Professional Documents
Culture Documents
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If any of the questions were answered no, Marshall wouldnt have been able to
create Judicial review. Marshall cant cite anything because there isnt any case
law. Where he has a pen he can make the law
g. Marshall pulled off a Houdini Act. Jefferson didnt like judicial review. Marbury lost
and didnt get his commission, Jefferson won but got judicial review in the
process (which he didnt want).
h. With judicial review you have unelected officials making decisions. This is a weak
argument because they are Presidential appointees who are approved by
Congress.
i. Somebody has to make the decision, so its best to use judges who are
insulated from transient majorities.
Marshalls rational for Judicial Review:
a. Judicial enforcement of const. limitations is necessary
b. Inherit judicial role to enforce statutory overreaching b/c we cant trust Congress
to strike down their own statute and fix their own mistakes.
c. Article III implications that the courts shall review the laws that come before
them. It does not create judicial review.
d. Judges take an oath to uphold the Const .(but all Congress/Exec do that too)
e. Supremacy Clause says that judiciary has to enforce Const. constraints.
How does this apply today?
a. Judicial review includes:
i. The Const, and federal laws and treaties, are the supreme law of the land
thanks to the supremacy clause.
ii. Courts may interpret the Const. (and legislative/executive acts) in cases
before it.
iii. The judicial interpretation is final and controlling over the views of the
other two branches.
1. I.E. courts may nullify a law they find unconstitutional in all cases,
not just the pending case.
iv. The political branches may overrule the Courts constitutional decision by
const. amend. (and a statutory decision by statutory amend.)
b. We ask a lot of judges to interpret the Const. and Congressional Statutes. They
basically have to tell people they cannot have everything that they want. Even
when its not used, it still looms large over the branches when they are making
decisions about laws and statutes.
c. Most judges believe in judicial restraint and they understand that the people do
not elect them.
Alternatives to Judicial Review:
a. Each branch could determine the const. of their own acts.
b. Lincolns approach: Court could refuse to apply acts it finds unconstitutional in
this case, but the act remains on the books for future application
c. One branch reviews constitutionality, but not necessarily the courts.
d. Council of Revision (courts).
Byproducts:
a. Marshall did not invent judicial review. They were in the federalist papers
although probably not the exact same way Marshall decided.
b. Why is judicial review ultimately accepted?
i. The courts didnt really exercise the power, since it took them 54 years to
strike down another federal statute. (Dredd Scott)
c. Even when its not exercised, the prospect of it affects the way statutes are
written and passed. If the legislature really cares about the law staying on the
books, they are careful the first time so its done right, and not likely to be
overruled.
1. Does the pledge protection act of 2005 violate the Const? Its a jurisdiction removal
bill. (They basically never pass!)
a. The purpose of these jurisdiction-stripping bills is to achieve a change in the
substantive law using a procedural device.
b. If they were ever passed, would they be constitutional?
c. Its a direct congressional act to limit the subject matter jurisdiction of the
courts.
2. Article III is very vague when it comes to jurisdiction removal.
3. Article III requires the establishment of a Supreme Court! You have to have SCOTUS.
a. You do not have to have lower courts, but you probably should.
b. If Congress abolished the lower courts, it would NOT be unconstitutional but it
might be anti-constitutional.
i. Meaning it would greatly upset the national equilibrium. They just
shouldnt do it, not that they cant if they wanted to.
4. When looking at jurisdiction removal bills: (this is a gray and hazy area of law)
a. Does the Const. authorize Congress to limit SCOTUSs appellate jurisdiction?
i. Exceptions Clause (Article III, section 2): does not say that SCOTUS can
have all appellate jurisdiction except for one tiny exception, but pretty
close.
ii. Such exceptions as Congress shall make.
iii. Const. permits Congress to determine the jurisdiction of SCOTUS.
b. Does the Const. authorize Congress to limit the jurisdiction of the lower federal
courts (district and court of appeals)?
i. Under Article III, Section 1 Congress cannot regulate the jurisdiction of
lower federal courts. They can create them, but not regulate their
jurisdiction.
ii. The argument that since Congress created the courts they have the power
to determine jurisdiction is a valid argument, but probably not true based
on the language of Article III.
c. How should we assess the wisdom of jurisdiction-removal bills?
5. Ex Parte McCardle (1868):
a. McCardle was a newspaper publisher who supported the Confederacy and was
held in custody upon charges founded upon the publication of articles highly
crucial of Reconstruction.
b. He was a civilian arrested by military authorities, even though there were civil
courts at the time. He then files a Habeas Corpus claim.
i. Judicial Act of 1789: Congress creates Federal Courts subject matter
jurisdiction for people held in federal custody.
ii. 1867: Statute that provides for Habeaus relief for people held either in
federal or state custody.
c. He is confused about why he is being held in military court despite committing a
crime that is at best civil (possibly 1st amend. Argument).
d. Congress is afraid of SCOTUS striking down Reconstruction and repeals the 1867
Act for the express purpose for getting this case off the SCOTUS docket.
e. SCOTUS then hears whether a repeal of Supreme Court jurisdiction is
Constitutional.
f. Held:
i. Congress can control subject matter juris. of SCOTUS but only if an
alternative means of SCOTUS jurisdiction exists.
ii. SCOTUS ended up hearing the case based on the Judiciary Act of 1789
jurisdiction since the 1867 statute was repealed.
iii. Court did not have jurisdiction to hear the appeal because of Congress
authority to create exceptions and regulations to the Courts appellate
jurisdiction.
iv. Opponents of jurisdiction statutes say this case only stands for the
proposition that Congress may engage in a partial removal of jurisdiction,
but proponents say that Congress can strip jurisdiction (and it cant be
reviewed).
6. Chicken and Egg Theory of Con. Law
a. Congress enacts a law that strips jurisdiction
b. Claim filed in court saying an act violates rights
c. State says court must dismiss case because of statute
i. Question is whether a federal district court, court of appeals, or the SC can
hear a claim that the jurisdictional-stripping bill is Constitutional, or does
the court lose its jurisdiction?
d. McCardle stands for the proposition that the court can review a case for removal
of jurisdiction.
7. Why have so few jurisdiction removal bills become law?
a. Doubts about constitutionality
b. Anti-constitution vs. unconstitutional
c. Passions fade cooler heads prevail
i. Loyalty oaths were a big deal in 1950s, not really an issue anymore.
ii. Even Miranda which was an issue in the 1960s, but even the people who
dont like Miranda still comply with it and dont really object.
d. Concerns about freezing the law
i. When you remove federal court jurisdiction you basically freeze the law.
The same opinion might not follow through 10, 15, 20 years after the
court has made a decision. Its probably better to let the federal courts run
their course and change their minds if they decide they want to
e. State-court decisions survive
i. They ONLY remove federal court jurisdiction, NEVER state court
jurisdiction.
ii. Most federal claims have concurrent state and federal court jurisdiction.
You can file federal claims in state court (most of the time). If you file in
state court, you can remove it to federal court. Removal does not work if
Congress has passed a jurisdictional-removal bill. It just has to be heard in
one of the 50 state courts.
2.
3.
4.
5.
woman. Then NY says the gay people can get married in NY, its not an adequate
independent state ground. A const. issue exists and the Supremacy Clause says
that NY cant have that rule.
Allows state courts to give a greater amount of protection for their own people than
federal courts (State are the final expositors of state law)
a. This doctrine enables the state court to find greater protections for it citizens
than the federal constitution would provide.
b. Also happens in Search and Seizure cases.
Issues of federal law resolved by state courts will not be reviewed by SCOTUS if the
state courts judgment rests upon an adequate and independent state ground.
Rule has two branches:
a. Procedural - arises when the state court has refused or simply failed to rule on
the merits of the federal law issue because they were not presented to the court
in the manner required by state procedure.
b. Substantive where a state court has held a state statute to be invalid under
both the United States and states constitution; sole issue is whether the state
substantive ground is independent, or whether the state claim would come out
the same no matter what.
42 USC 1983 has created a cause of action of deprivations of federal rights by state
officials, but there isnt a statute providing for a cause of action for denial of Const.
rights by federal officers.
a. SCOTUS has held that the Const. creates a limited cause of action against
federal officers under 1331 (Federal question statute) which provides for
jurisdiction in all cases arising under the Const. of laws of the US.
Justiciability
1. Doctrine determines which matters federal courts can hear and decide and which
should be dismissed.
2. Sources of Justiciability Doctrines (underlying policy)
a. Article III, Section 2(1) defines judicial power in terms of cases or controversies
b. Separation of Powers
c. Prudential consideration prudent that the federal courts refrain from decision
for policy reasons.
2. Prohibition against Advisory Opinions
a. Federal courts CANNOT issue advisory opinions.
b. What is an Advisory Opinion?
i. Question asked by executive or legislature without a case or controversy.
ii. Collusive suit: 28 U.S.C. 1359 A district court shall not have jurisdiction
of a civil action in which any party, by assignment or otherwise, has been
improperly or collusively made or joined to invoke the jurisdiction of such
court
iii. Suit in which there is no substantial likelihood that the court decision will
have some affect on the aprties.
iv. Dicta? Could it be an advisory opinion, as it doesnt answer a question
that was actually present to the court?
c. In 1793, George Washington submitted 29 questions to SCOTUS. Justices replied
that there were strong arguments again the extra-judicially deciding the
questions.
d. More relevant and influential to states because several states have advisory
opinions.
3. Based on Advisory Opinion Ban
a. Article III
i. No case or controversy- you need this to satisfy Article III. Not just
questions.
ii. Separation of powers
iii. Advisory opinion is not a judicial act
b. Prudential
i. Avoid interference with the legislature and executive unless litigants raise
actual judicial dispute
1. Lets not decide questions that have not even been asked.
ii. Conserve finite judicial resources (its expensive to have court and it takes
a lot of time)
iii. Judicial restraint Judges are very dependent on the parties because there
is just a lot of knowledge that cannot be had by everyone.
iv. Efficient, effective decision-making
1. Adversary parties are supposed to submit opposing briefs. You cant
get a good argument if the judges cant hear the arguments from
each side. You need to have people presenting both sides for it to
work.
v. Collusive suits
4. Prudential Basis FOR Advisory Opinions (only in some states)
a. Could help smooth relationships between the executive and the judiciary. It
avoids later collision among the branches.
b. Encourage enactment of constitutional legislation
c. Net savings of finite judicial resources.
i. You dont have to wait for a case to come about, you can decide it now
and not wait until later.
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5.
6.
7.
8.
ii. There is a lot of judicial ink spilled when cases have to be worked up
through every level of the court. You could save resources and time if the
court decides the case early on, rather than waiting for circuit splits.
Limited Authority in 45 States - if the Court wishes too
a. This includes Missouri.
i. RSMO 477.004 Allows the courts the discretion to take cases it wants
and issue advisory opinions.
ii. Says that SC of Mo may answer questions of Missouri law certified to it by
the Supreme Court, a Court of Appeals of the US, a US District Court or a
US Bankruptcy Court, IF there are involved in any proceeding before the
certifying court questions of MO law which may be relevant to the cause
then pending and as to which it appears to the certifying court there is no
controlling precedent in this state.
1. If a US Court is looking at a controlling issue of MO law that is not
currently available, they can ask for a certified question.
iii. MO has a pretty restrictive statute.
b. Purpose is to give the Mo SC the opportunity to decide what Missouri law is,
rather than letting a federal court decide for it. This way Mo gets to decide Mo
law, and not anyone else.
c. This usually happens in Erie cases (diversity) questions. It happens a lot, where
Federal courts get cases that involve controlling issues of state law.
Dicta is not an advisory party because Article III allows the judge to decide on the
whole case or controversy. As a prudential matter, dicta could be seen as an advisory
opinion because its on a point that the parties have not pointed out or argued. They
try not to have dicta but they really do. Its a prudential concern, but not an Article III
problem.
Summary:
a. To avoid being dismissed for seeking an advisory opinion:
i. Filing must present an Article III case or controversy between truly
adverse litigants, AND
ii. MUST be a substantial likelihood that a favorable federal court decision
will have some affect on the parties.
How can you raise constitutional issues that affect a person?
a. If the statute is made the basis of a claim or defense in a suit between private
individuals, the const. issue can be litigated.
b. If the Fed or State Gov brings a civil suit based on the statute, the claim of
unconstitutionality can be a defense.
c. If the gov. institutes criminal proceedings based on the statute,
unconstitutionality of the statute is a defense.
d. One damaged by government action claimed to be unconstitutional may be able
to raise the issue in a suit for damages.
e. Persons held in official custody may challenge the constitutionality of their
detention by a writ of habeaus corpus.
f. One may bring a suit seeking an injunction or a declaratory judgment as to the
constitutionality of a statute (most common way!).
g. SCOTUS has suggested that a gov official sued for damages for violating the
Const. who wins in the lower court under qualified immunity can see SCOTUS
review as long as the official desires to continue to engage in the allegedly
unconstitutional conduct as a part of job performance.
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Standing
1. Generally:
a. Standing is the determination of whether a specific person is the proper party to
bring a matter to the court for adjudication.
b. Cases decided on standing are NOT decided on the merits at all.
c. If you fail Article III standing then youre out. If you make it through Article III but
then you fail the prudential considerations test, youre out!
d. Standing is really messy. Its really case-by-case and hard to determine with
black letter law.
2. Policy Considerations for Standing:
a. Constitutional avoidance
b. Separation of Powers Judicial Restraint
c. Ban on Advisory Opinions
d. Improved Judicial Decision-making
e. Avoidance of decision-making
3. Sub-Constitutional (Statutory or Common Law) Standing:
a. P MUST be within the plaintiff class defined by the applicable statute or the
common law.
i. You have to show that you are within the class of people that the statue or
common law was meaning to include.
4. Constitutional Standing
a. Article III
i. Injury in Fact sometimes the language is different but its generally
about the same thing.
1. Has to be an imminent threatened or actual injury
2. A distinct and palpable injury to himself
3. Any threatened injury must be imminent and personally suffered.
ii. Causation
1. Alleged injury must be fairly traceable to Ds conduct
2. Ds conduct must have caused the harm
3. Doesnt have to be the sole cause but it has to be significant
iii. Redressability
1. Must be likely that a favorable court decision would redress the Ps
injury
2. You need to be able to have a remedy.
b. Prudential Considerations
i. Generalized Grievance citizen or taxpayer standing
1. P has to allege more than just a generalized grievance widely
shared by all or a large class of citizens
2. Such grievances are most appropriately addressed to the political
branches.
ii. Third-Party Standing
1. P generally must assert its own legal rights and interests, not the
rights and interests of third parties.
iii. Collusive Suits
Conventional Standing Case Law
1. Warth v. Seldin (1975)
a. Ps brought an action against the Town of Penfield claiming that the towns
zoning ordinance effectively excluded persons of low and moderate income from
living in the town.
b. This was an enforcement action, not common law. They were trying to overturn
the zoning laws. This case does NOT concern sub-constitutional standing.
i. Group 1 of Plaintiffs were four people of low and moderate income (and
members of minority groups)
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2.
3.
4.
5.
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iii. Court could rule on whether EPA has duty to take steps to slow or reduce
global warming through greenhouse gas regulation (redressability).
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a. Where a close relationship exists between the P and the third party (Craig v.
Boren vendor/purchaser)
b. Where an association sues on behalf of its injured members (Warth v. Seldin)
i. You just need them or their members to get Article III standing then you
are fine. You need a strong relationship
c. Where the third party is unlikely to be able to sue (Bush v. Gore)
i. Interest groups finance litigation. It costs about mill to bring a case to
SCOTUS, but interest groups do.
d. First Amendment over breadth doctrine (Coates v. Cincinnati)
Taxpayer Standing
1. Taxpayer standing is generally denied if citizens are only alleging that they should
have standing because they dont like the way Congress is spending their money and
only allowed under Flast if violation of a certain provision of the Constitution is alleged.
2. Frothingham v. Mellon (1923)
a. Federal taxpayer brought suit challenging the constitutionality of the Maternity
Act of 1921 (alleging 10th Amend. Violation, as infant health care is a state
function). Court held that taxpayers lacked standing to challenges the
expenditures, because any injury was remote, fluctuating and uncertain.
b. RULE: No standing if you are simply suing as a taxpayer.
c. Court gets concerned because every single statute that Congress passes costs
the taxpayers money.
3. Flast v. Cohen (1982)
a. Stands for the proposition that a taxpayer can have standing to challenge
spending of money as a violation of the Establishment Clause.
b. Court said that you can have standing as a taxpayer IF (a) you are suing and
establishing a misuse of funds under the spending power clause AND (b) You
are alleging a violation of specific clause of the Constitution.
Generalized Grievance suit:
1. Citizen Suit:
c. Roosevelt appointed Justice Hugo Black (Senator from AL). Shortly after he was
appointed and confirmed, he and his wife went on vacay to Europe and the
media reported that he had joined the KKK. Black made a radio statement saying
he would resign. A citizens suit was field under the Emoluments Clause (Art. I,
Sect. 6(2)). Court dismissed the case on the ground that it was a citizens
lawsuit, and the only complaint was a generalized grievance.
d. Allows for separation of powers, limits judicial review of some acts of Congress
and the President that SCOTUS probably wouldnt take anyway.
4. Some things, despite Marbury v. Madison, are beyond the scope of review because of
standing. Some provisions of the Const. are beyond the right to sue because of Article
III standard and the prudential standing. You just have to hope that Congress wont do
these things.
5. Lujan v. Defenders of Wildlife (1992):
a. Looks at relationship between article III standing and prudential considerations.
b. Effort by Congress to create citizen standing by statute. This is statutory
standing, not Article III standing.
c. FACTS: Defenders said the regulation exceeded its authority. They are arguing it
was inconsistent with the statutory authority created.
d. ESA says any person has statutory standing if the US or any other agency is
alleged to be in violation of the act. P filed suit seeking a declaratory judgment
that a 1983 regulation stating that ESA of 1973 only extended to actions taken in
the U.S. or on the high seas was in error as to its scope.
e. SCOTUS held that Ps lacked standing to bring the action because they did not
have an injury-in-fact (despite claims by individual Ps that they intended to
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observe animals when overseas and were afraid they wouldnt be there when
they went back?
i. Ps needed a discrete injury. There is no Article III standing here so court
didnt even look at prudential concerns.
ii. Courts sometimes take generalized grievance cases and decide them
on Article III grounds so that Congress has no power to overrule the
decision.
f. SCRAP is probably not good law because there is no concrete injury. It has not
been overturned by SCOTUS.
6. Federal Commission v. Aiken (1998)
a. Challenge to the federal election commission.
b. Court held 5-4 (like Lujan) that the P have standing to challenge the regulation.
Justice Bryer dissented in Lujan but wrote the majority in this case. Scalia did the
opposite.
i. This is not one of these deminimus allegations of standing. The statute
requires that the FEC file a report that is publically available for anyone. P
claimed they are entitled to it, and there was no report done. This was
NOT like breathing the air but different.
ii. SCOTUS said that injury relating to voting was sufficiently concrete and
specific such that the fact that it was not widely shared didnt deprive
Congress of the power to authorize its vindication in the federal courts.
c. Some of these standing decisions will be 5-4 because its tricky stuff.
d. Broader view of standing means more const. claims get in on the merits, a strict
reading means less get into the court.
e. Some cases have such a minor injury in fact that they cant get through Article III
standing to even make it to prudential considerations.
7. Hollingsworth v. Perry:
a. Facts: California had a statute that limited marriage to man and woman. Cali SC
said that it violated the state constitution and struck it down. Prop. 8 then comes
about when citizens put on the ballot a proposal to amend the state const to
prohibit gay marriage. It passes with 52%.
i. Proponents of same-sex marriage file in Federal District Court claiming the
proposition violates 14th Amen and equal protection. They strike it down.
ii. The State of California then declines to appeal the case because they are
happy with the result. They agreed that not allowing same sex marriage
violates the 14th Amendment.
b. Official Proponents: people who got the signatures, raised the money, and put
the proposition on the ballot in the first place.
c. 9th Circuit upholds the standing of Official Proponents. SCOTUS shoots it down.
i. Proponents said they had standing, even after the state refused to file the
appeal because they are not just interested citizens, they are official
proponents under a proposition/initiative system, b/c citizens organize the
lawsuit because the state wont do it. They have a special interest
because they are doing what the gov. should do but isnt. Not a bad
argument but it didnt win.
d. All parties agree that in the Dist. Court, P who wanted to strike down the ban on
same sex marriage had standing. They had standing to challenge a state statute
under the Equal Protection Clause b/c they wanted to get married and they state
wont let them. SCOTUS has always said marriage is a fundamental right.
e. SCOTUS didnt say anything about same sex marriage and the equal protection
clause since the case was dismissed for standing.
f. Hypo:
i. Voters of Cali pass Prop 8 by 75%, where does the federal dist. Court get
to the authority to say a state statute violates the equal protection clause?
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Supremacy Clause. Also, Calis stuff gets stuck down for being unconst. all
the time!
ii. If Cali chose to appeal the lawsuit, would the state have had standing?
Yes! They are defending their own statute.
8. Raines v. Byrd (1997) this will be relevant to this new suit from John Bahner against
Obama where Congress is suing the President.
a. President has to veto the whole thing or nothing. This means both parties in the
legislature add tons of pork to the bills. In Mo, they Gov. does have line-item veto
authority.
b. Ps alleged the Line Item Veto Act injured them directly and in their official
capacities in three ways:
i. Altered the legal and practical effect of all votes they may case on bills
containing such separately veto-able items
ii. Divested them of their constitutional role in the repeal of legislation
iii. Altered the const. balance of powers between the Legislative and Exec.
Branches.
c. Congress wanted a Const. ruling on the Act, so they grant citizen standing to
members of Congress who had voted against the bill. They wanted to allow
citizens from Congress to challenge whether or not the line-item veto bill was
Const.
9. Clinton v. New York
a. Court found injury-in-fact because P actually suffered monetary loss b/c of a line
item veto (it was a business). The part Clinton struck down injured them by
canceling a tax provision that would have benefitted sellers in a transaction, but
not a cooperative that was purchasing their co) vent though theyd passed the
bill.
b. This is the opposite of Raines where they didnt find standing.
Mootness
1. If events subsequent to the filing of a case resolve the dispute, the case should be
dismissed as moot.
2. General RULE in federal cases.
a. An actual controversy must exist at stages of appellate or cert. review, and not
simply at the date the action is initiated. Roe v. Wade (1973)
3. Examples of Moot Cases
a. Legislature repeals or amends the statute the plaintiff sues under (or the statute
that is the basis of Ps claim), particularly in an injunctive action.
b. The criminal D dies, or the civil P dies and the cause of action does not survive
death.
c. The prosecutor drops the charges during trial.
d. Civil parties settle the case.
e. Students sue but graduate before the suit is resolved.
4. Craig v. Boren and Mootness:
a. Craig was 21 by the time the case was pending. Craig only raised an injunctive
claim, not a damages claim. Whitener (vendor) raised a damages claim and an
injunctive claim. Craigs claim could be dismissed on mootness grounds.
5. Regents of the Univ. of Cali v. Bakke (1978):
a. P, a white male, was denied admission to the Univ. of Cal-Davis Medical school
and filed suit challenging the set-aside of 16 slots in the entering class of 100 for
minority students. Court rejected Ds argument that P lacked standing b/c of
redressability (since he might not be admitted regardless of the policy) and said
that the injury was Ps inability to compete for all 100 spots.
6. DeFunis v. Odegaard (1974):
a. P applied to the Univ. of Washington Law School and was denied admission. He
alledged that the procedures and criteria employed by the school discriminated
against him on account of his race in violation of the equal protection clause and
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brought the suit asking the court to issue a mandatory injunction commanding
the Ds to admit him as a member of the 1L 1971 class. By the time his appeals
reached SCOTUS he had registered for his final quarter of law school.
i. Court dismissed because of mootness, holding that the controversy
between the parties had ceased to be definite and concrete and no longer
touched the legal relations of the parties having adverse interests.
ii. P will never again be required to apply to law school so his claim isnt
capable of repetition.
7. Exceptions to the Mootness Doctrine:
a. Capable of repetition, yet evading review
i. Must first be a reasonable expectation that the same plaintiff could be
subject to the same wrong again.
1. Mere theoretical possibility of repetition is not enough.
2. It is not enough that someone else might suffer the same harm in
the future.
ii. Injury must also be of such sufficiently brief duration that a suit about it
would almost always be concluded before federal court litigation is
completed.
iii. Roe v. Wade wasnt moot, even though McCorvey was no longer pregnant
when the case was heard. Every time she had a chance for the case to be
heard, she wouldnt be pregnant by the time it got to the Court, so it was
capable of repetition yet evading review (an exception to the mootness
doctrine).
b. Collateral Injuries remaining after primary injury is resolved.
c. D voluntarily ceases unlawful conduct, but remains free to resume the
conduct at any time
i. D says hell stop trespassing on Ps land but actually free to go on the land
at any time.
ii. City of Erie v. Paps AM: Several members of this Court can attest that
the advanced age of paps owner (72) does not make it absolutely clear
that a life of quiet retirement is his only reasonable expectation. His age
didnt impact the fact that he could choose to re-open the Kitty Kat
Lounge at any time, making it so that the alleged injurious conduct would
again impact him.
d. Certified Class Actions
i. If the named Ps claim becomes moot, class action will not be dismissed
as long as ONE member of the class has and ongoing injury.
Ripeness
1. Ripeness doctrine seeks to separate matters that are premature for review from those
cases that are inappropriate for federal court action.
2. While standing focuses on whether the type of injury alleged is qualitatively sufficient
to fulfill the requirements of Article III and whether P personally suffered that harm,
ripeness centers on whether the injury has occurred yet.
a. Basically when a party may seek a pre-enforcement review of a
statute or regulation.
3. Ripeness Weighing the Interests
a. Hardship to the parties of withholding judicial decision
b. Fitness of the issues for judicial decision.
4. If something is too ripe, youre essentially asking for an advisory opinion.
5. United Public Workers v. Mitchell
a. Group of employees sought an injunction forbidding the Civil Service
Commission from enforcing an aspect of the Hatch Act forbidding certain classes
of federal gov. employees from taking any active part in political management or
political campaigns. SCOTUS held only one of the plaintiffs, who actually
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ii. Article IV, Sect. 4 U.S. shall guarantee to each state a republican form of
government.
d. Impeachment
i. Nixon v. US (1993): Federal Dist. Judge went to prison for badness, he
never gave up his appointment and wanted to resume the judge-ship. He
wouldnt resign. House voted to impeach him, then it went to trial and
Senate appointed a committee to write a report. Judge Nixon sued saying
it was an unconstitutional impeachment b/c not all 100 senators would be
there. SCOTUS said no, its a political question.
1. Sensitive b/c impeachment is the way you get rid of SCOTUS judges
so Congress should handle it.
2. No evidence that the framers wanted judicial review in the context
of impeachment powers.
6. Old Political Questions: legislative reapportionment (redistricting) but this was over in
1946. Overturned by Baker v. Carr in 1962.
a. Court held that a suit by voters seeking reapportionment b/c the apportionment
of a state legislature denied them equal protection of the laws involved a
justiciable question.
i. Case basically upheld the principle of one person, one vote. Political
question does not equal political case.
ii. You can only divide up districts by POPULATION, not by county or any
other methods.
Policies of Political Questions:
1. Reasons Against Political Questions:
a. Constitution limits gov. power
b. Courts role is to enforce provisions of anti-majoritarian Constitution.
c. Abdication of judicial review (Marbury?)
2. Reasons For Political Questions:
a. Maintain courts legitimacy and authority by avoiding some particularly
controversial constitution questions.
b. Allocates some const. decision-making to the political branches, in areas in
which these branches have better expertise than the courts.
c. Minimize judicial intrusion in sensitive areas of decision making
d. No way to enforce some court decisions (war constitutionality)
Part II: Individual Liberties and Selective Incorporation of the Bill of Rights
Selective Incorporation
Prime Sources of Constitutional Liberties
1. Original Constitution
a. Best way to win a Constitutional Challenge is to use a Procedural Challenge. This
allows you to win if you cant win on a substantive challenge.
b. Article 1, Section 10, Clause 1 No state shall pass any law impairing the
obligation of contracts
i. Applied to state of GA in Fletcher v. Peck (1810), where state tried to
rescind sale of land it previously approved.
ii. Doesnt add up to much today (were afraid at the time that state
legislature may forgive debtors obligation)- most authors of the const.
were creditors.
c. Article I, Section 9, Clause 3 No bill of attainder or ex post facto law shall be
passed.
i. Ex Post Facto cases say you cant enforce something that wasnt in effect
when the person committed the crime. You cant change the levl of
punishment later.
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ii. Bill of Attainder laws used to be enforced in England (someone would sign
something saying X committed treason and is sentenced to hang
conviction by legislature)
d. Article VI, Clause 3 No religious test shall ever be required as a qualification to
any office or public trust under the US (NOT common)
e. Article I, Section 9, Clause 2 The privilege of the writ of habeus corpus shall
not be suspended, unless when in cases of rebellion or invasion of the public
safety may require it
f. Article IV, Section 2, Clause 1 The citizens of each state shall be entitled to all
privileges and immunities of citizens in the several states.
i. Includes protection by the government, enjoyment of life and liberty, with
the right to acquire and possess property of every kinds, and to pursue
and obtain happiness and safety; subject nevertheless to such restrains as
the government may justly prescribe for the general good of the whole,
etc. (see page 410).
ii. Corfield v. Coryell (1823): Privilege of fishing belongs to all of the citizens
or subjects of a state. A NJ regulation saying only NJ residents could fish
upheld under P&I of Article IV.
iii. Paul v. Virginia (1868): Corporation not a citizen protected by the clause.
SCOTUS upheld a state law imposing special burdens on insurance
companies incorporated in other states as a condition of doing business
on the ground that a corporation is not a citizen protected by P&I of Article
IV.
2. Bill of Rights
a. Barron v. Baltimore (1833)
i. Barron ran a private dock. Baltimore started doing internal improvements,
which substantively changed the water table. Barron sued alleging that
Baltimore took his process with just compensation in violation of the 5 th
Amend. Maryland did not have a takings clause (thats how we built
America, after all, because states stole the land from locals). Does the 5th
Amend. Apply to state actions or only constrain the Federal Gov? John
Marshall held that Bill of Rights was designed to only constrain the Federal
Gov.
ii. Marshall was correct, because framers in 1787 aimed to not have states
limit their own power, just to limit the federal government. Barron lost
because he cant use 5th Amend against the state of Maryland.
iii. He could today because 5th Amend was incorporated by the 14th Amend.
later on!
iv. SCOTUS held that the Bill of Rights applied only to the federal
government, not the states.
3. Civil War Amendments (13th 15th)
a. After debate as to whether the Constitution itself should be changed, the
amendments were placed at the end so that the original Const. could be left in
tact.
b. Constitution said that three fifths of other persons were to be counted for
determining the number of Reps. and amounts of taxes.
c. 13th Amendment (1865)
i. Proposed before the end of the Civil War. It was adapted by 1865.
Southern states could not be admitted back to the union without radifying
these amendments.
ii. Southern states wanted to keep slavery but call it a different name. Using
black codes which made newly freed slaves unemployed and homeless,
therefore making them criminals. Once sentenced by a judge, you could
then work off your sentence by working for no pay on a plantation.
iii. Text:
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a. State law permitting conviction by six unanimous jury of six in all non-capital
criminal cases is allowed under the sixth amendment and incorporated by the
14th.
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c. The statute was enacted during the Great Depression so that NY dairy farmers
wouldnt go under.
d. This was a slap in the face to Lochner, as the court seemed to question its basic
premise.
e. Pre-1937 Swing Votes: Chief Justice Evan Hughes, Owen Roberts
i. Roberts was a justice that had no judicial philosophy at all b/c he flipped
his vote and other justices couldnt stand him. When he retired in 1945
and there was no letter written for him. Haha.
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4. Does the rational basis the court finds does it have to be the same one that Congress
thought about, or can it be another rational basis that the court/attorney comes up
with? Does congress have to have actually thought about the particular rational basis?
a. NO! Rational basis that upholds the statute in court, does NOT have to be the
same that Congress thought about because we dont put Congress on the stand
to testify. It can be ANY rational basis, even if there is a new one that the judges
thought up.
i. You can use legislative history, etc. to look for the rational basis but you
dont have to.
b. This is SO VERY deferential. Hard to show that something isnt rational.
c. Since 1937, NOT ONE state or federal economic regulation has been found
unconstitutional as infringing liberty of K as protected by due process clauses.
5. Court has made it clear that economic regulations will be upheld when
challenged under the due process clause so long as they are rationally
related to serve a legitimate gov. purpose.
a. Purpose can be any goal not prohibited by Const., and any conceivable purpose
is sufficient.
b. Law need only seem a reasonable way of attaining the end; it does not need to
be narrowly tailored to achieving the goal.
c. Virtually any law can meet this very deferential requirement.
Levels of Scrutiny
1. The level of scrutiny is the test that is applied to determine if the law is constitutional.
a. Strict, intermediate, rational-basis
2. The level of scrutiny tends to be outcome-determinative.
a. If rational basis review is applied, the law is likely to be upheld.
i. Challenger has burden of proof! They have to show that Gov. actions are
totally irrational. This is really hard to prove and the claimant usually
looses. If you look hard enough, you can find a rational basis for a law
from the legislature.
ii. I.E. Age discrimination cases are nearly impossible to win!
b. If strict scrutiny is used, the law is likely to be struck down and gov. usually
looses.
i. Legislature rarely passes laws that are overtly discriminatory to suspect
classes.
3. For equal protection and all due process cases.
Strict Scrutiny
4. The gov. must show that the challenged classification serves a compelling state
interests and that the classification is narrowly tailored to serve that interest.
a. Government has the burden of proof.
b. Court must regard the govt purpose as compelling. Law must be shown to be
necessary as a means to accomplishing the end. Also requires proof that the law
is the least restrictive or least discriminatory alternative.
c. Suspect Classifications:
i. Race
ii. National Origin (except immigration cases)
iii. Religion (either under Equal Protection or Establishment Clause analysis)
iv. Alienage (whether or not the person is a US Citizen)
d. Classifications Burdening Fundamental Rights
i. Denial or Dilution of the Vote
ii. Interstate Migrations
iii. Access to the Courts
iv. Other rights recognized as fundamental
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Intermediate Scrutiny
5. The gov. must show that the challenged classification serves a legitimate important
state interest and that the classification is substantially related to serving that
interests.
a. Govt interest must be more than just a legitimate goal for government to
pursue; court must regard the purpose as important.
b. Means chosen must be more than a reasonable way of attaining the end; the
court must believe that the law is substantially related to achieving the goal.
c. Govt has the burden of proof.
6. Quasi-Suspect Classes
a. Gender
b. Nonmarital children (illegitimacy)
i. Few and far between at the Const. level. Historically, the discrimination
faced by illegitimate children was great and pervasive. In 1969, SCOTUS
said that the lifetime legal stigma on children who cant control how they
are born.
ii. Now we have the uniform parentage age which is a statute that removes
the discrimination, so cases come under that statute and not under the
14th.
c. Undocumented alien children with regard to education
d. Regulation of commercial speech and speech in public forums
7. Usually the claimant wins, but not as often or reflective as strict scrutiny.
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ii. Court says there are other rights in the 14th Amendment than just those
incorporated from the Bill of Rights (i.e. right to privacy).
iii. Court said the essential holding of Roe should be retained and
reaffirmed (still based on viability).
1. Womans right to choose before viability
2. States power to restrict after viability
3. States legitimate interest in protecting mothers health and fetuses
life.
e. Because of stare decisis, decisions should only be overruled when
conditions are right: (Comes up in Const. and non-Const. cases)
i. Was the earlier decision unworkable?
ii. Little or no reliance on the prior rule?
iii. Was there evolution of legal principles?
iv. Did the facts change?
f. Court says Roe was not unworkable, women relied on it, and it worked. Court
didnt find an evolution of legal priniciples and said the essential facts of the
abortion decision are the same.
g. The Courts power lies in its legitimacy, a product of substance and perception
Court doesnt want to make it look like the new people on the Court just
wanted a change.
h. State won 80% of this case (4 out of 5 restrictions). Its all about rational basis
not fundamental rights, even though the court never actually says that. Its
basically implied rational basis standard.
i. Dissenters Disagree (and all 4 expressly said that Roe should be overruled):
i. Roe has been unworkable; the States have dealt with the Const. decision
and are moving towards more liberal abortion laws. However, it should
have been left with the States to being with and its been the spark of lots
of controversy.
ii. Cases that overruled Lochner, and Plessy were simply recognizing a
disagreement and change of heart, Roe is the same.
3. Gonzalez v. Carhart (2007)
a. In considering whether the Partial-Birth Abortion Ban act of 2003 is
constitutional, the Court found that the Act was constitutional on its face (and
attacks should have come as applied challenges). The act did not impose an
undue burden and it was not void for vagueness.
i. Second partial birth abortion case. In the first one they used undue
burden and the state statute was struck down.
ii. This case was picked because of the interesting nature of the facts.
b. Ps brought a facial challenge (unconstitutional on its face) because they
thought an as-applied challenge might not be of much use to people in the
future and there might not be time for a decision.
c. It looks like this court used rational basis review, although its unclear.
i. Court comes close without expressly mentioning the test.
1. Congress has a rational basis to act
2. Majority won votes of Scalia and Thomas
3. medical and scientific uncertainty persists thus the holding.
4. Dissenters said that the majority applied rational basis.
d. Court applies the undue burden test used in Casey, even though Roe said we
were talking about a fundamental right.
i. Government won (b/c they usually win rational basis cases).
ii. As-Applied argument wouldnt have worked because they were no longer
pregnant. They wanted to get the entire statute struck down, showing that
there is NO const. application of this statute. If they would have won on an
as-applied then it would have shown that there are const. applications
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of this statute and therefore took away from Roe and other protections. It
would require more litigation to get the whole thing struck down.
iii. This is a strategy decision by the legal team. They have to decide what to
do, whether they want a facial challenge or as-applied challenge. Its too
hard because the abortion can only happen in a certain timeframe. You
could really never make that challenge.
e. Congress made a finding that there was no medical basis for allowing this type
of procedure to protect the health of the mother, so there was a rational basis for
the statute.
i. Kennedy made it clear that it was a narrow decision that was hardly ever
used and doesnt speak to abortion generally.
f. Dissenters tried to say that Congress was so wrong they were irrational, but they
got nowhere.
g. Legacy Congress passed a statute to invite the federal courts (enable them) to
write an opinion that has a lot of ticking time bombs for the next case. Emphasis
is not on health of mother, but actually on the mothers second-thoughts,
medical necessity, tragedy of the situation. Lots of ticking time-bombs.
4. Sternberg v. Carhart, seven years earlier, declared unconstitutional a state law
prohibiting partial birth abortion, so dissenters said the only different between the two
cases was the justices.
a. Fundamental right means strict scrutiny under substantive due process.
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i. There have pretty much always been state regulation on that has limited
that right, so probably not fundamental
d. Married Couples right to contraception
i. How narrow should this be? When you narrow it down, you look at
history/heritage and see if its supported. Thats how you limit the critisim.
1. Michael H (footnote):
a. Married woman had an affair and ultimately a child with another man. The WA
statute says that the guy she is married to is the father, regardless of who really
is. The cheater man wants to be named as the father. He needed to establish a
fundamental right to a relationship with his biological daughter. He looses b/c
Brennan said that the fundamental right is to parenthood, and thats it.
b. Footnote: Fundamental right must be in the narrowest level of extraction
(not parents rights case) in substantive due process claim.
c. Four members of the plurality refuse to sign to the footnote because its not the
law. Only two justices went along with the footnote.
d. It all depends on HOW you state the right.
Medical Care Decisions
2. Washington v. Glucksberg (1997):
a. Washington had two statutes. One said it was illegal to aid a person to commit
suicide. One said that withdrawing or withholding life-sustaining treatment, at
the patients direction, is not illegal under that first statute. This mostly applies
to doctors.
b. Brought as substantive due process and not equal protection b/c if you are going
to bring an equal protect case, you have to show that the gov. is discriminating
against similarly situated people. You dont proceed unless you can show that
both groups are similarly situation, if they arent, then you dont have
discrimination.
i. In this case you cant make that argument. Patients who are terminally ill
are not the same as other patients who come in for a broken arm, or
whatever.
c. Plaintiffs claim was that there was a liberty interest.
i. State said there is a liberty interest in withholding life-saving treatment
ii. Physicians claimed there was a liberty interest in assisting a competent,
terminally ill patient who wants to have deadly drugs administered. They
should be able to head the wishes of their terminally ill patients.
d. Doctors (Plaintiffs) had Article III standing, even thought the patients were
already dead, b/c the injury-in-fact was the inability to treat their patients.
They want to treat their patients with illegal drugs but there is a criminal statute
saying they cant.
i. Physicians were asserting their own rights to do this because if they didnt
follow the rules they would go to prison. They also argued the rights of the
deceased patients, (under Craig v. Boren) because of the strong
relationship between the physician/patient. Its a close enough
relationship for third party standing.
e. Doctors lawyers know that rational basis means they will lose so they argue a
fundamental right. Its a facial challenge, and the court notes the possibility
of an as-applied challenge.
f. Court held that the statute prohibiting assisted suicide was not unconstitutional
on its face and found that the asserted right to assistance in committing
suicide is not a fundamental liberty interest protected by the due process clause.
i. Held its not a fundamental right and goes with a rational basis
test, finding many legitimate interests.
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i. Due process claims challenge the final decision clause. Equal protection
challenges only the discrimination or classifications (Griswold).
ii. Same Sex Marriage when the court takes and decides the case it will be
decided under equal protection.
1. Hypo: court holds that equal protection strikes down bans on samesex marriage. State legislatures could decide that everyone could
get married, or no-body can (highly unlikely).
2. Equal protection strike-down would likely be the end of this story
(but not every time).
iii. Litigation strategy when writing the complaint or brief, be careful of the
claims you argue. If you just throw a bunch of weak claims out there, it
makes the strong ones look weaker. If you can allege due process and
equal protection, its two ways to solve the problem.
h. All Equal Protection cases look to whether the govt classification is
justified by a sufficient purpose, which depends entirely on the type of
discrimination.
Substantive Due Process v. Equal Protection
2. Substantive Due Process Is the governments decision justified by a sufficient
purpose?
a. Discrimination can be so unjustifiable as to violate of Due Process (when SCOTUS
said there could not be racial segregation between public schools in DC,
federally)
3. Equal Protection Is the govs classification justified by a sufficient purpose?
4. Generally:
a. There are times when there are overriding national interests that justify selection
federal legislation that would not be okay for an individual state.
b. The approach of both is generally the same.
c. 5th amend. forbids the federal government from denying equal protection of the
laws, under the substantive due process clause. 14 th Amend. provides equal
protection for state and local laws.
Analyzing Equal Protection:
1. What is the classification?
a. Is there even one at all, and if so, what is it?
2. Does the classification distinguish among similarly situated people?
a. NOT Glucksberg, where statute included ALL terminally ill people and only
excluded those who werent)
b. Basically, does the classification look silly? Does it even make any sense?
3. Whats the level of scrutiny?
a. Example: discrimination against blond-haired person would get rational basis
scrutiny.
Type of Classification
1. Facial Classification:
a. The law in its very terms draws a distinction among people based on a particular
characteristic.
b. Strauder v. West Virgina (1880): Statute limited jury service to whites and the
court invalidated it.
c. Example: No woman may serve on a jury
2. Facial Neutrality, but with discriminatory impact
a. Law is facially neutral, but there is a discriminatory impact.
b. Example: All police officers must be at least six feet tall and weight 160 lbs
(40% of men qualify but only 1% of women).
3. Facial Neutrality, but with discriminatory application
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a. Yick Wo v. Hopkins (1886): Statute said that anyone who wanted to start a
laundry had to get a permit. There is a good reason for that since buildings were
made out of wood. Reality was that basically every Chinese-American was
denied a permit, but Caucasian Americans were not.
Relationship of Means to the End (how do we decide what is narrowly tailored and substantially
related)
1. Under-Inclusive
a. Law does not apply to some people who should be included for the gov to
achieve its purpose
b. Does not apply to individuals who are similar to those to whom the law applies
2. Over-Inclusive
a. Applies to some people who need not be included for the gov. to achieve its
purpose.
3. Laws may be both under and over inclusive
a. Example: Govt sets minimum age for drivers license (rational basis b/c of age).
Purpose is probably highway safety/road safety. The statute is under-inclusive in
that it excludes unsafe drivers who are on the road (regardless of age) and overinclusive in that it includes people who would be perfectly fine drivers (but
younger than minimum age requirement).
i. Most statutes are over inclusive to some extent, and under inclusive in
some sense. Its hard to reach everyone who needs to be reached and
excludes every person who should be excluded.
b. Example: Governments decision to evacuate and intern all Japanese
Americans on the West Coast during WWII was radically over-inclusive, as
individuals were evacuate and interned without any determination of their
threat, so large numbers of people were unnecessarily harmed. However, it was
also under-inclusive in that it did not identify all people who were a threat to
security (assuming that was the purpose) b/c it ignored other races.
4. How much over- or under-inclusiveness the govt will tolerate depends on the
levels of scrutiny.
a. The real question is how much are they over/under inclusive before the court
will strike down the statute?
i. Courts are HARSHEST for strict scrutiny for over and under inclusive
statutes. They are the hardest on over-inclusive restrictions with a
fundamental right.
ii. Courts are LAXEST on rational basis and the relationship between state
interest and the over/under inclusiveness.
Scrutiny Levels
1. Strict Scrutiny
a. Challenged classification must serve a compelling state interest and be narrowly
tailored.
2. Intermediate Scrutiny
a. Classification must serve an important state interest & be substantially related
to serving it.
3. Minimum Scrutiny
a. Classification must be rationally related to serving a legitimate state interest.
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iii. Case does NOT stand for the proposition that you can never deny a permit
to maintain a group home for the mentally disabled. It was an as-applied
decision.
1. Gov. usually wins in rational basis, but in this case the P won, and
the city lost.
b. Court explicitly says that EP clause requires only a rational means to serve a
legitimate end (but this was rational basis scrutiny with a bite).
c. Was this city ordinance under inclusive?
i. The purpose of the statute was a public safety measure. It was GROSSLY
under inclusive which is normally okay for rational-basis stuff since they
law can move slowly. That wasnt true here. This was an economic
regulation case. Normally, you just have to be rational, NOT right but not
in this case. It was an ananomly.
2. Wealth Classifications
a. Legislative classifications disadvantaging the poor more frequently take the form
of financial charges applied to the indigent as well as the relatively more
affluent, or withholding of welfare or other assistance from some ingredients not
others.
b. Claimants argued that the right to public assistance benefits was a fundamental
right seeking out suspect classification analysis, but they didnt win.
i. If they did win, it would be hard for governments to deny people public
assistance benefits.
c. The state and local decision makers have discretion to determine who can get
benefits and who cant. They have rational basis discretion.
d. Court generally states that welfare classifications are not suspect.
i. Jefferson v. Hackney (1972): states formula for dividing a pool of AFD
funds did not violate the 14th amend.
ii. Lindsey v. Normet (1972): the need for decent shelter is not a
fundamental right under 14th Amend equal protection.
iii. Dandridge v. Williams (1970): SCOTUS may not second-guess state
officials allocation of public assistance funds.
e. Poverty is NOT an immutable characteristic.
3. Non-Marital Children:
a. If in 2014 the court got its first non-martial children case, they would probably
use rational basis and NOT intermediate scrutiny like in the past.
i. The court today would also likely use rational-basis plus for disability
cases today (just a guess)
b. Most states have a Uniform Parentage Act which eradicates more discrimination
for illegitimate children. SCOTUS rarely hears these cases.
c. Levy v. Louisiana (1969) state of LA had a wrongful death statute. Only children
who could recover were ones of a martial union. Court implied intermediate
scrutiny and required an important state interest.
i. Today, some important state interests are there between marital and nonmarital children, mostly in estates and trusts issues. If you die without a
will then the children are differentiated, all to prevent fraud.
d. Really there are nearly no cases like this. 37% of babies born in the US are born
to single mothers.
4. Age
a. Most age-discrimination cases today are fought at the statutory level. Its not
terribly beneficial to bring it under equal protection because its nearly
impossible to win under rational basis.
b. 1976 Mass case where the state had a statute that said police had to retire at
the age of 50. Cops brought a suit claiming age discrimination and the state
argued that being a police officer is a stressful/difficult job and that 30 years of
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that is enough. Statute was grossly over-inclusive but under rational basis is
okay.
c. Younger people are discriminated against all the time, but the court says its
okay.
d. This is NOT a suspect classification.
5. Sexual Orientation
a. Sup. Ct. has not yet ruled as to whether discrimination based on sexual
orientation warrants the application of intermediate or strict scrutiny.
b. However, almost all of the U.S. Cts. of Appeal to rule on the issue have found
that only rational basis review should be used.
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a. This court punted this case. They did overrule one case and settle conflicting
precedents but sent it back to the lower court and let them figure out the details.
Begin Classifications
1. Court is moving toward eliminating (but hasnt yet) benign classifications.
a. J. Thomas thought that affirmative action programs undermine the moral basis of
equal protection principles. He thinks the classifications have a destructive effect
on the party in society.
b. Today affirmative action programs stand up today as long as they are
narrowly tailored.
i. All racial classifications get strict scrutiny.
2. Does Constitutional Law include greater societal developments or visa versa?
3. Fisher v. Univ. of Texas (2013)
a. Long awaited decision where a lot of groups were banking that this decision
would be definitive and get rid of affirmative action in higher ed. Thats not what
happened. It was a 7-1 decision but LOTS of opinions, so still no concrete law.
b. Facts - Univ. of Texas had a program that encouraged racial and ethnic diversity,
called the Top 10 program, all high schools in Texas would have guaranteed
admission for the top 10% of students in their high school. Everyone else had to
go through the regular admissions process, which included a lot of factors
including race and ethnicity.
i. The produced racial and ethnic diversity because of so much residential
segregation.
c. In a strict scrutiny case, it has to be narrowly tailored and a compelling state
interest.
i. Texas DID have a compelling state interest for affirmative action in higher
education b/c the case law says the producing a diverse class at a state
university is a compelling state interest.
1. Producing a diverse class of students
ii. Narrow tailoring there has to be an inquiry into whether or not there is a
LESS restrictive way to meet that same end.
4. ALL Racial classifications get strict scrutiny. Plan has to be narrowly tailored. It
depends on what context the case comes up in about the narrow tailoring.
a. Public employment making up for past discrimination is a compelling state
interest.
b. In higher ed, making up for past discrimination is NOT a compelling state
interest.
5. Affirmative action is okay as long as you are trying to create a diverse student body,
you dont assign points to particular groups and the narrowest way to get diversity is
the way being used.!
Privileges and immunities applies only to citizens, equal protection and due process applies to
EVERYONE.
6. This is where classification based on alienage and national origin. They usually get
strict scrutiny but there are exceptions that get rational basis review.
i. The right to vote is restricted to citizens.
ii. Serve on juries.
iii. Hold political office.
iv. Immigration area (Art. 1, Section 8) said that Congress gets to choose
immigration stuff and not the courts.
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b. It was not facially discriminatory, but rather had a discriminatory impact. It was
brought as a gender discrimination case NOT discrimination against nonveterans because it would be rational basis. Gender got heightened scrutiny,
therefore the P were more likely to win.
c. Court upheld the state law because it was facially neutral, even though it had a
substantial discriminatory impact on women. Court rejected the claim of gender
discrimination because the law providing a preference for veterans was genderneutral and the discriminatory impact was not sufficient to prove the existence
of a sex-based classification. There must be PROOF of a discriminatory purpose.
5. Mo. statutory code mostly has hes instead of men and women pronouns because
they were passed before the 1980s. As the statutes get amended, they are putting in
gender neutral language.
6. Analyzing Gender Discrimination:
a. Show facial discrimination.
b. Statute is facially neutral but has a discriminatory impact.
c. Facially neutral but not discriminatory necessarily, but the actual implication is
discriminatory (check this last point).
7. Generally:
a. Court generally strikes down gender classifications that benefit women based on
(what the court concludes) are gender stereotypes Hogan.
i. In Hogan, court applied intermediate scrutiny to declare unconstitutional a
statute providing that a state-supported professional nursing school was
available only to women.
b. Court has generally permitted gender classifications benefitting women that (the
court concludes) are meant to remedy past discrimination against them
Califano v. Webster.
i. Court upheld a provision in the Social Security Act that calculated benefits
for women in a more advantageous way than was used for men. Court
said the difference in the formula was permissibly based on redressing
long standing disparate treatment and operated to compensate women
for past economic discrimination.
c. Court upholds gender classifications if (the court concluded) that the important
state purpose is based on genuine biological differences between the
sexes (unwed fathers).
i. This is a rare exception where biological differences matter.
ii. Mother is present for the birth whereas the father doesnt have to be.
Gender classification that benefitted women based on the biological
differences between men and women.
iii. Stanley v. Illinois (1972): Court declared unconstitutional a state law that
denied the father of any hearing or due process before a non-marital child
was placed for adoption.
iv. Nguyen v. INS (2001): Court upheld the law requiring affirmative steps to
be taken if the citizen parent is the father, but not if the citizen parent is
the mother because Congress decision to impose the requirements was
based on the significant difference between their respective relationships
at the time of birth. The gov. interests were ensuring a biological parentchild relationship exists, and ensuring the potential to develop a real
relationship.
Legitimacy (Non-Marital Children)
6. This would probably be rational basis today because they dont really come up. But the
case law says intermediate, although if it went before the court it probably wouldnt be
that.
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7. Intermediate scrutiny is applied in evaluating laws that discriminate against nonmarital children.
a. Laws that provide a benefit to all marital children, but no non-marital children,
are always declared unconstitutional.
b. Laws that provide a benefit to some non-marital children, while denying that
benefit to other non-marital children, are evaluated on a case-by-case basis
under intermediate scrutiny.
c. Laws that create a statute of limitations for the time period for evaluating
paternity must provide enough time for those with an interests in the child to
present his or her rights and must be substantively related to the states interest
in preventing false claims.
8. There are still some circumstances where there are important state interests in
distinguishing between martial and non-marital birth (i.e. intestacy statutes).
a. Otherwise, its not constitutionally permissible to distinguish between marital
and non-marital births.
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49
50
51
52
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Due Process Liberty these instances they are involved, or at least could be involved.
1. Freedom from government-imposed physical restraints (i.e. criminal prosecutions,
involuntary civil commitments).
a. Juvenile delinquency civil cases not criminal. Hearings are used in lieu of trial.
b. Foster Care System involuntary civil commitment since child cant leave foster
care when they want.
c. Commitment of a child into a mental hospital
2. Freedom from government-imposed restrains on exercise of fundamental rights (such
as textual constitutional rights, privacy)
a. Free speech, interstate travel, freedom of religion, right to privacy. Liberty
interest in not having the government impose some restraint.
3. Freedom from other government-imposed ] (i.e. personal reputation).
a. This is where the action is. Glucksburg v. Washington came out of this.
b. Paul v. Davis cut back on the availability of procedural/substantive due process
if your only claim is loss of reputation.
c. Court is likely to be stingy in finding such results actionable unless there is
something more than loss of reputation.
What Procedures are Required?
1. We are concerned here with adjudicative authority, where the agency is granted the
authority to adjudicate disputes between people.
a. The question is what kind of procedure is required through the agency.
2. Typical Procedural Due Process
a. Informal pre-decision review
b. Fuller post- decision trial type hearing
c. Judicial review
3. Opportunity to be heard must normally be granted before the deprivation occurs.
a. Except when the depravation occurs randomly by a state employee, where the
pre-deprivation procedures are not possible since they dont know when the
deprivations will occur.
4. Matthews v. Eldridge (1976) How much procedure is due?
a. Three part-balancing test for deciding what procedures are required when there
has been a deprivation
i. Private interest that the government action will affect.
ii. Risk of erroneous deprivation through the procedures used and the
probable value, if any, of additional or substitute procedural safeguards
1. Boils down to whether or not the issue is likely to turn on the law or
facts, or both.
iii. The governments interest, including the function involved and the fiscal
and administrative burdens that the additional or substitute procedural
requirement would entail.
1. Not an insignificant question. Due process is expensive, but a price
we pay to have this legal system. If the agency/court could simply
make a decision, it would be a lot cheaper, but thats not
necessarily good.
b. Criticized for being flexible. Its really close to uncertainty. There is a lot of
discretion left to the decision maker (agency or court) about what is required.
More discretion from trial court/agency in giving due process, the appellate
courts are very deferential.
5. Practice Questions About the Value of the Hearing
a. Cant the agency simply listen, and then ignore the claimants arguments? (i.e.
zoning board, school board, etc).
i. Purposes of seeking a hearing create a record to challenge it later using
judicial review.
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ii. There are a lot of agency hoops you have to jump through before you can
get to court in some cases. Its super expensive and discourages people to
go to court, but rather just take the hearing.
b. Why care whether the full hearing takes place after, rather than before, the
government decision becomes effective?
i. Constitutional standard for Due Process is that if the gov. is going to make
a decision that is adverse to you, you get minimal procedure before the
decision is made, and opportunity for a fuller hearing after the thing that
happened. (Except for one public benefits case).
1. Social Security office only gives disability hearings after the fact b/c
there are just so many cases (like 50k a year).
ii. If the hearing takes place after, rather than before, the action, the
government knows that the amount of hearings will decrease. The
employee wants them before, as its easier to get their way.
iii. After the thing already happens, you have to unring the bell.
c. Values of Hearings:
i. Willingness to accept decision after they get to blow off some steam.
ii. Minimize potential for unfairness
iii. Judicial review
iv. Set the record straight
6. Due Process is more of a floor than a ceiling. Its more about bare-bones requirements.
Mulane said you just have to have notice and the opportunity to be heard.
a. You can make a facial and an as-applied claim at one time to try and win with
whatever you got.
7. For private groups/individuals, you dont have the protection of this part of the
constitution but if you dont provide due process, a wrongful termination/other civil suit,
is harder to win. Its practical and helpful.
8. Lane v. Franks
a. Really a first amendment case but about how much freedom a government
employee has while they are employed by the government.
b. What rights does a person have while working for a public agency?
i. Question is whether they are speaking on behalf of an agency funding or
speaking as a citizen. Citizens are allowed to say what they want.
c. Sworn testimony by a public employee in a criminal proceeding is citizen speech
that is entitled to the First Amend. protections. He can talk about things learned
in the court of government employment without loosing those protections.
d. There was no conceivable justification for his termination deprivation because
he was compelled to testify about something that was not an ordinary part of his
job doings and therefore protected under the First amen.
State Action Doctrine (Public/Private Distinction)
1. Virtually all provisions to the constitution apply only against the government. (state
and federal)
a. Constitutions protections of individual liberties and its requirement for equal
protection apply to actions of the federal or state government or one of its
subdivisions, not against private people.
b. Applies to public universities (agencies of the state)
c. Applies to other local officials.
2. Where did the doctrine originate?
a. 1st Amend congress shall make no law
b. 14th Amend No state shall
c. 5th Amend
d. 15th Amend The right to vote shall not be denied or abridged by the US or by
any state.
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e. One glaring exception is the 13th Amendment (and Commerce Clause) which
applies to both public and private citizens (b/c of slavery).
3. First amendment does not apply to the little league because its private, and not the
government.
a. Private companies that make a business decision have NOTHING to do with the
first amendment since it only applies to the state and federal government.
4. 42 USC 1983 Civil Action against one who deprives another of rights, privileges, or
immunities secured or protected by the Constitution.
a. From the President down to the public library is subjected to the state action
doctrine. Any public/ elected official that is governmental in nature.
b. What if people turn Traditions Plaza into the new speakers circle? What can the
university actually do?
c. Issues arise when a private entity or individual is doing something that is
normally a government function, or working so closely with the government that
there is now a gray area. You are a private individual who should be subject to
government restraints because of the way you are acting or the job you are
doing.
d. You can also get attorneys fees if you are the claimant and you win!
e. State-action is a conceptual disaster area marked by multiple vaguenesss
and ambiguities, and similar to a torch less search for a way out of a damp
echoing cave.
i. Court used to find more state actions than they do today. It all sort of
shifted in the 80s.
5. 18 USC 242 Criminal Action against one who deprives another of rights, privileges, or
immunities secured or protected by the constitution.
Exceptions: This is where ALL the gray area is.
Government Function
a. If a private person is preforming a function that is normally exclusively done by
the government than the private actor will be treated as a state-actor.
b. What the heck is a government function? Still being litigated.
c. There is state action in the exercise by a private entity of powers traditionally
exclusively reserved to the state (Jackson v. Metropolitan Edison Co.)
i. Two carefully confined categories election law cases, company town
cases are government functions.
ii. Neither of those categories had any relevance in the late 70s or today. No
one questions that major political parties are governmental in nature.
There are basically no company towns anymore.
1. White Primary Cases
a. Nixon v. Herndon (1927): Holding that a Texas statute excluding negroes from
participating in Democratic party elections was unconstitutional. They argued
that political parties are private entities, but SCOTUS said that conducting
elections (even primaries) is a government function and you have to follow
government rules.
b. Nixon v. Condon (1932): After Herndon, Texas revised its law to provide that the
partys State Executive Committee could prescribe qualifications for voting in
political primary elections. The law was again held unconstitutional.
c. Grovey v. Townsend (1935): TX again revised its statute, allowing the state party
convention to make its own rules for participation in the partys primary
elections, and the Court found that the party was a private entity and therefore
did not need to comply with the Constitution.
d. Smith v. Allwright (1944): Overruled Grovey, holding that running an election for
government office, even a primary election, is a public function and must be in
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2.
3.
4.
5.
accord with the Constitution. Court found that the govt could not avoid the
Constitution by delegating its tasks to private entities.
e. Terry v. Adams (1953): Blacks were excluded from participating in preprimaries
held by the Jaybird Democratic Association, a TX political organization. The
Court, noting that candidates nominated by the Jaybirds were very successful,
found state action.
Company Towns and Streets
a. Marsh v. Alabama (1946) one of the few pre-70s government action that did
not involve race.
i. Has not been overruled but probably not good law anymore.
ii. Broadest statement court has ever made about the public function
exception.
iii. Held when a member of the Jehovahs Witnesses was prosecuted for
trespass when she distributed religious literature on the streets of a
company-owned town, the court held that maintaining towns was a public
function. Building roads, sewers, etc is a government function and private
people can do it, but they are performing a government function and
subject to state action.
1. Broadest interpretation of the state-action doctrine ever.
2. Today, building a subdivision is probably NOT a government
function (i.e. private, gated communities). Gov. isnt the only one
who builds roads, subdivisions, etc.
3. Privately-owned shopping centers are NOT state actors.
Parks as Government Functions
a. Evans v. Newton (1966)
i. Park in Macon, GA had been created by a testamentary trust in the will of
Senator Bacon, which required it only to be used by white people. The city
was designated as a trustee and operator of the park, and then turned it
over to private control so they didnt have to desegregate it.
ii. Held Parks are a government function. The city could not avoid
desegregation by turning control over to a private entity.
iii. In sum Marsh remains good law but it is not clear how far it extends, as
privately owned shopping centers are state actors. Its probably not
relevant/good anymore even though its still good law.
Shopping Mall Decisions
a. Logan Valley Plaza (1968) 1st Amendment guarantees striking labor picketers
access to private shopping mall (state action). It extended Marsh to require
that striking labor picketers be given access to a large privately-owned shopping
center.
b. Lloyd Corp v. Tanner (1972) 1st Amendment permits private shopping mall to
exclude anti-war protesters (no state action). Distinguished Logan Valley
where anti-Vietnam War protestors were held not to have a constitutional right of
access to distribute literature on the premises of a large privately-owned
shopping center.
c. Hudgens v. NLRB (1976) overruled Logan Valley (no state action). Court
concluded that Lloyd had overruled Logan Valley and that speakers had no
constitutional right of access to a large- privately owned shopping center.
i. Content-based discrimination is almost presumptively unconstitutional.
You cant let some peoples speech stand but not others (i.e. labor v. antiwar).
d. Today shopping malls are private property and there is no state action
(unless the state supreme court allows it).
City took Belongings to Private Company
a. Flagg Brothers, Inc v. Brooks (1978): 5-3 vote b/c only 8 justices.
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i. No state action. When B and her family were evicted from their
apartment, the city marshal arranged to have her belongings stored by FB
at its warehouse. When she and FB could not agree on payment terms, FB
threatened to sell her property to recover payment. B sought damages
and injunctive relief under USC 1983.
ii. SCOTUS held there was no state action, as NY did not compel the sale of
goods & settlements between debtors and creditors are traditionally
exclusive public functions. This was private self-help.
iii. Tried as a public function case but could have been an entanglement case.
State Action Doctrine Summary
1. Pendulum has been swinging back and forth without any explicit rulings. Marsh is still
good law.
a. Parks are government responsibilities but there are tons of private parks.
b. Can you reconcile Shopping malls and Marsh b/c whats the difference between a
company town and a shopping mall.
i. Company towns are state actors and shopping malls are not.
2. State and local governments have begun privatizing a lot of functions that were
normally done by the government recently. (i.e. drivers licenses). You cant get out of
the government rules because you have private companies doing state jobs.
a. Court has reserved the question about privatization doctrine and that trend
(thanks Flagg).
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Exception: Entanglement
1. Under this exception, the Constitution applies if the government affirmatively
authorizes, encourages or facilitates private conduct that violates the Constitution.
2. These cases go in all sorts of different directions and basically none of the Government
licensing cases have been overruled.
Government Licensing and Regulation
1. Burton v. Wilmington Parking Authority (1961) (state action)
a. Eagle coffee shop was located within a parking garage operated by a state
agency of the State of Delaware. They signed a 20- year lease for the coffee
shop. B was refused service because he was black.
i. Relevant facts state maintained the building with public funds,
restaurants customers used the public parking garage, state received
revenues from the restaurant and its customers, state could have
prohibited discrimination by a lease clause forbidding it.
b. SCOTUS held that the govt was so entangled with the restaurant that there was
a symbiotic relationship sufficient to create state action.
i. Test:
1. Private activity appears public (common location)
2. Government is profiting from the wrongful conduct.
2. Moose Lodge No. 107 v. Irvis (1972) (no state action)
a. Lodge did not allow blacks in their dining room and bar. P was refused service by
the lodge and claimed that because the PA liquor board had issued Lodge a
private license authorizing the sale of alcoholic beverages on its premises that
the refusal of service was state action.
b. SCOTUS held that the state grant of a liquor license to a private club was not
sufficient government entanglement for the Const. to apply.
3. Brentwood Academy v. Tennessee Secondary School Athletic Association (1972)(state action) 5-4.
a. Upscale private school in Tennessee. Their football coach starts to recruit middle
school kids, even though the state had rules against it. Brentwood was found to
have violated TSSAA rule prohibiting undue influence in recruiting athletes,
and the TSSAA imposed punitive measures.
b. SCOTUS held that the associations regulatory activity should be treated as a
state action owing to the pervasive entwinement of state school officials in
the structure of the association. They are subject to the 1st Amendment b/c they
are a state actor.
i. Sent back down and the lower court found that the coach had a 1 st
Amend. right to talk to middle school kids.
4. Note This reached SCOTUS in 2007 on the merits, and the issue was whether the
football team had a right to recruit elementary and middle school children.
a. Court avoided the 1st Amend. Issue and said that B had waived its rights by
joining the association.
b. Dissent says that because the majority had to dance around the issue meant
that the first decision should have been overruled, making it so that TSSAA was
NOT a state actor.
c. Future considerations for Entwinement:
i. Could affect many orgs that foster activities, enforce rules, sponsor
extracurricular competitions among high schools and other public orgs
that have public officials (firefighters, teachers, police), etc. How far will
this reach go? How far should it got?
5. Blum v. Yaretsky- (no state action)
a. Government had been paying for nursing home care but orders cost reduction
through downgrading care levels; physicians are sued for depriving property
benefits
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b. Held that there was no compulsion by the state because physicians are
exercising independent, private judgment and arent being compelled to
downgrade.
6. San Francisco Arts and Athletics v. United States Olympic Committee (1987) (no
state action)
a. Amateur Sports Act of 1978 gives committee the right to prohibit commercial
and promotional use of the word Olympic, and the Court rejected an argument
that the committee violated the equal protection component of the 5 th Amend by
discriminatory enforcement of its exclusive right (in prohibiting group from using
gay Olympics). Majority reasoned that the committee was NOT a state actor
and did not perform functions that have been traditionally the exclusive
prerogative of the federal government.
b. The committee was federally chartered created and partially funded by
Congress.
i. Dissenters argued that there was a symbiotic relationship between the
committee and the federal gov.
c. Is the US Olympic Committee a state or private actor? Private. So is the
NCAA. But not the Tennessee high school athletic board. I know, its
confusing.
Government Financial Support
7. Rendell-Baker v. Kohn (1982) (no state action)
a. Court held there was no state action when a private school (that received 99% of
its money from the government) fired a teacher because of her speech. Even
though providing education was an important social function, it was not one that
had traditionally be the exclusive prerogative of the State.
b. Gov. funding by itself is not a basis for a state action.
Why was the Warren Court more expansive about finding state action in the early
days since it has been since 1970s?
1. Probably civil rights movement. Except for Marsh v. Alabama, every major state action
case before 1970 was a race discrimination case. By finding and applying state action
and applying the federal const. created subject matter juris. in federal courts and
opened federal courts up to judicial relief especially when the state courts were
basically not working.
a. Could you have brought a race case in Texas/Alabama? Hell no.
2. It provided for anti-discrimination relief when we couldnt trust state courts to take care
of it.
3. Even private actors can be held to anti-discrimination statues even though they are
private depending on the statute.
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Freedom of Expression
Generally
a. First Amendment congress shall make no law respecting an establishment of
religion or prohibiting the free exercise thereof; or abridging the freedom of
speech, or of the press; or the right of people to peaceably assemble, and to
petition the government for a redress of grievances.
i. This is an absolute prohibition.
ii. Most, if not all, abridgements of freedom of speech get strict scrutiny.
iii. SCOTUS determines what speech is (includes expression, and even if you
arent saying a damn thing.)
b. Free expression covers much more than talking.
c. Although its written in absolute terms and the weighing process is heavily
balanced towards allowing speech over prohibition but its still a balancing
process.
i. Many crimes are based on speech (bribery, perjury, extortion, etc).
Preferred Position
1. (Has nothing to do with its position as first, because it was third. It has to do with
factors.)
2. Narrow presumption of constitutionality
a. (almost a presumption against the statute in speech cases)
b. Many courts say restrictions on speech are presumptively unconstitutional and
the state has to prove the compelling interest. Almost a presumption against
constitutionality.
3. Strict construction to avoid limits on expression
a. (some say we should just re-write a statute if its unconstitutional)
b. They will interpret a statute strictly and basically re-write it so it is constitutional.
Some courts that just strike it down. The problem is that the statute is not
exactly written by the legislature/city council but rather by the courts.
4. Relaxed rules of standing
a. (third-party standing; over breadth; may argue that it is unconstitutional as
applied to others). General rule against third party standing but its allowed here.
5. Near-absolute ban on content-based prior restraints
a. only allowed for something extremely serious, like troop movements)
b. Restraining a person before they speak.
6. Higher standards that procedural due process.
History
1. First Amendment was designed to protect against some of the inferences in England.
England was basically an absolute monarchy without a lot of freedom of expression,
which is the premise under first amend.
2. The framers really did NOT talk about the first amendment. Not a lot of evidence about
what the framers intended.
a. Common law of seditious libel would put you in jail in Britain (it was seditious
libel to say anything against the Crown).
b. Designed to protect against two forms of repression including prior restraint and
seditious libel.
c. There was also significant prior restraint in England, as well as domination of the
press through state monopoly and licensing.
d. Rarely, printed and spoken words were even seen as constructive treason.
3. Almost impossible to get content based prior restraint today (i.e. preventing a
newspaper from printing something, basically only troop movements are protected).
4. Seditious libel truth is NOT a defense.
a. Trial of John Peter Zenger in colonial times. He was a German who published a
weekly journal that criticized a royal (crown appointment) governor (Bill Cosby)
and the Government was not liked anyway. His lawyer was Andrew Hamilton
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(good colony lawyer) and the jury acquitted Zenger. Hamilton argued that the
content was true even though the law didnt care.
b. Jury nullification the jury came in and made new law, or basically just
disregarded the current law or judges instructions. This is why lawyers are not
usually on juries because they dont want someone who can just make new jury
law. This case was the first major example of it.
c. T his case basically ended Seditious libel in the colonies.
d. U.S. is VERY protective of speech compared to other western countries.
i. Germany makes it a crime to deny the holocaust.
5. Alien and Sedition Act 1798
a. Made it a crime to write, utter or publish any false, scandalous, and malicious
writing against the government with intent to defame them or bring them into
contempt or disrepute, etc.
b. Act was only in force until 1800, and Jefferson pardoned all persons convicted
under the Act.
c. This is how we know that we are MUCH more protective of speech today because
a majority of both houses were const. delegations/ratification conventions and
they passed the sedition act. That would not happen today.
d. In New York Times v. Sullivan, SCOTUS noted that the Sedition Acts invalidity
had long been assumed in the U.S.
6. Espionage Act of 1917
a. It was a confrontation to free speech (it was a felony)
b. World War I was unpopular and this act made it a crime to make or convey false
statements with intent to interfere with military success, or to promote the
success of the nations enemies, or willfully obstruct military recruiting or
enlistment.
c. Newspapers were liable for writing about German military successes, handing
out leaflets opposing the draft/war was illegal.
7. Sedition Act of 1918
a. This put the federal gov in the job of speech regulation. We did not, at this time,
have a national tradition of what freedom of speech means/doesnt mean.
b. It was a crime to say things with the intent to obstruct sale of war bonds, or utter
any word supporting the cause of any nation at war with the US or opposing the
cause of the US.
Why do we even care about free speech?
1. Critical issues
a. What sorts of expression are encompassed within the First Amendments
protections?
b. What sorts of harms caused by free expression may the government sanction?
c. What sorts of government sanctions are permissible?
2. Usually people who are free speech defendants are people society finds reprehensible
or society doesnt like the ideas they have to say (communists, porn guy, nazi, antiwar, etc).
3. No one will die, or be harmed physically if we denied free speech, so why is it so
important to us?
a. Today its almost impossible to stifle speech because you can put just about
anything you want on the internet.
4. Reasons we care: (arguments in favor of robust speech)
a. Human dignity in a free society (personal autonomy)
i. Suppression of speech is an affront to the human personality because a
man burdened with an idea has a need to express it. - Archibald Cox
(1976)
ii. You can do more than talk. You can express yourself, dress yourself, wear
your hair how you want, put up an art exhibit, etc.
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Prohibition of Incitement
6. Basic Questions
a. How should society balance its need for social order with its desire to protect
freedom of expression?
b. When, if at all, may expression that advocates criminal activity, or overthrow of
the government, be stopped to promote order and security before the activity
happens?
7. Espionage Act of 1917
a. Make or convey false statements with intent to interfere with military success.
b. Promote the success of the nations enemies
c. willfully obstruct military recruiting or enlistment.
Incitement Tests
1. Clear and present danger
a. Three requirements (a) likelihood of (b) imminent (c) significant harm
b. Schenck v. United States (1919): Court upheld a conviction of individuals whod
circulated a leaflet arguing that the draft violated the 13 th Amendment.
i. The most stringent protection of free speech would not protect a man in
falsely shouting fire in a theatre and causing a panic. The question in
every case is whether the words used are used in such circumstances and
are of such a nature as to create a clear and present danger
ii. Danger probably wasnt real clear and present even though it was wartime
because its just leafleting.
iii. Caused Holmes a lot of problems because the political thinkers he knew
rejected his interpretation of speech.
c. Abrams v. United States (1919): Court affirmed the convictions of a group of
Russian immigrants who circulated leaflets objecting to America sending troops
to Eastern Europe after the Russian Revolution. Group of people in southern
Manhattan did some leafleting protesting sending troops to Russia after the
armistice has been declared.
i. Majority upheld the convictions
ii. Holmes STRONG dissent. I think that we should be eternally vigilant
against attempts to check the expression of opinions that we loathe and
believe to be fraught with death, unless they so imminently threaten
immediate..
2. Reasonableness Test
a. Laws upheld so long as the governments law and prosecution were reasonable.
b. Very deferential to state legislatures (looks like present day rational basis
scrutiny)
c. Applied through much of the 1930s and 1940s.
d. Gitlow v. New York (1925):
i. Court upheld conviction under the NY criminal anarchy statute after G
published the Left wing manifesto.
3. Risk Formula Test
a. Evil vs. Imminence (Judge Learned Hand)
b. Dennis v. United States (1951): Individuals were convicted and sentenced to long
prison terms for teaching four books writing by Stalin, Marx, Lenin.
c. Sliding scale test that said for government to act against incitement, the greater
the risk, the less imminent the risk had to be. Less risk means greater
imminence needed.
4. Brandenburg Test
a. Brandenburg v. Ohio (1969): D, a leader of the KKK, held a rally and made a
speech. D was convicted under the Ohio criminal syndicalism statute. In
considering whether the words D expressed could be prohibited, SCOTUS held
that the act could not be sustained, as it purported to punish mere advocacy and
forbid assembly with others merely to advocate the described type of action.
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b. Test:
i. State may not proscribe advocacy, unless:
1. Advocacy (speech) directed to inciting or producing imminent,
unlawful action (subjective intent), and
2. Advocacy likely to incite or produce imminent unlawful action
(objective intent).
ii. This case doesnt reach the situation where someone teaches you or tells
you how to do something but doesnt ask you to do it; it covers something
more.
c. Very speech protective test (most protective of the tests). Mere advocacy is not
enough.
i. Depends on the intent of the speaker and the imminence of the
action.
d. SCOTUS struck down the Ohio Syndicalism statute.
5. Post- Brandenburg Incitement Decisions
a. Hess v. Indiana (1973): It was an anti-war demonstration where the speaker said
we will take the streets later. Speech was protected, as there was no evidence
that the words were likely to produce imminent disorder).
b. NAACP v. Claiborne Hardware (1982): If I catch any of you going in any of the
racist stores, were gonna break your damn neck. During the boycott.
i. Speech protected, as mere advocacy of the use of force is not enough.
c. We dont have a good grasp on the first amend. principles to criminal defendants
who incite or solicit others, or agree among themselves to commit specific
serious crimes in a non political context because it hasnt been explored.
6. Does the Brandenburg test make sense today?
a. Balance is freedom of expression between the need to prevent harm!
b. Does the government have to wait until the bomb actually goes off?
c. The risk formula test could be argued to make more sense today, but that is not
the law.
d. We probably havent heard the last word on Brandenburg. Although it does show
how far with speech we have come since World War I. We now have a tradition of
first amendment speech protection that did not exist in 1919.
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Prior Restraint
1. Prior restraints are seen as the most serious and least tolerable infringement on First
Amend. rights.
2. What is it?
a. Administrative system requiring a license or permit before conducting a parade
or demonstration in a public forum such as a park or street.
i. Content based are NOT okay, other permits are.
b. Injunction that enjoins a person from engaging in specified future expression.
c. Other government acts, such as prohibiting publication of information in
newspaper.
3. Content-Based Restriction/Regulation of/on Expression
a. Distinguishes between expression because of what the speaker says, or wants to
say
b. Are presumptively invalid and are upheld only where the government proves that
the regulation is narrowly drawn to accomplish a compelling state interest (i.e.,
strict scrutiny).
c. These get strict scrutiny (and they almost always loose b/c they dont have a
compelling state interest).
d. They are virtually presumed to be unconstitutional. Upheld only where the
government proves that the regulation is narrowly tailored to accomplish a
compelling state interest
4. Content-Neutral Restriction/Regulation of/on Expression
a. Valid if: they are narrowly tailored to serve a significant government interests
and they leave open ample alternatives channels of communication. (close to
intermediate scrutiny)
b. Operates regardless of the content of the expression
i. Viewpoint-neutral Government does not regulate expression based on
the messages ideology (content) (e.g., does not permit pro-life
demonstrations in the public park but does pro-choice)
1. Government cannot take sides on a particular issue.
ii. Subject-matter neutral Government does not regulate expression
based on the expressions topic (subject) (e.g., does not ban all picketing
in a residential neighborhood except for labor picketing in connection with
a place of employment)
1. Shopping mall decisions are subject matter discrimination when
labor demonstrators are permitted, anti-war demonstrators are
banned and then Hudgens overruled Logan (labor) b/c they cases
didnt match up.
5. Near v. Minnesota (1931):
a. N was producing a paper, which included allegations that local government
officials were corrupt (among other thigns). Government went after his
newspaper and said he was publishing untrue stuff about public officials
(although some was true and some wasnt). They enjoined him based on what he
was publishing, so it was a content-based restriction.
b. SCOTUS held that judicial orders preventing speech constitute a prior restraint.
c. Court injunction is a classic prior restraint. (negative D may not do something;
positive somebody must do something).
i. Almost impossible to get a prior restraint injuction against a newspaper.
6. U.S. v. New York Times Co. (1971): Ellsberg released info regarding Pentagon Papers.
The case was at the Supreme Court within three weeks, and the Court held that what
was released was historical, not present information, so the govt. couldnt suppress it
(as it posed no real threat of danger).
a. Near was the basis for this case.
b. This case is a strong pronouncement against prior restraints, even in the name
of national security, unless there is proof of a compelling need for an injunction.
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c. Decision ultimately rested on the failure of the govt to point to materials in the
historical study that needed to be kept secret in order to protect national
security.
7. Licensing as Prior Restraint
a. Where the government requires a license or permit for expression to occur,
government denial of the license or permit is a prior restraint.
b. Content-neutral prior restraints (license or permit systems) are
permissible only when:
i. The license or permit has an important reason and provides ample
alternatives
ii. The system establishes strict criteria for grant or denial, leaving almost no
discretion to the licensing authority.
iii. The system guarantees procedural safeguards, such as provisions for
prompt determination of license applications, opportunity for a full and fair
hearing before expression is restrained, and prompt judicial review of
license details.
c. Despite traditional prior restraint law, systems requiring official permission in
advance for parades and demonstrations have been upheld.
d. Cox v. New Hampshire (1941): Court sustained a licensing system for parades on
public streets which provided that the first person to apply got the permit. City
had important reasons for licensing: to receive notice & provide proper policing.
(DA: This was an easy case, as it was fair.)
e. Shuttlesworth v. Birmingham (1969): Court overturned the convictions of civil
rights protestors who violated a citys ordinance by having a demonstration w/o
the required permit. Parade ordinance was unconstitutional because it
authorized denial of a permit if the public welfare, peace, safety, health,
decency, good order, morals, or convenience require that it be refused. After a
black man didnt get a permit in AL, the Court struck this down, as it gave the
city too much deference.
Types of Unprotected Expression
1. Incitement to unlawful activity (Brandenburg) see above.
2. Obscenity Unprotected Speech b/c it has no redeeming social value (no First Amend.
protection)
a. Obscenity is not protected, although pornography is fully protected.
b. Very few prosecutors bring obscenity cases today as they are seen as a waste of
prosecutorial resources
c. When a lot of these cases were brought to the Court, they had to watch things
(the movies).
i. I shall not today attempt further to define the kinds of material I
understand to be (hard core pornography), and perhaps it could never
succeed in intelligibly doing so. But I know it when I see it Jacobellis v.
Ohio (1964) (Stewart, J concurring).
d. Known as the I know it when I see it test.
e. Miller v. California (1973)
i. D conducted a mass mailing campaign to advertise the sale of illustrated
books, called adult material. D was convicted of violating a CA statute,
and the Court held that the requirements of the statute adequately
protected Ds constitutional rights.
ii. Three-part test:
1. Would the average person, applying contemporary community
standards find that the work, taken as a whole, applies to the
prurient interest?
2. Does the work depict or describe, in a patently offensive way,
sexual conduct specifically defined by the applicable state law?
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f.
3. Child
a.
b.
c.
d.
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ii. This statute didnt require the actual existence of child pornography but
instead banned the collateral speech that introduces such material into
the child-pornography distribution network.
e. Note: Child pornography only involves pictures, films, portrayals in books, etc. of
children engaged in sexual activity, NOT nude pictures, war pictures, etc.
4. Fighting words
a. Fighting words personally abusive epithets which, when addressed to the
ordinary citizen, are, as a matter of common knowledge, inherently likely to
provide violent reaction Virginia (citing Chaplinsky)
i. Goods too much protection to people who would stifle speech.
b. Chaplinsky v. New Hampshire (1942) D (a Jehovahs Witness) got into an
altercation on a public sidewalk with a city marshal and allegedly told the officer:
you are a God damned racketeer and a damned fascist. The Court sustained
Ds conviction and construed the statute to ban only such words, as ordinary
men may know, are likely to cause a fight, thus to prohibit the face-to-face words
plainly likely to cause a breach of the peace by the addressee.
i. No case since this has upheld such a conviction.
ii. Court has never overruled this case, but they dont like it.
c. Fighting Words Today
i. Must be directed at a specific person
ii. May not be content-based restriction.
iii. May not be vague or overbroad.
d. Snyder v. Phelps picketing military funeral. Soldiers father brought a lawsuit
against Westborough Baptist alleging IIED. They won in the lower courts.
i. Constitution (protecting speech) prevails over civil/common/statutory law.
Courts are VERY protective of speech even for groups that we generally
find reprehensible.
ii. Court was 8-1. They were not comfortable with what they were doing but
decided the case narrowly on the facts. Alito suggested the fighting words
doctrine and decide about carving out another exception to the first
amend. protection. They DID NOT do that.
iii. Because court doesnt apply fighting words doctrine in this, its a good
chance they wont use it again. It hasnt been overruled but its also not
used anymore.
5. True threats
a. Encompasses statements where the speaker means to communicate a serious
expression of intent to commit an act of unlawful violence to a particular
individual or group of individuals.
b. True threats must appear credible to a reasonable person.
c. Wisconsin v. Mitchell (1993)
i. An assault is not protected speech. Verbalization does not immunize the
conduct, meaning you can still be punished for assault because its
conduct not speech.
d. Policy Considerations
i. Right to be secure in ones person
ii. Prevention of serious violence
iii. No time for marketplace of ideas to work
e. Virginia v. Black (2003)
i. Involved two cases of cross burning. Court held that, while a State may
ban cross burning carried out with the intent to intimidate, the provision in
the VA Statute treating any cross burning as prima facie evidence of intent
to intimidate renders the statute unconstitutional.
ii. Assaults are NOT protected, but what about true threats?
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f.
iii. Government cannot prohibit all cross burning. Cross burning with the
intent to threaten or intimidate (constitution a true threat) is NOT
protected.
iv. There must be proof in the individual case that the speech was a true
threat.
v. Thomas Dissent:
1. The act of cross burning and violence/intimidation are well
documented in American History. The statute prohibits only conduct
not expression. Just as one cannot burn down someones house to
make a political point and then seek refuge in the First Amend,
those who hate cannot terrorize and intimidate to make their point.
Still a very much alive doctrine.
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a. The Court basically says there are a lot of holes in the statute, so it doesnt meet the
last two prongs of the Central Hudson test.
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i. Court looked at the three-part test for time, place and manner restrictions:
1. Preserving the sanctity of the home is a compelling state interest
2. Statute was given a narrow interpretation by the Court, although it
might not have been narrowly tailored.
3. There are other alternative channels of communication, even if theyre
not perfect.
ii. The government basically wants to protect residential privacy.
6. Nonpublic Forums
a. Arkansas Educational Television Commission v. Forbes (1998): State-owned public
television broadcaster sponsored a candidate debate from which it excluded an
independent candidate with little popular support. The Court held that the
candidate debate was subject to constitutional constraints applicable to nonpublic
forums; however, the broadcasters decision to exclude the candidate was a
reasonable, viewpoint-neutral exercise of journalistic discretion.
i. If Court would have said this was a public forum, they would have had to let
in not only Forbes but also all other candidates.
ii. This also wasnt a limited public forum, as prior debates hadnt been open
season but had been limited to particular candidates.
iii. Even though its a non-public forum, it cant be content-based discrimination.
7. Viewpoint neutral
a. From 1966 to 1992, SCOTUS refused to classify any public property other than the
parks and streets as a traditional public forum.
b. Viewpoint neutral rules restricting access to non-traditional public forums were
nearly-consistently upheld under an approach that sustained those rules if
reasonable consistent with the governments interest in preserving the property for
non-speech uses.
i. CANNOT have an airport rule forbidding all first amend. activities in the
terminal.
c. Viewpoint netural restrictions that are okay:
i. Forbidding demonstrations and political speeches on a military based
ii. State fair limiting sale or distribution of written materials to fixed locations
iii. Teachers org other than elected bargaining rep can be forbidden to use
school mailboxes to communicate with teachers
iv. You can be forbidden from placing signs on public property
v. Legal defense and advocacy orgs can be excluded from participating in
federal employees charity drive
vi. Regulation of music volume at a public amphitheater
vii. Postal regulation forbids soliciting of charitable contributions on postal
property.
8. Columbia Library Example:
a. People can stand on the sidewalks and steps, as its a traditional public forum.
b. In looking at the area right by the door, the issue becomes whether the government
would want to leave it open (and whether its a designated public forum). If theyve
allowed people to do it in the past, theyve probably made it into a designated
public forum; however, if theyve had the police chase people away, its not.
c. Public reading rooms at libraries are typically considered non-public forums.
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or barred, and that people have access to the views of every group in the
community.
c. There is NOT a compelling government interest in preventing for-profit and not-forprofit companies from spending money on campaigns because it could be seen as a
restriction on free association and on political speech.
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Freedom of Association
1. 1st Amdt. Freedom of Association: Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom
of speech, or of the press; or the right of the people peaceably to assemble, and to
petition the government for a redress of grievances.
a. Protected Groups:
i. Associations for the advancement of beliefs and ideals
ii. Group activities for lawful purpose of helping and advising one another in
asserting rights
2. NAACP v. Alabama (1958):
a. Court first enunciated First Amendment right to freedom of expression. Members
and officers were required to file names and addresses, and the NAACP claimed
they had a first amendment expressive right to not have to divulge their
membership to AG of AL.
b. Court said freedom of association is required to effectuate the rights that are part of
the amendment, so this is an implied right.
3. Limits on Association Activities
a. NAACP v. Claiborne Hardware Co. (1982): NAACP announced a boycott against
employers who discriminated against African American customers. The boycott led
to a state court action by merchants for damages and injunctive relief. The Court
held that the nonviolent elements of Ds activities were entitled to First Amendment
protection.
i. Stands for the proposition that a peaceful, nonviolent boycott is an activity
that is protected by the First Amendment.
ii. If boycotters had engaged in unlawful conduct, that could still be prosecuted.
4. Limits on Association Membership Policies
a. Almost every state has public accommodation laws, and the definition of public
accommodation is broad enough to include almost any organization that holds itself
out as serving the public generally. In most cases, the First Amendment defense
wont work in such cases.
b. Roberts v. United States Jaycees:
i. National Jaycees organization threatened to revoke the charters of MN
chapters whod begun to admit women as regular members. Chapters
alleged that the exclusion of women by the national organization violated a
MN Statute, and the Court held that applying the MN statute to the Jaycees
did not violate the Constitution.
1. Jaycee chapters lacked distinctive characteristics that might afford
constitutional protection to its decision, so there had not been a
violation of freedom of expressive association.
c. Board of Directors of Rotary International v. Rotary Club of Duarte (1987)
i. Court held that application of a State antidiscrimination law to require
admission of women to membership in local rotary clubs did not deny
freedom of intimate association or freedom of expressive association.
d. Boy Scouts of America v. Dale (1982)
i. Ds adult membership in the Boy Scouts was revoked when the Boy Scouts
learned that he is an avowed homosexual and gay rights activist. Boy Scouts
assert that homosexual conduct is inconsistent with the values it seeks to
instill. The Court held that NJ could not impose its public accommodation law,
as such a requirement violated the First Amendment.
1. Boy Scouts had a right of expressive association.
2. Dale didnt further the message they were trying to convey.
e. Rumsfeld v. Forum for Academic and Institutional Rights, Inc. (2006)
i. Congress enacted the Solomon Amendment when law schools began
restricting the access of military recruiters to their students because of
disagreement with the govt. policy on homosexuals in the military. Provision
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Congressional Powers
1. Scope of Congressional Authority
a. Federal govt is one of enumerated powers; unless the Constitution says it may do
something, it may not. Powers may be either explicit or implicit.
2. Basic Questions
a. Does the Constitution expressly or impliedly grant Congress authority to act?
b. If so, does the congressional act violate a specific provision of the
Constitution or the Bill of Rights?
3. The Bank of the United States
a. Alexander Hamilton favored creating the Bank of the United Sates and said that Article
I created the implied authority to do so (as did the Necessary and Proper clause).
b. Thomas Jefferson disagreed and said that since the power of Congress to make a bank
wasnt explicit in the Constitution, the federal govt should have to act through the
states.
i. The first national bank was established in 1791, and the second Bank of the
United States was chartered in 1816.
ii. Many states including MD, didnt want the bank within their borders and sought
to nix it
4. McCulloch v. Maryland (1819)
a. MD tax required that any bank not chartered by the state pay either an annual tax of
$15,000 or a tax of 2% on all of its notes, which needed to be on special stamped
paper. The bank refused to pay the MD tax & issued notes, which were not on stamped
paper, & MD sued the cashier of that branch of the Bank of the U.S. (McCulloch). MD
courts found for state, but the Sup. Ct. reversed.
b. Major Questions
i. Did the Constitution grant Congress authority to create the Bank? (YES)
ii. Was the state tax on the Bank constitutional? (NO)
c. Grounds for Decision
i. History
1. These battles have already been fought, and Congress hasnt struck down
the bank.
2. Second bank exists already, so its probably evidence that Congress had
such power.
ii. States rights
1. Constitution was created by people, not the states.
2. States couldnt take back power they didnt have (& MD couldnt tax
federal instrumentality).
iii. Implied powers
1. If the Constitution were limited to the powers listed, we couldnt have the
federal govt like we do today.
2. we must never forget that it is a constitution we are expounding.
iv. Necessary and Proper Clause
1. Marshall said clause meant Cong could do whatever was convenient to
exercise powers
2. Let the end be legitimate, let it be within the scope of the constitution,
and all means which are appropriate, which are plainly adapted to that
end, which are not prohibited, but consistent with the letter and spirit of
the constitution, are constitutional
3. Clause is in Art. I, 8 (expanding Congresss powers), not in Art. I, 9
(which limits them).
5. Summary
a. The federal govt draws its constitutional authority directly from the people, not from
the states.
b. Congress has both enumerated and implied powers.
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c. The Necessary and Proper Clauxfse allows Congress a wide scope of authority to
implement its enumerated powers.
d. State legislation (including state taxation) that might interfere with the exercise of
these federal powers is invalid.
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f.
violated the free exercise clause since they were neither neutral nor of general
applicability.
i. Statute wasnt content-neutral, so strict scrutiny applied.
ii. Slaughterhouses could do what they wanted, but religion could not.
iii. Clear object of the law was to prohibit a religious practice.
If Columbia enacted a statute forcing children to salute the flag in class, it wouldnt
hold up, as West Virginia State Board of Education v. Barnette (1943) stands for the
proposition that schoolchildren cant be compelled to salute the flag in violation of
their religious beliefs.
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Establishment Clause
1. Establishment Clause Approaches
a. Strict separation
i. To the greatest extent possible, govt & religion should be separated
ii. Govt should be secular
b. Neutrality
i. Govt cant favor religion over secularism or one religion over others
c. Accommodation/Equality
i. Court should interpret the clause to recognize the importance of religion in
society & accommodate its presence in govt
ii. Govt violates the clause only if it literally establishes a church, coerces
religious participation, or favors one religion over others
iii. Court has moved toward accommodation/equality and has tended to uphold
aid to parochial schools when certain requirements are met (below)
d. It is firmly established that the govt violates the establishment clause if it
discriminates among religious groups; such discrimination will only be allowed if
strict scrutiny is met.
i. If there is NOT discrimination, the case is discussed under the Lemon test
(where a law is unconstitutional if it fails any prong of the test):
ii. Statute must have a secular or legislative purpose
iii. Principal or primary effect must be one that neither advances nor inhibits
religion
iv. Statute must not foster an excessive govt entanglement w/ religion
2. Religious Land Use and Institutionalized Persons Act (2000)
a. Requires that govt meet strict scrutiny when it significantly burdens religion in two
areas:
i. Land use decisions
ii. Institutionalized persons
3. Cutter v. Wilkinson (2005)
a. Ps complained that OH prison officials, in violation of RLUIPA, have failed to
accommodate their religious exercise. The Court held that RLUIPA did not, on its
face, exceed the limits of permissible government accommodation of religious
practices under the Establishment Clause.
4. Government Aid to Elementary and Secondary Education
a. Aid likely to be upheld if three criteria are met:
i. Aid available to all public and parochial students
ii. Aid provided directly to the students or their parents (not to the schools)
iii. Aid not actually used for religious instruction
b. Available to All Students Zelman v. Simmons-Harris (2002)
i. OH enacted a Pilot Scholarship Program, which provides assistance to parents
in certain school districts in the form of tuition aid for students to attend
public or private schools or tutorial assistance for students who remain
enrolled in public school. The Court held that the OH program, designed to
provide educational choices to families, was entirely neutral with respect to
religion and is a program of true private choice, so it didnt violate the
Establishment Clause.
1. Plurality was following the neutrality approach.
2. Dissenters approached strict separation.
c. Used for Religious Instruction Mitchell v. Helms (2000)
i. Federal school aid program (Chapter 2) distributes funds to state and local
government agencies, which in turn lend educational materials and
equipment to public and private schools. When the law was challenged in LA,
the Court held that Chapter 2 is not a law respecting an establishment of
religion.
ii. Court reasoned that law did not result in indoctrination, b/c:
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c. United States v. Darby (1941): Sustained application of the Fair Labor Standards Act
of 1938 & rejected both the view that production was left entirely to state regulation
& the view that the 10th Amdt. limits Congresss powers.
d. Wickard v. Filburn (1942): Under the Agricultural Adjustment Act, the secretary of
agriculture set a quota for wheat production and each farmer was given an
allotment. F grew wheat primarily for home consumption and was fined after
growing more bushels than he was allotted. The Court upheld the application of the
law, finding that Congress had the power to regulate purely intrastate activity that
had some effect on interstate commerce. The Court reasoned that if every farmer
did this, it would have impacted interstate commerce.
6. The Commerce Clause After Lopez in 1995
a. Three Categories that May be Regulated by Congress
i. Means of Commerce
ii. Instrumentalities of commerce
iii. Conduct having a substantial effect on interstate commerce
b. United States v. Lopez (1995)
i. Congress enacted the Gun-Free School Zones Act of 1990, which made it
illegal to possess a gun w/in 1000 feet of a school. Court ruled that the
relationship to interstate commerce was too tangential and uncertain to
uphold the law as a valid exercise of Congresss commerce power.
1. Congress hadnt even included a jurisdictional provision, b/c such laws
hadnt been questioned since 1937.
2. Court struck down the statute. Congress was trying to federalize the
criminal code.
c. U.S. v. Morrison (2000)
i. P was allegedly raped by two members of the varsity football team at VA
Tech, and she brought a claim under the civil damages provision of the
Violence Against Women Act, which sought to provide remedies for victims of
gender-motivated violence.
ii. Third prong case conduct having a substantial effect on interstate
commerce.
1. Congress was trying to regulate activity under the third prong of the
commerce clause (not means or instrumentalities), so the question was
whether the effect was substantial enough to warrant legislation.
iii. The Court basically said that although Congress provided support for the Act,
the connected activity was too attenuated, & the third prong normally
requires economic activity.
1. Court struck down this section b/c under the third section; you have to
show that there is some economic/financial component of the case.
There wasnt any here. Domestic violence in not economic/financial.
Also, the court said that at some point the connection between the Ds
conduct and interstate commerce is too attenuated.
iv. For the first two prongs, you DONT have to show economic factors.
d. National Federation of Independent Business v. Sebelius (2012) (Obamacare appeal)
i. Court 5-4 upheld most of the act.
ii. Court rejected the commerce clause argument b/c all commerce clause cases
involve somebody who is already producing/buying something (entered the
stream of commerce). They cited Whikard v. Fillburn. Commerce clause does
not authorize the gov. to tell people to buy something they havent bought
already.
iii. Necessary and Proper Clause doesnt apply. Congress is not allowed to
exercise any great substantive and independent powers beyond those
specifically enumerated.
iv. Could the penalty be upheld as a tax even though they call it a penalty.
e. Today, the court has not extended Lopez and Morrison. Congress has to be careful.
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f. What Congress cant do under the Commerce power, they can usually do under the
Taxing and Spending Power.
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1. Art. I, 8: Congress has the power [t]o promote the Progress of Science and useful Arts,
by securing for limited Times to Authors and Inventors the exclusive Right to their
respective Writings and Discoveries.
a. Eldred v. Ashcroft (2003): Court upheld the Copyright Term Extension Act (which
increased by 20 years the duration of copyright protection), finding that the CTEA
reflected judgment of a kind Congress typically makes.
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of the Railway Labor Act, b/c operation of a railroad was not a "traditional" state
function.
f. Equal Employment Opportunity Commission v. Wyoming (1983): Court upheld an
amendment to the Age Discrimination in Employment Act extending the Act to state
employees, concluding that state compliance with the Act would be less costly than
& would not impair flexibility to the same degree as the provisions at issue in
National League of Cities.
g. Garcia v. San Antonio Metropolitan Transit Authority (1985): Court expressly
overruled National League of Cities.
4. 1990S and Beyond 10th Amend as a Limit on Congresss Power
a. New York v. U.S. (1992): The Low-Level Radioactive Waste Policy Amendments Ace
created a statutory duty for states to provide for the safe deposal of radioactive
wastes generated within their borders. The Act provided monetary incentives for
states to comply with the law and allowed states to impose a surcharge on radio
active waste received from other states. The law also provided that states would
take title to any wastes within their borders that were not properly disposed of by
a certain date and would then be liable for all damages incurred.
1. SCOTUS held that while Congress could constitutionally regulate the
disposal of radioactive wastes, the take title provision was
unconstitutional b/c it gave state governments the choice between either
accepting ownership of the waste or regulating according to Congresss
instructions.
2. Basically, Congress couldnt coerce the states the act (although states could
collect surcharges and gradually increase the cost of access to other
states.)
3. Stands for the proposition that when Congress acts under one of its
enumerated powers under the Constitution, they may encourage the states
with an incentive under the taxing and spending power (Dole) but may not
compel the states to participate in a federal program in which the states
have no control.
b. Why should a state object to the federal government telling them they have to do
something?
1. State has to pay for it, they will get blamed if it went wrong.
2. Who really knows if the disposal plan will actually work or cause more
problems? If Congress welcomes
c. Printz v. United States (1997)
1. Issue was whether or not the states can be compelled to execute federal
laws with relation to gun control registry system.
2. Held state governments cannot be compelled to implement federal
regulatory programs, whether the financial burden is picked up by the
government or not.
d. Reno v. Condon (2000):
1. Involved a challenge to the DPPA, a federal law prohibiting states from
disclosing personal information gained by departments of motor vehicles.
The Court upheld the law, reasoning that the DPPA regulated state activities
and did not control State regulation of private parties or require state
officials to assist in the enforcement of federal statutes. Congress was not
forcing states to do something, they were prohibiting them from doing
something.
2. This was a prohibition of conduct, not an affirmative mandate.
Unsuccessful challenge.
e. Theres an established distinction b/t affirmative obligations & negative prohibitions.
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a. [A]ll persons within the jurisdiction of the United States shall be entitled to the full
and equal enjoyment of the accommodations, advantages, facilities, and privileges
of inns, public conveyances of land or water, theaters, and other places of public
amusement
b. Congress invoked enforcement clauses of the 13 th and 14th Amdt. to pass this, and
the idea was that it protected against badges or incidents of slavery.
1. In Civil Rights Cases, the Court held that the Act was unconstitutional and
adopted a restrictive view as to the power of Congress to use these
provisions to regulate private behavior. Court also held that Congress
lacked authority to enact the law under the 14 th Amdt.
5. Jones v. Alfred H. Maher Company (1964): A private real estate developer refused to sell
housing or land to African-Americans. Court held that Congress could prohibit private
discrimination in selling and leasing property and had the authority to adopt the law in
question under the 13th Amendment. Rational means congress has tons of discretion to
determine what is slavery. As a practical matter, Congress usually doesnt legislate under
the 13th because they can under the Commerce power.
a. Congress can rationally determine what is a badge and incident of slavery.
6. U.S. v. Morrison (2000): Court found that the Civil Rights Cases, holding that the public
accommodation provisions applying to purely private conduct were beyond the scope of
the 14th Amdt. enforcement power, were still good law & held that a statute providing a
federal civil remedy for victims of gender-motivated violence could not be sustained under
the 14th Amdt.
7. May Congress interpret the Const (using the 14th), or even to overrule Supreme
Court decisions or is Congress limited to enacting legislation that comports
with prior Supreme Court decisions?
a. Nope. They cant.
b. If Congress legislates against State action, do they have to wait for the Supreme
Court to act or can they do it on their own?
c. City of Boerne v. Flores (1997)
1. Zoning dispute in Texas. Church people wanted to put an addition on the
church so they filed a zoning application. Permission was denied b/c the
church was a historical landmark. Key statute here is RFRA. Church sued b/c
denial of zoning violates their freedom of religion right under 1 st Amend.
2. 1993 Congress passes RFRA to overrule 1990 decision (Employment
Division v. Smith). Payote was on the federal drug list of banned drugs.
Native Americans used it in religious ceremonies and were prosecuted for it.
Held that if statute is of general applicability, it can be applied to religious
groups and the application is only struck down if gov. has a rational basis.
3. RFRA says they need a compelling interest if its a statue of general
applicability.
4. SCOTUS held that RFRA was unconstitutional b/c it exceeded the scope of
Congresses Article 5 power. Court determines what the law is, and Congress
cannot overrule a SCOTUS const. decision by statute.
5. Congress cannot overrule constitutional authority by statute.
1. RFRA impermissibly expanded the scope of rights and was not
proportionate or congruent as a preventative or remedial measure; it
prevented much that would not violate the Constitution.
2. Court held that Congress under 5 may not create new rights or
expand the scope of rights; rather, Congress is limited to laws that
prevent or remedy violations of rights recognized by the Court.
3. Congress was given the power to enforce, not the power to change
what the right is.
6. Const. law provides the floor of individual rights, but Congress can increase
the regulations above the floor.
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8. May congress pass legislation that enforces a holding of the SCOUTS (called
enabling legislation)? YES.
a. Is Article 5 authority of Congress to apply 14th Amend as it sees fit or EVEN overrule
Supreme Court decisions?
b. Nevada Dept. of Human Resources v. Hibbs (2003): Hibbs sued the state of Nevada
for violations of the Family and Medical Leave Act (gender discrimination). The
Court held that the provision of the Act in question fit within the scope of Congresss
5 powers & could be used to sue state govts.
1. Whether or not the act can be upheld under 14 TH Amend, Commerce Clause
or Equal protection clause?
1. Hibbs argues 14th Amend applies b/c it involves gender discrimination
and equal protection. Caring for relatives used to just be a womens
job, but this act was supposed to produce gender equity.
2. State argues its commerce clause b/c it deals with labor management
relations.
2. Congress could abrogate states immunity for purposes of this Act, so the
state could be sued.
3. Had to show serious gender discrimination that involved creative
lawyering.
4. SCOTUS found that Congress clearly intended the law to prevent gender
discrimination in employment and distinguished Kimel b/c it had involved a
type of discrimination warranting rational basis review, whereas gender
discrimination triggers strict scrutiny.
5. Congress acted under the 14th Amdt., so the 11th Amdt. didnt apply (not the
Commerce Clause, which would have brought the 11 th Amdt. into play).
9. Congress CAN pass legislation that is congruent and proportional to existing supreme
court rulings.
a. Test is slippery and unpredictable.
b. Does this apply to the 15th Amendment and the 14th Amendment. We dont know.
Rome case in early 80s.
1. City of Rome annexed enough land to change the racial makeup of the city.
They then passed an ordinance saying all council people had to be elected
at large. You run the risk of disenfranchising minorities. Suit was brought
under 15th Amendment and voting. SCOTUS held you had to show disparate
impact. When Congress adopted the PURPOSE statute was it amending
the SCOTUS ruling or not?
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purchase from in-staters and not out-of-staters & thus violated the commerce
clause.
State quarantine and inspection
1. What is the authority of states to limit the transit of impure or defective products?
a. As long as its not done in a discriminatory way (not protecting local business) then
its okay.
b. As a practical matter, federal gov does most of this quarantining of goods and
services.
2. Mintz v. Baldwin (1933):
a. SCOTUS upheld NY regulation requiring cattle to be certified as being free from
disease, reasoning that it did not unnecessarily burden interstate transportation.
b. The purpose of Congress to supersede or exclude state action against the ravages
of the disease is not lightly to be inferred.
3. Baldwin v. G.A.F. Seelig, Inc. (1935):
a. NY passed a statute that made it unlawful to buy milk that was cheaper than those
prices required to be paid to farmers within the state. SCOTUS said no b/c there was
no public health issue which was too protectionist. It was a barrier to traffic between
one state and another just like if customs duties had been laid.
4. People!
a. Issues under Const. privacy, substantive due process, personal autonomy, right to
travel. Not too many cases because it doesnt happen that often.
b. Factors the few cases/courts have considered: actual or reasonable suspicion,
specific threat of infection, safe and habitable placement (home or outside),
procedural due process/hearing.
c. They try to negotiate for voluntary compliance. These cases turn on facts not on the
law, usually.
Requirement to use local business
1. Congress can act to authorize discrimination if they want to (since then its not dormant
anymore).
2. Pike v. Bruce Church (1970): Court invalidated an Arizona regulation that required
cantaloupes grown there to be packed in the state rather than in another state. Court
found that the States interest in having the companys cantaloupes identified as
originating in Arizona cannot constitutionally justify the requirement that company build
and operate an unneeded plant in the state. The burden was too high.
1. Court has viewed with high particular suspicious state statutes requiring
business operations to be performed in the home state that could more
efficiently be performed elsewhere.
3. C & A Carbone v. Town of Clarkstown (1994): Court declared unconstitutional a local
ordinance that required that all non-recyclable waste be taken to a local waste transfer
station, noting that the requirement ensures that the town-sponsored facility will be
profitable & diverted business away from other counties and states.
a. Ordinance was no less discriminatory b/c in-state & in-town processors were also
covered.
Limiting access to in-state resources
1. Pennsylvania v. West Virginia (1923): WV passed a statute requiring every pipeline
company transporting gas produced in WV to satisfy the needs of all WV customers willing
to pay for the gas and use it within the state. PA & OH (whod depended on WVs natural
gas), brought suit to enjoin WV from enforcing the statute, & the Court held it invalid.
a. This dealt with private enterprise, & Court said it wasnt okay to favor your own
state. No protectionism.
b. Court reasoned that a statute that prevents, obstructs, or burdens transmission that
is interstate commerce is prohibited.
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c. Holmes dissented states can take care of themselves. Its not the law though.
Limiting access to state-owned resources
1. Reeves, Inc. v. Stake (1980): Court upheld a cement company owned by SD favoring instate purchasers over out-of-state purchasers. Court said that SD, as the seller of cement,
was clearly a market participant and thus was able to favor in-state purchasers over those
from out of the state.
d. Stands for the proposition that if a state is a market participant, local legislators
have the discretion (& maybe obligation) to favor the people who put them in office.
e. 5-4 decision. If the state owns the company, the taxpayers interests are important
and therefore its permissible discrimination.
2. May Missouri charge a differential tuition for in-state people?
a. Yep. Its discriminatory but permissible b/c the State owns the university and as a
market participant, there is no dormant commerce clause issue.
3. Market Participant Exception to Dormant Commerce Clause
a. The dormant commerce clause does not apply if the state is a participant in the
market (such as with a state-owned business), & not a mere regulator
b. Discrimination against out-of-staters is allowed, even though such discrimination
would be impermissible if done by a private actor.
Highway safety regulations
Exceptions to the Rule
1. Congressional Approval
a. The Constitution empowers Congress to regulate commerce among the states &
that therefore state laws burdening commerce are permissible, even when they
otherwise would violate the dormant commerce clause, if they have been approved
by Congress.
b. If Congress has acted, the commerce power no longer is dormant, & the issue is
whether the federal law is a constitutional exercise of the commerce power.
2. Market Participant
a. Market Participant Exception to Dormant Commerce Clause
i. The dormant commerce clause does not apply if the state is a participant in
the market (such as with a state-owned business), & not a mere regulator
ii. Discrimination against out-of-staters is allowed, even though such
discrimination would be impermissible if done by a private actor.
b. Reeves, Inc. v. Stake (1980)
i. Court upheld a cement company owned by SD favoring in-state purchasers
over out-of-state purchasers. Court said that SD, as the seller of cement, was
clearly a market participant and thus was able to favor in-state purchasers
over those from out of the state.
1. Stands for the proposition that if a state is a market participant, local
legislators have the discretion (& maybe obligation) to favor the people
who put them in office.
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Implied Preemption
1. There is a presumption against implied preemption (although the presumption can be
rebutted, especially if the area is one in which Congress has normally legislated).
a. Could happen on accident if Congress didnt really think about what they are writing
and if they didnt expressly talk about preemption.
2. Field Preemption
a. Found where theres a clear congressional intent that federal law should exclusively
occupy a field.
a. Hines v. Davidowitz (1941): PA law required aliens to register with the state, carry a
state-issued registration card, and pay a small registration fee. Court deemed this
law preempted by emphasizing that alien registration is in a field which affects
international relations, the one aspect of our government thathas been most
generally conceded imperatively to demand broad national authority.
i. State law did not interfere with the federal law, but merely complemented it.
ii. Court found field preemption even in the absence of express preemptive
language.
b. Crosby v. National Foreign Trade Council (2000): Court invalidated a MA law
severely limiting the power of state agencies to buy goods or services from
companies doing business with Burma. Court rejected the States argument that
Congresss continuing failure to enact express preemption implies approval.
c. Rice v. Santa Fe Elevator Corporation (1947): The issue was whether states could
regulate grain elevators licensed by the federal govt. Court concluded that such
regulation was preempted even though Congress did not expressly preclude state
regulation, finding that the purpose of the federal law was eliminating dual state
and federal regulation of grain warehouses.
i. Court found preemption based on Congresss desire to make preemption
exclusive in the field.
2. Conflict Preemption
a. If federal law and state law are mutually exclusive, so that a person could not
simultaneously comply with both, the state law is deemed preempted.
b. When states set stricter standards in an area than does federal law, it is necessary
to decide whether the federal govt meant its law to be exclusive or only intended to
set a minimum standard that states may exceed.
c. Geier v. American Honda Motor Co., Inc. (2000): G sued, alleging that the absence
of airbags in her car was a design defect that was responsible for her injuries. The
Federal Motor Vehicle Safety Standard Act gave manufacturers a choice among
passive restraint systems (including air bags & lap & shoulder belts). Gs car had
lap & shoulder belts, so D argued its car complied with federal law.
i. Majority held that Gs common law tort action was preempted.
ii. Court determined the Acts savings clause did not reflect an intent to save
state-law tort actions that conflict with federal regulations.
iii. This case provides a basis for defendants to claim preemption to tort liability
when products are made in compliance with a federal safety standard.
d. U.S. v. Locke (2000): Some portions of WA state oil spill regulations were found to
be preempted by the Federal Ports and Waterways Safety Act (such as rules
regulating vessel operation, design, & manning), although the savings clause of the
Oil Pollution Control Act allowed states to impose additional liabilities and
requirements with regard to the discharge of oil.
i. Court found states requirements in conflict with provision providing that the
Coast Guard prescribe regulations on reporting & concluded that Congress
intended that the Coast Guard regulations be the sole source of a vessels
reporting obligations.
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Treaty Power
1. Presidents normally negotiate treaties. They have to be presented to the Senate and then
ratified to become law. These also apply to the Supremacy clause.
a. Treaties have the effect of a statute (sub-constitutional) if they become law.
b. Always consider the Supremacy Clause problems that might arise with ratification.
2. It has to be ratified, not just signed by the President to become law.
a. They sometimes have smoking guns of private litigation.
3. 1989 UN Convention creates the Rights of the Child. (political, social and economic rights
of children).
a. Open for signature in 1989 and 75 countries signed on the first day. By 1990, 25
nations have ratified it. Today, every country in the world has signed the treaty
except three (Somalia, South Sudan, USA).
b. Senate has not and probably will not ever ratify this treaty. One of the risks is the
Supremacy Clause. At the state level there are a lot of risks with regards to adoption
cases and a preference for parental care and for capitol punishment for people
under 18 (even though SCOTUS said its not an option as of 5 years ago).
4. Can the Senate un- ratify a treaty?
a. Probably yes, but hasnt really been litigated.
b. As for the President, (Carter v. Goldwater) which dealt with the Panama Canal treaty.
Case was dismissed b/c of standing, not on the merits.
Congress and the Supremacy Clause
1. How can the Congress overrule SCOTUS?
a. Supremacy Clause is a part of the Constitution so when the court decides
preemption cases, its rendering a constitutional decision.
b. They can amend the constitution.
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