ii. Boumediene v. Bush (2008): Exec needs auth to detain ppl who pose real threat to natl security, but not at ultimate cost of
habeas Guantanamo Cases are all sui generis and wont be tested.

III. DIVISION OF POWERS (BETWEEN

THE

FEDERAL

AND

STATE GOVTS)
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A. Introduction: Supremacy Clause & Tenth Amendment Reservation of Powers; Preemption Issues
1.
Article VI 2: Supremacy Clause: The Const. and the Laws of the U.S. which shall be made in Pursuance thereof; and all Treaties made, or which shall be made under the Authority of the U.S. shall be the Supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Const. or Laws of any State the Contrary notwithstanding. a. If theres a conflict b/t Federal law on the one hand and State/Local law, Federal law wins out and State/Local law is Preempted i. Express Preemption: If a fed stat explicitly says that federal law is exclusive in this area, then State/Local laws are preempted ii. Implied Preemption: Even if a federal statute is silent, there may still be preemption a. If Federal Law and State Law are mutually exclusive where it is impossible to comply with both - State law is deemed preempted b. If a State interferes with a Federal objective, then the State law is deemed preempted c. If Congress evidences a clear intent to preempt S&L laws, then S/L laws are preempted iii. States may not tax or regulate Federal Govt activities 10th Amendment: Reserved Powers Clause: :The powers Not Delegated to the US by the Const, Nor Prohibited by it to the States, are Reserved to the States respectively, or to the people. Article I 8 Clause 3: Commerce Clause: Congress shall have power to regulate commerce with foreign nations, and among the several States and with the Indian Tribes. a. One of the major vehicles for Federal Plenary Power (seems like EVERYTHING is the CommCl!)

2. 3.

B. Federal Plenary Power under the COMMERCE CLAUSE The Affirmative side of the ComCl
1. Power to Regulate Transport of Goods in Interstate Commerce a. Historical Context: Federal Govt did not originally get involved at all with actions b/t local buyers and
sellers. Fed Govt, did however have the Police Power to get involved in matters of Health, Safety and Welfare. Plenary Power- absolute power with no review or limitations. IE Presidential pardons c. In Commerce Clause cases, SCotUS will look to the Validity of the Federal Action i. Gibbons v. Ogden (1824): Ogden purchases exclusive NY State license to operate steamboat of NY waters. Gibbons runs steamboats from NJ to NY and has federal license to do so. NY State court enjoin Gibbons from running his steamboat in NY waters. a. NY: 10Th Amend gives states powers not given to Congress. Therefore, (1) State has Concurrent power to regulate interstate commerce and (2) there was no conflicting federal statute the Pre-Empted the state monopoly licensing law. b. Gibbons: There is no concurrent power b/c ComCl grants Congress Absolute power to regulate interstate commerce, with No room left for the States. And even if there was concurrent jurisd, there IS a Pre-Empting federal statute governing licensing that conflicts c. RULE: A state may not by its laws or acts regulate commerce among the several states. i. Majority: Accepts the Pre-empted law argument and gives a narrow read to the case. Begs question, what happens if Fed licensing law taken away? ii. Johnson Concurs: Commerce Pwr is exclusive. If the Fed Licensing law were repealed tomorrow, Gibbons would still be able to take his boat to NY

b.

ii.

Two Different Lines of Analysis: a. No concurrent/overlapping powers b/t Fed and State i. Intrastate Commerce 19th C. Apple growers growing and selling in NY was thought
to be something that Fed govt couldnt regulate

STATE Federal

ii. Court soon realizes that non-overlapping circles are unworkable today. Critical argument is that there may be concurrent jurisdiction to step into the overlapping zone, assuming that theres no conflicting/pre-emptive fed statute. b. Overlapping/Concurrent Powers in the Commerce Realm New Model

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i. Affirmative Commerce Clause 1. 2. How broad is Fed Pwr to regulate commerce? Can Federal circle pacman the red one?

3. Cooley v. Board of Wardens (1851): States may exercise a localized, nonpreempted jurisdiction over Commerce. States can step in and regulate Interstate Commerce where there is diverse treatment. Commerce is a vast field that can accommodate both a blanket natl law for every port and for diverse ports based upon local conditions. Concurrent, non-conflicting jurisd.

4. The Daniel Ball (1871): Parties involved in the transporting of goods from
one state to another are involved in ICC even if they themselves do not leave the state. What matters is if the goods are crossing boundaries, not the people.

a. Navigable Waterways Theory: Even if its INTRAstate travel on

federal waterways, the actions can be regulated by the ComCl. ii. Dormant (Negative) Commerce Clause Issue:

1. S/L laws are unconstitutional if they place an undue burden on IC.

a. 2. SCotUS has inferred this from ComCl.

If there are no preemptive fed statutes and there is State power, does the ComCl nevertheless emanate signals to the States, asserting limits on States powers? Sure does.

a. Wabash v. IL (1886): IL tries to set INTERstate RR rates an

exercise of Dormant Concurrent Non-Preemptive jurisd, essentially stepping into a vacuum of Federal Regulation and reaching out and into the states around them.

i. HELD: This type of regulation is only amendable to federal

leg. unlike diversified, localized Pilotage (Cooley). There may be a vacuum, but States, you may not step into it.

b. 1887 Creation of Interstate Commerce Commission (another

example of Interstitial Rule Making and Contingent Delegation) c. In the wake of Wabash questions come to Courts concerning ability of States to set INTRAstate rates for transport of goods and SCotUS says, Sure thats in the red circle.

d. The Shreveport Case (1914): TX RRs are giving better rates to travel
w/in TX than to go out of state, so that Dallas and Houston can compete with Shreveport for E. Tx business. ICC tells RRs it cannot do that. SCotUS affirms, ICC has the power to regulate RRs INTRAstate rates to eliminate discrim against out of staters

i. Conceptually, this case goes farther than the Daniel Ball

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iii. Is there any zone exclusive to State regulation where Fed govt cannot reach via the
commerce clause? There are some inherent limitations. The blue circle used to pacman the red circle, but not so much anymore. iv. Today we know there IS a Concurrent Realm subject to Federal pre-emption, but it is Extraordinarily broad. As soon as we use the word commerce to describe regulation the blue circle almost entirely encompasses the red circle

2.

Power to Regulate the Economy Production of Goods a. Pre-1937: Limitation to regulating Direct Effects on commerce excludes Fed Govt from regulation of Production i. ii.
1890: Sherman Anti-Trust Act Fed govt starts to flex its regulatory muscles. But ComCl does not extend to attempts to monopolize US v. E.C. Knight 1895: Fed govt tries to enjoin purchase of 4 sugar refineries that would create near monopoly. EC Knight says that production is a purely intrastate matter and beyond Fed Govts power to regulate. SCotUS agrees.

a. Harlans Dissent: If Congress can regulate Commerce, then it should be able to remove restraints on
Interstate commerce, such as Monopolies

b. SCotUS: Regulation of production is a State matter. But b/c of the broad read on the 14th
DPC, theyre really not going to regulate it very much either.

iii. 1890s-1937: The Doctrine of E.C. Knight Small read on the Commerce Clause, BIG read on Due Process
Clause. Economically conservative, laissez-faire oriented Court reads Fed Comm Pwr to be a small one and does not permit very much regulation by either State or Fed govt.

a. Production of Goods: SCotUS is on States side of the Commerce Fence

b. Instruments of Transport: SCotUS is on the Federal side of the Commerce Fence

c. HOWEVER, States regulation is still subject to the Courts BIG read on the 14th Amendment DPC.
d. =Federal Govt is in Courts handcuffs over Commerce Clause and States are in Courts handcuffs over Due Process Clause.

iv. Protective Prohibition as a Limited Federal Power to keep Products deemed noxious out of Interstate Commerce a. Protective Prohibition: Power of Fed Govt to choke off arteries of interstate commerce from
transport of goods that Congress does not approve of. So while, States may still regulate production of goods, Fed govt can freeze out from across state borders stuff that it finds noxious. 1. Lottery Case (1903): Transport of lottery tickets by independent carriers constitutes commerce that Congress may regulate under commerce clause. 2. Hippolyte Egg Case (Pure Food & Drugs): Congress may pass Pure Food and Drug act to prevent impure foods/drugs from being transported from State to State 3. Hoke Case : Govt can prevent traffic of women for sex trade. 4. Brooks Case (Kidnap Victim): Human beings can be the subject of Protective Prohibition. Fed govt is saying practice is noxious, not the people being transported. 5. Hamer v. Dagenheart (Child Labor Case) (1918): Congress may not eliminate Child Labor within state by regulating Interstate commerce of the goods child labor produces.
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Struck down as ultra vires. Court takes a very different tack from Lottery, Pure Food & Drugs, Prostitution and Kidnap

b. Post-1937: The Doctrine of Substantial (cumulative) economic effects creates a conceptually LIMITLESS FEDERAL COMMERCE CLAUSE POWER i.
1936 FDR threatens to pack court with more activist justices to counterbalance the older laisezz faire judges. Psychological Impact Court turns 180 degrees in a matter of years on Due Process and Commerce Clause analysis. Doctrine of E.C. Knight and Direct and Indirect Effects Test begins to burst wide open. Up to this point Court has knocked down over 400 State statutes attempting to regulate production as a violation of Due Process, creating perhaps too much deference to the federal govt regulation?

ii.

a. Democrats in Power are Pro-Labor. Labor is huge constituency and good way to stimulate econ.
Enterprises that were once regional, are now national and subject to Federal Regulation.

iii. Dam Breaks: Development of the Substantial (Cumulative) Economic Effects Doctrine a. NLRB v. Jones-Laughlin Steel (1937): Natl Labor Relations Act gives employees right to
unionize. violates by firing union employees and NLRB orders to rehire w/ back pay.

1. Held: NLRB Order upheld. Acts that directly obstruct IC are w/in reach of congressional
power. Its the effect upon commerce, not the source of the injury that is the criterion for Congress action.

2. TEST: Activities may be interstate when considered separately but if they have a Close &
Substantial relation to IC, Congress cant be denied pwr to exercise control. b. SCotUS justifies federal regulation of the circumstances of Production

c. United States v. Darby (1941): Overrules Hammer by upholding newly passed Fair Labor Standards
Act which creates a baseline for MGMT to follow for work standards. Creates 2 possible violations: (1) If we catch you at the border with these goods youre in trouble. (2) If we find evid that you produced goods w/ attempt to transport Interstate youre in trouble.

1. *E.C. Knight officially overruled (?) 2. RULE: The power of Congress to regulate Interstate Commerce extends to
INTRAstate activities which have a Substantial Effect on Interstate Commerce.

1. Effects must be analyzed in the aggregate. Small potatoes producers like

Darby cant opt-out by saying, Im just one lumberjack, Im too small to have an effect on the national economy. SCotUS will respond, But if we let YOU do it, then well have to let all the lumberjacks. And that will have a substantial Cumulative effect on the natl economy.

d. Wickard v. Filburn (1942): Agri Adjustment Act 38 passed to control volume of wheat moving in
IC and avoid surpluses, shortages and prices. Sec of Agr implements a compulsory marketing quota and Filburn harvests 239 bushels in excess of quota and is fined. He says, This is just for my family. Im not selling it.

1. HELD: Homegrown wheat for personal use is an influential variable in the market and
therefore must be regulated as well. If Filburn eats his excess bushels, and all the other farmers eat their excess, then many wheat consumers will be taken out of the consumer market resulting in a substantial effect.
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iv.

At this point in time, Commerce Clause seems to be a doctrine of potentially Limitless Federal Plenary Power. Conceptually it seems that Fed Govt can use the Commerce Clause to regulate EVERYTHING. a. Red circle may be almost entirely within the Blue circle?

v.

Development of the Conceivable Rational Basis Test a. Congress started to use the Commerce Clause to address discrimination in Deep South, where they
couldnt use 14th Amendment EP to get at non-state actors.

b. Heart of Atlanta Motel v. United States (1964): Title II: Prohibs discrimm in places of public
accommodation. Hotel located near interstate highway is violating the ComCl thru Title II of Civil Rights Act 64 by discriminating against black guests. SCotUS says that Record is replete with evidence of the burdens that discrimination places upon interstate commerce Black ppl will stay home and not spend $$ if theyre uncertain theyll be able to find a hotel that will take them.

c. Katzenbach v. McClung (Ollies BBQ) (1964): Harder case for court to make. Restaurant says that
if they allow black ppl into restaurant, theyll lose the rest of their customers and as a result $$ and negative effects on ICC. SCotUS says Nope. Title II applies to all restaurants so playing field is level in that all restaurants are being forced not to discriminate.

d. United States v. Carolene Products (1938): Famous Footnote Four. Points to the end of SCotUSs
Activist anti-regulation era and the beginning of the era of Judicial Self-Restraint 1. Theres a difference b/t legislation that regulates ordinary economic activities and legislation that curtails important personal liberties.

1. Constitutional authority of State and Fed Leg to regulate economic matters is

Plenary, so laws passed to regulate such matters is entitled to a presumption of Constitutionality as long as they serve any conceivable rational basis. 2. Presumption of validity, however, does not apply to certain categories of noneconomic leg, such as leg that restricts the political process, discrimms, etc.

c. The modern (two-pronged) Conservative Counter-Revolution: Re-imposing limits on federal Commerce Clause Power i. Prong 1: State Sovereignty as a Limitation

a. National League of Cities v. Usery (1976): State Soverignty Wins! First suggestion of a counter-rev.
New leg to extend Fair Labor Standards Act from private companies to federal and state employees, telling States what they are to pay their employees. Rehnquist:

1. Of course State employee pay has Substantial cumulative effects on IC, but 2. State Sovereignty is a Countervailing Doctrine that pushes back on Fed Pwr
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3. And 10th Amendment isnt there for no reason: not a residuary clause
4. Policy Argument: S/L govts know their local workforce better ex. MT p. wants to pay its park rangers more and NY their police force more.

b. Garcia v. San Antonio Metropolitan Transit Authority (1985): State Sovereignty Loses! Another
flip in another case involving FLSA: State ownership of mass transit is a traditional State govt function and therefore immune from FLSA as ruled in Usery. Liberal Blackmun overrules Usery:

1. Only real check on Federal CommCl Power is a Political One State citizens may elect
their Fed Senators and Congressmen

2. The TEST for determining state immunity from federal regulation under ComCl is not
whether the state activity sought to be regulated is a traditional state function, but rather whether the regulation as applied to the state activity is destructive of state sovereignty or violative of any constitutional provision. 3. Rehnquist: State sovereignty will be back when I get one more vote, dammit.

c. New York v. United States (1992) Fed govt takes Carrot & Stick approach to getting States to
regulate radioactive waste generated by private plants. If states dont dispose of waste, they must take title to it and are held liable for it. NY sues. OConnor reaffirms Doc of State Sovereignty:

1. State Sovereignty requires non-coercion by Fed Govt take title provision is unconst.b/c
Federal Govt cannot command state to enact Legislation 2. Conditional Funding OK Fed: States if you want our funds, agree to our rules.

3. *Cooperative Federalism States may regulate according to federal guidelines. If States

refuse, federal law will use CC to preempt them. 4. RULE: Congress cant compel States to enact or enforce Federal Regulatory Program

d. Printz v. U.S. (1997): Interim provision of Brady Act requires local law enforcement officer to
conduct background checks & provide written statements that pending sales wouldnt break the law. Scalia: Anti-Coercion: Provision is unconstitutional. Congress cant circumvent the Rule of NY v. US by directly conscripting the States individual law enforcement officers

1. Liberal Dissent: Asking State officers for temporary assistance is hardly coercion. Framers
intended for States to help Fed govt with their regulatory Law.

ii.

Prong Two: Rediscovering inherent limitations in the doctrine of Substantial Cumulative Economic Effects The MODERN Commerce Clause a. United States v. Lopez (2000): Fed Gun Fee School Zones Act exceeds the power of Congress to
legislate under the Commerce Clause possession of a hand gun in a local school is not an economic activity. Guns in classrooms have nothing to do with Commerce. And regulating/criminalizing handgun possession is a Classic example of State Police Power. b. Establishes Three Broad Categories Congress may regulate under its Commerce Power

1. Use of Channels of Interstate Commerce

2. Instrumentalities, Persons, Things of Interstate Commerce
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3. Activities having Substantial Relation to Interstate Commerce

c. Under Carolene Rational Basis test, might court have argued that kids avoid schools if there is no
gun-free zone Less educated population Lowered GNP Likely not an argument for Conservs

d. United States v. Morrison (2000): Rehnquist: Violence Against Women Acts provision for a fed
civil remedy for victims against GBV is an unconstitutional exercise of Commerce Clause (and 14th) 1. Gender-motivated crimes of violence also do not constitute economic activity and therefore Commerce Clause does not vest Congress with authority to enact a statute regulating it

2. (14th Amend protects actions by State Actors. State Action is missing here.) e. Gonzalez v. Raich (2005): Fed Controlled Substances Act authorizes Congress to use regulatory
Commerce Pwr to seize and destroy marijuana plants CA residents were growing for medicinal purposes, under CA state Compassionate Use Act, b/c they claimed there was a established, lucrative, albeit Illegal, INTERstate market

1. SCotUS says that the federal power is valid, not withstanding Lopez/Morrison, b/c the court
says its similar to Wickard, production of both wheat & marijuana is specifically quintessentially economic and thus w/in the scope of the commerce clause

2. As distinguished from Lopez/Morrison where statutes regulated non-economic activity

3. SCotUSs Jurisprudential views do not match its Ideological views in this case.

C. The Dormant or Negative Commerce Clause: Implied Limitations on State Power to Exercise a Concurrent, Non-Conflicting Regulatory Jurisdiction over Interstate Commerce
1. Introduction: Recap of the Early Cases a. Gibbons v. Ogden: NY could not exercise concurrent power under the commerce clause by issuing a state monopoly
license for the use of steamboats in NY.

b. Cooley v. Board of Wardens: Local steamboat pilotage statute upheld. SCotUS affirms, that yes There is a zone of
Concurrent jurisdiction b/t States and Federal

c. Wabash v. IL: Illinois cant set interstate railroad rates even though there is no federal statute. States may NOT
exercise their concurrent powers with RRs. This regulations is Amenable only to national uniform regulation, even if there is no federal reg yet.

d. Two Main Themes to Dormant Commerce Clause Analysis i. Hey, States, Dont discriminate against other States ii. Hey States, Dont excessively burden Interstate Commerce e. Negative implications arise in the fact that the Federal govt. has power rather than the states, such that there is a
shadow over state power even if there is no federal statute that regulates commerce issue. f. State Powers under the Commerce Clause: i. States May: Exercise Police Power Create legislation in an area where there is concurrent, nonconflicting regulatory jurisdiction in regards to IC to protect health, safety, welfare, edu of citizens
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ii. States May NOT: Create legislation where Constitution gives Federal Govt powers to legislate even when
there is no conflicting, preemptive regulation. (IE, Like the RRs.)

2.

State Regulation of Interstate Transportation a. South Carolina v. Barnwell (1937): SC Statute banning oversized trucks from State highways b/c regulating
state highways is so peculiarly of local concern. Plus Congress had not yet invoked CommCl to implement natl standards on highways, so SC had a right to act in absence of fed leg. The law was carefully drawn and applied equally to intrastate and interstate travelers. based on local safety issues and at the time there was no interstate highway system.

b. Southern Pacific v. Arizona(1944): AZ statute limiting Trains to specific car lengths violated CommCl b/c it
placed an unconst. Burden on IC.
SC v. Barnwell Rationality of States Regulation Safety Issues So. Pacific RR v. AZ Slack action; trouble rounding curves. Not a proven theory that slack action. Trains would have to reorganize at each state border, or follow the state with the shortest train length reqs Court is 2nd guessing States judgment. More trains arent safer than fewer, longer trains Trains more amenable to natl treatment In-State issues not impacted the way Outof-State interests are. But in-staters dont Benefit either.

Negatively Impact I.C.? State Health, Safety etc. Interest RATIONAL? (rationality with some teeth in it. ) Subject Amenable to Diverse Treatment?

Most out of state trucks dont meet reqs No interstate highway sys at time, so state not getting fed aid to maintain roads. Understanding of local conds.

Trucks seen as more local SC trucks were basically stuck in their driveways; Impacted both SC trucks & Outside trucks No discrimination of out of staters.

Local Interest adversely affected?

Constitutional?

c. When may states regulate in the Vaccum? i. Is there a burden on Interstate Commerce? ii. Is the safety interest Rational? 1. Asserted Purpose v. a. b. c. 2. Compelling purpose Substantial; Important Purpose Rational or legitimate Purpose (a very low test after 1937)

Ends-Means Analysis accords with all three tiers.

iii. Is the subject amenable to diverse localized treatment?

iv. Are in-state interests adversely affected in the same way out as out of states?
**The Rational test is a very week test nowa days, so rational was probably not the best choice of words, even at the time of Barnwell. Kassel later makes clear that you need a lot more than merely a Rational Test.

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d. Bibb v. Navajo Freight Lines (1959): IL statute reqing a different kind of mudguard on trucks/trailers unconst b/c
costs and burdens of adjusting to new guard were too great. Local Safety concerns in this case dont outweigh interests of I.C. in this case b/c IL req is so diff from other states reqs .

e. Kassel v. Consolidated Freightways (1981): IA law restricting size of commercial trailer trucks but allowing border
cities to adopt local ordinances permitting such trucks was Unconst violation of I.C. Benefits border cities but discourages Interstate travelers from benefits of IAs highways.

i. States interest is rational, just as SCs was when there was no natl highway system, but by esting limits
in their states, theyre effectively setting standards for ALL states, therefore Interstate Highway system and truck regulations are more Amendable to National Regulation or no regulation at all Fed steps in and preempts State laws

ii. Balancing Test: Rational Safety purpose must be weighed against and Overcome Burdens to IC System.
1. 2. 3. The non-discriminatory issue is also a positive but not decisive factor alone Local v. Natl must also be taken into consideration But Safety v. Burden to ICC is most important

3.

State Regulation of Incoming Commerce: burdening the market of extra-state goods, and favoring intrastate enterprises, competing for sales to instate consumers a.Taxation and Licensing i. Shreveport Case manipulating RR rates so that rates were unfairly low EX of affirmative CC power ii. Dormant Side: Adding a tax is the most obvious way to burden out of state goods.
1. 2. 3. 4. Cant burden incoming commerce w/ a tax that makes it less competitive (direct tax) Cant tax peddlers who peddle out of state goods (indirect tax). Ban out of state goods (No) Licensing

b. *Minimum Pricing and Sales Tax Equalization i. Price Equalization = NOT OKAY ii. Tax Equalization = OKAY
iii. 1930s Laissez Faire SCotUS doesnt like Govt reg and price-setting despite econ atmosphere

iv. Nebbia v. NY (1933): State law sets minimum price for milk, b/c unless you put a floor on prices, mfgs will stop producing and children will die. Somehow in this case, the conversative court buys the argument, despite having struck down 400-some other State regulations. So Cheap milk floods into NY. v. **Baldwin v. G.A.F. Seelig: (1935) Cardozo: As result of serious deflationary price cycle created by Nebbia, NY passed law that extended state price protections to milk shipped in from out of state. Price equalizations schemes are unconstitutional.
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1. Sims: So whats the point of allowing NYs minimum pricing scheme if its not allowed to defend it? *shrug. Seelig is still good law. vi. Henneford v. Silas Mason (1937): WA State statute taxed chattels brought in from out of state. Does not
violate I.C. b/c you dont want to incentive citizens to avoid sales tax by buying products out of state. 1. Not a price equalization scheme, a Tax equalization scheme, which are generally upheld

2. Things acquired or transported in interstate commerce may be subjected, when once they are at rest, to
a nondiscriminatory tax upon use or enjoyment.

3. Only thing being equalized was sales tax factor in Henneford; Baldwin was trying to equalize the
ENTIRE pricing structure for milk.

c. Health-oriented import Restrictions

i. Regulations that interfere with IC may be struck down if they are not ABSOLUTELY necessary to health and safety.

ii. Mintz v. Baldwin (1933): Where not prohibited by Federal Stat, NY State ban on out of state cattle to
prevent spread of Bangs diseases is Constitutional. Banning on import is okay health grounds.

iii. Dean Milk v. City of Madison (1951): Classic example of discrim against out-of-state middlemen.
Madison, WI ordinance bans sale of milk that has not been pasteurized w/in citys five mile radius under rationale that it has interest in protecting health/safety by regulating milk.

1. Unconstitutional: Although State has interest in protecting Health/Safety, by regulating milk it may not
impose regulation that discriminates if nondiscrim alternatives are available. (IE, This is not absolutely necessary. why not just inspect outside milk?) 2. NOTE: Dormant CC only protects IL pasteurizers. In state pasteurizers outside the 5 mile radisu would have to bring claims under Equal Protection/Due Process but with a very weak rational basis test that probably not work. So their best recourse would likely be a political one lobby state leg.

d. Masking Discrimination: General Tax coupled with Subsidization of Instate Producers i. West Lynn Creamery v. Healy (1994): MA taxed all milk sold in state and redistribd money to MA
dairy farmers, but not to out-of-state farmers who produced 2/3 of MAs milk.

1. Unconstitutional: Remitting a tax in the form of a subsidy is the same thing as a discriminatory tax
system to begin with. Tax nondiscrim but remittance only went to one group of tax payers.

4. State Regulation of Outgoing Commerce: Restrictions on access to local products and raw materials; Hoarding
State A Valuable Resources $ In-State Consumers $$$ State B $$$ State C

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Thou shalt not discriminate in favor of your own people. If SCotUS suspects any hoarding of goods after benefit of local consumers are met, they will put their foot down! A-C are examples of types of hoarding/state restrictions on exports.

a. Export Price Control i. Milk Board v. Eisenberg Farm Products (1939) Converse of Seelig case. PA Law fixes minimum
price that milk dealers must pay to state producers even if dealers are buying for out of state resale.

1. Constitutional. Did not pose a prohibitive burden on IC b/c amt of milk going out was incidental.
Design to protect local economic interests.

b. Pre-exportation processing requirements i. Foster-Fountain (1928) LA Shrimp Act made it illegal to ship shrimp from LA if the heads and shells
had not been removed, basically requiring that shrimp be processed in state before taken out of state 2. Unconstitutional.

c. Preventing the Exportation of Natural Resources (hoarding) i. H.P. Hood & Sons v. Du Mond (1949): NY denied MA company license to est. milk receiving station 3. Unconstitutional. System fostered by ComCl is one in which every person will have free access to
every market in the Nation. Want to discourage state rivalries and reprisals that will occur if states are allowed to enact local protectionist measures.

ii. Pennsylvania v. WV WV sent natural gas to PA after all WV citizens needs were met. Unconstitutional. iii. Hughes v. Oklahoma (1979) OK statute barred export of minnows that were caught in natural waters of
the state. OK says its a conservation measure but SCotUS says 4. 5. Unconstitutional. State is hoarding minnows that can be used for commercial purposes (cat food) Overturns traditional exception to Dormant CC animae ferae naturae Common law vests title to AFN in state and state may set terms by which AFN are taken out of State and privatized.

5. The Market Participant Exception a. Definition : Where state itself is either a Seller or purchaser of goods/resources it may discriminate. b. Reeves v. Stake (1980) Out-of-Staters claim SDs state-owned cement factory was discriminating against them
during natl shortage by charging less for in state purchase of cement and more for out of state.

i. ii.

Constitutional. SD has entered market as a producer, not a regulator. Plus Cement is not a natural resource, limestone is. And SD is only using a small portion of it to create cement. Sims: Sends the wrong signal about market participant exception?

c. Hughes v. Alexandria Scrap(1975) MD wants to stimulate scrap-processing so subsidizes the purchase of instate
scrap. First invocation of market Participant Exception.

i.

Constitutional. MD has right to enter consumer market as buyer and to discrim in favor of its own ppl.

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d. South-Central Timber v. Wunnicke (1984) AK law requires buyers of state-owned timber to partially process it
in-state before taking it out of state.

i.

Unconstitutional. Alaska is acting like a market participant and a market regulator. Its projecting its market participant status downstream into other states.

e. Commonwealth Edison v. Montana: MT gen coal severance tax reqs everyone to pay 1/3 value back to MT i.
Constitutional All coal miners must pay, plus mining puts huge environment burdens on state so MTs rational basis met.

f. United Haulers Assoc v. Oneida-Herkimer (2007) NOT a classic market participant exception. County
ordinance reqs delivery of all solid waste to a publicly owned local facility.

i. ii.

Constitutional - Does not impose a substantial burden on IC plus all private facilities are treated same Pike Test: Garbage collection is traditionally a public benefit

g. Dept of Revenue (KY) v. Davis (2008): State provision providing an income tax exemption for interest on bonds
issued by the state, while denying exemption to interest on bonds issued by other states doesnt violate Dormant CC.

i.

Constitutional - Bond proceeds are a "quintessentially public function," and therefore likely motivated by legit state objs other than simple economic protectionism. These objectives outweigh any negative effect the tax may have on interstate commerce.

6. Article IV Privileges and Immunities Clause Compared to Dormant Commerce Clause a. Introduction
i. Definitions: a) Dormant Comm Cl Principle: State/Local laws are unconst if they place an undue burden on IC. b)Art 4 P&I: No state may deprive citizens of other states of the P&I it accords its own citizens. An anti-discrimination provision.

c)

Privileges OR Immunities of the 14th Amend ALWAYS the wrong answer unless the question involves the right to Travel. B/c SCotUS gave it such a Narrow read in the Slaughterhouse Cases, it effectively wrote it out of the Const. (Not the Blockbuster that wed expected!)

ii. iii.

Key Question: Does the State/Local law discriminate against out-of-staters? Analysis of the State/Local Law does Not discriminate a) Article IV P&I does not apply b)If the law puts a burden on ICC, it violates DCC if burdens on IC outweigh the benefits of the law. 1. Mud flaps on trucks Didnt discrimm but Unconst b/c it didnt satisfy Balancing test.

iv.

Analysis if State/Local law DOES discriminate against out of staters a) If a law puts a burden on IC, it violates DCC unless it is Necessary to achieve a Compelling State Purpose. Must show that no less a discriminatory alternative can achieve this objective
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1.

Exceptions: a. Congress Approval once they approve, theyve acted & no longer dormant

b. Market Participant Exception

v. Article IV P& I a) Applies only if theres discrimination against out-of-staters b)Discrim must be in regard to Civil Liberties or to Earning ones living. c) Corporations and aliens may not sue under Article IV P&I

d)
interest vi.

Discrimination will be allowed only if it is Necessary to achieve a Compelling govt

Personal mobility as original purpose; Benefits of clause available to natural persons only, not corporations.

a) Most s in DCC cases are private corporations and therefore cannot invoke Privileges &
Immunities Protection

b) Most Article IV 2 Privileges and Immunities cases, however, involve individual workers.
Market Participant Exception does not apply to P&I claims

a. The Citizens of each State shall be entitled to all Privileges and Immunities of
Citizens in the several States.

c) Note this is different from 14th Amendment P&I clause. (One of the most important distinctions
in this course. Do not confuse the two.)

d) On its face: creates parity among the states equal treatment in terms of travel/court
treatment. Only a guarantee of relatively fair treatment. (ie. will be treated as all the people of this particular state will not hold against you that youre from another state, no more Ps & Is than any of our own citizens; held to the same standards/disadvantages of our own citizens) This idea is parallel to the discrimination models b/c the relative idea of fair play. Early guarantee against discrimination against out of staters.

e)

vii. P&I Clause now viewed as only protecting rights which are deemed to be (F Word) Fundamental a) Baldwin v. Fish & Game Commission of MT 1978: Elk hunting in MT is not a
fundamental right protected by the Privs & Imms Cl, therefore licensing scheme reqing nonresidents to pay higher fee is Constitutional

1. Hunters are willing to concede that hunting wild game is not really an IC issue (sport).
2. So can only fall under P&I, but its not a Fundamental Right.

b. Use of the Privs & Imms Clause Parallel to Dormant Commerce Clause i. Toomer v. Witsell (1948) SC law subjects out of state commercial shrimpers to licensing fees a)
Unconstitutional. While not absolute, P&I bars discrimm against citizens of other States where no substan reason for discrimm exists besides fact that they are merely citizens of another state. Affecting shrimpers ability to earn a living!

25

c. Use of Commerce Clause to protect Out-of-state workers, where Market Participation Exception might make Dormant Comm Cl argument unavailable i. ii. Hicklin v. Orbeck (1978) AK statute providing for the preferential hiring of AK residents over non
residents is Unconstitutional.

United Building v. Camden (1984): City insists that certain % of construction companies must be from
Camden so as to recirculate $$ back into city. SCotUS says right to work construction in S NJ is fundamental enough to invoke P&I. But, if Camden can come up with Substantial reasons to support its discrim against out of staters, may be ok. a) Right of out of staters to work is a fundamental right that is sui generis to Article IV P&I. Not found under Equal Protection of DPC b)But right to work / choose profession are given v. v. v. low tier protection.

d. Reminder: both the definition of rights which are deemed fundamental enough to be protected by the Aricle VI Privs & Imms Cl AND the test which govt must meet when it burdens those rights are unique unto this Clause (sui generis), and should not be confused with comparable rights protection analysis for Due Process and Equal Protection i. ****Does not make sense in context of due process or equal protection. In economic matters laissez fare
holds. States are given broad latitude to legislate and complaints of economic discrimination are given a very low level of review. Court would immediately throw these arguments out if it came from the instate residents. They have political recourse. IE, Camden govt need only rational or valid justification for such economic discrimination -- lowest of three tiers of rational, intermediate, and strict scrutiny. Out-of-staters do have standing.****

D. Federal Preemption of State Law

1.
Article VI Cl 2: Supremacy Clause: If there is federal legislation on point, then states are preempted from legislating.

a.State law may be preempted in two ways: i. ii. 2. If Congress evidences an intent to occupy a given field, any state law falling w/in that field is preempted Where state law stands as an obstacle to accomplishment of full purposes & objs of Congress

Silkwood v. Kerr-McGee (1984) works at nuclear plant and gets contaminated. Plant employees follow her home, find more contamination and destroy her stuff and send her to Los Alamos for study. later brings state law action for destruction of property and wins $10M punitive. 10th Cir overturns damages award b/c Fed Stats regulate nuclear plants and therefore punitive unavailable. a. SCotUS overturns Congress assumed that state tort remedies would be available to those injured in nuclear incidents and therefore no conflict b/t State and Federal laws.

3.

Gibbons v. Ogden This was Preemption #2 where state law stood as an obstacle to accomplishment of the full purposes and objectives of Congress.

IV. CONSTITUTIONAL SAFEGUARDS

OF

LIBERTY

AND

PROPERTY-

INTRO

. . . .Shifting focus away from the relationship among govt branches and among Federal & State towards the Relationship between the govt and the individual.

A. Pre-Civil War Safeguards

26

1. Against federal govt:

a. Ex Post Facto laws

b. Bills of Attainder c. Bill of Rights

2. Against state govt (or subdivisions thereof):

a. Contract Impairment Clause

b. Ban on Ex Post Facto Laws and Bills of Attainder c. Article IV Privileges and Immunities Clause

****IMPORTANT: Prior to the Civil War, the Bill or Rights applied only against the Fed Govt, not against State Govts****

Barron v. Baltimore (1833): Bill of rights does not apply to the States, it speaks ONLY to the Federal Government. Only a few
substantive limitations in Constitution apply to states ex post facto, bills of attainder, impairment of s, etc. This is a MAJOR limitation prior to Civil War had it gone the other way, couldve potentially allowed a ton of legal challenges to slavery.

3. Concept of National Citizenship generally derivative of a states recognition of ones citizenship. a. Denial of national citizenship to African-Americans Slave or free
i. Const. has no definition of what it means to be a U.S. citizen. Status of natl citizenship is derivative of your status as a citizen of a state. (IE, Pre-Civil War: Im an Ohioan, therefore Im an American.)

ii. Dred Scott v. Sandford (1857) Lawsuit specifically generated by abolitionists to test boundaries of slavery.
Case technically turns on argument that Dred Scott is NOT a citizen of US and therefore no Subject-Matter jurisdiction and rest of the opinion is really dicta. 1. Rule: Federal Govt does not have the power to extend or prevent slavery into US Territories

B. The Civil War Amendments: 13th, 14th, 15th 1. Key Features a. 13th Amendment i. 1: Speaks to any private indvds and to ALL THE WORLD (including federal & state govt)
a) Self-Operative and Directly Enforceable Requires no legislation for it to go in effect. 2: Enforcement Clause: Ability that Congress may or may not use as it sees fit. iii. Congress starts to worry that 13th Amend is not strong enough to go after Badges and Incidents of Slavery and hence, 14th Amendment b. 14th Amendment i. 1, Sentence 1: Designed to throw out Dred Scott decision. ii. A Bill to apply the Bill of Rights to the United States iii. 1: First federal constitutional definition of National Citizenship iv. Three Clauses a) Privileges & Immunities: Comes from Article 4, same concept but not the same use. 1. Meant to be the Blockbuster, but has been read THE smallest of all the clauses nearly eviscerated by the Slaughterhouse cases. 2. Protects citizens in their new status as Citizens of the US b) Due Process: Has Exact Counterpart in 5th Amendment restrictions on Federal Govt c) Equal Protection: New language which speak to EVERYONE generally. 1. SCotUS will begin to read this language into the 5th Amend even though its not there ii.

2. State Action as a limitation on the 14th Amend Privs & Imms, Equal Protection and DPC
27

a. The Constitution applies ONLY to the Government (at all levels), not to private individuals or institutions.
b. Congress, by statute may apply Constitutional norms to private conduct.

i. Pursuant to 13th Amend Congress can prohibit private slave ownership and race discrimination
ii. Pursuant to the Commerce Clause Congress can apply Const. norms to private conduct. 1. Civil Rights Act of 1964 Title II: a. Ollies BBQ

iii. Pursuant to 14Th Amend 5, Congress can only regulate State and Local govt a. b. Private Entities serving Public functions Jehovahs Witness case. Entanglement Exception- If govt affirmatively authorizes, encourages or facilitates unconst conduct, the const applies

The WHITE BOARD OF FEDERALISM 14th Amendment Federal Constitution Bill of Rights Beyond?
Equal Protection Privileges & Immunities Due Process

State

Persons

V. PRIVILEGES

AND

IMMUNITIES (14TH AMENDMENT; NOT ARTICLE IV P&I)

A. The Slaughterhouse Cases (1873) 1. LA passes statute that bans slaughter of animals in N.O. unless done at state-created monopoly. Competitors argue that
this violates the 13th and 14th Amendments

2. SCotUS says NOT a violation of 14th

a. 14th EP Passed to prevent discrimination against blacks, not butchers. 13th and 14th meant only to protect slaves b. 14th Privileges and Immunities Clause applies to national citizenship, not state citizenship i. There is nothing in Const that talks about freedom from a state-mandated monopoly ii. Essentially, says Majority, only a specific list of things fall under 14TH P&I 1. Gibbons v. Ogden navigable waters (Dormant CC) 2. Crandall v. Nevada: anti-transit tax inferred a right to travel (decided years before 14th) 3. 4. Access to seaports, use of waterways (inferred out of Dormant CC) Use of Federal Court system.
28

iii. Fields Dissent says, this is All stuff that was protected before 14th Amendment! So by Majoritys reasoning, the 14th Amendment has achieved nothing. iv. Interpretation of 14th P&I is so narrow that they essentially write it out of the Constitution. For the 150 years since, SCotUS has been trying to get around what Miller and the Majority did to it. Today the list of applicable 14th P & I Cs of A is essentially the same. v. While 14th initially enacted to get the Bill of Rights to apply to the states, this decision effectively shuts down the P&I clause as a guarantee of the Bill of Rights 1. Barron v. Baltimore is still good law after this case.

3. Remember Chemerinsky: Privileges OR Immunities of the 14th Amend ALWAYS the wrong answer unless the
question involves the right to Travel. B/c SCotUS gave it such a Narrow read in the Slaughterhouse Cases, it effectively wrote it out of the Const. (Not the Blockbuster that wed expected! Meant to be used to apply the bill of Rights to the States, but that was subsequently done by the Due Process Clause. )

VI. DUE PROCESS (14 AMENDMENT; FEDERAL GOVT)

TH

ALSO

5 AMENDMENT
TH

AS TO THE

A. Substantive and Procedural Due Process distinguished

1. The SlaughterHouse Cases and Bradleys Dissent
a. Bradley and Miller pass like ships in the night b. Miller: Looks at due process procedurally the procedures that must be followed before govt deprives individuals of life, liberty or property. Historically, this was how Due Process was analyzed. c. Bradley: Looks at Substantive Due Process. This, he says, is what the butchers were deprived of, their ability to make a living, without sufficient justification by government.

i.
ii.

And Millers like, What?? Weve never even seen this before! But it was there in Dred Scott, just not fully developed slaveholders were considered to have due process rights in slaves and therefore Govt not permitted to interfere

2.

Defined a. Procedural Due Process: the procedures govt must follow before it deprives a person of life, liberty or prop

i.

Example: What kind of notice or hearing must govt provide before it takes an action?

b. Substantive Due Process: Whether the govt has an adequate reason for taking away a persons life, liberty or property. Is there sufficient justification?

i.

Substantive Due Process Analysis: a. b. c. DEFINE: What are the rights under life, liberty and property? How badly does the law infringe upon those liberties? What is the states reason for infringement on those rights?
29

d. Is there a correlation b/t the reasons given and the rights impacted?
3. Distinguished. a. Example: Punitive Damage awards i. Procedural Due Process: Requires that there be safeguards such as instructions to the jury to guide their discretion, and judicial review to ensure reasonableness of the awards Substantive Due Process: Prevents excessive punitive damage awards (deprivation of property) regardless of the procedures followed.

ii.

B. The Early Historical Evolution of Substantive Due Process

1. Rise and Fall of the Lochner Doctrine
a. Lochner v. New York (1905) NY passes State law prohibiting Bakers from working more than 60 hours a week. SCotUS overturns the law as an infringement on the right to and thus on liberty.

i. ii.

SCotUS says, Words are given Substance by the court by its Re-evaluation of laws as unfair or unjust. This is the heart of Substantive Due Process Reevaulation.

Lochner Doctrine: A Doctrine of Substantive Due Process that narrowly was a Doctrine of
Economic Laissez Faire

b. Progressive Era thru 1937: BIG read on 14th Amendment Due Process and small read on Commerce Clause in terms of federal power. Laissez Faire oriented SCotUS has little interest in Economic Regulation and Labor. State is held in chains b/c not permitted to pass economic regulation that has a social impact (labor standards, minimum wage, etc.)

i.

Reasonableness and Rationality, very low-tier stuff in todays world, are seen as Extremely
High hurdles to clear
30

ii. iii.

SCotUS sees 14th Amendment DPC as speaking specifically to the States, and Bill of Rights still just talking to the Federal Govt (Barron v. Baltimore still good law) This allows court to interpret the clause on its own and take terms Life, Liberty and Property and give them meanings that went BEYOND the Bill of Rights. (no cross-reference to these definitions in the Bill of Rights) Justice Harlan: 14th Amendment stands on its own bottom. And the meanings they gave to it translated to economic Laissez Faire YEARS after Lochner, Ct uses this Doctrine to knock down 100s of laws as infring upon Substant DP. Three Principles from Lochner era

iv.
v.

a. Freedom of is a basic right under 14th,

b. c. Govt can only interfere with Freedom of if it serves a valid Police person Judicial role to carefully scrutinize legislation interfering with freedom of to ensure it served a valid police purpose.

c.1937 The Death of Lochner

i.

West Coast Hotel v. Parrish (1937): WA Statute setting min wage for women and minors is
Constitutional. Freedom of is NOT a Const protection. Const is concerned with liberty and the deprivation of it w/o DP. Regulation which is reasonable in relation to its subject and is adopted in the interests of the community IS Due Process.

a. Govt is not lmtd to regulating only to advance public health, safety, morals. It may regulate
where a group with unequal bargaining power is being exploited to detriment of community.

ii.

Carolene Products Justice Stone: Famous Footnote Four (1938): Economic regulations should be
upheld so long as they are supported by a Conceivable Rational Basis, even if it cannot be proved that it was the legislatures actual Intent. a. Generally SCotUs will defer to the govt an uphold laws so long as they are reasonable

b. But this deference will not extend to laws interfering with fundamental rights or laws
restricting the ability of the political process to repeal bad legislation or laws discriminating against discrete and insular minorities.

c. Why did Stone single out these types of rights (ie. political rights) as examples of what
government should not do? These are not free-standing but have basis in other parts of Const. d. Stone says these rights have to have a higher hurdle & higher standard because these are specifically liberties that are at the basis of the democratic process (thus by not protecting them, there is distortion of the legislative process itself).

d. * Nexus between Procedural Due Process and Substantive Due Process: Both tie into a broader view of Procedural Fair Play of the fed govt. This gets distorted if the political process gets distorted. And political part ties into Substantive DP, b/c its not just the way the law is applied, but also the way they are enacted. (Law permitting legislators they could only read the first 100 emails a day would be stupid. ????)

i.

Also seen in 4th, 5th and 6th Amendment procedural protections in Criminal Process. No warrantless searches is a Procedual DP Protection, but is Substantive in that it affects the deprivation of liberty.

2. Selective Incorporation of the Bill of Rights

31

a. Meyer v. Nebraska (1923): WWI Statute prohibiting classes taught in foreign languages is Unconst. An open-ended Read on the DPC? No cross-reference is made to the 1st Amendment. SCotUS only talks of Liberty to instruct in German and Property rights to profession. . . . some of the analysis has a distinctly economic feel? i. Right of family to decide how its children are educated -

b. Pierce v. Society of Sisters (1925): State law requiring normal students b/t 8-16 only to attend public schools is Unconst b/ct it Unreasonably interferes w/ liberty of parents and property of schools. Again, no Cross-Reference to 1st Amendment. c.Once SCotUS incorporates an amendment through the 14th Amendment, it applies to the states with full force that it applies to the Federal Govt. Court begins to cross reference liberties to BofR. i. Late 1950s: Incorporation becomes more formalistic/mechanistic using Substantive app of DPC

a. 1961: Poe v. Ullman: Harlan Dissenting: DP is a rational continuum that includes freedom from all
arbitrary impositions and purposeless restraints

b. 1968: Duncan v. Louisiana: Modern test to determine whether a guarantee of the BofR also applies to
states is whether the Clause in Fundamental to the Amer. Scheme of Justice.

c. 1977: Moore v. East Cleveland: White: Dissenting: Emphasis on DP is on Process DPC should be
limited to a guarantee of procedural fairness

d. 2000: Troxel v. Granville: Parents have a Substantive DP right to raise their children
TIER of ANALYSIS GOVT PURPOSE ENDS-MEANS CORRELATION 14th & 5th Amend. Equal Protection* Suspect Classifications (by govt) 1. Race, Natl Origin, Ethnicity, Religion (coming later) Fundamental Right 2. Skinner:fundamental right & nonsuspect classification 1. 1. 2. Govt almost invariably loses Gender (1970s) A bit trickier Economic Etc. (Everything else) Economic, etc. Substantive Due Process

Strict Scrutiny

Compelling

Legislation must be Narrowly drawn and necessary to achieve a compelling govt purpose Substantially related to an important govt purpose Rationally related to a legitimate govt purpose
th

Intermediate

Important Substantial Rational Valid Legitimate

(never fully developed. Hinted at in Casey, Lawrence v. TX)

Low

Post-Lochner: Govt almost invariably wins

*No Equal Protection in the Bill of Rights so 5 Amend applies to Fed Govt in the same way that 14th EP applies to the states. No Privileges & Immunities Analysis because of The Slaughterhouse Cases. Liberals: Most liberties are Fundamental. Put them on the high tier! Conservatives: Korematsu & Brown v. Board are only Suspect Classifications that belong on the high tier.

C. Equal Protection as Alternative to Substantive Due Process for Protecting Fundamental Rights: The Skinner Approach
1. Equal Protection: focuses on whether the govts difference in treatment of people is justified by an adequate purpose
a. Relief that individual seeks may help to distinguish EP from PDP and SDP
32

b. Example: Govt recognizes that child custody is a Fundamental Right. PDP: There must be notice before a child is taken away. SDP: Must be a sufficient justification abuse and neglect. EP: Requires that all ppl similarly situated must be treated the same. 2. Most (F-word) Fundamental Rights have been protected by SCotUS under both DP and EP a. Difference b/t the two is usually how the arguments are phrased. i. Due Process: Whether Govts interference is justified by a sufficient purpose a. ii. If a law denies a right to EVERYONE, then DP is best grounds for analysis

EP: Whether govts discrimination as to who can exercise the right is justified by a sufficient purpose. a. If a law denies a right to some, while allowing it to others, EP and/or DP can be used.

3.

Fundamental Right Analysis a. Is there a fundamental right? b. Is the right infringed? c. Is the government action justified by a sufficient purpose? d. Are the means sufficiently related to the goal sought?

4. Korematsu v. U.S. (1944): Racial classifications (such as WWI internment of Japanese) are Immediately Suspect and
subject to the most rigid scrutiny. In this case, high tier was strict in theory, fatal in fact. But rarely ever the case now. a. Court starts to develop high-tier strict review when it came to discrimination against groups.

5. Skinner v. Oklahoma (1942): OK Statute that imposes sterilization upon repeat-offenders who commit crimes of moral
turpitude deprives individuals of a Fundamental Right and is therefore unconstitutional. a. No correlation to race here, but Douglas analysis was that: i. (1) the right to reproduce was fundamental (creation of fundamental right); (2) there is a classification that interferes with the fundamental right; and (3) thus the high tier review should be used.

ii.
iii.

b. = The Skinnerian approach to due process: non-suspect classification impacting negatively on a fundamental right equals a high-tier review. Here there was no compelling governmental interest w/ a narrow tailoring therefore the state statute struck down. c. Liberals: Equal Protection Analysis allows high-tier scrutiny when theres a Fundamental Right + Non-Suspect class. This makes it very easy to also go to the high tier to analyze fundamental rights under Substantive DP.

i.
ii.

In essence, if you have a (F-Word) Fundamental Right, youre automatically bumped to the high tier. Chemerensky: This is basically an SDP issue, but post-Lochner no one wants to go there.

d. Conservatives: ?!QUE?! All Statutes make classifications those that are bound by the statute and those that are not. By the time of Korematsu, theyre thinking, Wait a sec. You liberals are engrafting artificial classifications onto the high tier analysis or just using the F-word and saying something is a Fundamental Right so that it can automatically triggers the high tier.
33

i.

Youre spilling high tier analysis all over the place.

e. Most subtly, SCotUS is saying the Exception for the legislation undermines Rationale. If youre interested in preventing recidivism, then tailor your legislation more narrowly and not make exceptions

i.

Simss problem w/ opinion is that State can easily come back & say, Okay, EVERYONESs being sterilized!

D. Substantive Due Process Protection Beyond the Bill of Rights: A Complex Doctrinal Debate Begins
1. Liberal judges begin to struggle with their own jurisprudence a. Lochner Court: Well just give a free interpretation of Liberty to invoke Substantive Due Process protection b. Griswold Court: If its not explicitly stated in the Bill of Rights, well look out to the penumbras.

2. Griswold v. Connecticut (1965): CT law banning use of contraceptives is Unconstitutional violation of a Fundamental
Right to Privacy. Douglas says specific guarantees in the BofR have penumbras, formed by emanations from those guarantees that help give them life and sustenance. 1st, 3rd, 4th, 5th, 9th Amends all have penumbras where privacy is protected from Govt Intrusion. a. Concurring Harlan: Theres a rational continuum in terms of liberties described freedom from arbitrary and purposeless restraints. We have to analyze legislation with rationality and reasonableness, but depending upon the nature of the rights being asserted, standard may be stepped up. IE - Theres a difference b/t setting Fair Labor Standards and telling people they cant use contraceptives i. Not high tier language. Perhaps heightened rationality?

b. Chemerinsky: Douglas was trying to avoid SDP analysis because he lived thru the Lochner era, but BofR applies to states thru DPC of 14th Amend, so whoops. No ones really used this approach since.

3. Roe v. Wade (1973): Individuals have 14th Amend right and BofR penumbral right to sexual privacy. Right is not
absolute and is subject to state regulation, but there is no compelling state interest in forbidding all abortions. a. Rehnquist Dissenting: Privacy may be a form of liberty protected by the 14th Amendment, but 14th only protects against deprivation of liberty without Due Process. And the court is transposing 14th EP with 14th DP in its compelling state interest test.

i.

Rehnquist is a Neo-Lochnerite who thru sleight of hand is suggesting that rational basis should be applied to Social legislation b/c even Lochner-era economic legislation was social in its aspects.

4. Bowers v. Hardwick (1986): The Constitution should protect only rights as Fundamental only if they are supported by
the Constitutions text, the framers intent or a tradition of being safeguarded. Plus taking an expansive view of DPC can lead to judge made law w/ little to no cognizable roots in Constitution, such as 1930s which resulted in the repudiation of much of the substantive gloss that Court placed on 5th and 14th DPC. So Hence, Sodomy is not a fundamental right protected by Const and there is a Rational Basis for a law that reflects the morality of a State. a. Framing the issue is everything! No right to homosexual sodomy or Right to Privacy. i. Conservatives: 1. Define the right narrowly. 2. Look to see if its deeply rooted in history/traditions

E. Fundamental Rights of Privacy and Autonomy as Developed under Substantive Due Process and Equal Protection
1. The Right to Procreate
34

a.

Skinner (again)

2. The Right Not to Procreate

a. Contraceptives

i. ii.

Griswold (Revisited) Unconst of anti-contraceptive law was rooted in Const. right of privacy founded in marriage Eisenstadt v. Baird (1972)MA law that permitted contraceptive use by married couples by
prohibited contraceptive sales/distrib/Rx to single people violated Equal Protection Cl. While Griswold recognized fundamental right of privacy in marriage, marriage is a union of two separate indvds. And if privacy means anything, it is the right of the indvd to be free from unwarranted govt intrusion into matters so Fly affecting a person as the decision whether or not to bear a child. How can the state justify treating non-married indvds differently when weve already decided Griswold. A Skinner analysis! (Married v. Unmarried = not a suspect class.)

b. Abortion

i.

Roe v. Wade (Revisited): Right to abortion is not absolute and that it must be balanced against other
considerations such as the states interest in protecting prenatal life. Strict Scrutiny should be used in employing the balancing test b/c abortion is a fundamental right.

ii.

Planned Parenthood v. Casey (1992) Roe should not be overruled b/c of Stare decisis lends
important legitimacy to Court and state interest in life prior to Viability of the fetus. OConnor seems to apply Intermediate tier analysis: Test for evaluating the constitutionality of a state regulation of abortion is whether it places an undue burden on access to abortion. This, they say, is the appropriate means of reconciling the states interest w/ a womans constitutionally protected liberty. (Also, waiting periods, parental consent etc. are okay).

iii.

Gonzalez v. Carhart (2007): Ban on Partial birth abortion does not impose an undue burden on womens right to abortion.

3. The Right to Marry a. b. Loving v. Virginia (1967): Recognizes the right to marry as a fundamental right. Laws prohibiting
couples from getting married deprives citizens of liberty without due process of law.

Zablocki v. Redhail (1978): WI Statute says that individuals with minor children not in his/her custody must receive court permission to obtain license to marry to ensure all child support payments are up to date.
i. If (F-word fundamental) right to procreate means anything at all, it must imply some right to enter into the only relship in which State recognizes sexual relations to legally take place. State has a substantial interest in ensuring child support is paid, but this law was not sufficiently related to that end law not narrowly tailored!

ii.

4. Sexual Preference a. Bowers v. Hardwick (1986) Right of privacy does not protect the right to engage in homosexual acts at home. Conservative Majority defines this right narrowly as the right to Homosexual sodomy and finds no connection b/t these acts and rights they have previously recognized that are rooted in family and reproduction. Nor is it deeply rooted in our nations history or implicit in the concept of ordered liberty
35

i.

Liberals would want to spread the umbrella even farther. This isnt about the right of homosexual sodomy but about the right of privacy.

b. c.

Romer v. Evans: Kennedy was toying with language to suggest that Gays were a suspect class or possibly be moved up to the intermediate tier.

Lawrence v. Texas (2003): Overrules Bowers. Constitutional protection extends to individuals in the most intimate and private aspects of their lives. To define a right as simply a right to engage in sex demeans the claim and the right.
i. Powerful affirmation of the right of Privacy under the Constitution SCotUS has safeguarded privacy in family autonomy, contraception and abortion Recognizes that sexual activity is a fundamental aspect of personhood. Rationality with Teeth (rejects TXs justification). . . . Court did not indicate the tier it would use..

ii.

iii.
5. The Right to Die

a. Cruzan v. Missouri (1990): Nancy Cruzan was in persistent vegetative state. Parents wanted to terminate food/water. State wouldnt let them.

i.

Competent adults have a Constitutional right to refuse medical care under Due Process (8 votes) a. Five say this includes a right to refuse food/water and bring about death

b. Scalia is the only who says, lets stay the heck away from this area. This is not a right to
refuse medical care, this is a Right to Suicide defines the right very narrowly. ii. iii. Court may require clear and convincing evidence that a person wanted treatment terminated The right to end treatment belongs to the individual and the State may prevent family members from terminating treatment from another. Doesnt say what tier to put this stuff on. But conservatives seem to employ new strategy in Bowers and Cruzan. They accept how liberals are getting stuff on the high tier define the right broadly (penumbras and such). But Conservatives can goal tend by defining the right narrowly Right to homosexual sex, right to die.

iv.

b.

Washington v. Glucksberg (1997): There is no constitutional right to physician-assisted suicide. DP

c. Vacco v. Quill (1997): There is no constitutional right to physician-assisted suicide. EP Doesnt discrim. EVERYONE is prohibited from PAS. Court left open question as to whether i. Rehnquist: a right is only fundamental under DPC when supported by history or tradition State laws prohibiting phys-assisted suicide will be upheld as long as they meet the rational basis test.

ii.

d. Gonzalez v. Oregon

F. Procedural Due Process Civil Context

1. Identifying the Interests Protected (Question 1: What rights are protected?)
a. Liberty and property rights created under federal and state constitutions; under federal and state statutes or local laws (or any regulations promulgated thereunder); and state common law
36

b. The new property; statutory largesse; state-conferred status; legitimate expectations

i.

Board of Regents v. Roth (1971): Prof not renewed after one year at state university, no reason
given. No 14DP protection necessary was up.

a. Ok to invoke 14DP b/c it was State University

b. But was up, if it were dismissal in middle of 2 year , different

c. Reasonable expectation of Continued Property Interest Property is based on the expectation

of the continued employment, not the Importance of the job to the individual. d. State Conferred Status If State tenured him and fired him, then thats deprivation.

ii.

Perry v. Sindermann (1971): Prof employed by TX State univ on one year s for last four years.
not renewed after he criticizes univ. SCotUS says he has a 14DP right to a hearing. School does not have a formal tenure system, but this was the process they used so that teachers felt tenured. This is a liberal broad reading that Conservatives shut the door to quickly, b/c they like a narrow read on rights.

iii.

Wisconsin v. Constantineau and Paul v. Davis a. WI (1970): There is a property right in ones name and person may not be defamed (thru
Statute that allowed liquor stores that allowed posting names of potential dangerous excessive drinkers.) before person has an opportunity to defend himself. Even if there is redress by filing defamation suit, there needs to be DP before taking rights in someones name. Reputation + Harm to Right = DP Necessary

b. Paul (1975): no const right to privacy in publication of official acts such as arrests (only a
privacy right in marriage, intimate relations (infra)). Davis arrested for shoplifting and his name and pic distributed to stores. After charges are dismissed, he says that posting is a violation of his privacy. Rehnquist says this is diff than WI b/c WI case was about liberty right in buying liquor. This case is about defamation.

2. Determining What Process is Due (Question 2: What process is due?)

a. Goldberg v. Kelly (1970): welfare recipients have a property interest in continued receipt of benefits and govt must provide due process before it terminates benefits. SCotUS says that welfare is a benefit that state may choose to hand out to you. b. Matthews v. Eldridge (1976): Edridges SS disability benefits cut off BEFORE he received his evidentiary hearing as to cancellation of benefits. Says that DP requires that benefits not be cut off until AFTER hearing. SCotUS says, No. DP is flexible and is subject to such procedural protections as the situation demands. Case by case basis approach. c. Three part balancing test to apply what must govt do before it takes a right away?

i. ii.
iii.

How important is the interest at stake to individual? The ability of additional procedures to increase the accuracy of the factfinding Burdens imposed on govt

d. Cleveland Board of Education v. Loudermill (1985): Security guard fired for lying on application and given administrative hearing AFTER termination. Says this denies him of property rights in violation of
37

14DP. SCotUS says OH Civil Service Statute clearly gives civil employees property rights in their jobs and should be given an opportunity to respond to charges before termination. He had State Conferred Status!

i.

Balancing Test: DPC requires a procedure that carefully weighs the interests of the government in
removing the property against the interests of the private party in retaining the property. Must incorporate the "essential requirements of due process," which "are notice and an opportunity to respond." Affording the employee an opportunity to respond prior to termination would impose neither a significant administrative burden nor intolerable delays." Significant interests of the employees to retain their jobs outweighed the interests of the state to remove employees quickly.

VII. EQUAL PROTECTION

(14TH Amendment applies Equal Protection against State Governments and all Subdivisions thereof; Equal Protection Inferred as applying against Federal Government through 5th Amendment Due Process Clause)
14TH Amendment: No State shall deny to any person within its jurisdiction the Equal Protection of the laws. Nothing in Constitution before this ensured equal protection of the law. Applies to persons not citizens Speaks to Government, not to Private Actors Equal Protection Questions: Where a law treats a person or class of persons differently from others Statutes notably in play Title VII Employment protects almost every category you can think of except sexual orientation. Substantive Due Process Question: Where a law limits the liberty of ALL persons to engage in some act

A. The Search of Applicable Standards

1. Economic Equal Protection: Post-Lochner Substantive Due Process (mere rationality, low-tier judicial review) in synch with Rational, valid, legitimate government purposes and the challenged regulation rationally-related to achieving them
a. Economic laissez faire due process rights werent really used until the fall of the Lochner era. Under this section, equal protection must do the same thing as w/ the due process cases thus any conceivable rational basis the courts must defer to the legislature. Compare the Slaughterhouse cases where the butchers included an EP argument that there was a closed class monopoly. b. Railway Express Agency v. New York City (1948): NYC Traffic ordinance prohibiting vehicles from displaying ads unrelated to owners business interests does NOT violate 14th DPC. i. ii. iii. A city can ban some ads that distract ppl w/o having to eliminate ALL distractions. Equal Protection doesnt say that all evils of same genus must be eradicated or none at all Low-Tier Analysis SCotUS giving enormous deference to NY

c. Morey v. Doud (1957): An example of a State Statute failing Low-Tier Analysis. Statute requiring companies that issue money orders to get license and submit to regulation made an exception for Amercian Express. But no explanation as to why AmEx gets favored standing nor did Statute set up a Neutral standard that AmEx followed that other companies could aspire to. Closed Class Monopoly. d. City of New Orleans v. Dukes (1976) Ignatius J. OReilly case. Basically same thing as Morey, but hot dog vendors in New Orleans. SCotUS overrules Morey as a far departure from EP Analysis. i. Rule: Unless classification trammels fundamental personal rights or is drawn upon inherently suspect distinctions SCotUS will presume constitutionality of the statutory discriminations and require that the classification challenged be Rationally Related to a legit state interest. Closed class Monopoly is valid even today under low tier analysis.
38

ii.

e. Metropolitan Life Ins. Co. v. Ward (1985): Statue taxing out of state Ins Cos at higher right violates EP. Purpose to encourage investment of state securities not legit when its furthered by discrim. One of the very few cases where SCotUS ruled that State violated EP on a purely economic basis. i. Why would this case be excused under the Dormant Commerce Clause? 1) DCC is inferred from an affirmative grant of the power to regulate IC by Fed Govt. (Also a federal statute excused insurance companies from CommCl restrictions) ii. Why is this not excused under Equal Protection? 1) EP Clause is self-operative. It directly tells the states what it may NOT do and theres nothing the Federal govt can do to excuse it.

2. Strict Scrutiny; High-Tier Review

a. Legislation must serve Compelling govt purpose and be narrowly tailored to achieve it. (see chart) b.Applies to Two very different categories i. Suspect classifications: Race, Ethnicity, National Origin

1) Strauder v. West Virginia (1879) Law stating that Only whites may serve on juries was
Unconstitutional on its face.

2) Korematsu (1944): Another law that discriminated on its face.

ii. Non-suspect classifications plus adverse affect on exercise of fundamental rights: the Skinner analysis as a substitute for Substantive Due Process

1) Fundamental Right + Suspect Classification = High Tier!

a) Problem is that all statutes make classifications. The high-tier shifts the burden to the govt to show that their rationale serves a compelling purpose. b)But if they fail the high-tier test, under Equal Protection, states can just get rid of the exceptions and be good. c) If you go further under Lawrence, however, some statutes may fail on Substantive Due Process overall.

2) Vacco v. Quill (1997): Conservatives give physician-assisted suicide the low-tier test.
a) Argument was that NY State ban on phys-asst suicide violated EP by allowing capable terminally ill adults to w/draw their own life-saving treatment but denying same right to patients who were unable to & needed physicians help b)EPC creates no substantive rights. Instead it embodies a general rule that States must treat like cases alike. But it may treat unlike cases accordingly.

3. Intermediate Level of Review

a. Leg. must serve Important/Substantial govt purpose and be substantially-related to achieving it. b.Emerged in the 1970s with the extension of Equal Protection to Gender discrimination
39

c. Liberal justices tried unsuccessfully to have this intermediate review applied to reverse discrimination challenges of affirmative action, since it would have given govts seeking to employ affirmative action more leeway than Strict Scutiny would have. i. Original assumption was that EP was designed for groups who couldnt Politically protect themselves. Each gender is equally capable protecting itself. And whites are capable of poltically protecting themselves against things they dont agree with.

B. Types of Government Discrimination

1. Overtly or Covertly Discriminatory Laws
a. Strauder v. West Virginia (1879): Discriminates on its face

2. Neutral Laws Discriminatorily Applied

a. Yick Wo v. Hopkins: For very good safety reasons, SF ordinance requires all laundries located in wooden buildings to obtain licensees. White people in wooden buildings get licenses but the Chinese in wooden buildings are not. i. A discriminatory application of a law that is neutral on its face Neutral Laws violate EP if they are executed with an evil hand an evil eye. Note: Yick Wo was not an American Citizen, but 14th Amendment protects lawful aliens.

ii.

3. Neutral Laws Presumed only Discriminatory in Impact, as Opposed to serving Legit Purpose
a. Introduction i. Washington v. Davis (1975): D.C.s racially neutral PD test disproportionately disqualified blacks does NOT violate 5th Amendment because EP designed to prevent Official discrimination. 1) Official acts that have a discriminatory impact do not automatically violate EP But what is Discriminatory Intent? And where in the Tier does this go? ii. Village of Arlington Hts v. Metropolitan Housing Development Corp (1977): Snob zoning. Chicago suburb zoning plan denies access to middle and low-income families, which disproportionately affects minority population, but does NOT violate 14th EP b/c theres no showing of a racially motivated purpose.

1) FN21: Provides clarification to Washington v. Davis: If racial motivation IS found to be

one of the purposes, burden falls to discriminator to show that they would have made the same decision in the end w/o the racial purpose in other words, the burden shifts to the suing party to prove that discrimination was not just a motivating factor, but the Decisive factor. If they cannot show discrimination was Decisive Factor, then no EP violation. = Enormous leeway to would be discriminators. (To this day, Andy doesnt get what Powells talking about) b. i. Discriminatory Impact under Title VII A Commerce Clause enactment that prohibits employment discrimination against essentially all groups but sexual orientation 1) Hiring
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2) Firing 3) Terms and Conditions of Employment (ie, Promotion) ii. Ricci v. DeStefano (2008): New Haven PD refused to certify FD tests b/c results disproportionately passed more whites than minorities. Whites and Hispanics who did pass sue to get their tests certified. SCotUS says, Certify the tests. 1) Before an employer can engage in intentional discrimination for the purpose of avoiding a disparate impact on a protected class (race, color, religion, natl origin), the employer must have a Strong basis in evidence that it will be subject to disparate impact liability if it fails to take the discriminatory action 2) New Haven PD doesnt failed to prove that it had a strong basis in evidence that not certifying the tests would have subjected it to liability (IE, Discrimination lawsuits) a) Exams were job-related b)Consistent with business necessity c) No evidence that equally valid, less discrim alternative was available. 3) Andy Says: If you dont understand where we are on Title VII after Ricci, its okay because nobody does. a) Current SCotUS not a fan of Title VII or affirmative action they see this as reverse discrimination.

C. Racial Discrimination (race, ethnicity or national origin)

1. Fall of Separate but Equal
a. Brown v. Board of Education I&II (1954) SCotUS uses high tier analysis to look for compelling reasons. Politically, Court is going out ahead of Govt that doesnt seem to have any impetus to overturn segregation and telling EVERYONE that they will be bound by this decision. Doctrinally, Court is trying to get out if its Plessy v. Ferguson decision. II: SCotUS told lower cts to use traditional equitable principles to figure out what to do in cases that came before them (IE, Busing) b. Bolling v. Sharpe (1954) Racial discrimination in D.C. public Schools. B/c its D.C. 5th Amend applies. 5th Amend does not contain Equal Protection Clause (which was used for ending segregation in Brown). So Warren creatively relies on 5th Amends guarantee of liberty to find D.C. segregation unconstitutional. c. De facto Discrimination: Discrim that exists from the facts, without any govt action. In 1950s Court increasingly look at de facto discrim as de jure d. i. De jure Discrimination: Formal binary system of segregated education in the south Milliken v. Bradley (1980s): Fed judge tries to get Detroit students bused to suburbs, but SCotUS says no, This is purely de facto discrim (whites in suburbs, blacks in city) and we cant do anything about it.

2. Affirmative Action / Reverse Discrimination

a. Equal Protection analysis as it stands today w/ school admissions and govt employment has Nexus with Procedural Due Process: Individual telling govt look at the indivd, not the number
41

b. i.

Education: Affirmative action in education first started as a legislative decision To justify Edu Discrim, SCotUS requires a distinction b/t remedying: 1) Institutional discrim: SCotUS will address 2) General Societal discrim: SCotUS cant do much a) Discrim thats already in the pipeline We cant do anything if your college class is already all white ii. Bakke: white refused admission and State Univ concedes he wouldve been admitted had they not a quota sys for minorities. Quotas bad, Points Plus OK. Thats as far as SCotUS is willing to go.

1) 4 conservatives: should be admitted under Title VI (dont get to 14th Amend) 2) 4 liberals: to understand Title VI, you must look at 14th amend self-op provision 3) 1 Powell: Bakke should have been admitted, 14th amend is way to decide. Put it on the
intermediate tier iii. iv. Gratz v. Bollinger (2002): UMIs racial prefs in undergrad admissions violates 14th EP & Title VII b/c its not narrowly tailored & doesnt provide individualized consideration suggested in Bakke Grutter v. Bollinger (2002) UMIs Law school admissions do NOT violate 14TH EP or Title VII b/c they use race as one factor in a highly individualized review of applicants. Narrowly tailored use of race in admissions furthers a compelling interest in obtaining edu benefits from diverse pop.

1) *Not the way liberals would want it? But conservatives get their way - *high tier.
v. *Washington v. Seattle School District (1981): State law preventing school boards from requiring students to attend schools not nearest or next nearest students place of residents violates EP b/c law removed authority to address a racial problem in such a way to burden only minorities.

c. Business and Employment i.

Fullilove v. Klutznick (1980) setting aside 10% fed funds for minority owned businesses in Public Works projects OK Wygant v. Jackson Board of Ed (1986) Agreement that prevented laying off of minority teachers than reped in district Not OK Richmond v. J.A. Croson (1989) OConnor City reqd ers to sub at least 30% of subKs to MBEs Not OK. 30% sounds like a quota and a high tier problem b/c its a racial classif Metro Broadcasting, Inc. v. FCC 1990: FCCs minority preference policies OK . . . FCC licenses broadcast bands in the public interest so they would have interest in saving space for minority groups. P. much the one Liberal victory. Adarand v. Pena OConnor. Fed govt w/ financial incentives for main contractor to sub w/ socially and economically disadvantaged individuals. Contractors should presume all those designated racial and ethnic minorities are soc/econ disadvant. Looks like a quota to OConnor. If you exercise the presumption in every instance of subcontracting, quota looks like 100%

ii. iii.

iv.

v.

D. Gender Discrimination
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1. Pre-1970s Low Tier Analysis in Gender Cases

a. Gossaert v. Cleary (1940s): MI Statute only allows women to work in a bar if they were related to owner. Its post-Lochner so SCotUS wont second-guess State by knocking it down i. Kotch used same EP analysis with regards to right of employment. Similar to Gossaert, but instead of working in a bar, you had to know a river pilot to get an apprenticeship. SCotUS upholds statute on low-tier on any possible rational basis for this leg maybe a nepotistic riverboat statute is designed to promote camaraderie in the industry and thats ok.

2. Shift to Intermediate Tier

a. Reed v. Reed (1971): ID Statute tells courts that if theyre picking admn of Intestate, pick most objectively qualified person. And if there are two, pick the man. SCotUS knocks down on the low-tier b/c this is just irrational. Uses an economic type analysis. b.Congress is floating Equal Rights Amend with regard to gender and ppl afraid theyll put it on High Tier c. Frontiero v. Richardson (1973): Fed law setting higher standard for female military officers to claim dependents allowance for their spouses violates EP i. 4 Justices say this is suspect (high tier) class but 5th vote says Its so irrational it fails on low tier.

d. Craig v. Boren (1976): Intermediate Tier finally announced! OK Statute setting drinking age for men at 21 and women at 18 violates EP. OK was unable to show a Substantial Relationship between the law and the purpose of traffic safety. Generalities about drinking habits wont suffice. i. SCotUS wont treat gender classification as suspect b/c 1) Dont see genders as incapable of protecting themselves politically 2) Subtle nuances in cases allow fed govt more leeway to pass leg favoring women, but still allowed SCotUS to strike down leg that reinforced stereotypes. A fine & tricky line! e. Remedial Aspects of Legislation allowed on Intermediate Tier i. Schlesinger v. Ballard: SCotUS upholds Navy policy that allows women more time to get promoted, b/c theyre not allowed in combat and therefore have fewer opps to prove themselves.

f. Accommodations for physical differences not necessarily allowed i. Geduldig v. Aiello (1973): CA denies disability benefits to women disabled as result of pregnancy 1) CA not obligated by EP to choose b/t attacking every aspect of a problem or attacking none at all. CA may choose which disabilities to insure in order to maintain $solvency. ii. Gilbert: Title VII doesnt req employers to make special accommodations for pregnant employees 1) Congress quickly responds by passing leg that says Title VII must now require it. g. Feeney (1978): MA law gave preference to honorably discharged vets for civil service position. Woman scored hire on exam but lost out to vet. Brings EP suit b/c at time, vast majority of vets were male. i. Law OK: Law serves a legitimate and worthy purpose. Law drew classifications between vet and non-vet, not male and female. Discrim impact, but no discrim intent (Washington and Arlington)

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h. Mississippi University for Women v. Hogan (1981): Statute preventing men from enrolling violates EP14. Theres no exceedingly persuasive justification for gender-based discrim. And cant be considered affirmative action for women b/c opps for women in nursing have not been lacking.

E. Discrimination based on Sexual Orientation

Thrown in to remind you its still very much up in the air.

1. Romer v. Evans (1995): CO passes Amendment 2, forbidding the extension of official protections to those who
suffer discrimination based upon sexual orientation. Violated EP. a. Court uses Lower Tier analysis of rationality w/ same sort of teeth that in bizarre way mirrors Lochner.

F. Discrimination against Indigents Warren Era: liberal judges got a little loose w/ distinctions b/t race and Socio-econ Status 1. Griffen v. Illinois: Criminal s guaranteed 1 level of appeal, but to get another they have to pay some court fees
that are prohibitive to some. SCotUS says that discrim on basis of wealth is just as suspect as discrim based on race. a. Couldnt you also just look at this as a violation of PDP? Yep.

2. Boddie v. Conn (1971): DP prohibs State from denying access to court for divorce b/c of inability to pay fees.
a. Liberals wouldve loved to have taken this to the high tier on 2 theories: i. ii. Right to marry / un-marry is Fundamental (Loving v. VA) Wealth classifications should be viewed a suspect

b. Neo-Lochnerite Harlan treat this as a SDP issue and says its irrational to deny access based upon inability to pay. Doesnt talk about the wealth class or if its suspect. Rooted in more conservative lines.

3. Harlans decision leads to more low-tier substantive due process analysis.

a. i. ii. U.S. v. Kras (1973): Fees/access to court for Voluntary bankruptcy does NOT violate EP. Marriage is an interest of basic importance to society Bankruptcy is not the only method available to debtor to adjust his legal relship with creditors

b. Ortwein v. Schwab (1973): Under Rational Basis test, $25 fee to appeal reduction in welfare benefits does Not violate EP b/c an increase in welfare benefits is NOT a Fundamental right c. San Antonio v. Rodriguez (1972): TX public schools are funded by property tax which creates disparity b/t wealthy and poor districts. Does not violate EP though. i. ii. iii. Strict Scrutiny inappropriate b/c Const. does not guarantee a Fundamental right to education Other states have same scheme, so its not so irrational as to be invidiously discriminatory EP does not require Absolute Equality or Precisely equal advantages

4. Only way to get on the high tier is to deem a class suspect (Korematsu) or use Skinner approach.
a. Since Boddie SCotUS unwilling to call SES a suspect class b.And is a right to an equal education w/in the state a Fundamental right?

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i.

Education could be argued to be a fundamental (IE, You have 1st Amend right to petition govt, but how can you petition if youre illiterate?), but how MUCH edu is fundamental?

5. Doctrine of Independent and Adequate Grounds

a. CA allows equal distrib of property taxes according to own State Const EP Standards. If SCotUS ruled on it, theyd be giving an advisory opinion and thats not ok. Fed sets EP baseline and States may go broader

G. Discrimination against Legal and Illegal Aliens

Gitmo)

A more complicated jurisprudence (especially b/c of

1. Legal Aliens:
a. Run of the mill regulation: High Tier i. ii. In re Grifiths: Statute does not permit aliens to become members of state bar. High Tier Sugarman v. Dugall: Right of legal aliens to work in civil service. High Tier.

b.Important Govt function: Intermediate Tier i. ii. Foley v. Connelly: If there is important govt function, issue gets a low-tier analysis. Important tends to imply an intermediate tier, so sort of a fusion of middle and low tier Ambach v. Norwick (1978): NY Statute refuses teaching certificates to legal aliens who choose not to apply for citizenship.

1) No EP violation b/c instilling patriotism in students is important govt function 2) Satisfies rational relship analysis b/c only affects aliens who dont want to seek citship 2. Illegal Aliens
a. Not high tier b.Hybrid Sort of Solution i. Plyler v. Doe (1982): TX statute that w/holds state funds to schools that admit undocumented students violates EP. Dont punish children for illegal conduct of their adult parents. 1) No rational justification for penalizing children for their presence in U.S. 2) FN19: Rejects claim that aliens are a suspect class b/c entry into class is Voluntary.

H. Discrimination on the Basis of Age: The Age Discrimination in Employment Act

1. Age is not a suspect class because older people have TONS of political power
a. EP i. ii. MA Bd of Retirement v. Murgia (1976): Mandatory retirement for police over 50 doesnt violate

State has interest in telling ppl to retire from fields that require phys ability Age suspect class b/c it is not a discrete and insular group in need of extraordinary protection from majoritarian political process

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b. *Kimel v. Florida Board of Regents (2000): Congress cant ADEA extend to states b/c age is not a suspect class entitled to high tier EP status. Age classification is constitutional if its rational c. i. Gross: ADEA is not like Title VII Title VII: Once you show disproportional impact, burden shifts to state to show reason for impact has to do with something very closely related to the job ADEA: s must prove that age is the Decisive factor as to an adverse employment decision and burden does not shift.

ii.

VIII. STATE ACTION REQUIREMENT (Bill of Rights; Equal Protection and Due Process Protection under
Fifth and Fourteenth Amendments)

A. The Prohibitions of the Bill of Rights (including 5th Amendment DP and EP) and of the 14th Amendment (including DP and EP), are textually limited to action by governments, opposed to actions by private, nongovernmental entities (e.g. private individuals; corporations; private clubs, etc)

B. Alternative: governments can reach private discriminatory action through Legislation, provided that the latter is Constitutional 1. Federal Government / Congressional Legislation: Most of class has been a major wind-up to this. We often get
directly at non-government actors with (Fed, State, Local) legislation a. Commerce Clause: When it falls under Commerce Clause, legislation can go after public and private actors i. Heart of Atlanta Motel: Hotel Service ii. Katzenbach v. McClung (Ollies BBQ): Restaurant Services iii. Title VII and Employment: Both public and private employers b. 13th Amendment Enforcement Clause 2 i. 1865. Talks to everyone: govt, private individuals, corporations and institutions ii. Self-operative but also envisions Govt use of statutes to go after private actors. iii. 28 USCA 1981, 1982 (passed in 1860s) 1. Federal Statutes that appear to be Congress telling States: Go back and clean up your laws b/c slavery has worked its way into them. 2. Jones v. Alfred H. Mayer Co. (1968): refuses to sell home to blacks that he publicly advertised. SCotUS says Fed Stat 28 USCA 1982 bars all racial discrimination, private as well as public, in the sale or rental of property and is a valid exercise of Congresss power to enforce 13th Amend. 3. Runyon v. McCrary (1976): Private school excluded qualified black students. SCotUS says 1981 is no different than 1982. Both reach private conduct. Let the kids go to school! 4. Andy thinks these decisions are a bit strained if you wanted to, you could go back to the statutes and make it clear they are talking to Private Individuals, b/c the way they read now, it is not clear that they do. a. These statues are a prelude to 14th Amend which broaded Const. basis for legislation b. And just how far can you take the self-op clause of 13th? Is walking away from a home sale b/c you dont like the color of the buyers skin really a badge or incident of slavery? th c. 14 Amendment Enforcement Clause 5 i. 1868: Congress shall make or enforce any law . . Ps&Is. . . EP . . . Congress shall have the power to enforce this article by appropriate legislation. Enacted to broaden Const. basis for Civil Rights
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legislation. Clearly talking to States and subdivisions. Unlike 13th Amendment, language does not reach private individuals at all. ii. Katzenbach v. Morgan (1966): NY Election law requires English literacy and thus prevents many P.Ricans from voting in NYC. SCotUS says Voting Rights Act 1965 prohibs discrim against ppl who completed 6th grade in PR at school that teaches in language other than English. 1. SCotUS says Voting Rights act proper exercise of powers granted to Congress thru 14th 5 2. Congress has power to stretch meaning of 5 and define what EP meant if they choose. iii. U.S. v. Guest (1966): 14th 5 authorizes Congress to enact laws (1983) punishing private conspiracies to interfere w/ exercise of 14th Amend rights (aimed at KKK). 1. Warren Dictum: Congress should have ability to stretch 1983 and go after orgs specifically aimed at violating 14th Amend rights 2. Court today would suggest that Guest dictum is invalid. d. How far can Congress stretch the self-operative provisions of the Civil War Amendments? i. U.S. v. Morrison (2000): Rehnquist says that 14th 5 by its very terms prohibits only state action. ii. OR v. Smith (1989)(supra): Scalia gives peyote-smoking religious group low-tier test and Congress came roaring back with Religious Freedom Restoration Act which basically tells SCotUS that they MUST put religion on high tier iii. City of Boerne v. Flores (1997): SCotUS says that Congress exceeded 14th 5 by enacting RFRA. 1. Legislation may not determine what constitutes a violation of the free exercise clause. They may only enforce the meaning of the free exercise clause. 2. 14TH 5 Enforcement Clause is intended to be Remedial, not Substantive.

2.

State and Local Govts can reach private discriminatory action thru legislation provided that such legislation is consistent with Federal Constitution, Federal Statutes and Regulations, Treaties and their State Constitutions. (See chart Section II)
a. Example: i. State High Court of a liberal state look to Public Accommodation laws and interpret them as applying
to private institutions actions against individuals (St. Pattys Day Parade, Boy Scouts). ii. SCotUS overturns State High Courts interpretation under 1st Amend Freedom of Association b/c Liberal rights can be trumped by countervailing rights higher up the food chain (1st Amendment supersedes States Public Accommodation Law) b. Romer v. Evan: CO amendment provides example of how a State or Local Statute can require that private conduct meet the same requirements of the US Constitution. And if its in conflict, Federal Statutes and Constitution may pre-empt it. Court struck down on Rational Basis! c. Compare Roberts v. US Jaycees and NYS Club Assoc v. City of NY with Hurley and Boy Scouts of America i. Roberts v. US Jaycees (1984): MN Chapter allows women to become full members in violation of Natl rules. SCotUS says that Chapters enforcement of MNs anti-discrimination laws does NOT violate the Groups 1st Amend Freedom of Association. 1. There are two lines of Freedom of Association: a. Certain intimate Human relationships must be secured against govt intrusion b. Right to associate to engage in activities protected by 1st Amend speech, rel, etc. 2. Group doesnt fall under first one, and second one is not absolute and can be infringed upon if theres a compelling state interest, such as eradicating discrimination. ii. NYS Club Association v. City of NY (1988): NYC law prohibing discrim in private clubs does not violate freedom of assoc b/c it serves a compelling interest in offering all persons a fair and equal opp to participate in the biz and prof life of the city. Exemptions to benevolent orders and rels groups ok. Family Relationships Association
Constitutional Protection Intimate Association Right of Privacy (Griswold) Expressive Association (Free Speech, Free Press, etc.) 47

Business Enterprises

Liberal Analysis: Both lines of jurisprudence are about Fundamental rights Strict Scrutiny Conservatives: hoist liberals on their petards with Boy Scouts and Parade

iii. Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston(1995): MA mandate
reqing Parade organizers to allow group to march in St. Pattys Day parade violates organizers 1st Amendment. Parades are a form of expression and the speaker has autonomy to choose content of msg. 1. Hey Liberals Remember when you gave Freedom of Association strict scrutiny? iv. Boy Scouts of American v. Dale (2000): NJs use of Public Accommodation Laws to require Boy Scouts to readmit gay scout leader violated Boy Scouts 1st Amendment rights. Boy Scouts instill certain values and thus engage in expressive activities and admitting gays would significantly affect Boy Scouts ability to advocate its viewpoint that being gay is wrong. 1. 1st Amend protects expression, be it of the popular variety or not. Strict Scrutiny! d. Implicating the Government in Ostensibly Private Action so as to Create State Action i. Under Color of State Law: If youre acting under direct compulsion of State law, State action is there. ii. Symbiotic Relationship: Where there is a sufficient relationship b/t Private & State, Private Action = State Action 1. Usually Landlord-Tenant Relationship b/t Govt and Actor not enough 2. Burton v. Wilmington Parking Authority (1961): State owned building leases space to restaurant that wont serve black people. Restaurant benefited from its relationship with state therefore it must comport with 14th Amendment. 3. Norwood v. Harrison (1973): SCotUS strikes down MI Statute supplies textbooks to private schools that discriminate - State may not grant $ or aid to school if aid has Significant tendency to facilitate , reinforce and support private discrim iii. Public Function Doctrine: There is state action in the exercise by a private entity of powers traditionally exclusively reserved to the State. 1. Marsh v. Alabama (1946):JW convicted of trespass for distributing JW materials in privately owned municipality of Chickasaw. a. Private owned companies running a city are serving a public function and therefore must comply with Constitution. iv. Licensing: SCotUS almost always finds that govt licensing or regulation is insuff to create State Action. Mere licensing is not enough to invoke State Action. 1. Moose Lodge v. Irvis (1972): State grant of liquor license to a private club that discriminates is not suff enough symbiotic rel/entanglement to implicate it in clubs discrim. 2. Jackson v. Metropolitan Edison (1974): Electric company shut off Petitioners service for non-payment and she sues claiming that they severed service in violation of DP. a. Government regulation of a utility not sufficient to create state action 3. Govt run public utilities with monopolies State Action 4. Lesson: Pay your bills and follow the proper channels for disputing b/c SCotUS is not sympathetic to delinquent bill payers. v. Involvement of a Government Actor 1. Flagg Brothers v. Brooks (1978): Petitioner evicted and sheriff arranged for storage company to take her possessions to warehouse. They threatened to sell stuff if she didnt pay the warehouse bill. Pet claims right to DP, and that NY Statute delegated to the warehouse a power traditionally reserved to States. But SCotUS says no. Pet had numerous methods at her disposal to reclaim property 2. Lugar v. Edmondson (1982): creditor obtained a writ of prejudgment attachment from court through Clerk. Unconstitutional use of State Action
48

a. Deprivation of property was caused by the exercise of a state-created right by the

e. state or by some person who is a state official Overview: The Problem of Defining Government Neutrality i. Sniadach v. Family Finance Corp (1969): WI law allowing creditors to garnish wages pre-judgment violates DP b/c it gives no notice before proceeding. ii. Fuentes v. Shevin (1972): Statute allowing creditors replevin pre-judgment also violates DP iii. Both cases involve some participation by Govt Actor Signing Judicial orders to take property is State Action, albeit rudimentary. Iceberg in the water is that as long as Courts are involved, everything is a state action iv. Shelley v. Kramer: Unusual in the line of State Action cases. SCotUS says that private parties (homeowners who convenant to refuse black ppl) can do whatever they want but, as soon as they go to the court to enforce their rights, the Court will not violate the Constitution to enforce your discriminatory conduct. Segue b/t State Action and First Amendment i. 1st Amendment actions often involve Private Party v. Private Party. Courts impute state action in the fact that the parties are in a civil suit against one another. As long as the First Amendment is raised, state action is there. Why is this an exception? It just is. ii. Snyder v. Phelps (2010): Snyder family sues Phelps and his Church in Tort for protesting at the funeral of their son killed in Iraq. Defamation, IIED, Invasion of Privacy. SCotUS 8-1 says, speech was protected by 1st Amendment

f.

IX. FREEDOM
1.

OF

SPEECH

AND OF THE

PRESS

A. Introduction
Rationales for free speech guarantee
i. Political Theory: Suppressions of speech and press distort political process. People should be exposed to as many Political views as possible to help shape worldview. This also includes Serious books, art, etc. anything that shapes worldview. All of these are protected b/c political speech so necessary to democracy, it is v. v. v. important ii. Marketplace of Ideas: Operates from a broader base than the Political Theory. Suggests competition of ideas and reference to olden days where ppl meet to exchange info. Mans pursuit of the truth requires discourse How far can this idea be pushed? Traditionally, borderline obscene matters not protected. 1. Stanley v. Georgia (1969): Pornography in someones home is protected by 1st Amendment and mere possession of it in your home cannot be a crime. 2. Herceg v. Hustler (5th Cir. 1987): Edith Jones Dissenting: If we carve out exceptions from First Amendment protection for Fighting words, threats to civil order, defamation and commercial speech, why not this stuff? Obscenity is not a bona fide competitor in the marketplace of ideas and as such, Hustler should not be able to use 1st Amendment to avoid state tort actions

a. Andy says this is clear illustrations of Conservative/Liberal Worldview and where they are going.
iii. Personal Autonomy/Self Fulfillment: 1. Liberals: Consenting adults should be allowed to do/say/have access to things in their homes that are unseemly and certainly not of Public Concern and certainly not the types of things that most ppl would not put into the marketplace of ideas. Conservatives: No they shouldnt. 2. Citizens United v. Federal Election Commission (2010): a. Conservatives win: Under the 1st Amendment corporate funding of independent political broadcasts in candidate elections cannot be limited. political speech is indispensable to democracy, which is no less true because the speech comes from a corporation b. Liberals: corps are not members of society and that there are compelling governmental interests to curb corps' ability to spend money during elections. Focus on Government Regulation Speech Content v. Incidental Restriction i. Content-based discrimination must meet strict scrutiny 1. Subject Matter Restriction: Where application of law depends upon topic of speech.
49

2.

a. (Example: Protests only allowed if theyre labor protests) Viewpoint Restrictions: Where application of law depends upon the ideology of the message a. (Example: Pro-War demonstrations allowed, anti-war demonstrations not) ii. Content-Neutral Speech Restrictions: Intermediate scrutiny iii. Turner Broadcasting v. FCC (1994): Content-based regulations are presumptively invalid and must pass high tier scrutiny. Content neutral regulation only need to meet intermediate tier scrutiny 2.

3.

Protection of Content: Categorized exclusions v. Balancing Tests and Prioritized, Hierarchical Categories Conservative Totem Pole
Political Speech Defamation, etc. Of Public Concern Strict Scrutiny Somewhere in between Lower Tier

Traditional (Liberal) Free Speech Universe ca. 1960

Unlawful Advocacy (C& P Danger) Fight Words Hostile Audience National Security

1st and 14th Amendment Free Speech and Free Press are Content-Protected, Fundamental Rights subject to Strict Scrutiny

Commercial Speech Commercial Speech Obscenity, IIED, etc. Fighting Words Indecency Borderline Obscenity

i. Post 1960s: liberal umbrella starts expanding and categorical exceptions are treating. Everything that starts to get excepted gets strict scrutiny b/c they make no value judgments under the umbrella. Everything under umbrella protected by 1st and 14th is a fundamental right. Liberals dont want to parse it out. (Mein Kampf, flag burning, etc. is all under there b/c of fear of slippery slope). ii. Conservatives would give some things less protection, such as stuff bordering on obscene. Conservatives Shift and say that they never agreed to give everything under the umbrella the same level of treatment. iii. By 2000: Umbrella gets spread wider and wider and by now stuff that would have never been protected in 1950 is protected.

B. Advocacy of Unlawful Action Clear and Present Danger

1. 2. Modern Test: Speech can be punished if theres a substantial likelihood of Imminent Illegality and if the speech is directed at causing illegality. Schenk v. United States (1919): Schenk distribs anti-WWI lit to draftees telling them to assert their rights in violation of Espionage Act. Conviction upheld. 1st Amend doesnt protect someone from yelling fire in a theater. i. Test: Clear and Present Danger: (A Balancing Test?) Whether words used are used in such circumstances and are of such nature as to create a Clear and Present Danger that they will bring about the substantive evils that Congress had right to prevent with Espionage Act. Abrams v. United States (1919): Convictions upheld against Russian immigrants distribing pamphlets protesting Amer troops in E. Europe. i. Holmes Dissenting: C&P Danger Test should ask if speech is intended to produce clear and imminent danger. Not met here pamphlets cause overthrow of govt? HA. Gitlow v. New York (1925): NY State Stat prohibbing advocacy of violent overthrow of govt does not violate 14th Amend DPC or 1st as applied to states. First state to apply 1st Amend to states. i. Test: Reasonableness Approach If State decides that prohibiting is inimical to general welfare its ok. ii. Holmes Dissenting: C&P is proper approach only speech that sets fire to reason & incites conflagration Whitney v. California (1927): Upholds another State criminal syndicalism law under similar Reasonableness justification as Gitlow. Deference to state legislature to invoke police power.
50

3.

4.

5.

6.

7.

8.

9.

10.

Dennis v. United States (1951): Court adopts Judge Learned Hands Clear and Present Danger Balancing Test: i. Whether the gravity of the evil discounted by its improbability justifies such invasion of free speech as is necessary to avoid the danger. Gravity or Danger discounted by Probability. Govt need not show danger is imminent in order to punish speech. ii. Has not been overruled. Still out there somewhere. Brandenburg v. Ohio (1969): Establishes Prevailing (Bright Line) Two-Pronged Test. i. Prong One: Speech can be prohibited if it is directed at inciting or producing imminent lawless action ii. Prong Two: AND it is likely to incite or produce such action. (Gravity taken out of the equation. Bright Line No balancing) Hess v. Indiana (1973): Uses 2-Prong Test to overturn anti-war demonstrators conviction for saying Well take the fucking street later. i. Classic Brandenburg Analysis: Later fails on Prong One. Maybe if he had said, Were taking the street right now, the case would have come out differently? Wheres Brandenburg Now? i. Were not sure if its limited to a very specific line of cases or if its a rule of general application. Were not really sure how you even pass the Brandenburg test today. (IE, Would Julian Assange fail Brandenburg?) ii. Rice v. Paladen Enterprises: (4th Cir 1997) publisher of book on How to be a Hitman did not violate 1st iii. School of thought that Brandenburgs terms can be stretched If youre talking Presidential Assassination, 3 months is imminence enough. Holder v. Humanitarian Law Project (2010) Intelligence Reform and Terrorism Prevention Act prohibits the act of knowingly providing material support and resources to groups classified by Sec of State as foreign terrorist orgs. Tamil and Kurd groups seek injunction to prevent enforcement i. Held: Statute is not unconstitutionally vague as applied to s cases ii. Souter Dissenting: Statute is not uncont. Vague but Const does not permit govt to prosecute groups for engaging in coordinated teaching and advocacy to further lawful political objectives. Nipping speech in the bud, such as admn or judicial orders forbidding certain communications. Traditionally more suspect than other restrictions on speech and presumptively invalid. Theory is that if speech never gets out of the closet in the first place, its even worse than implementing subsequent restraints. (Some say the distinction is arbitrary, since all punishment occurs AFTER speech has been made.) Collateral Bar Rule: a court order must be obeyed until it is set aside. Persons subject to the court order who disobey may not defend against it on grounds that it was unconstitutional. Basically, if youre served with an injunction and go ahead and say what you were going to say anyway, Court will not allow you to bring your 1st Amendment case on the merits. (If you violated an injunction instead of appealed to a higher court, youre getting dismissed on the merits.) Court orders must meet strict scrutiny. Near v. Minnesota (1931): Statute allowed for the abatement as a public nuisance of newspapers that published malicious, scandalous, defamatory material. Unconstitutional. i. Dicta: there may be circumstances where Prior Restraints are constly valid, such as preventing the publication of troops during war time. New York Times v. United States (1971): The Pentagon Papers. Govts injunction against papers publication of top secret docs about history of Vietnam War was Unconstitutional. Govt did not meet burden to overcome presumption of invalidity. i. Stewart Concurring: in haste to decide (18 days) we cant say for sure whether this will violate natl sec ii. Blackmun Dissenting: If death of soliders or breakdown of negotiations result , then its NYTimes fault. He doesnt really lay out his argument, b/c if he did, hed in essence, be publishing the Pentagon Papers. United States v. Progressive, Inc. (1979): Newspaper seeks to publish instructions on hydrogen bomb. Atomic Energy Act provision allowed injunction of such publication. But lingering Pentagon Papers Case questions were not answered b/c case was dismissed when other papers went ahead and published instructions anyway. Prior Restraints and National Security it is very hard to get injunctions on this type of material because there are so few standards to go on, and in some ways, laying out an argument can amt to publishing the material in question. Ironically its much easier to get an injunction against obscene materials b/c States have the ability to view them in advance and develop standards of what is allowed and what is not allowed.
51

C. Prior Restraints
1.

2.

3.

4.

5.

6.

D. Fighting Words and Hostile Audiences

1. Words which by their very utterance inflict injury or tend to incite an immediate breach of the peace (Chaplinsky) i. Fighting Words Doctrine: What men of common intelligence would understand would be words likely to cause an average addressee to fight. ii. Has evolved into True Threats Doctrine. Chaplinsky v. NH (1942): JWs conviction for calling someone a damned fascist upheld. Fighting words are not protected by 1st Amend. It is a category that falls in the one of the well-defined and narrowly limited classes of speech that can be constitutionally prevented/punished. i. Two Instances where speech = Fighting words 1. Where it is likely to cause a violent response against the speaker 2. Where it is an insult likely to inflict immediate emotional harm (Snyder v. Phelps?) Chaplinsky and its assertion that Fighting Words are NOT protected by 1st Amend has never been overruled. But in 70 years since, SCotUS has never upheld a Fighting Words conviction. They always rule that Fighting Words statutes are overly broad and too vague. Hostile Audience: Terminello v. Chicago (1949) and Feiner v. New York (1951): Police are not powerless to prevent a breach of peace when the speaker passes the bounds of argument and undertakes incitement to riot. i. Hasnt been overruled, but theres not much left of it today. Because nowadays, someones willing to take a punch at you for anything. So how do you establish a standard? Cohen v. California (1971): Guy wears jacket that says Fuck the Draft. Not fighting words the content is protected and so are the means used of expressing it. i. Narrows application of Fighting Words Doctrine: Only if the speech is directed to a specific person and likely to provoke a violent response. 1. Maybe if it said, Fuck the head of my draft board, and Cohen SAW the head of his draft board and said, Hey you! and pointed to his jacket. Then MAYBE. R.A.V. v. St. Paul (1992): St. Paul Statutes v. narrowly drawn fighting words law that explicitly prohibited burning crosses, swastikas, etc. Unconstitutional under Strict Scrutiny analysis. i. Rule: There is an absolute prohibition of content-based discrimination within categories of unprotected speech. (IE, You can prohibit libel, but you cant prohibit ONLY libel that criticizes govt) ii. Rule: Fighting Words Laws will be upheld as long as they are content-neutral. Problem is that its difficult to draft these laws w/o being so broad as to being unconst. 1. Exception: restriction on speech may be permitted if it is meant to prevent important/legitimate concerns about the secondary effects of speech such as anger, alarm, resentment iii. But, fighting words are not necessarily unprotected. 1. We can have high and low ranked categories 2. But within each category there must be viewpoint neutrality a. But Conservative totem pole ranks types of speech, which itself is not viewpoint neutral? iv. Liberals could live with a narrow carve out of Fighting Words protection. Theyre problem was that Statute was overly broad and only punished a small portion of the speech it intended to punish. Wisconsin v. Mitchell (1993): Enhanced sentencing for racially motivated crimes is okay b/c 1st Amendment does not prohibit evidentiary use of speech to est the elements of a crime or to prove motive/intent. The idea is that the victim of a hate crime suffers more when motivated by race, sexual orientation, etc. Virginia v. Black(2003): Since there were no onlookers when KKK burned cross, action couldnt be construed as intent to threaten/intimidate. i. Statute that treated cross burning as prima facie evidence of intent to intimidate is Unconstitutional. VA can prohibit all cross burning, but it cant take it as prima facie evidence. Govt may regulate conduct that communicates if it is an important interest unrelated to suppression of the message AND the impact on communication is no greater than necessary to achieve the govts purpose. United States v. OBrien (1968): Draft card burning is not protected speech. Govt may require that men keep their draft cards b/c it has an important interest in ensuring men have their draft cards to facilitate emergency military mobilization. Protesting war is protected. Protesting war by burning draft cards is not.
52

2.

3.

4.

5.

6.

7.

8.

E. Symbolic Speech
1. 2.

3. 4.

i. Certain symbolic speech simply is not legal. IE, you may not rob JP Morgan to protest bank bailouts. Tinker v. Des Moines (1969): Wearing a black armband to protest Vietnam is constitutionally protected symbolic speech. Liberals believe that symbolic speech should receive same protection as regular speech. Texas v. Johnson (1989): Statute prohibiting flag burning is Unconstitutional. The laws purpose was to keep the flag from being used to communicate dissent, which sounds like Viewpoint discrimination! Rule: A regulation of time, place or manner of protected speech must be narrowly tailored to serve govts legit, content-neutral interests but it need not be the least restrictive or least intrusive means of doing so. i. Ward v. Rock Against Racism (1989): NYC Statute said that if you wanted to use public grounds for concert, you had to use city sound engineers. Statute was Constitutional, b/c although there were less restrictive means of accomplishing its goals, such as setting decibel levels, the statute was narrowly tailored and served content-neutral purpose of regulating sound volume. Snyder v. Phelps: Had time place and manner elements but, speakers complied with guidelines set forth. Use of Government Property i. Traditional Public Forum govt may not prohibit all communicative activity. Content based discrim is held to Strict Scrutiny. ii. Designated Public Forum: Govt has voluntariy opened for use by the public for expressive activity. State doesnt have to indefinitely keep the forum open, but as long as it is open, its held to strict scrutiny. iii. Perry Ed. Assoc. v. Perry Local Educators Assoc (1983): Teachers union had exclusive use of interschool mail system and rival system wanted use. Held: Mail system is not a public forum and govt may restrict access to it. Contribution limits in Election campaigns are Constitutional Campaign Expenditure limits are Unconstitutional i. Citizens United v. FEC (2010): Corporations have 1st Amend right to engage in independent expenditures. ii. Govt may limit how much party contributes to a candidate, but it may not limit how much a party spends overall in a campaign (IE, You cant give $1M directly to Obama, but you can distribute among different groups and buy ads directly.) iii. Conservatives: Political speech is at top of totem pole! iv. Liberals: 1st Amend guarantees are there for self-realization and fulfillment for natural persons, not corps. Obscenity is constitutionally defined (see Miller). Indecency and Pornography is Not, but Miller test will still apply. Stanley v. Georgia (1960s): Protect right to pornography in home using similar privacy (of home and mind) analysis as Griswold. Stanleys never really been extended and has to some degree been eroded with excpetion created for child pornography. Miller v. California (1973): The test: Factors must be balanced. i. Material must appeal to the prurient interest (shameful or morbid interest in sex) 1. Community Standard ii. Material must be patently offensive under the law prohibiting obscenity 1. Look to specific law used in prosecution (federal, state or local) iii. Taken as a whole, the material must lack serious redeeming Artistic, Political, Literary or Scientific value. 1. National standard, not a local standard. Paris Adult Theater v. Slaton (1973): Govt has a legit interest in stemming the tide of commercialized obscenity and pornography is not protected by First Amend. It doesnt acquire immunity by being specifically made for consenting adults Local govts may use zoning ordinances to regulate the location and number of adult bookstores i. Young v. American Mini-Theaters Detroit Zoning Ordinance told bookstores to spread out and SCotUS says its ok. Justices, even liberal ones, talk about obscenity getting a lower ranking of scrutiny ii. City of Renton v. Playtime Theaters: Ordinance prohibiting adult theaters less than 1,000 feet from residential zone, park, school, etc Constitutional even though it excluded theaters from 95% of city, having opposite effect of Young zoning.
53

F. Time Place Manner Regulations: Licensing the use of the Public Forum
1.

2. 3.

G. Campaign Financing and Corporate Speech

1. 2.

H. Obscenity
1. 2.

3.

4.

5.

iii. Prevailing Standard for Zoning is OBrien Secondary Effects Govt has substantial interest in preventing crime, preserving quality of neighborhoods. Content neutrality here is analyzed as govts purpose not content of the actual speech. iv. Schad v. Borough of Mt. Ephraim (1981): Nude dancing is protected by 1st Amend. You can use OBrien test to push businesses out of certain areas, but you may not push them out from the jurisd all together.

I. Commercial Speech
1. 2. 3. 4. 5. False and Deceptive Adverting and Ads for illegal activities are not protected. Even true ads that inherently risk deception may be prohibited. Other govt reg of commercial speech is allowed if Intermediate Scrutiny is met Govt regulation does not have to use the least restrictive alternative, but it must be narrowly tailored. Valentine v. Crestinsin (1942): Commercial Speech is no speech at all. Its out in black hole of 1st Amend universe Bigelow v. VA (1975): Ads for abortion services are protected by 1st Amend. Central Hudson Gas & Electric v. Public Service Comm. (1980): Develops Four Prongs of Govt Regulation i. Must concern lawful activity and not be misleading ii. Is asserted government interest Substantial? iii. Does the regulation direction advance the govt interest asserted? iv. Is the regulation more extensive than is necessary to serve that interest? Posadas de Puerto Rico (1986): PR restricts Casino ads targeted at residents. It wants tourists to go to casinos and residents to play the lottery instead. Statute is upheld, b/c govt has an important interest in discouraging gambling. i. Lesser Included Power: If state has not exercised its right to prohibit the conduct, it can still prohibit the ads/speech that promote the conduct. (P. much has been overruled by 44 Liquormart.) 44 Liquormart v. Rhode Island (1996): RI statute banning advertising of liquor prices is unconstitutional. Fails on Prong 4 if the states interest is in promoting temperance, they should just pass a temperance law. If is public official or running for office can recover for defamation only by proving w/ clear and convincing evidence, falsity of statement and actual malice. V. difficult! i. Actual Malice: knew statement was false or acted w/ reckless disregard of the truth. (Burden is on ) 1. NY Times v. Sullivan (1964): AL commissioner cannot recover in tort for ad run by black clergymen containing per se false info about the way PD handled Civil Rights demonstrations. Fact that some statements were factually false was not enough to deny 1st amend protection. ii. Public Figures: Same rules apply. No definition, but generally those who have access to media to respond to any attack. iii. To recover in Tort, malice is an actual element of the tort. No malice, no tort. 2. Private Figures, matters of Public Concern: Compensatory Damages are available, but must prove falsity of the statement and negligence on part of speaker. i. Public Concern: No definition, but must be matters that are of general public interest. ii. Presumed/Punitive Damages require proof of actual malice. But malice not required for general recovery. iii. Gertz v. Robert Welch, Inc. (1974): Boy slain by PD was being defended by . Media makes comments that boy was a convict, etc. Boy not a public official, but matter is of public concern. iv. Dun & Bradstreet v. Greenmoss (1985): D&B releases confidential report that falsely states filed for bankruptcy. SCotUS says that to recover, negligence is the minimum, but States may set the bar higher. v. Philadelphia Newspapers v. Hepps (1986): 1st Amend requires that prove falsity. Shifts burden back to . Now must show malice with clear and convincing evidence and falsity by preponderance.
54

6.

7.

J. Defamation
1.

3.

Private Figure, No Public Concern: Recovery of Presumed / Punitive Damages w/o proof of actual malice. i. No one knows what burden of proof is or standard

Damages

Sullivan/NY Times (public officials; public figures)

Malice must be proven with Convincing Clarity. Malice is an actual element of the Tort Malice-w/ Convincing Clarity

Gertz (Non Sullivan s, BUT matter of Public Concern

At least Negligence (No more strict liability) (Some jurisds set it higher than negl) At least Negligence (no more strict liability)

Greenmoss (Non-Sullivan s
and NOT of public concern Greater than or Equal to Negligence

Special Damages (Economic Harm, etc.) General Damages Proven (Proof of injury is submitted) General Damages Presumed (ie emotional harm) Punitive Damages

Malice w/ Convincing Clarity

Malice

Malice w/ Convincing Clarity

Malice

IX. FREEDOM
A. Introduction
1.

OF

SPEECH

AND OF THE

PRESS

Relationship between the Free Exercise and Establishment Clauses a. Free Exercise Clause clearly safeguards individual liberty i. . . . or prohibiting the free exercise thereof. ii. 1940: Incorporated thru 14th Amend b. Establishment clause clearly directed at govt i. Congress shall make no law respecting an establishment of religion ii. Technically you could have a established/officially recognized religion without interfering with FE iii. 1947: Incorporated thru 14th Amend c. Two Clauses may run parallel to each other and in many cases, run up Against each other. i. Braunfeld v. Brown: (see below) Could have been both Clauses. d. Zorach v. Clauson (1957) Releasing students for religious instruction during class time is a valid accommodation under FE and not a violation of establishment clause, since govt funds/facilities not used e. Historical Perspective; Significance of Original Intent i. By the time the Const. was ratified, majority of states had recognized/estd religions 1st Amendment only applied to the Federal Govt. ii. Late 18th c. Establishment Problems has to do with who gets to hold office and vote. iii. Nowadays, both clauses are now applied against the states and all subdivisions. 1. Establishment Issues are how much govt aid is permissible? 2. Symbolic Identification of Govt w/ religion Liberals are v. sensitive to anything that reflects favoritism towards majoritarian Religions (Christianity) iv. Liberals want big read on both clauses 1. BIG read on Free Exercises Fundamental Right Strict Scrutiny a. Protect minorities under both clauses and influence of majoritarian religions
55

Most minority claims are seeking relief/exception from a burden generally imposed, ie exemption from Draft laws. See Smith Peyote Case (see below) c. And non-believers too. 2. BIG read on Establishment Clause a. Protect minority religions from majoritarian influence. b. And nonbelieivers from being bullied by majoritraians v. Conservatives tend towards a smaller read on Both Clauses 1. Conservatives in general will defer to majoritarian views b/c theyre majoritarian for a reason. 2. Free Exercise: Majority doesnt have to put up with just about anything (any outlandish religion?) a. Lets not put it on the high tier. 3. Establishment: Govt aid to religions is not necessarily a violation of EC. vi. Generally weve come a long way backward from where Warren Court would have put us. 1. Fundamental right and High-Tier Protection, says Warren court 2. Conservatives have more recently begun to derail that notion. In some cases they feel lowertier protection is appropriate.

b.

B. The Free Exercise Clause

1. Beliefs versus Practices; Sincerity and Centrality of Beliefs; Non-Theistic Believes a. Pure belief cannot be punished People can believe anything they want i. United States v. Ballard (1961): Individuals sent out mail asking for $$ b/c they claimed to be messengers of god. Convicted of mail fraud and thrown out b/c no instructions given to jury on just how sincerely these people believed they were messengers. Not whether the jurors themselves believed these people were. 1. RULE: Freedom to hold religious beliefs and opinions is absolute. b. Conduct motivated by Belief is not an absolute freedom i. Conduct motivated by Belief is a fundamental right and requires high-tier scrutiny if govt burdens it (Warren). c. Non-Theistic Beliefs i. United States v. Seeger (1968) Conduct motivated by Belief is a fundamental right and requires high-tier scrutiny if govt burdens it (Warren). 1. RULE Belief in god is not a prereq for religion If a person sincerely holds beliefs that are purely moral/ethical in source and content that impose upon him duty to refrain from fighting in war, they are a Constititutional sub for religion. a. Liberals require High-Tier, Strict Scrutiny Review of govt denials of Free Exercise Accommodation i. For accommodation, Warren Court (language comes from Sherbert) requires minority beliefs that are 1. Central to the Religion 2. Sincerely Held (Jury will decide if its sincere or not) ii. Sunday Closing Laws 1. Braunfeld v. Brown(1961): State/Local Sunday closing laws put Jewish merchants at a competitive disadvantage. An Indirect Burden. Court does not see it as a direct burden on free exercise, as theres an important govt interest in taking a uniform day off. a. But could have also be an Establishment Clause issue? Closings and Holiday observances generally do reflect a majoritarian preference. IE, we get Christmas off but not Hanukkah. b. Direct Burden would have been, you have to be open on Saturday. iii. Sabbatarian and Holiday Observances 1. Sherbert v. Verner (1963): Direct burden Case: 7th Day Adventist loses job for refusal to work on Saturday. And State of SC will not give her unemployment benefits b/c she refuses to take a job that requires her to work on Saturday. a. Warren court applies Strict Scrutiny Analysis SC must make an accommodation by granting her an exemption. iv. Home Education
56

2. Exemptions from Laws of General Application; From Burdens Generally Imposed

1. Wisconsin v. Yoder (1972): Amish of WI believe that children should be taken out of formal
education at an early age and educated at home. WI State law required a certain no. of years of formal education. SCotUS says, yeah, accommodate them. Its 1. Sincere and 2. Central. v. Conscientious Objection to Military Participation 1. Thomas v. Review Board (1963): Sherbert principle upheld. JW quits when hes transferred from a plant that makes nonmilitary goods to one that makes tanks. IN denies him unemployment. SCotUS: Theres no distinction of whether you quit or youre fired on Religious grounds. Give him the unemployment benefits. b. Conservatives take the test off the High-Tier i. Employment Division v. Smith (1990): Something very dramatic happens here. Question over whether employers must accommodate narcotics use as part of religious beliefs. Native Americans fired from their jobs at methadone clinic b/c caught smoking peyote and denied Unemployment. 1. OConnor: Concurrence did not have to accommodate if OR could pass Strict Scrutiny test 2. Scalia: If the issue is that the govt has a general rule and observant want an exemption from a burden generally imposed, then the standard of review is not High Tier at all. Basically a rationality test. 3. RULE: Free Exercise Clause cannot be used to challenge a neutral law of general applicability a. So long as the law doesnt single out rel beh for punishment and not motivated by desire to punish religion, the law is constitutional. 4. Previous decisions are not overruled. Theyre distinguished from this opinion. (Doesnt make much sense to Andy.) ii. The Congressional response: RFRA Statute (1993) 1. Congresss response to Smith. Put religious exemptions back on the high-tier by essentially telling SCotUS to ignore what Scalia said in the Smith case. 2. 5 Enforcement Clause Stretch it a bit to grant rights to religious groups iii. The Courts Counter-Response: Boerne v. City of Flores (1990) 1. What federal govt is trying to do by way of RFRA is Impermissible under 5. Congress is attempting to dictate a rule of decision to the High Court. Congress cannot tell SCotUS what the clauses mean. 2. BUT, Fed Govt still free as a matter of its own discretion to impose on itself a high-tier standard w/ regards to accommodations to religion. Which is the point of Epsirita iv. RFRA still applies to Federal Government 1. Gonzalez v. O Centro Espirita: (2006) Brazilian religious group is using hallocengic tea. SCotUS says it is only consistent for federal govt to allow exemption b/c in RFRA theyve imposed upon themselves a high tier standard. 2. RFRA is still good law to put Federal Govt action on high tier. REMINDER: Free Exercise Clause applies only to governments, NOT to Private Actors a. Estate of Thrornton v. Caldor (1985): CT stat leans on public and private employers to be accommodating to majority and minority rel holidays. Court reminds that FE in the 1st and 14th does NOT speak to private parties. So for CT to tell private employers to accommodate some holidays is a violation of the Non-Establishment principle. b. But Private discrimination on the basis of religion can still be reached under federal, state and local statutes, Provided that these statutes are Constitutional. i. Church of Lukumi Babalu Aye v. City of Hialeah (1993) (Santeria Case) FL doesnt enact anti-animal sacrifice legislation until AFTER they hear Santerians are going to open a church. Unconstitutional. There is a difference b/t refusing to grant an exemption to a burden generally imposed and going AFTER a rel. ii. U.S. v. Reynolds upholds anti-polygamy laws. What plenary power is the federal govt using here? a. Conservatives SMALL read. what quivers do they have in their arrows? i. Historicist View: What did the Founding Fathers want? 1. Criticism: issues concern of Founding Fathers are not the same as issues today. Clearly founding fathers kept a lot of ppl who would have had concerns out of the political process.
57

3.

C. The Guarantee Against Establishment of Religion

ii. Textualist Scalia/Neo-Lochnerite: Its not as easy to make a Non-Estab argument against govt favoritism if
all you have is 14th Amendment. 14th Amendment is a procedural mechanism that has been morphed into something else. Using 14th Amend to get to 1st Amend is a Strained interpretation. Means that States are not as bound by 1st Amend as Fed Govt is. iii. Neutrality If leg is neutral on its face, its OK. Liberals BIG read NON-Est is somewhat a flip side of Free Exercise Guarantee. Should be a Fundamental Right subject to Strict Scrutiny just like FE. i. Separatism: Religion and State are SEPARATE ii. Voluntarism: Taxpayer money shouldnt go into religious stuff you dont agree w/, such as symbolic displays on govt prop. iii. Approaches 1. Prof Tribe If not compelled by Free Exercise, then govt can make no accommodation at all. 2. Larson v. Valente discrim among religions = Strict Scrutiny 3. Souters Heightened Lemon 4. Lemon 5. OConnors Reasonable Dissenter/Non-endorsement Test 6. Kennedys non-coercion test

b.

1. Financial Assistance to Religion a. Walz v. Tax Commission of NYC(1970): Statute that grants tax exemptions to non-profits, including religious orgs
is Constitutional. Purpose of statue wasnt to advance/inhibit religion, but to help nonprofits that govt regards as important to community b. Mueller v. Allen (1983): MN Statute giving tax deduction to parents with children in school public, private, sectarian, non-sectarian passes all three prongs of Lemon test. Statute neutral on its face. Represents change from Warren court. c. Zelman v. Simmons-Harris (2002): Cleveland Schools voucher program does not violate EstCl. Allowed parents to choose from among religious and non-religious schools. Program was neutral w/ respect to religion and allowed parents to make choice based upon their own genuine and private independent choice. Debate over the appropriate standard of review: a. Lawrence Tribe: FE/NE If govt isnt forced/compelled to make an accommodation in the name of FE, then no accommodation may be made at all. b. The Lemon v. Kurtzman Test and proposed alternatives i. The Lemon Test: All three are required (Not really a strict scrutiny test.) 1. Statute must have a secular purpose 2. Statutes primary effect must not advance or inhibit religion a. If Govt fails lemon test, it usually fails on this prong. 3. Statute must not foster excessive govt entanglement w/ religion. a. Usually comes into play when theres an admin entanglement b. But court rarely gets to this prong. c. The Liberal View: Strict Scrutiny where Discrimination Among religions i. Larson v. Valente (1982): MN Stat imposed registration and reporting reqs on charitable orgs but made exemption for religious orgs that received more than 50% $ donations from people who are Members of religion. Unconst b/c it clearly created a preference for firmly estd orgs like Catholic Church while smaller religions (Hare Krishnas on the street who solicit strangers) would have to comply 1. Were not bound by lemon test 2. Discrimination Among religious groups is p. much the same as discrimination based upon race, natl origin, etc. so why not Strict Scrutiny here? d. Souters Heightened Lemon Test Tightening Lemons first prong to make it a tough test for government: A secular purpose does not mean any secular purpose; it means a secular purpose which is Stronger than the religious purpose i. McCreary County v. ACLU (2005): countys posting of 10 commandments in govt buildings was clearly advancing religion in violation of Lemon Prong 1.
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Prong 1 doesnt mean any secular purpose, but A secular purpose that is More Important than a Religious purpose. e. OConnors Non-Endorsement Test: Perspective of the Reasonable, Informed Observer i. Lynch v. Donnelly Conccurrence 1. Concurs with conservatives in upholding government-funded crche in park surrounded by secular Xmas symbols a. Reasonable Dissenters / NonEndorsement Test Would the reasonable dissenter, looking at this display conclude that this display is intended as an endorsement of Christianity? OConnor says No. b. Gives Conservatives their majority ii. Allegheny Cases: (Two companion cases that come in wake of Lynch v. Donnelly) 1. Concurs with Liberals in Rejecting crche in county Courthouse lobby; and with court in upholding Xmas tree/Menorah display on city hall a. Case 1: Xmas Tree and Menorah Goes with Conservatives in Upholding b. Case 2: Courthouse turns over its lobby to a v. serious nativity scene held by religious group Goes with Liberals in striking them down Nativity scene is not surrounded by secular symbols and to Sandy, thats whats okay in her mind. iii. Capital Square v. Pinette (1995) 1. Concurs in upholding display of crosses designed to bury KKK Cross in public plaza in front of Ohio statehouse 2. Key question for OConnor is whether allowing the cross would be perceived by the reasonable, informed, deissenter as govt symbolic endorsement for religion if you dont understand the display go while you drive your kid out to OSU, ask someone about all the good Christian speech meant to drown out the bad KKK speech. f. Kennedys Non-Coercion test Collapses NonEstablishment guarantee into the Free Exercise Gurantee? i. If you have a freedom to exercise, you also have a freedom not to exercise. ii. Allegheny dissent 1. Would uphold crche no ones being coerced here. a. So what would coercion look like then? Andy wants to know. If youre going into the courthouse for jury duty and forced to look at this crap, how is that not coercion? iii. Lee v. Weiseman(1992): there is inherent coercion in allowing prayer at graduations to nonbeliever prayer at graduation could look like attempt to employ machinery of the state to enforce rel orthodoxy 1. Strikes down religious invocations at public high school graduation iv. No Coercion in Allegheny. But Yes Coercion in Weisman.

1.

3. Prayers & Invocations Public Schools, Government Legislative Sessions a. Abington Township v. Schempp (1963): State law and city rule requiring the reading of the Bible each school day b. c. d. e.
violates EstCl. Stone v. Graham: (1980) No secular purpose to state law requiring posting of 10 Commandments in ever public school classroom. Marsh v. Chambers: As distinguished from Lee v. Weisman invocations are allowed Lee v. Weisman: (infra) Wallace v. Jaffree (1985): AL law authorizing moment of silence in public schools for meditation or voluntary prayer Uncont. Purpose of law was clearly to reintroduce prayer into public schools and had no secular purpose.

4. Symbolic Identification of Church with State; Use of the Public Forum for Religious Symbolic Display a. Lynch v. Donnelly (1979): Nativity scene in a park ok b/c display motivated by secular purpose of celebrating
Xmas. SCotUS makes distinction b/t religious symbols and secular symbols of religious holidays. i. Burger: We dont have to use the Lemon test, but were going to do it anyway (cites Larson v. Valente) 1. Secular Purpose: Cheers people up at the holidays and people buy more at stores ii. Dissenters: Whats the difference b/t a nativity scene in Church and one surrounded by reindeer? Ppl have v. different worldviews on depictions of the divine. To Christians, its really no big deal.
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Allegheny Cases Capitol Square v. Pinette d. McCreary County v. ACLU and Van Orden v. Perry: Souters attempt to beef up the Lemon Test not just any secular purpose.

5. Use of the Public Forum for Purposes of Religious Prayer, Discussion and Teaching a. Widmar v. Vincent(1988): State Univ policy of preventing student groups from using school facilities for religious
activities is Unconst. Policy discrims against groups based on their desire to use a generally open forum to engage in rel activities forms of speech and assoc. protected by 1st Amend. Designated public forum. i. If Govt doesnt want the religious forum, they can always undesignated the forum. b. Lambs Chapel v. Center Moriches: (1993) If school district opens its facilities off-hours to community groups, it cannot discriminate against those engaging in religious speech unless strict scrutiny is met. c. Good News Club v. Milford Central School: By opening its facilities to community groups, a public school created a Limited Public Forum and in a Limited Public Forum the govt regulation of speech must be viewpoint neutral.

6. Access of Religious Groups to Government Funds Made available to Non-Religious Groups a. Rosenberger v. University of Virginia (1995): Univs denial of student activity funds to group that published
expressly religious magazine Unconstitutional i. Impermissible content-based discrim against religious speech ii. No violation of EstCl by providing funds govt purpose is to foster wide array of activities b. Christian Legal Society v. Martinez (2010): An interesting twist on Rosenberger Liberals get a narrow majority. If Religious groups get student funds, schools may stipulate that membership in groups is open to people that are hostile to their viewpoints i. What about freedom of association? Well, no ones forcing it on you. If you want the money, you have to take everyone as a member

XI. FREEDOM OF ASSOCIATION

1. a. Not in Constitution. Implied out of various First amendment freedoms freedom to peaceably assemble. Patronage Dismissals a. Branti v. Finckel: Asst. Public Defenders who are Republicans are being tossed out by victorious Democrats. i. Whether the hiring authority can demonstrate that political affiliation is an appropriate something for the something required. b. Connick v. Meyers: Contrast with Finckel. Asst D.A. objects to being transferred and circulates memo to employees regarding their views on transfer, and if they felt compelled to transfer based upon political affiliation. Meyers is fired for insubordination for sending memo around. None of the questions were of public concern except for the one about political campaigns. i. Still good law: Cited by autoerotic case. (in addition to Dunn & Bradstreet) ii. A distintion that Just Roberts carries forward in Snyder v. Phelps. Regulating the Membership of Associations (all cases weve had!) a. Roberts v. Jaycees: A great liberal victory. They get to redefine the two lines of Association Intimate/Privacy and Expressive Association (Freedom of Speech and Freedom of Exercise of Religion). Both lines are Fundamental and they all get Strict Scrutiny i. Freedom of Expressive Association = Strict Scrutiny
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b.

NYS Club Association

c. Hurley St. Pattys Day: Liberal state courts having final say on State Public Accommodation laws as proscribing
discrimination. Liberals get hoisted on the petards of the Roberts case. Groups excluding claim Strict Scrutiny and Liberals have to accept it. d. Boys Scouts v. Dale Same as above. e. Rumsfeld v. F.A.I.R. Solomon Amendment schools excluding military recruiters b/c of Dont Ask Dont Tell. Govt threatens to take away funding including Student Loans. Schools says it violates Free Association/Free Speech to allow groups on campus. i. Conservatives dont buy the forced association argument.

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