THE SUPREME COURTS AUTHORITY AND THE FEDERAL JUDICIAL POWER I. REVIEW OF ACTS OF CONGRESS (MARBURY V. MADISON) a.

Which branch of the government shall have the final say in interpreting the Constitution? i. Establishes the role of the Supreme Court, the court can order an executive officer to do something. ii. P sought a writ of mandamus compelling D to deliver the would be justices their commission. 1. The Judiciary act provided the supreme court power to issue the writ, 2. However, this grant of jurisdiction was in conflict with Article III 2, granting Supreme Court original jurisdiction only in cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State is a party. iii. If Supreme Court identifies a conflict between a constitutional provision and a congressional statute, the Court has the authority (and the duty) to declare the statute unconstitutional and refuse to enforce it. b. It is the province and duty of the judicial department to say what the law is, not the legislature. II. REVIEW OF STATE COURT DECISIONS a. Article III 2 provides Supreme Courts appellate jurisdiction may be regulated and limited as Congress shall provide. i. It can determine whether a state court has reached a decision that is not in conformity with the Constitution, but it may not review state court decisions that merely adjudicate questions of state law. Its limited to question of federal law. b. Madisonian Compromise Supreme Court is needed to handle problems between the states. i. It is not required by the Constitution to have federal district courts, but they are needed, ie Madisonian compromise. c. Article II 2 The president appoints the judges d. Martin v Hunters Lessee: Whether the Supreme Court is constitutionally authorized to review the constitutionality of state court decisions? i. Whether a particular Virginia statute conflicted with a federal treaty. Virginia said Supreme Court had no right to review, it was a state question. ii. Holding: The court could review the constitutionality of a decision by a states highest court Constitutional Law 1

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1. Virginias sovereignty argument was rejected 2. There is a need for uniformity in decisions throughout the nation interpreting the Constitution. a. Supreme Court remands to state court saying the finding has to be consistent with what the federal law means to the Supreme Court. iii. Cohens v. Virginia Supreme Courts right to review state criminal cases for constitutionality. CONGRESS CONTROL OF FEDERAL COURT JURISDICTION a. To what extent may Congress curtail the jurisdiction of the Supreme Court? i. Limits indicated by Article 3 section 2 All cases not falling within the Supreme Courts original jurisdiction, the court shall have appellate jurisdiction both as to Law and Fact, with such exceptions, and under such Regulations as the Congress shall make. b. Ex Parte McCardle Brought a writ of Habeus Corpus action challenging the Reconstruction Acts as unconstitutional. A Congressional statute authorizing the grant of habeus corpus by federal circuit courts and appeal to the Supreme Court. i. After Supreme Court heard arguments, but before handing down a decision, Congress passed a law repealing the portion of the act which allowed appeals to the Supreme Court. ii. The Supreme Court upheld Congress restrictions of the Courts jurisdiction, thus Supreme Court concluded it had no jurisdiction to hear the case. iii. An original petition for Habeus corpus could be commenced in the Supreme Court, but cant hear it on appeal from a lower court. iv. Congress can therefore take away appellate jurisdiction from the Supreme Court, subject to exceptions made by Congress. c. Congress does not have unlimited power to tamper with Supreme Courts appellate jurisdiction. i. U.S. v. Klein What does judicial power mean? 1. Citizens who abandoned property during Civil War could recover compensation for it if there was a presidential pardon to show claimant supported the union. Before the appeal was heard in Supreme Court, Congress passed a new statute that a presidential pardon will

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show the opposite (claimant had supported the confederacy). 2. The Supreme Court struck down the statute as unconstitutional on grounds that it violated the separation of powers and invaded the judicial function. 3. Congress can change a law before the case starts or while it is pending, but not after a case has been heard, making the Supreme Court reexamine their decisions. 4. Any jurisdictional limitation must be neutral, Congress may not decide the merits of a case under the guise of limiting jurisdiction. JUSTICIABILITY I. ADVISORY OPINIONS a. Article III 2 limits federal court jurisdiction to cases and controversies. The federal courts are thus prevented from issuing opinions on abstract or hypothetical questions. Federal courts may not give advisory opinions, that is opinions which give advice about particular legislative or executive action, when no party is before the court who has suffered or imminently faces specific injury. i. Hayburns Case: Whatever the court said H was entitled to he wasnt, therefore making that an advisory opinion. Violates separation of powers. ii. Plaut v Spendthrift: Ps case was initially dismissed because of Statute of limitations. Congress said that if case was dismissed before law was passed the case could be reopened. 1. Congress does not have the last word on litigation. Supreme Court said Congress cant change the law to reopen the case (or cases). Once a case is dismissed thats the end. b. Another reason for the ban on advisory opinions is the need to have the judiciary decide only focused specific conflicts. Adversaries explore every aspect of the situation. c. The interest in having judicial opinions be final, and not subject to modification by the executive or legislative branch. II. STANDING a. Nature of Standing: Claimant must have a significant stake in the controversy to merit his being the one to litigate it. The standing focuses mostly on the party asserting the claim, most of the other elements of justiciability focus on the nature of the issue being litigated. The study of what

Constitutional Law

kind of interests in the outcome of a controversy are sufficient. i. Special relevance to constitutional issues: In constitutional litigation where P alleges that the government has acted in an unconstitutional manner it will be much less clear that the governmental action has affected P more directly than any other citizen, or that resolution of the dispute in his favor will be of special benefit to him. 1. Court has never held that the generalized interest of a citizen in having his government behave constitutionally is a sufficient stake to permit the litigation. Therefore P tries to show his interest is more direct and individualized than that of the citizenry at large. ii. Article III v Prudential limitations: Rules on standing are a blend of (1) requirements deemed to be imposed by Article III case or controversy requirement (2) Prudential considerations; non constitutional judgments about what constitutes wise policy in administering the judiciary. Congress is not free to override the Supreme Court as to an element of standing found by the court to fall within case or controversy requirement, but is free to override the prudential considerations. iii. Requirement of Injury in fact: 1. Where P sues as a federal taxpayer the court imposes an additional requirement; that there be a certain type of nexus between the taxpayers status and the claim sought to be litigated. 2. In non-taxpayer cases the injury must be one which was caused by the act being complained of and there must be a significant possibility that this injury will be redressed by giving the litigant the relief he seeks. iv. Standing doctrine tends to keep out of the federal courts two main classes of suits: 1. Non individuated harm: The harm complained of by P is no different from that suffered by very large numbers of people not before the court. 2. Third parties rights: Cases where the rights claimed to be violated are those of third parties not before the court.

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a. Singleton v Wulff: The legal right to have abortion paid for by Medicaid, however they wont pay unless the abortion is medically necessary. The doctor has been injured as well as the third party (patient). Doctor wants to get paid by the state. He can assert this claim on behalf of the third party without naming her because: i. The relationship between doctor and patient is confidential ii. There is a serious impact on the third party (paid abortion) iii. Ability of the third party to assert a claim. She might not be able to, for want of privacy. b. Federal taxpayer and citizen suit: i. Rule before 1968: A taxpayer had no standing to assert that taxpayers funds in general were being improperly collected or spend. ii. Exception in Flast v Cohen: A taxpayer may challenge the constitutionality of a federal taxing or spending program if there is a logical nexus between the status of taxpayer and the claim. 1. What nexus requires: Nexus exits where two showings are made: (1) that the statute relies on Congress power under the Taxing and Spending Clause of Article 1 8, rather than being merely an incidental expenditure of tax funds in the administration of an essentially regulatory law. And (2) that the challenged law violates specific constitutional limitations imposed on that Taxing and Spending power, not simply that the statute is generally beyond the powers delegate to Congress by Article 1 8. iii. Modern Courts view: No case after Flast has been able to meet that exception. 1. Court insists only those constitutional provisions which act as specific limitations on the Taxing and Spending power of Congress may be relied upon. U.S. v Richardson 2. Valley Forge College v Americans United: Ps lack standing because governmental action was authorized not by the Taxing and Spending Clause, but by the Property Clause. Constitutional Law 5

c. Standing not based on taxpayer or citizen status: i. Summary of rules: 1. The litigant must have suffered an injury in fact 2. The injury suffered must be concrete and individuated. The injury does not have to be economic. 3. The action challenged must be the cause in fact of the injury. 4. No nexus requirement. ii. The injury in fact requirement: 1. The harm need not be economic in nature 2. The injury must be actual or imminent. If the harm is too far in the future, or too speculative this element will not be satisfied. a. Lujan v Defenders of Wildlife: Ps havent shown the requisite actual or imminent harm. Such someday intentions without any description of concrete plans or any specification of when someday will be, do not support a finding of the actual or imminent injury the case requires. iii. Harm suffered by many: As long as the litigant alleges the requisite concrete and individuated harm, standing will not be denied merely because there is a large number of people suffering the harm. 1. U.S. v Scrap: An environmental group sued to keep railroad freight chares low, claiming that higher freight rates would cause increased use of non-recyclable containers which would result in more litter in Washington area national parks. The injury alleged was members who breathe the air. This injury was found to be sufficient. 2. Members of a minority group will not from that membership alone derive standing to litigate against governmental conduct which denigrates that minority group. iv. Causation: Has two elements: (1) the challenged action was a but for cause of the injury, in the sense that the injury would not have occurred unless the challenged action had taken place; and (2) a favorable decision in the suit will redress the injury. 1. Warth v Seldin: P failed to satisfy either party of the causation test. A number of parties who claimed to have been injured by the zoning Constitutional Law 6

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rules of Penfield, NY. Claimed these rules had been imposed for the purpose of excluding the building of low and moderate income housing in the town. a. Ps had no standing mostly for failure to meet the causation requirement. b. Normally cant assert the constitutional rights of persons not before the court. The rule of Jus tertii. P. 678 (rights of third persons) c. General rule against third party standing is founded upon discretionary or prudential considerations and is not mandated by the Article III case or controversy requirement. 2. Allen v Wright: Chain of causation. A plaintiff will generally find it hard to establish the cause in fact aspect of standing for a claim that tax breaks have caused some third party not before the court to injure him. Parents of black public school pupils attacked the IRSs grant of tax exempt status to discriminatory private schools. a. Even if there is a withdrawal of tax exemption it might not affect public school integration. There is no personal impact on these particular plaintiffs. b. The line of causation from the IRSs conduct to the continued segregation of the public schools was so attenuated that the latter was not fairly traceable to the former. v. Multiple claims for relief: Where the P asserts multiple claims a separate analysis of standing must be done as to each of these claims. It is possible that standing may exist as to one but not another. 1. Los Angeles v Lyons: P the victim of a choke hold by the LA Police was found to have standing to bring a damage claim against the police, but not to seek an injunction against all future use of such choke holds by the police against all persons. a. In class stated there was no standing because injury in the future was too speculative. MOOTNESS 7

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a. A case is moot if it raised a justiciable controversy at the time the complaint was filed, but events occurring after the filing have deprived the litigant of an ongoing stake in the controversy. i. DeFunis v Odegaard: P sues D a Law School, claiming that its admissions program is racially discriminatory. He is permitted to attend the law school while the case is being litigated. By the time the case is at the Supreme Court, P is in his final year and the university says he will be allowed to graduate no matter what. Therefore the case is moot and will not be decided. b. Exceptions: i. A case will not be moot if it is capable of repetition yet evading review. 1. Roe v Wade: Pregnancy will almost always be completed before the usual appellate process is complete. P herself may become pregnant again, and even if she does not, other women will. Thus the issue is capable of repetition yet evading review. ii. If D voluntarily ceases the conduct about which P is complaining it is not enough to make the case moot. There is a substantial chance that D might return to his old ways. iii. Collateral consequences of the challenged conduct must be examined. If any of these collateral consequences (P has a stake in the controversy) could be adverse to P the case is not moot. 1. D already served his sentence but attack on the constitutionality will not be deemed mot because of the likelihood of collateral consequences from the conviction. a. A properly certified class action suit may continue even if named Ps claims are rendered moot. i. US Parole Commission v Geraghty: There is a class and the client is representative of it. RIPENESS a. A case is not yet ripe if it has not yet become sufficiently concrete to be worthy of adjudication. P must demonstrate that a harm occurred or imminently will occur. b. Problems arise where P alleges that he has violated a statute whose constitutionality he attacks, but it is not

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clear that the statute is generally enforced, or that it will be enforced in this particular case. i. Poe v Ullman: Two married couples and a physician challenge Connecticuts anti-contraception law. A majority of the court refused to hear the case on appeal on the grounds that the statute had been on the books for 80 years with only one reported prosecution and that there was thus not the requisite clear threat of prosecution. c. It is sufficient that there is reasonable probability of harm, but the anticipated harm must be reasonably specific and then the case is ripe. i. Abbot Laboratories v Gardner: Printing new labels on medications would have an immediate impact on the labs. POLITICAL QUESTION DOCTRINE i. The court will not treat as a non-justiciable political question an issue which merely happens to involve politics. Rather its a meshing of two sets of principles: 1. Separation of powers: The court will not decide matters which it concludes are committed by the Constitution to other branches of government for decision and: 2. Prudential Concerns: Various prudential considerations, because of which the court concludes that it is unwise even if not strictly unconstitutional for it to decide the case. ii. General unifying principle: Most useful formulation is that in deciding whether an issue is a non-justiciable political question the court is determining whether constitutional provisions which litigants would have judges enforce do in fact lend themselves to interpretation as guarantees of enforceable rights. 1. Baker v Carr: Held that the constitutionality of legislative apportionment schemes is not a political question, and paved the way for the courts one person, one vote ruling. Changed the shape of state legislatures throughout the government. Brennan tried to fix the unequal political power. a. Court announced a series of factors, at least one of which must be present in order to make an issue a non-justiciable political question. Each factor relates in some way to separation of powers. 9

Constitutional Law

i. Commitment to another branch: A textually demonstrable constitutional commitment of the issue to a coordinate political department (ie to Congress or the President) ii. A lack of judicially discoverable and manageable standards for resolving the issue. iii. The impossibility of deciding the issue without an initial policy determination of a kind clearly for non-judicial discretion.. iv. The impossibility of a courts undertaking independent resolution without expressing lack of the respect due co-ordinate branches of government. v. An unusual need for unquestioning adherence to a political decision already made. vi. The potential for embarrassment from multifarious pronouncements by various departments on one question. b. Commitment to other branches strand: These cases have involved decisions arguably committed to the President or Congress. i. Impeachment: A strong case can be made that the House of Representatives decision whether to convict are not judicially reviewable because these decisions are committed to those bodies by the Constitution. 1. Senate has sole power to decide what constitutes a trial: Nixon v U.S. Walter Nixon a federal judge whom the House had impeached and the Senate convicted based on bribery charges challenged the procedures used by the Senate. The Senate delegated a committee of senators the job of holding hearings on the accusation against Nixon. The committee then gave full Senate a transcript of the proceedings and the Senate voted more than the required two-thirds to convict Nixon.

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a. Nixon argued the Senate violated Article I 3 by having a committee rather than the full Senate hear the evidence. b. Court held Nixons argument presented a non-justiciable political question. Court relied on Senate Impeachment Clause which provides that the Senate shall have Sole Power to try all Impeachments. 2. Process by which constitutional amendments are adopted is also committed to Congress for final determination and is therefore a nonjusticiable political question. 3. Powell v McCormack: Court concluded that at most only a limited commitment of the decision making authority in question to another branch (Congress) was involved. Adam Powell who had been elected to Congress successfully challenged the Houses refusal to seat him a. The Houses refusal cam after it was found that Powell had dodged the process of the NY courts, had wrongfully diverted House funds and made false reports to the House committee. Powell sued for declaratory judgment that refusal to seat him was unconstitutional. House argued they had the right to determine whether a person possesses the standing qualifications expressly set out in the Constitution. b. Supreme Court agreed with Powell. Article 1 5 was a grant to Congress of the right to determine whether the three standing qualifications set in Article 1 2 were satisfied. c. Lack of Judicially manageable standards strand i. The court has consistently held that claims based upon Article 4 4 (provides that US shall guaranty to every state in this Union a Republican form of Government) are non-justiciable political questions. 1. Luther v Borden: Which of two competing governments was the lawful government of Rhode Island. Supreme Court declined to make this determination, concluding it proposed a political question. Its up to Congress. Constitutional Law 11

ii. If there is a dispute between President and Congress about whether President had susurped Congress war making powers by committing our armed forces to combat without congressional approval; lack of judicially manageable standards might cause the case to be regarded as a political question. d. The need for a unified voice, especially in foreign affairs i. Golwater v Carter: Court has refused to decide whether the President can terminate a treaty with Taiwan without congressional approval.

FEDERLAISM AND FEDERAL POWER GENERALLY I. THE CONCEPT OF FEDERALISM a. The national government and the government of each of the states, coexist. b. The federal government is one of limited, enumerated powers. The three branches of the federal government can only assert those powers specifically granted by the U.S. Constitution. i. Comparison with state power: The power of the state governments might be called inherent, a state government holds a general police power, the power to protect the health, safety or general welfare of state residents. An action by a state government is valid under federal law unless it violates some specific limitation imposed by the U.S. Constitution. A federal action must fall within one of the enumerated powers listed in the Constitution. 1. There is no general federal police power. ii. For an action by federal government to be valid in must meet two requirements 1. It must fall within one of the powers specifically enumerated within the Constitution as being given to the federal government. 2. It must not violate any particular limitation on federal power given in the Constitution c. Specific powers granted to: i. Congress in Article I 8 contains 18 clauses ii. Article 2 defines the powers and duties of the President. Article II confers the federal judicial power.

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iii. Nothing in the Constitution explicitly gives the federal government the power to regulate foreign affairs, but that power is considered to be implied. McCULLOCH v. MARYLAND a. Doctrine of implied powers: Although the federal government may act only where it is affirmatively authorized to do so by the Constitution, the authorization does not have to be explicit. Government may validly exercise power that is ancillary to one of the powers explicitly listed in the Constitution, so long as this ancillary power does not conflict with specific Constitutional prohibitions. b. Necessary and Proper Clause: Article 1 8; Congress may make all laws which shall be necessary and proper for carrying into execution. i. Setting of McCulloch: Congress chartered the second Bank of the US in 1816. Bank was designed to regulate the currency and help solve national economic problems. 1. The Maryland Act: Anti- bank statute; Maryland imposed a tax upon all banks operating in the state that were not chartered by the state. The measure was intended to discriminate against the bank, and its Maryland branch. The state brought suit against the Bank and its cashier (McCulloch) to collect the tax. The Supreme Court held the tax constitutionally invalid. ii. Two main portions of the opinion: (1) a determination that the chartering of the bank was within the constitutionally vested power of the federal government and (2) since the bank was constitutionally chartered, Marylands tax upon it was unconstitutional. iii. In concluding the Bank was constitutionally chartered Marshall concluded that the powers come directly from the people, not from the states. iv. Marshall concluded that particular powers could be implied from the explicit grant of other powers. 1. Marshall rejected the contention that necessary meant absolutely necessary or indispensable. He stated: Let the end be legitimate, let it be within the scope of the constitution and all means which are appropriated which are plainly adapted to that end, which are not prohibited and

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which are consistent with the letter and spirit of the constitution are constitutional. v. Modern import of McCulloch: Courts will not stike down a congressional action so long as Congress has employed a means which is not prohibited by the Constitution and which is rationally related to objectives that are themselves within constitutionally-enumerated powers. c. The powers of the US came from the states; states were originally sovereign. i. Marshalls answer is that people gave sovereignty to the United States. ii. Marshalls three part formula: 1. Is the end legitimate within the scope of the Constitution? 2. Are the means adapted to the ends? Has to be a relationship 3. Is there a limitation, power of Congress? STATE OVERSIGHT TO THE FEDERAL GOVERNMENT TERM LIMITS PROBLEM a. What power do the individual states as states have to restrict the federal government? Essentially none. b. May states limit the terms of members of Congress? Court answered no, but exposed a deep split among the Courts members as to the proper division of authority between the states and the federal government. c. U.S. Term Limits, Inc. v Thornton: Voters in Arkansas modified the state Constitution to prohibit a person from appearing on the ballot for Congress from that state if they had previously served three terms in the House or 2 in the Senate. i. Qualification Clauses Article 1 2 cl. 2 makes requirements, but the issue is these clauses state the exclusive requirements for membership in Congress or are they minimum requirements that the states may supplement? ii. The Arkansas statute was struck down because it undermines the uniformity and the national character that the Framers envisioned and sought to ensure. 1. Congress cant add qualifications 2. States cant add qualifications a. Not an original power: 10th Amendment only lets states retain powers they already had before enactment on the Constitution, and the power to add 14

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qualifications for federal elections was not an original power that states had before enactment. b. Even if there had been an original power the Framers intended the constitution to be the sole source of qualifications for membership in Congress. c. Democratic principles: Right to chose belongs to people not to the states. THE FEDERAL COMMERCE POWER I. COMMERCE CLAUSE GENERALLY a. Article 1 8 gives Congress power to regulate Commerce with Foreign Nations and among the several States and with Indian Tribes. b. Commerce Clause has 2 distinct functions: (1) It acts as a source of congressional authority and (2) it acts implicitly as a limitation on state legislative power. II. CASES PRIOR TO 1913 a. Gibbons v Ogden: Ogden acquired by grant from the NY legislature monopoly rights to operate steamboats between NY and NJ. Gibbons began operation steamboats between NY and NJ in violation of Ogdens monopoly. Gibbonss boats were licensed under a federal statute. Ogden got an injunction in a NY court ordering Gibbons to stop operation his boats in NY waters. i. Holding: Marshall found the injunction against Gibbons invalid on the ground it was based upon a monopoly that conflicted with a valid federal statute and thus violated the Supremacy Clause. ii. Congress could legislate with respect to all commerce which concerns more states than one. Includes all commercial intercourse. 1. Congressional power to regulate interstate commerce included the ability to affect matters occurring within a state so long as the activity had some commercial connection with another state. 2. No area of interstate commerce is reserved for state control iii. The Daniel Ball: Steamboat was required to have a federal license and Congress has jurisdiction over the river because if flows between states. Its a way of transportation Highway of commerce. The steamboat is an instrumentality of commerce.

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1. Navigation is included in regulation of commerce by Marshalls means to an end formula: a. The end is to regulate commerce Is it within the power of Congress? b. Means to reach that end are to regulate navigation Why navigation is closely related to implemented power. c. Knows no limitation Congress didnt take away inherent powers of the state. i. If Congress has the power to regulate it, that power must be exercised whenever the subject exists. b. Inactive: Between 1880-1937 Supreme court reviewed and usually struck down 2 different types of congressional legislation premised upon the commerce power. (1) economic regulatory laws and (2) Police power regulations those directed at moral or general welfare issues. c. Economic regulatory laws from 1880-1937 was characterized by dual federalism. There was areas of economic life which were left to state regulation. i. Congressional regulations was found to fall within the Commerce power so long as the activities being regulated had a substantial economic effect upon interstate commerce. 1. The Shreveport Rate Case: ICC sought to prevent railroads from setting rates for hauls totally within TX which were less per mile than the TX to Shreveport rates. Theory was Shreveport competed with ceratin TX cities for shipments from other parts of TX and lower TX intrastate rates were unfairly discrimination against the Texas to Shrevport interstate traffic. a. Court upheld ICCs right to regulate intrastate charges, at least of interstate carriers. Commerce power necessarily included the right to regulate all matter having such a close and substantial relation to interstate traffic that control is essential or appropriate to the security of that traffic. d. Police power regulations and the commerce prohibiting technique: Instead of regulations intrastate activities directly, Congress used the techniques of prohibiting Constitutional Law 16

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interstate transport of certain items or persons. Was used for police power or moral regulation i. Champion v Ames (The lottery case): Federal lottery act prohibited the interstate shipment of lottery tickets was upheld in this case. Majority opinion began with assumption that lotteries were clearly evil which it was desirable for Congress to regulate, since Congress regulated only the interstate shipment of those evil articles, it could not be said to be interfering with intrastate matters reserved for state control. 1. Congress can regulate, but not prohibit. If it concerns safety and health Congress has police power also. ii. Hammer v Dagenhart (The child Labor Case): Struck down a federal statute which prohibited the interstate transport of articles produced by companies which employed children younger than certain ages or under certain conditions. 1. Here the goods shipped in interstate commerce were themselves harmless (werent part of the evil), it was only the employment of child labor which was an evil, and thus employment was not related directly to interstate commerce. COURT BARRIERS TO THE NEW DEAL a. New Deal Threatened: Some cases suggested there must be a direct and logical relationship between the intrastate activity being regulated and interstate commerce. b. ALA Schechter Poultry v US (Sick Chicken case): Involved P on charges of violating the wage and hour provisions of the NY metro Are Live Poultry Industry fair Competition Code. NIRA authorized the President to adopt codes of fair competition for various trades or industries; it regulated minimum wages and prices etc. i. Supreme Court held NIRA was unconstitutional as applied to this case. 1. Schechters activities were not within the current or stream of commerce. 2. It was not affecting commerce either; the standard required a direct effect on Congress. c. Carter v Coal: A challenge to the Bituminous Coal Conservation Act of 1935 which set maximum hours and minimum wages for workers in coal mines. i. Held unconstitutional; not a valid use of the commerce power. Court used distinction from Knight, between production and commerce. 17

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Production (here) was purely local activity. It didnt directly affect interstate commerce. 1. The issue was between the employer-employee relationship and interstate commerce; it didnt have a direct effect upon interstate commerce. ii. This decision was a blow to the new deal since it implied that all attempts to deal with what the Court perceived as local problems including all employeremployee problems would be struck down. iii. Court Packing plan: Roosevelt sought to apply all levels of the federal judiciary and provided a maximum of 15 members on the Supreme Court, and additional 6 justices. 1. Plan was defeated, but Justice Van Devanter retired and that was enough to form a new majority. Court decided the important NLRB v Jones & Laughlin case. THE MODERN TREND a. Generally: Begins with 1937 decision of NLRB v. Jones & Laughlin Steel Corp. The court will uphold commercebased laws if the Court is convinced that the activity being regulated substantially affects interstate commerce. i. Three theories: (1) an expanded substantial economic effect theory; (2) a cumulative effect theory; and (3) an expanded commerce-prohibiting protective technique. b. Expanded substantial economic effect: i. Facts of NLRB: Tested the constitutionality of the National Labor Relations Act of 1935. Involved NLRBs attempt to prevent Jones and Laughlin from engaging in unfair labor practices by discriminatory firing of employees for union activity. ii. NLRA is upheld; its within the commerce power. J&L manufacture in PA, owned mines in 2 other states, and had warehouses in 4 states. 1. Because of the multi-state network of operations, the Court concluded a labor stoppage of PA intrastate manufacturing operations would have a substantial effect on interstate commerce. 2. Current of Commerce theory was declined to be relied on, and the 10th Amendment would no longer act as an independent limitation of federal commerce-clause powers. c. The cumulative effect theory: Congress may regulate not only acts which taken alone would have a substantial 18

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economic effect on interstate commerce, but also an entire class of acts, if the class has a substantial economic effect i. Wickard v Filburn: Furthest the court has ever gone in sustaining Commerce Clause Powers. 1. Involved Agricultural Adjustment Act of 1938 which permitted Sec. Of Agriculture to set quotas for the raising of wheat on every farm in the country. It even applied to wheat which would be consumed on the farm where it was raised. 2. Court upheld the act because: a. Consumption market effect: Consumption of home grown wheat is a large and variable factor in the economics of the wheat market b. Cumulative effect: This decision taken with that of many others similarly situated is far from trivial. Protections of the interstate commercial trade in wheat clearly falls within the commerce power, and the regulation of home grown wheat is reasonably related to protecting that commerce. i. National Market Theory: Exceeded the national quota, if he didnt, he would have bought it. Distinction between direct and indirect effect on commerce. ii. Great Elastic Clause: Power of Congress to regulate can be tied to anything. Can get anything to relate to commerce. d. Commerce prohibiting technique (police power regulations): General welfare regulation i. U.S. v Darby: Overruled Hammer v Dagenhart (see p. 28) 1. The Court upheld the Fair Labor Standards Act of 1938 which set minimum wages and maximum hours for employees engaged in the production of goods for interstate commerce. 2. The 10th Amendment will no longer act as an independent limitation on congressional authority over interstate commerce. 3. Congress may choose the means reasonably adapted to the attainment of the

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permitted end, even though they involve control of intrastate activities. a. Police power is a means to the regulation. Harmed the general welfare within the state and that affects interstate commerce. e. Some limits still exist on Congress commerce clause powers as a result of U.S. v Lopez (1995) where the court for the first time in 60 years invalidated a federal statute on the grounds that it was beyond Congress Commerce power. i. The statute was the Gun-Free School Zones Act of 1990, where it was made a federal crime for any person knowingly to possess a firearm at a place that the individual knows or has reasonable cause to believe is a school zone. 1. Statute has little connection to commerce a. The statute did not include explicit findings by Congress that the activity being regulated affected commerce. b. Statute didnt include a jurisdictional nexus. Congress banned possession of a gun that had never traveled in, or even affected interstate commerce. 2. Statute was struck down by a 5-4 vote. a. Not enough that activity being regulated merely affects interstate commerce. The activity must substantially affect commerce i. The particular activity being regulated was not itself a commercial activity. ii. Congress does not have a generalized police power, which is retained by the states. iii. If Congress could mandate a federal curriculum then its powers would be limitless. b. Three basic problems to the commerce clause (on final) i. Channels of Commerce (highway of commerce) ii. Instrumentality of Commerce iii. Things that substantially affect commerce. ii. Dissent: 3 major points by Breyer: Constitutional Law 20

1. Its contrary to case law, the modern cases upholding congressional action regulating activities that had less connection with interstate commerce than this issue. 2. Distinction between commercial and non commercial transactions the line would be hard to draw. 3. Stare Decisis: Will threaten legal uncertainty in an area of law that seemed well settled. iii. U.S. v Morrison: Congress cant broadly regulate violence against women. 1. Congress had passed the Violence Against Women Act of 1994 13981 all persons shall have the right to be free from crimes of violence motivated by gender. 2. Held by 5-4 that the Act was beyond Congress commerce power. The factor being regulated was essentially non economic. a. If upheld this would allow Congress to regulate murder, or any other type of violence. b. Distinction between local and national activities. iv. Reno v Condon: The court held that information maintained by state Motor Vehicle departments about individual motorists is a thing in interstate commerce, so Congress can use its Commerce power to regulate the states right to sell or disclose that information. v. Significance of Lopez and cases decided under it: 1. Activity being regulated must be one that significantly affects commerce, and incidental effect is not enough. 2. If transaction regulated is a commercial or economic one court will probably allow Congress to regulate. a. Non-commercial will be upheld only if (1) the causal link is extremely short and direct; (2) the item being regulated crosses state lines or enters stream of interstate commerce f. Summary of modern view: i. Congress can regulate channels of interstate commerce ii. Can regulate instrumentalities of commerce. iii. Regulate articles moving in interstate commerce Constitutional Law 21

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iv. Regulate activities having a substantial effect on commerce. g. Federal Criminal Laws i. Perez v U.S.: Found constitutional an application of the Consumer Protection Act to a loansharking transaction which occurred entirely within one state. The act forbade extortionate extension of credit even in entirely local activities. 1. Petitioner is clearly a member of a class which engages in extortionate credit transactions as defined by Congress. h. Civil Rights Legislation: 1964 Civil Rights Act bans discrimination in places of public accommodation, covers any establishment which serves interstate travelers or which buys food, a substantial portion of which has moved in commerce. i. Heart of Atlanta v U.S.: P was a motel which refused to rent rooms to blacks. 1. The motel was near 2 interstate highways, derived 75% of its occupancy from out of state guests and solicited business in national media. a. Court held the motel could constitutionally be reached by the Civil rights act under the Commerce Clause. ii. Katzenbach v McClung: 1. Alabama restaurant called Ollies barbecue, far from an interstate highway. 46% of the food purchased by the restaurant during the previous year had been bought from a supplier who had bought it from out of state. 2. Court upheld the act as applied to the restaurant. THE TENTH AMENDMENT AS A LIMIT ON CONGRESS POWER a. 1976-1985 Supreme Court treated 10th Amendment as imposing an important limit on federal power. Held to bar the federal government from doing anything that would impair the states ability to perform their traditional functions. i. National League of Cities v Usery: Court held 10th Amendment barred Congress from making federal minimum wage and overtime rules applicable to state and municipal employees. 1. The wage hour provisions impaired the states ability to function effectively purely as a matter of cost 22

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2. Stripped the states of their discretion to decide how they wished to allocate a fixed pool of funds available for salaries. b. Overruling NLOC: Garcia v San Antonio Metro Transit Authority i. Whether the minimum wage provision of Fair Labor Standards Act should apply to employees of a municipally owned and operated mass transit system. Want to make state court judges retire at a certain age. ii. Any rule of state immunity that looks to the traditional integral or necessary nature of a governmental functions inevitably invites an unelected federal judiciary to make decision about which state policies it favors and which ones it dislikes. iii. State sovereign interests are protected by procedural safeguards inherent in the structure of the federal system not by judicially created limitations on federal power. 1. Federal law cant force a person to retire because of a certain age. Supreme court says its an issue of federalism law directed against the states c. New York v U.S.: Congress may not simply force a state to enact a certain statue or to regulate in a certain number. i. Congress enacted Low Level Radioactive Waste Policy Amendments Act of 1985. Attempted to force each state to make its own arrangements for disposing of low level radioactive waste generated in the state. Take title incentive which was any state that did not arrange for waste disposal would be required to take title of the waste and would be liable for damages in connection with the disposal of this waste. ii. The take title provision violated the tenth Amendment. Congress cant commandeer the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program. iii. Alternative methods: 1. Congress can condition the receipt of federal funds on a states solving the problem. 2. Congress could directly regulate the conduct in question and could therefore take the less Constitutional Law 23

drastic step of telling the states that this direct regulation will follow if the states do not take care of the problems themselves. 3. Congress may have to be a little more clever about how it accomplishes its regulatory purposes and will not be able to escape the political heat for unpopular decisions by forcing state officials to make those decisions. iv. NY distinguished from Garcia: Garcia seems to apply mainly to generally applicable federal lawmaking; that case holds that where Congress passes a generally applicable (final question) law, the 10th Amendment does not entitle a states own operations to an exemption, merely because it is a state that is being regulated along with all the other private entities. OTHER NATIONAL POWERS I. THE TAXING POWER a. Basic Power is given in Article I 8 Congress shall have Power to lay and collect taxes, duties, Imposts and excises. i. The power to tax is an independent source of federal authority. Congress may tax activities or property that it might not be authorized to regulate directly under any of the enumerated regulatory powers. b. Special rules on taxes i. Uniform indirect taxes: Tax structure may not discriminate among the states; it does not matter that specific individuals are not taxed uniformly. ii. Article I 2 provides that direct taxes shall be apportioned among the several states which may be included within this Union according to their respective numbers. 1. Today just taxes on real property are considered direct, iii. No duty on exports c. Nearly any measure enacted in the form of a tax will have at least an incidental regulatory effect. i. If regulatory effect is one which could not have been achieved directly, then it is possible that the tax may be stricken as an invalid disguised regulation. II. THE SPENDING POWER a. Linked to the power to tax. Money may be raised by taxation and then spent for the common Defence and general Welfare of U.S. Article I 8 Constitutional Law 24

b. Not limited to enumerated powers. U.S. v Butler, the court held that no such limitation exitst the spending powers are themselves enumerated powers, so Congress may spend to achieve the general welfare even though no other enumerated power is being furthered. i. Facts of Butler involved the validity of the Agricultural Adjustment Act of 1933 a new deal measure which sought to raise farm prices by cutting back agricultural production. Carried out by authorizing the secretary of agriculture to contract with farmers to reduce their acreage under cultivation in return for benefit payments, the payments in turn to be made from a fund generated by the imposition of a processing tax on the processing of the commodity. ii. Court concluded power to tax and spend for general welfare existed as a power separate and distinct from the other powers enumerated in Article I 8. iii. Court rejected contention that Congress had an independent power to proved for the general welfare apart from the power to tax and spend. Thus Congress may not regulate in a particular area merely on the ground that it is thereby providing for the general welfare, only taxing and spending may be done for general welfare. 1. Congress had no right to regulate areas of essentially local control, including agriculture. Congress could not directly regulate agricultural production, it also could not coercively purchase compliance with a regulatory scheme. a. Distinguished this act from a conditional appropriation of money which would be valid. What was impermissible in the Act was the fact that the farmer contractually binds himself to obey the regulations. The use of contracts this way would nullify all constitutional limitations upon legislative power. b. The distinction between conditional appropriations and appropriations requiring binding promises by the recipient has been abandoned by the court since Butler. Abandonment began with Steward Machine Co. v Davis, upholding provision of the Social Security Constitutional Law 25

act which allowed employers to receive a credit against federal tax for any contribution to a state-enacted unemployment plan. The plan was held valid in view of the need to combat unemployment, a federal problem. iv. Congress has no power to regulate for the purpose of providing for the general welfare. Congress may spend for the general welfare, and may tax for the general welfare. v. Tenth Amendment is effectively dead as a limitation upon federal spending power. vi. Other Constitutional provisions as limits; Congress cant violate Due process clause of the 5th Amendment. 1. Congress may use its conditional spending power to achieve the result indirectly by say depriving the states of money if they do not achieve the regulatory result. 2. South Dakota v Dole: Congress, in order to prevent drivers under 21 from drinking withholds federal highway funds from states that permit individuals younger than 21 to purchase or possess in public any alcoholic beverage. SD attacks the statute on grounds that this condition interferes with its own exclusive powers under 10th and 21st Amendments. 3. Held: Statute is valid. Congress indirect use of its conditional spending power to achieve the same results is permissible. Only if, by use of that conditional spending power, Congress induced the states to pass laws that would themselves violate the constitutional rights of individuals would that congressional action be unconstitutional. a. Test: (1) Whether it is for the general welfare; (2) Has to be unambiguous; (3) Must be related to a federal interest in the project; its illegitimate if unrelated to federal interest in particular project or program. SEPARATION OF POWERS I. DOMESTIC POLICY AND THE SEPARATION OF POWERS

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a. Article II 2 enumerates the powers given to the President such as Commander in-Chief of the armed forces and his treaty making power. i. Most of the Presidents power in domestic and foreign powers is implied. Derived mostly from Article II 1 that the executive power shall be vested in a President. b. The president may not make laws, he may only carry them out. i. Youngstown Sheet & Tube Co. v. Sawyer: During Korean Was, President Truman sought to avert a strike in the nations steel mills. He issued an executive order directing Secretary of Commerce to seize the mills and operate them under federal direction. Congressional approval of the order was not requested. Steel companies sought an injunction to prevent the seizure. ii. Supreme Court strikes down the seizure order concluding that it was an unconstitutional exercise of the lawmaking authority reserved to Congress. 1. Blacks opinion: It was a clear usurpation of congressional lawmaking power. The order couldnt be justified under the Commander in Chief power. The taking of private property in order to keep labor disputes from stopping production of war material was too far removed from the actual threat of war in which the President had the right to set the policy. 2. Jacksons concurring opinion: Conceived three categories of Presidents power: a. Where President acts pursuant to express or implied authorization of Congress, in which his case authority is at its maximum is good. b. Where President acts in absence of either a congressional grant or denial of authority in which case there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. c. Where President acts in contradiction to express or implied will of Congress, his power is at its lowest ebb. The steel seizure fell into this category and therefore couldnt be constitutionally justified. Constitutional Law 27

3. Dissent: Contended that temporary seizure was justified because of the emergency nature of the situation and in order to preserve temporarily the status quo until Congress could act. iii. Congress may sometimes be found to have impliedly acquiesced in the Presidents exercise of power in a certain area. 1. Dames & Moore v. Regan: As part of a settlement of the hostage situation, President Carter took a number of actions affecting the claims of American creditors against Iran. His suspension of all contractual claims against Iran posed the most difficult constitutional issue. Court found the claims suspension within the Presidents constitutional authority. Limited scope of holding: where such settlement or suspension is a necessary incident to the resolution of a major foreign policy dispute. c. Presidents Veto power: Article 1 7 gives President power to veto any bill passed by Congress. Veto can be overridden by a 2/3 vote in each house. i. Pocket Veto: If Congress by its adjournment has prevented return of the vetoed legislation, the statute cannot go into effect unless the President sings it. In this situation the President is given an absolute veto power. Usually if President fails within 10 days to sign a bill or veto it and return it within 10 days to the house it originated, it becomes law. ii. Line item veto: Ability to veto a particular part of a bill, rather than the entire bill. In Clinton v. N.Y.: Supreme Court ruled that the line item veto as implemented by Congress violated the Presentment clause of the Constitution. 1. This act allowed the President to sign an entire bill into law and then to cancel any individual spending or limited tax benefit item he wished, provided he did so within 5 days after enactment. 2. Majority strikes it down in that it violated the Presentment clause which provides that after a bill has passed both houses of Congress, but before it becomes a law, it must be presented to the President, if he approves it he shall sign it, but if not he shall return it with his

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objections to that house in which is shall have originated, who shall proceed to reconsider it. a. The net affect of the act was to produce truncated versions of bills that passed both Houses of Congress. 3. Kennedy concurrence: Failure of political will does not justify unconstitutional remedies. iii. The Legislative Veto: Enables Congress to monitor actions by the executive branch, including federal administrative agencies. If after an agency takes a certain action, Congress disagrees, the veto provision in the original bill allows one or both houses to cancel that administrative action by means of a resolution. The resolution is not presented to the President, and he does not receive an opportunity to veto it. 1. Veto ruled Unconstitutional: It violated both the Presidents veto power and the bicameral structure of Congress a. Immigration and Naturalization Service v Chadha: P was one of the several aliens as to whom the House of Representatives used its veto power to reverse the Attorney Generals suspension of deportation. Supreme Court struck down the legislative veto power as a violation of two distinct constitutional requirements. (1) Veto violated the Presentment Clause which require that every bill be presented to the President for his signature, so that he may have the opportunity to veto it; and (2) Since it could be exercised by a single house, violated the bicameral requirement of Article 1 sections 1 and 7, by which both houses must pass a bill before it can become law. b. Whether action taken by the house is Legislative in character. d. Similar separation of powers issues can be presented by action that takes place at the boundary between the Executive and Judicial branches and Congress and Judicial branch. Same general rule applies: Judicial Branchs role cannot be abridged by action of one of the other branches and conversely, the appropriate job of the other two branches cannot be given instead to the Judicial branch. Constitutional Law 29

II.

i. Congress does have considerable flexibility in assigning to the Judicial Branch tasks that might be considered law-making ones, at least where the subject matter relates to the role of the courts. 1. Mistretta v. U.S.: Involved U.S. sentencing commission, set up by Congress to develop mandatory guidelines that federal judges would have to apply in setting sentences for federal crimes. Ps complained that this was an unconstitutional delegation of law-making power to the Judicial branch. Congress was assigning to the judges on the Commission the job of making sentencing policy, a classic legislative function. 2. Court rejected the unconstitutional claim. Because the judiciary plays the major role in sentencing, allowing some judges to participate in the making of guidelines for sentences does not threaten the fundamental structural protections of the Constitution. a. Whitman v American Trucking: Congress must lay down by legislative act an intelligible principle to which the person or body authorized to act is directed to conform. FOREGIN AFFAIRS AND COMMITMENT OF THE ARMED FORCES a. Article II 2 explicitly enumerates a number of powers to the President with respect to foreign affairs. b. U.S. v. Curtiss Wright Export Corp.: D challenged the joint resolution of Congress and the President banning the sale of arms to countries engaged in a particular conflict to being an unconstitutionally broad delegation of the legislative power to the President. i. Supreme Court upheld the resolution. Very delicate and exclusive power of the President as the sole organ of the federal government in the field of international relations. Presidents special access to sources of information required a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved. 1. U.S. has internal power: federalism. U.S. has external power: sovereignty. ii. Delegation problems generally 1. International vs. domestic Broader delegation of lawmaking power by Congress to the 30

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President will be tolerated in the area of international affairs than in domestic area. c. Executive agreements: No Senate ratification needed on treaties i. Upheld in U.S. v Pink and U.S. v Belmont: Executive agreement has the force of law. d. Article 1 8 power to declare war is given solely to Congress. i. It is settled that President may commit our armed forces to repel a sudden attack upon the U.S. Prize Cases: Held President Lincoln could blockade southern ports following the Confederate attack on Sumter. Reasoned that the President could resist an attack by a foreign nation, the fact that the attack came from an internal part of the Union rather than from a foreign power did not strip the President of his power to take unilateral action. ii. Power to declare war (1) self defense; (2) President has power to use force to protect our citizens and property from foreign nations as long as U.S. remains neutral; and (3) Collective security out of treaties and executive agreements. Ex: SEATO, NATO iii. Presidents power to use armed forces is virtually unlimited. APPOINTMENT AND REMOVAL OF EXECUTIVE PERSONNEL a. Presidents power of appointment of federal officers is listed in Article II 2. President shall nominate shall by and with the consent of the Senate i. Congress may not appoint federal officers 1. Principal officers: Top level officers, president nominates a candidate and the Senate must as a constitutional matter decide whether to approve the nomination. Senate may not take away Presidents right of appointment. a. Members of the cabinet and ambassadors are examples of top-level federal officers. 2. Inferior officers: Congress does have the right to limit Presidents right of appointment. Congress cant make such appointments but may five the power to (1) the President; (2) the judiciary or (3) the heads of the departments. a. Three criteria for inferior; (1) subject to removal by a higher executive branch

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official; (2) Has limited duties; (3) Office is limited in jurisdiction. 3. Morrison v. Olson: Dividing line between principal and inferior official. Held special prosecutors are inferior officers as to whom the President need not be given appointment power. Therefore Congress may constitutionally delegate to the judiciary the job of appointing such prosecutors who are named to investigate allegations of wrongdoing against members of the executive branch. a. Presidents freedom to control the special prosecutor was somewhat limited. b. Scalias dissent: Taking power away from the president. It is a function central to the branch involved and affects the essential functions of the branch, it is unconstitutional for violating separation of powers. b. Presidents right to remove appointees: i. Where a federal appointee holds a quasi judicial or quasi legislative role, Congress may limit or completely block Presidents right of removal. Humphreys Executor v U.S.: Upheld the FTCA which limited the Presidents right to remove FTCers. 1. Only if Congress has explicitly conferred the right of removal may the President remove a member of the WCC. 2. Wiener v U.S.: Held that congressional silence as the whether the President could remove a member of the WCC meant that President could not do so. ii. Myers v U.S.: Postmaster of OR Officers served at will of executive officer can be discharged at will by President. The power of removal is incident to the power of appointment, not to the power of advising and consenting to appointment. c. Removal power by Congress: May Congress reserve to itself the power to remove an executive officer? No. i. Bowsher v Synar: Court struck down the Gramm Rudman Act which was Congress attempt to reduce federal budget deficits by setting a maximum deficit amount for each of the fiscal years. The act gave a key role to the Comptroller General of US in carrying out the automatic cut provisions. Congress reserved the right to remove the CG from office for 5 specific Constitutional Law 32

IV.

reasons, but the statute was struck down for the following reasons: (1) Act uses CGs executive powers; (2) executive powers may not be vested by Congress in itself or its agents because Congress is limited to legislative rather than executive functions; (3) because Congress can remove the CG he is an agent of Congress therefore (4) CG may not constitutionally exercise the executive powers given to him in the Ace and (5) The acts automatic budget reduction must be invalidated. d. Impeachment: Article II 4: Rules of impeachment, high crimes and misdemeanors which is a political question as to what they are. i. Decision by House of Representatives to subject the President or others to a trial in the Senate. 1. If the House votes by majority to impeach, the trial itself occurs in the Senate and 2/3 vote of those Senators present is required to convict. Only three presidents have been subject to impeachment, Andrew Johnson, Richard Nixon and Bill Clinton 2. Clinton v Jones: President can be sued while in office. ii. Once the Senate has convicted in an impeachment trial it is not clear whether the Supreme Court may review the conviction. No precedent. 1. Presents a non-justiciable political question. Traditional view is Nixon v U.S. (involving a federal judge) Court held there that the question of what procedures validly constitute a trial of impeachment case by the Senate was a non-justiciable political question. LEGISLATIVE AND EXECUTIVE IMMUNITY a. Executive Immunity: i. There does not seem to be any general doctrine making the President or other members of Executive Branch immune from the judicial process. ii. Nixon v Fitzgerald: President has absolute immunity from civil liability for his official acts. Since the President has authority to prescribe the manner in which the business of the armed forces will be conducted, including authority to dismiss personnel, Nixon was immune from liability for the firing of Fitzgerald even if he caused it maliciously or in an illegal manner.

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1. Dissent: Places the President above the law; a reversion to the king can do no wrong. iii. Presidential assistants do not get a similar absolute immunity for their official acts. 1. They get qualified immunity: Has immunity from civil suit for conduct arising out of her performance of her office, except where the official has violated a clearly established right. iv. No presidential immunity for non official acts. There is no immunity for acts that the President takes that are completely unrelated to the carrying out of his job. See Clinton v Jones. b. Executive Privilege: U.S. v Nixon: The court recognized in general terms a constitutionally based doctrine of executive privilege, but held that the privilege was only a qualified of which was overcome on the facts of Nixon by the needs of a pending criminal investigation. i. Watergate Special Prosecutor persuaded federal trial court to subpoena the President to produce tapes and documents relating to Watergate investigation. Court ordered the president to comply with the subpoena saying the privilege did not apply. The tapes were necessary for the government to proceed in a criminal case. ii. Judge would review the tapes in camera, where things are solved. Failure to release the information impairs the court therefore tapes must be submitted in camera. TWO LIMITS ON STATE POWER: COMMERCE CLAUSE AND CONGRESSIONAL ACTION I. STATE TAXATION OF INTERSTATE COMMERCE a. Generally for a multi state company to succeed in a challenge to a particular state tax it will have to show one of three things: (1) The companys business activity does not have a sufficient connection with the taxing state; (2) the tax discriminates against interstate commerce; or (3) the tax has led to unfair cumulative burden b. The state may not tax in a way which discriminates against interstate commerce; unjustly benefits local commerce at the expense of out of state commerce. i. Facially discriminatory statutes: Example If the tax charges a higher tax rate with respect to goods manufactured outside the state than for those manufactured within it. ii. Burdensome but facially neutral statutes

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II.

1. Court requires there be a substantial nexus between the taxpayer and the jurisdiction that is imposing the tax. CONGRESSIONAL ACTION PREEMPTION AND CONSENT a. Federal Preemption The extent to which Congress exercises its power. i. Supremacy Clause Article VI 2 provides that in case of a conflict a state law must yield to federal law. Federal preempts state law. ii. Federal Police Power Power to enforce things enumerated by Article I 8. iii. State Police Power Have general police power for the health and safety of the people. Their power doesnt have to be related to the enumerated powers. There are implied limits on state police power. b. Express preemption: Where there is explicit preemptive language. Congress specifically says their law will trump state law. i. Cipollone v Ligget Group Inc.: Express prohibition was the intent of Congress, they didnt mean to imply anything beyond that. The federal law says states cant pass any law with regard to warning on cigarettes. Therefore the state couldnt warn because federal law trumps state law. c. Implied Preemption: Two types i. Conflict Preemption: If a federal and state law are mutually exclusive so a person cannot comply with both, state law is preempted. 1. Florida Lime v Paul: Congress will be deemed to have preempted any area where the nature of the regulated subject matter permits no other conclusion. In this case there was no conflict, could have complied with both by not picking avocados off the tress right away. 2. The fact that the federal government licensed a particular aspect of interstate commerce does not automatically mean the state regulation is preempted. Court will look to the goals of the federal and state policies to see if there is a true conflict. a. Pacific Gas & Electric v State Energy: There was no conflict in this case because California says their statute was aimed at the economic problems of 35

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storing and disposing waste and federal system was designed to deal with safety issues. California statute does not come within the area preempted by Congress. ii. Field Preemption: If Congress makes a decision to occupy the field for the federal government, the state action in that area must fail no matter how well it agrees with the federal action and policies 1. Tests for preemption: Made by intent of Congress which isnt always clear so the Court must look by inference. 2. If the federal regulatory scheme is broad and covers most of the subject area court is likely to find preemption, but if the subject matter is one that is traditionally left to the states (health and safety) court is less likely to find preemption. a. Hines v Davidowitz: Its federal responsibility to control immigration therefore the Federal Alien Registration Act trumps any state law on Alien registration. 3. If Congress set up a federal agency it may indicate a congressional intent to preempt the field. d. Federal Consent to State Laws: Congress may affirmatively consent to state interference with interstate commerce. i. Cooley v Board of Wardens: Suggested the opposite. Navigation is commerce, but state can control navigation if its local. Document of selected exclusivity Some things are local to which national regulation is not required. THE DORMANT COMMERCE CLAUSE a. Limitations on state power embodied in the Constitution i. The negative implications drawn from the Constitutional grant of power to Congress have been resolved by the Supreme Court on an area by area basis. ii. Article I 8: Congress has the power to regulate commerce Positive Commerce Clause. Congress vested by Constitution to control commerce. iii. Dormant Commerce Clause: States cant interfere with commerce between states. b. The controversy in the dormant commerce clause focuses not on what Congress has done, but on what it might have done. 36

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c. Traditional approach on the significance of Dormant Commerce Clause i. The Court adopted a middle ground which has varied through the years. The approach is to weight the state interest in regulating its local affairs against the national interest in uniformity and in an integrated national economy. ii. Because the limitations imposed by dormant commerce clause are not explicitly stated, but are derived by negative implication, limitations on state commerce-related conduct imposed by the Court may always be reversed by Congress. 1. The Courts role is thus interpreting congressional silence. d. Early Interpretations: Supreme Court has always been intensely conscious of its own obligations to keep the channels of interstate commerce free of state originated impediments. i. Gibbons v Ogden: After giving a broad definition of commerce, Marshall held the New York monopoly was invalid because it conflicted with the federal commerce power. 1. Marshall found there was indeed actual conflict between New Yorks action and a law of Congress: the federal licensing law conflicted with the New York monopoly. ii. A state could sometimes affect interstate commerce as an incidental consequence of its exercise of its police powers. 1. Wilson v The Black Bird Creek: Delaware authorized the construction of a dam on a creek which flowed into the Delaware River. Because the dam blocked navigation of the creek, the owners of a federally licensed ship broke the dam in order to pass through the creek, and were sued by the dams owners. 2. Marshall held in favor of the dam company. No actual conflict between Delaware permitting the dam and any act of Congress and found Delawares action was not repugnant to the power to regulate commerce in its dormant state. a. Reasoned Delaware was not acting for the purpose of regulating interstate

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commerce, but attempting to protect the health of nearby inhabitants. b. Delawares action in allowing the dam to be built was not discriminatory against interstate commerce. e. Local vs. National Distinction: If Court wished to uphold the regulation it termed it a police power one. i. Cooley v Board of Wardens: Court affirmed a Pennsylvania law which required ships entering or leaving the port of Philadelphia to hire a local pilot. Some but not all state regulation affecting interstate commerce was permissible. States were free to regulate those aspects of interstate commerce that were of such a local nature as to require different treatment from state to state. States cant regulate aspects of interstate commerce which required a uniform national treatment. 1. Two shortcomings from this case;(1) not easily distinguished between those subjects that required uniform national regulation and those that needed diverse local regulations; (2) Did not consider how extensively the states regulation impacted interstate commerce. a. A state regulation having direct impact on interstate commerce was not acceptable; an indirect one was permissible. f. Modern approach: A state regulation which affects interstate commerce must meet each of the following requirements to be upheld: i. The regulation must pursue a legitimate state end; ii. The regulation must be rationally related to that legitimate end iii. The regulatory burden imposed by the state on interstate commerce; and any discrimination against interstate commerce, must be outweighed by the states interest in enforcing its regulation. g. Application of this test: i. Meaning of legitimate state end: Distinction between measures designed for promotion of health, safety and welfare objectives (legitimate) and those for furtherance of economic benefits (not usually legitimate). ii. Rational means to end: A mere rational relation between means and end is all that is required; not required that the means used be the best way of Constitutional Law 38

achieving that end, or the way which least affects interstate commerce. iii. Balancing Test: Where the statute regulates evenhandedly to effectuate a legitimate local public interest and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed is clearly excessive in relation to the putative local benefits. Pike v Bruce Church: The state regulation achieves a presumption of constitutionality, but this presumption can be overcome by a clear showing that the national interest in uniformity or in free commerce outweighs the state benefit. 1. Court sometimes considers the necessity of the means which the state has used to achieve the objective: if the objective could have been achieved by means less burdensome to interstate commerce. 2. Dean Milk Co v City of Madison: Local regulations preventing importation of milk were struck down. The states objective (protection of residents against adulterated milk) was permissible, and the regulatory scheme (prohibiting importation so that only regularly inspected local plants could sell milk) was rationally related to that objective, the safety objective could have been achieved by less burdensome means. 3. Local v National subject matter is now implicit in the balancing process. If matter is a local concern, more likely that the state interest in controlling its own affairs will be found to outweigh the national interest in uniformity and free commerce. h. Regulation of Transportation: States regulate instrumentalities of interstate commerce (highways and railroads) the test usually focuses on the rational relation and the balancing benefit to the state. i. If a transportation regulation is not discriminatory against interstate commerce in intent or effect it doesnt usually violate the dormant commerce clause. Even though it may create burdens on interstate commerce, if similar burdens are created on intrastate activities there is no abuse of power. 1. South Carolina v Barnwell: SC prohibited the use on state highways of trucks wider than 90 Constitutional Law 39

inches. The vast majority of trucks used in interstate commerce exceeded this limitation, so the regulation clearly burdened interstate commerce. However, the regulation was upheld because the regulations applicable to interstate and intrastate traffic alike, so was therefore a safeguard against their abuse. a. Using the balancing test: the benefit outweighs the burden Narrow highways and the states interest in highways. There was also some rational basis. ii. Look for discrimination before doing balancing test because there is a greater chance of Commerce Clause Succeeding. 1. Kassel v Consolidated Freightways Corp.: A state statute prohibiting 65 foot long trucks was struck down because there was a clear discriminatory purpose. This was a plurality decision (only 4 justices in the majority). State loses deference. iii. A particular regulation may be part of a discriminatory or burdensome mass of regulations imposed by many states. 1. If there is an actual conflict between two or more states the Court is likely to strike down at least one on grounds that the need for national uniformity outweighs the individual states interest in regulation its own highways etc. a. Bibb v Navjo Freight Lines: Based on Illinois and Arkansas statutes a truck (with mudguards) couldnt be operated in both states. Court found Illinois statute violated the dormant commerce clause; there was no safety advantage for the Illinois statute, so it must conform. 2. There may be a cumulative burden on interstate commerce even though there is no actual conflict between two states. a. Southern Pacific v Arizona: Many states impose different limits on the length of trains; a trains can follow the shortest limit and thus operate in all states, but that gives the most restrictive state authority beyond its own borders. i. State barriers to incoming trades; depends on the nature of the state interest being served. Constitutional Law 40

i. If the purpose is to protect in state producers from competing out of state commodities, or strengthen the local economy the court will generally strike the measure as viewed as illegitimate. ii. If the state is in good faith pursuing health or safety objectives the Court will generally balance the benefit to the state against the burdens to interstate commerce. A crucial part of this balancing is whether there are less burdensome alternative which the state might have adopted. 1. Dean Milk Co. v Madison: Statute struck down. 2. Maine v Taylor: This was the only case to survive scrutiny. Promotes Maine industry of growing minnows and is facially discriminatory, but there was no other way of accommodating this, which they did. iii. Intentional discrimination: Strike down statutes whose clear purpose is to favor local economic interests. 1. Hunt v Washington Apple: North Carolina required containers of apples bear U.S. grade or none at all. This unconstitutionally burdened interstate commerce. It discriminated against Washington growers since it raised costs for Washington growers, but not NC ones. This statute was intentionally discriminatory. iv. A statute which is facially neutral but turns out to be disproportionately burdensome to out of state businesses; is truly accidental the Court will normally uphold the statute. 1. Exxon v Maryland: MD passed a law prohibiting oil producers or refiners from operation retail gas stations in MD. Enacted because of oil shortage and those refiners had gotten preferential treatment. 2. Held there was no discrimination; that the burden fell on some out of state companies wasnt enough to establish that interstate commerce was discriminated against, nor was it burdened. j. State barriers to outgoing trade i. If subject matter being regulated is of primarily local concern and the effect on interstate commerce is incidental, regulation is likely to be sustained. This assumes the regulation does not discriminate. Constitutional Law 41

1. H.P. Hood & Sons v DuMond: NY refuses to give MA milk distributor a license to operate an additional milk receiving station in NY, which violates the Commerce Clause. NY is seeking economic advantage, not health and safety of consuming public. ii. Embargo of natural resources: Court gives strict scrutiny measures which keep such scarce resources from moving interstate. 1. Regulation will generally be upheld if less discriminatory alternatives for achieving the states interest are unavailable. k. Local processing requirements i. Pike v Bruce Church: AZ requires all AZ cantaloupes be packed in AZ which is held invalid. The state interest in enhancing the reputation of AZ cantaloupes is outweighed by the national interest in unencumbered commerce. ii. C & A Carbone v Clarkstown: State may not require that its own garbage be processed locally because it discriminates against firms that could have done the processing out of state. l. Environmental regulations: A state may no longer maintain or improve its environment at the expense of its neighbors environmental or economic interest. i. City of Philadelphia v New Jersey: NJ statute prohibiting the importing of most solid or liquid waste into the state, which violated commerce clause. It had discriminatory means. A state cant keep its natural resources (dumps) to itself. ii. Oregon Waste Systems v Department of Environmental Quality: A state may not impose a flat per ton tax on out of state waste, and then claim that this tax compensates for general income tax revenues that are collected from in staters an used to defray the cost of in state waste. iii. Non protectionist legislation: Environmental acts which merely burden without discriminating against commerce are not per se invalid. 1. Minnesota v Clover Leaf Creamery: Court sustained a state law which banned nonreturnable milk containers made of plastic, but permitted non-returnable milk containers made of other substances, in cardboard containers because that statute was not simple

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protectionist legislation camouflaged in a recitation of environmental purposes. 2. WestLynn Creamery v Healy: There was economic protectionism; there was no problem with subsidies under commerce clause, state using its own resources for financing; but MA took in state tax and subsidy (legal) and combined them to make an unconstitutional matter. m. Market Participant Exception; spending money to run a propriety enterprise or to subsidize private businesses; the dormant commerce clause will not be applied. i. Hughes v Alexandria Crap Corp.: MD refuses to buy hulks from out of state sellers, purchased crushed auto hulks at an above market price. Held MD did not violate the commerce Clause, which doesnt apply when a state, in its role as participant in a market, favors its own citizens. ii. Reeves v Stake: A state owned cement plant favors in-state customers in times of shortage. Held this preference doesnt violate the Commerce Clause. When a state acts as proprietors they are free of dormant commerce clause limitations. iii. If a state attempts to affect parties beyond those with whom it is contracting, Court may conclude that the regulatory consequences of the states action outweigh its market participatory consequences, thus making state conduct susceptible to commerce clause limitations. 1. South Central Timber Development v Wunnicke: Market participant doctrine was inapplicable to an Alaska requirement that timber be sold by the state at preferential prices be processed within the state. Whats wrong with the statute is downstream regulation: D can decide who it will sell its lumber to, but it cant regulate what happens to lumber once it is sold because it interferes with commerce. Once lumber is sold, no longer a participant in the market. n. Congressional approval: Congress can overturn what Court thinks. i. Western v Southern v State Board of Equal: Congress exempted insurance company from taxes. INTERSTATE RELATIONS I. INTERSTATE RELATIONS Constitutional Law 43

a. Two aspects (1) Privileges and Immunities Clause and (2) interstate collaboration, including compacts. b. P & I Clause: Article 4 2 The citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several states. i. Interstate P & I Clause prevents states from discriminating against out of state individuals. Distinguished from the 14th Amendment. Toomer v Witsell: Designed to insure a citizen of State A who ventures into State B the same privileges which the citizens of State B enjoy. Help us fuse into one nation a collection of independent, sovereign states. ii. Discrimination against non residents is barred. 1. Corporations and aliens are not protected by the Clause. iii. Test for P&I violation: 1. Only fundamental rights are covered. Fundamental to national unity standard are all related to commerce. a. The right to be employed, the right to practice ones profession, and right to engage in business are fundamental and are protected. b. Non economic rights are not fundamental and thus not protected by the clause. i. Baldwin v Montana Fish and Game Commission: MT allows MT residents to purchase a license for hunting elk and other animals for $30, while non residents are charged $225. Held that this doesnt violated P&I because the right to recreation is not a right that is fundamental to national unity. 2. Once determined a fundamental right is at stake then a two part test is applied. P will win if either of the following is shown. a. Discrimination will violate P&I clause unless non-residents are a peculiar source of the evil which the law was enacted to remedy b. P will win if the discrimination against non-residents does not bear a substantial

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relationship to the problem the statute is attempting to solve. iv. Practice of law is a fundamental right and this privilege may not be limited to state residents. Supreme Court of NH v Piper: Court held the NH couldnt restrict the right to practice to those who resided within the state. v. No market participant exception for the state. United Building and Construction Trades Council v Camden: Where this conclusion was reached that the clause applied to a Camden NJ ordinance which required that at least 40% of the work force on any construction project funded by the city must reside in the city. 1. P&I Clause bars any type of state conduct which discriminates against out of staters on matters of fundamental concern. 2. P&I Clause bars discrimination based on municipal residence, just as it bars such discrimination based on state residence. vi. Distinguished from Equal Protection Clause 1. Aliens and corporations may take advantage of Equal Protections clause. 2. Nonresidency has no been held to be a suspect classification for equal protection purposes. a. For P&I attacks the functional equivalent of strict scrutiny is given. vii. Final Questions: 1. The difference between charging out of states three time the amount of an in stater and out of stater having to have something done in a state: The second part deals with commerce, the first one doesnt. 2. To state a claim under P&I Clause P has to show theyre being discriminated against then the burden shifts to the state. There is deference until P shows an impingement on a constitutional right. When burden shifts to the state there is no more deference. DUE PROCESS OF LAW I. THE BILL OF RIGHTS AND THE STATES a. Bill of Rights are not directly binding upon state government. Barron v The Mayor of Baltimore: Had the framers of Amendments intended them to be limitations on the powers of state governments, they would have expressed that intention in plain language. Constitutional Law 45

b. Enactment of the Civil War Amendments: i. 14th Amendment: No state shall make or enforce any law which shall abridge the P&I of citizens of the US due process of law. ii. Final Question: Article IV deals with citizens of the states, 14th Amendment deals with citizens of the United States. c. Due process of law and incorporation i. Two contrasting views: Selective incorporation or fundamental rights (held by majority) and the total incorporation approach. ii. Selective incorporation/ fundamental rights view: Denies the entire Bill of Rights is made applicable to the states via the 14th Amendment. Liberty should be interpreted by judges without regard to the Bill of Rights. Only those aspects of liberty that are fundamental are protected by the 14th amendment against state interference. 1. Cardozo and Frankfurter two best known proponents of this view. Palko v Connecticut: The test is whether the Bill of Rights guarantee in question is of the very essence of a scheme of ordered liberty and whether it is one of the fundamental principles of liberty and justice which lie at the base of all of our civil and political institutions. a. The right at issue in the case was double jeopardy, was found not to be sufficiently fundamental. 2. Bill of rights does not set outside limits on the concept of liberty either. iii. Total incorporation view: All of the guarantees specified in BOR are made applicable to the states by 14th Amendments Due Process clause. 1. Justice Black was best known proponent of this position. Believed that only BOR guarantees and no others should be considered part of 14th Amendments guarantee of due process. iv. Modern approach: Incorporates into the 14th Amendment any guarantee which is fundamental in the context of the judicial processes maintained by the American states which comes from Duncan v Louisiana. 1. In Duncan the Court held that the 14th Amendment guaranteed the right to a jury trial

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II.

in state criminal prosecutions for which the potential sentence was two years in jail. 2. Today nearly the entire BOR has been incorporated into the 14th Amendment except 5th Amendment (prohibition of criminal trials without a grand jury indictment) Twinning v New Jersey (Dont have to testify against yourself) and 7th Amendment (right to jury trial in civil cases). th THE 14 AMENDMENTS PRIVILEGES AND IMMUNITITES CLAUSE a. No state shall abridge the P&I of citizens of the U.S. i. Slaughterhouse Cases: Court held 14th Amendments P&I Clause merely forbade state infringement of the rights of national citizenship, not the rights of state citizenship. 1. Facts: LA passed a law giving a monopoly on New Orleans area slaughterhouses to a particular company. Butchers not included in the monopoly claimed the statute deprived them of the opportunity to practice their trade, violating the 13th and 14th Amendment. Court rejected this argument. 2. The short list of national citizenship rights included free access to seaports, federal protection, etc. ii. View of clause until 1999: Only one state law in 125 years was invalidated under the clause which was soon overruled. Only a few rights of national as opposed to state citizenship were deemed protected. iii. Saenz v Roe: Court held the clause protects a particular and important aspect of the right to travel, the right of a person who has recently become a citizen of a state to the same privileges enjoyed by longer standing citizens of that state. 1. Case involved rights of newly arrived residents in California to receive the same state welfare benefits as a person who had been in the state longer. The clause does not tolerate a hierarchy of 45 subclasses of similarly situated citizens based on the location of their prior residence. 2. Applied strict scrutiny to CAs rule disfavoring recent newcomers. 3. So 14th Amendment P&I clause requires states to satisfy strict scrutiny before they may treat 47

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newly arrived residents less favorably than those of longer standing. Saenz does not change the rule that a state is entitled to impose a requirement of bona fide residency as a pre-condition to receiving state benefits. iv. Distinguished from Article IV Clause: 14th Amend bars a state from abridging any U.S. citizens rights of national citizenship. Article IV protects rights of state citizenship, but only when a non-resident of the state is not treated the same as a resident with respect to an important state right, essentially a right involving commerce. SUBSTANTIVE DUE PROCESS BEFORE 1934 a. History: When 14th Amendment was first enacted it was unclear whether it would be found to limit states substantive as opposed to procedural due process. i. Slaughterhouse Cases: Held that the monopoly did not violated Due Process clause. Said monopoly was needed for safety and health of community, rejected substantive due process. Within a few years there were reasons for court to review the substance of state economic regulations: 1. Natural Rights theory: Certain rights were fundamental or natural which derived from the nature of things, not from constitution. 2. Laissez faire economic theory: Industrial growth and national well-being would be maximized by minimizing government interference with business. 3. Enactment of the 14th Amendment. ii. Increasing scrutiny in two post Slaughterhouse Cases where court sustained state regulations, but indicated its willingness to engage in substantive review in some circumstances. 1. Munn v Illinois: Court found to be public rather than private the rates charged by grain elevators. In mere private contracts judiciary would determine what regulations were reasonable. 2. Mugler v Kansas: Court sustained a state ban on alcoholic beverages, legislation valid under states police powers only if it related to protection of the public health, safety or morals, and if id did not violate rights secured by the fundamental law.

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iii. Allgeyer v Louisiana: Court used substantive due process to invalidate a state statute that prohibited anyone from obtaining insurance on LA property from any company not licensed in LA. Interfered with residents right to contract. iv. Lochner v NY: (1905) The court struck down as an abridgement of liberty of contract and therefore a violation of due process a NY law which limited the hours which a bakery employee could work to 10 per day and 60 per week. How the court will rule from 1899-1937 known as Lochnerism. 1. Court held it was not a valid labor law, nor a safety or health measure. 2. The laws natural effect was to regulate labor conditions, not to protect anyones health or safety. 3. Courts refusal to defer to legislature findings of fact. Court insisted on reaching its own conclusions on the factual issue of whether the health and safety of bakers needed special protection. v. Dissent: Harlan suggested there was enough evidence that the state would promote the health and safety of bakers. Holmes contended the Court had no right to impose its own views about correct economic theory on legislatures. vi. Lochner test: 1. Required a close fit between the statute and its objectives. 2. Only certain legislative objectives were acceptable. Regulation of health and safety was permissible, but readjustment of economic power was not. b. Other decisions of the Lochner era: Widespread invalidation of economic legislation on substantive due process grounds. i. Maximum hours: Court willing to allow such laws where the benefited class needed special protection. 1. Muller v Oregon: Court sustained a law barring the employment of women in a factory or laundry for more than 10 hours a day. Saw women as a weaker class. Used the brandies brief technique: Extensive documentation to demonstrate the requisite link between the legislative end and the means used to achieve it. Constitutional Law 49

IV.

ii. Minimum Wage Laws: Adkins v Childrens Hospital: Struck down a minimum wage law for women; rationale was freedom of contract. iii. Weaver v Palmer Brothers: Many ways PA could have taken care of the problem of Shoddy in mattresses (like putting a tag on it). Court went too far by saying couldnt sell it at all. SUBSTANTIVE DUE PROCESS MODERN APPROACH a. Initial decline of Lochnerism: FDR and New Deal Program. Shift towards greater deference to legislative intervention in economic affairs. i. Nebbia v NY: Court sustained a NY regulatory scheme for fixing milk prices. Due process requires only the law not be unreasonable and the means selected shall have a real and substantial relation to the object sought to be obtained. States were free to adopt whatever economic policy may reasonably be deemed to promote public welfare and to enforce a policy by legislation adapted to its purpose. ii. West Coast Hotel v Parrish: Court upheld a state minimum wage law for women and explicitly overruled Adkins case. 1. Court gave substantial weight to states interest in redressing womens inferior bargaining power as well. Concluded that readjustment of economic bargaining power in order to enable workers to obtain a living wage was a legitimate limitation on that freedom of contract. b. Cases following abandoned any degree of scrutiny between means and ends in economic cases. i. Carolene Products Case: Presumption of constitutionality would be applied in the case of an economic regulation subjected to due process attack. Court sustained against a due process attack a federal prohibition on the interstate shipment of filled milk. The existence of facts supporting the judgment is to be presumed. The test is characterized as a minimum rationality standard coupled with a presumption of constitutionality. 1. A state or federal law gets deference if it doesnt impede on a constitutional law. Scrutiny is when it does impede on a constitutional law. Deference assumes law is needed for the good of society. 50

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2. Economic legislation always gets deference. ii. Lessening of scrutiny: Court has been willing to hypothesize reasons which would support the legislatures action, even though there is no evidence that these reasons in fact motivated the lawmakers. 1. Williamson v Lee Optical: Court upheld an OK statute which prevented opticians from fitting eyeglass lenses into frames without prescription from an ophthalmologist or optometrist. Statute was a rational health measure. Hypothetical reasons to support act. 2. Ferguson v Skrupa: Sustained a Kansas law prohibiting non-lawyers from engaging in business of debt adjusting. Justice Black primary advocate. Now laws were upheld for virtually no reason at all. c. Summary of Modern approach: Court has withdrawn almost completely from the business of reviewing state legislative economic regulation for substantive due process violations. i. All that is required is a minimally rational relation between means chosen and the ends pursued. ii. Mere rationality also apples in cases of social welfare. d. BMW v Gore: Some circumstances the award of punitive damages may violate the defendants due process rights, if its grossly excessive. MISCELLANEOUS CLAUSES I. EX POST FACTO LAWS a. Article I 9 and 10 a law which has retroactive punitive effect is prohibited. Retroactive punitive effect can happen in four ways. i. Alters the definition so that an act that wasnt a crime is now a crime ii. Aggravates a crime re-defining it so as to make it a greater offense than it was when committed. iii. Increased punishment iv. Alters the rules of evidence 1. Calder v Bull: P won the civil case. Connecticut decided to change the law after it was won and went back to retry the decision. II. THE CONTRACT CLAUSE a. Article I 10, No state shall pass any law impairing the obligation of contracts. i. The purpose of the contract clause was protecting creditors against debtor relief laws, by which the

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obligations of debtors were often postponed or even completely lifted. ii. Extended to include the prevention of the impairment of public contracts between the government and private parties. b. Protection of public agreements: Until 1977 the Court had abandoned the Contract Clause as a limitation on states rights to modify public contracts. i. U.S. Trust Co. v New Jersey: Indicates the Court will scrutinize somewhat closely a states attempt to escape from its financial obligations, and will only permit such an escape where a significant public need exists that cannot be reasonably handled in any other way. 1. Test that emerged: An impairment of contractual obligations will be constitutional only if it is reasonable and necessary to support an important public purpose. c. Protection of Private contracts: To curtail populist debtorrelief laws. Debtors obligations may be modified where a vital public interest so demands. i. Home Building & Loan Assn v Blaisdell: During depression MN statute allowed local courts to give relief from mortgage foreclosure sales. The statute was retroactive. Statute was upheld on theory that state had the right to temporarily delay enforcement of a mortgages literal terms where vital public interests would otherwise suffer. ii. Allied Structural Steel Co. v Spannaus: Court invalidated an attempt by MN to expand the pension obligations of certain MN employers who closed a plant in the state. Indicated Contract Clause can be used a weapon against state police power regulations which affect contracts. Holding: police power allowed states to make minor, and in a few circumstances substantial modifications to contracts. 1. Strict Requirements for modification of contracts: (1) There be an emergency; (2) measure enacted to protect a basic societal interest, not a favored group; (3) relief be appropriately tailored to the emergency; (4) modifications be reasonable and (5) statute be limited to the duration of the emergency. 2. Objected that the statute imposed a substantial retroactive obligation violated

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reasonable expectations about what getting into when starting a pension plan. d. More deferential standard: Energy Reserves Group v Kansas Power articulated the following three-step test for evaluating Contract Clause challenges: i. Threshold inquiry whether state law has operated as a substantial impairment of a contractual relationship. ii. Significant and legitimate public purpose iii. Whether rights and responsibilities of contracting parties is based upon reasonable conditions and is a character appropriate to the public purpose. Mid level scrutiny. THE TAKING CLAUSE a. Both state and federal government have the right to take private property for public use provided just compensation is paid. Known as eminent domain. i. Federal government is bound by the fifth amendment and state governments are bound by 14th Amendments due process clause. b. Taking/Regulation Distinction: If there is a taking, compensation must be paid. If state regulates property use in a manner consistent with states police power then no compensation needs to be paid, even though owners use or value of property has been substantially diminished. i. For a land use regulation to avoid being a taking it must satisfy two requirement: (1) It must substantially advance legitimate state interests; and (2) it must not deny an owner economically viable use of his land. 1. A broad range of governmental purposes constitute legitimate state interests. 2. Must be a relatively tight fit between the state interest being promoted and the regulation chosen. See infra Nollan v California Coastal Commission 3. Few land use regulations are likely to be found to deny the owner of all economically viable use of the land. Regulations denying the right to build any dwelling on the land would qualify. ii. Physical Use: If Government authorizes a permanent physical occupation of the property, it will automatically be found to constitute a taking, no matter how minor the interference with the owners use. Loretto v Teleprompter: Court formulated this per se rule and applied it to invalidate a statute 53

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which required landlords to permit cable tv companies to install their cable facilities on the landlords rental property. 1. A states refusal to grant a building permit except upon the transfer to the public of a permanent easement for the public to pass along a strip of the owners property constituted a permanent easement for the public to pass along a strip of the owners property was a permanent physical occupation of the property. See Nollan. iii. The more drastic the reduction in value of the owners property, more likely a taking is to be found. Penn Coal Co. v Mahon: A landowner brought the surface rights to land and the house on it, under a chain of title which reserved to a coal company the right to mine coal from under the property. PA enacted a statute preventing subsurface mining where a house might be caused to sink, which effect was to bar the coal company completely from mining under the owners land. 1. Held: The regulation was a taking because it impaired the right to mine coal that is was equivalent of an appropriation or destruction of the coal. iv. Denial of all economically viable use of land is a taking. 1. The fact that a particular use made by P has been completely foreclosed will not be enough. 2. A total ban on the building of any structure on property is likely to be enough to deny the owner all economically viable use of his land and constitute a taking. a. Lucas v South Carolina: SC enacts an act which defines certain critical areas of erosion danger and bars any owner of a lot from building any permanent habitable structure on the parcel. P brought 2 parcels and this act prevents him from building any permanent structure on either lot. b. Held: If P had been deprived of all economically viable use of his property a taking has occurred. Its up to SC courts to decide whether P has really been deprived of all use. If he has a taking Constitutional Law 54

v.

vi.

vii.

viii.

exists, even though state is trying to protect health and safety of its residents. A regulation rather than a taking is to be found where the property use being prevented is one that is harmful or noxious to others. 1. Sometimes if a decision is that a land use is noxious it will be the product of a decision favoring one private interest over another. a. Miller v Schoene: Red cedar trees in VA are infected with rust that is dangerous to apple orchards. VA passes a law requiring destruction all red cedar trees within a prescribed distance from an apple orchard. Cedar owners are paid only the cost of removing their trees, not the value of the trees. b. Held: The ordinance was not a compensable taking. State had the right to conclude that apple orchards were more important to the state economy than cedars, and its decision did not violate due process. 2. Bar must fall within common-law nuisance principles. a. Lucas v SC: Given that state courts decided that this ban deprives P of all economically viable use of property, P has suffered a taking unless the state could have achieved the same total ban on dwellings by use of the common law nuisance. Zoning Regulations: Will not be stricken as violative of due process unless it is clearly arbitrary and unreasonable having no substantial relation to the public health or safety. Regulations designed to protect the environment are subjected to only mild review, even if the property owners ability to use his land is substantially circumscribed. 1. Again see Lucas: Formula: (1) Economic impact of regulation; (2) interfered with investment expectation; (3) character of government action Landmark Preservation: Seldom constitute a taking. Penn Central v NYC: Court found that NYC landmarks preservation law did not effect a taking of 55

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Ps property. Like zoning laws; and statute met requirement of comprehensiveness. ix. Court requires a very close fit between the means chosen by the state and the governmental objective being pursued. 1. Substantially advance requirement: Nollan v California: Court required that the means chosen by the government substantially advance the governmental objective being pursued. Held: Refusal to issue the building permit except upon transfer of the easement amounted to a taking because (1) If gov had required P to give the public an easement over their property, that would be a taking; (2) an outright refusal by gov to grant the permit would not constitute a taking if is substantially advanced a legitimate state interest and didnt deny an owner economically viable use of his land and (3) Conditions attached the permit must be evaluated by the same standard, so only if those conditions substantially advanced the legitimate state interest being pursued would the conditions be valid. 2. Third requirement wasnt satisfied because harms faced by government would not be cured or materially lessend by the means chosen. 3. Dolan v City of Tigard: Court held that when a city conditions a building permit on some give back by the owner there must be a rough proportionality between the burdens on the public that the building permit would bring about, and the benefit to the public from the give back. a. Had to be an essential nexus between the permit condition and the legitimate state interest being pursued. b. Second rough proportionality requirement between the trade off demanded by the city and the burden to the public from Ps proposed development. x. If the person who owns the property at the time the regulation is put into effect does not sue, but a subsequent buyer, who buys with knowledge of the restriction, court holds a subsequent buyer may Constitutional Law 56

proceed with the suit, just as the original owner could have. 1. Palazzolo v Rhode Island: Future generations have right to challenge unreasonable limitation on the use and value of land. c. Requirement of Public Use: 5th Amendment prohibits the taking of private property for private use, even if just compensation is made. i. Public use is broadly construed. As long as the states use of its eminent domain power is rationally related to a conceivable public purpose. 1. Hawaii Housing v Midkiff: Court upheld a scheme where HA used its eminent domain power to acquire lost owned by large landowners and transferred them to the tenants living on them or to other non land owners. DUE PROCESS I. SUBSTANTIVE DUE PROCESS FUNDAMENTAL RIGHTS a. Protection for non-economic rights. i. Two tier scrutiny: Two standards of review. Economic rights Court requires a rational relation between statute and legitimate state objective. Where its a fundamental right a scrutiny is applied: 1. States objective must be compelling, not merely legitimate; and 2. Relation between that objective and the means must be close, so means can be said to be necessary to achieve the end. ii. Due Process Right that everybody has; Equal protection Some people unable to avail themselves of a right iii. When dealing with a non-fundamental right there is mostly deference to the legislative judgment, virtually no scrutiny at all. 1. If its a fundamental right, the scrutiny is so strict that few statutes impairing it can meet the double test. b. Early non-economic cases i. Meyer v Nebraska: Decided during Lochner era. Court struck down a state law prohibiting the teaching of foreign languages to young children. The term liberty included the rights of teachers to teach and that of students to acquire knowledge. Applied a rationality test, statute was without Constitutional Law 57

reasonable relation to any end within the competency of the State. ii. Pierce v Society of Sisters: Struck down statute requiring children to attend public schools and thus preventing them from attending private and parochial ones. Decision based on liberty of parents to direct the upbringing and education of children under their control. Court denied state power to standardize its children. iii. Skinner v Oklahoma: Court invalidated an OK statute that provided compulsory sterilization of people convicted of felonies 3 times. Used equal protection clause instead of fundamental rights because wanted to avoid being accused of Lochnerism. iv. Buck v Bell: A law allowing involuntary sterilization of institutionalized mental defectives was upheld, but would probably be struck down today. This has been implicitly overruled. Like Nazi Germany. c. Birth Control: Griswold v Connecticut i. Issue: Connecticut law that forbade use of contraceptives and forbade aiding or counseling of others in their use. Court struck down the statute. Several Bill of Rights guarantees protect the privacy interest and create a penumbra or zone of privacy. The right of married persons to use contraceptives fell within this penumbra. 1. Blacks dissent: Only those rights explicitly state in the BOR provision are protected by the 14th Amendment. ii. Declined to use a substantive due process analysis and explicitly rejected the choice of using a Lochner type approach. Used penumbra theory as a way of protecting personal rights, while not having to give equally strict scrutiny to economic or property rights. d. Post Griswold Contraceptive Law: No person, single or married may be prohibited from using contraception, or otherwise subjected to undue interference with decision on procreation. i. Eisenstadt v Baird: Court invalidated a statute which, by permitting contraceptives to be distributed only by registered physicians and pharmacists only to married persons, discriminated against the unmarried. 1. Right of the individual, married or single, to be free from unwarranted government intrusion Constitutional Law 58

into matters so fundamentally affecting a person as the decision to beget or bear a child. e. Abortion: Roe v Wade: The Court held that a womans right to privacy is a fundamental right under 14th Amendment, therefore the legislature has only a limited right to regulate and may not completely proscribe abortions. i. The specific holding divided pregnancy into three trimesters: 1. First trimester A state may not ban or even closely regulate abortion. State has no valid interest in protecting the mothers health by banning or closely regulating abortions during this period. 2. Second trimester State may protect its interest in the mothers health by regulation the abortion procedure in ways that are reasonably related to her health. State may only protect mothers health, not the fetus life during this period. 3. Third trimester - Fetus becomes viable, therefore state has a compelling interesting protecting the fetus, it may therefore regulate or even proscribe abortion. The abortion must be permitted where it is necessary to preserve the life or the health of the mother. ii. The Roe decision was premised on the right of privacy. 1. Court held a womans interest in deciding this issue herself was a fundamental one which could only be outweighed if: (1) there was a compelling state interest in barring or restricting abortion; and (2) the state statute was narrowly drawn so that it fulfilled only that legitimate state interest. iii. Problem is that viability doesnt always occur at a particular point in pregnancy, depends on testimony. f. Modification of Roe by Casey; Planned Parenthood v Casey: Essential holding of Roe, but overruled some parts such as the trimester framework and complete inability of state to regulate first-trimester abortions. States may restrict abortion so long as they do not place undue burdens on womens right to chose. i. Essential holding of Roe affirmed: (1) Recognition of the right of the woman to choose to have an abortion before viability and to obtain it without interference Constitutional Law 59

g.

h.

i.

j.

from the state; (2) States power to restrict abortions after viability; (3) States legitimate interests from the outset of the pregnancy in protecting the health of the woman and life of the fetus. Stare Decisis, courts should not lightly overturn precedent. ii. Undue Burden standard: Only where state regulation imposes an undue burden on a womans ability to make the decision does the power of the state reach into the liberty protected by Due Process. iii. Abortion is no longer a fundamental right, no longer strictly scrutinized now use mid level scrutiny. P has a right, but state can interfere without a compelling interest. Post- Roe Developments: i. Planned Parenthood v Danforth: Court barred the state from giving a pregnant womans spouse or parents in most instances an absolute right to veto the womans decision to obtain an abortion. ii. Parental Consent is usually required for minors to get abortions. 1. Minors get parental consent, even if emancipated or 2. A court hearing where girl can persuade the court that its in her best interest to get an abortion called judicial bypass. Public Funding of Abortions: Government may refuse to pay for this. i. Maher v Roe: Connecticut could constitutionally refuse to give Medicaid financing for non-therapeutic abortions, even though it gave Medicaid financing for the expenses of ordinary childbirth. ii. Even funding of necessary abortions does not constitutionally have to be funded by government. Types of Abortion Allowable: May run afoul Roe v Wade i. Planned Parenthood v Danforth: Struck down a MO requirement that the little-utilized prostaglandin method be used rather than the much more common saline amniocentesis method. ii. Stenberg v Carhart: Struck down a NB statute that flatly banned a method of abortion, and said it must allow a maternal health-exception to the ban. 1. Court will closely scrutinize methods to regulate abortion procedures. Post Roe Regulations of Contraception: Carey v Population Services: Court struck down a NY statute which (1) prohibited anyone but a licensed pharmacist 60

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from distributing contraceptives to persons over 16; and (2) prohibited sale or distribution of contraceptives to minors under 16 except by prescription. i. Was subject to strict scrutiny because it bore on a fundamental right, right to decide whether or not to procreate. k. Family Relations: i. Fundamental rights frequently found so consequently the state may interfere with such a decision only when it shows that the interference is necessary for the fulfillment of a compelling public interest. ii. Zoning and non-nuclear family: Moore v East Cleveland: Court struck down a zoning ordinance which allowed only members of a single family to live together. 1. Got away from Lochnerism by: (1) limits on substantive due process from careful respect for the teaching of history and recognition of basic values that underlie society; (2) Looking at matters aligned to Bill of Rights 2. Moore was distinguished from Belle Terre v Borass: Where court upheld a zoning restriction which excluded most groups of unrelated people from living together. Found unrelated persons had no fundamental right to live together. a. Its family relations, not the right of individuals to choose with whom they live that the court honors fundamental status. iii. Parents have a substantive due process right to direct the upbringing and education of their children. 1. Troxel v Granville: A parent has a fundamental due process interest in determining which people outside the nuclear family will have access to the children. This case involved visitation privileges of grandparents which do not outweigh the fundamental right in motherhood. Strict Scrutiny is applied. iv. Right to Marry is a fundamental right; substantial interferences with that right will therefore not be sustained merely because they are rational. 1. Zablocki v Redhail: P attacked a WS law a parent who is supporting a minor child must meet 2 requirements before permitted to Constitutional Law 61

remarry; (1) payment of all court ordered support; (2) demonstration that the child was not and will not become a public charge. Statue was invalidated. States interest was not compelling and unnecessarily interfered with fundamental right to marry. v. Rights of Natural father: 1. If a state were to attempt to force the breakup of a natural family over objection of the parents and children without some showing of unfitness and for the reason that to do so was thought to be in the childs best interest, Due Process would be violated. a. Stanley v Illinois: There was a presumption an unmarried father was unfit to care for his children. Procedure by presumption is easier than individualized determination. Statute was struck down. 2. Court believes an unwed father who has lived with or has developed a substantial relationship with the child has a substantive due process right to maintain that relationship. a. Michael H v Gerald D: Although an unwed fathers biological link to his child does not guarantee a constitutional stake in the relationship with that child, such a link combined with a substantial parentchild relation ship will do so. Presumption that a child born during wedlock is the child of the husband. l. Sexuality: Persons sexual conduct may sometimes be entitled to substantive due process protection. Court however, has refrained from establishing any general protection of adult consensual sexual activity. i. Bowars v Hardwick: Case involving homosexual sodomy a GA statute made it illegal, but didnt distinguish between homo and heterosexual. Statute upheld because there is no fundamental right upon homosexuals to engage in sodomy. P tries to establish a fundamental right, but the excuse for not recognizing new rights is expanded substantive due process which is an evil from the Lochner era. m. The Right to Die: A competent adult has a 14th Amendment liberty interest in not being forced to undergo unwanted

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medical procedures, including artificial life-sustaining measures. i. State has a countervailing interest in preserving life. Entitles state to require clear and convincing evidence that a now incompetent patient would have voluntarily declined the life-sustaining measures. ii. Terminally ill patients do not have a general liberty interest in committing suicide, nor do they have the right to recruit a 3rd person to help them commit suicide. iii. Cruzman v MO Department of Health: N was in a car accident and was in a persistent vegetative state. She was kept alive by a feeding tube and respirator. Court agreed that MOs continuation of life-sustaining procedures here did not violate Ns 14th Amendment rights. Such procedures can be discontinued when there is clear and convincing evidence that thats what N would have wanted. 1. Established (1) A competent adult has a constitutionally protected 14th Amendment liberty interest in declining unwanted medical procedures and (2) Where patient is incompetent, state may constitutionally refuse to allow those medical procedures to be terminated except where there is clear and convincing evidence that this is what P would have wanted. iv. Right to commit suicide: Washington v Glucksberg: Involved WAs ban on promoting a suicide attempt. Reasoning: Whether the liberty specially protected by Due Process Clause includes a right to commit suicide which itself includes a right to assistance in doing so. There is no liberty interest here getting someone to assist with suicide differs from Cruzman case. Therefore use deference instead of scrutiny. 1. There was no historical right, nor fundamental right, states interest in regulation was rational, state has an unqualified interest in the preservation of human life, protecting integrity of medical profession, protecting vulnerable groups, might slip down slope to euthanasia. 2. Vacco v Quill: Decided with Glucksberg: No generalized right to commit suicide, right to be free from pain, states are free to permit assisted suicide if they want to. Constitutional Law 63

3. A careful description of the asserted fundamental liberty substantive due process. Liberty is not whether you have a right to suicide, but whether you have a right to have someone assist with suicide. n. Voting Rights (Equal Protection chapter) i. States may exercise substantial control over the right to vote. States have a right to determine voter qualification for state elections, so can require citizens to be of a certain age and residence. 1. Constitution indirectly gives states the right to set voter qualifications for federal elections. ii. Court has treated the right to vote as fundamental, and subject to strict scrutiny and will be struck down unless necessary to the achievement of a compelling state interest. iii. Poll tax: Imposition of poll tax violates equal protection clause: Harper v VA Board of Elections: Court struck down an annual poll tax. 24th Amendment eliminated them completely. Inequality of right to vote was to be strictly scrutinized. 1. Classifications based on wealth are disfavored. iv. Another type of inequality is those who have a special interest or own property. If state proves that only members of that group do indeed have a major objective interest or stake in the issue the limitation may be upheld. 1. Kramer v Union Free SD: Court struck down NY statue which limited school district elections to persons who either (1) owned or leased property within the district or (2) were parents of children in public schools. This was carefully scrutinized to determine whether the scheme is necessary to promote a compelling state interest. 2. If court finds that gov unit for which elections are being held has a limited purpose which disproportionately affects only one group, the franchise may be limited to that group. Ball v Jones v. Dilution of votes: Voters fundamental right not to have his vote diluted by use of electoral districts that are not constructed strictly on the basis of population. Reynolds v Simms: Political question related to Baker v Carr

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1. Reynolds was a challenge to the apportionment of AL legislature. One person, one vote. Struck down AL apportionment. Seats must be appointed on a population basis, an individuals right to vote for state legislators is unconstitutionally impaired when its weight is in a substantial fashion diluted when compared with votes of citizens to other parts of the state. 2. Westberry v Sanders: Court was able to dispose of the case by interpreting Article I 2s requirement that representatives be chosen by the people of the several states. One mans vote is to be worth as much as anothers. o. Civil Litigations: Indigents have argued that filing fees and other fees should be waived for them in civil litigation. Only in family law has the court agreed that indigents are entitled to access to the civil courts. i. Boddie v Connecticut: Family law decision involved divorce. Parties seeking divorce were welfare recipients who couldnt pay the $60 filing fee. Court agreed that denial of access to divorce was a violation of Ps due process rights. 1. Two factors found; (1) marriage occupies a fundamental place in societys scheme of values; (2) state has a monopoly on the means for dissolving this relationship. ii. Not applicable to bankruptcy: U.S. v Kras: Indigents do not have a right to a waiver of $50 filing fee for bankruptcy. Interest in bankruptcy was not fundamental, as divorce is. iii. Termination of parental rights: MLB v SLJ: Parents interest in their relationship with their children is fundamental. Only way to get relief is through the government. iv. So where the proceeding is civil and indigent has no general right to fee relief. Bankruptcy and welfare terminations fall into this general category. But an indigent does have equal protection right to fee relief in three situations; divorce, determinations of paternity, and termination of personal rights. p. The Right to Travel: Any American is free to travel from state to state and change his state of residence. Court treats it as a fundamental right. When a state treats newlyarrived residents significantly less favorable than those

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II.

who have lived in the state longer, strict equal protection scrutiny may be triggered. i. Shapiro v Thompson: Court invalidated the denial by 2 states and DC of welfare benefits to residents who had not resided in the jurisdiction for at least a year. ii. Saenz v Roe: Means are specifically tailored to the ends, they arent even relevant. It deprives people of what they need to live on. Means are too broad. 14th Amendment Privileges and Immunities clause used here. Here they treated one class of citizens different from the other. q. Right to Education i. San Antonio SD v Rodriguez: No fundamental right to equality in public school education. Mere rationality test applied. Legal question is if P established fundamental right to education (which they didnt) then they can get to equal protection by: (1) Show client is a member of class of individuous discrimination; (2) Show there is a fundamental right. Here they couldnt establish the poor as an individous group. PROCEDURAL DUE PROCESS a. Both clauses prevent the government from depriving any person of life, liberty or property without due process of law. When someone is singled out as opposed to denying everyone a right (substantive due process). i. Due Process clause does not bar the government from procedural irregularities per se, only when life, liberty or property are being taken is government required to act with procedural correctness. If none of these interests are implicated by a particular gov. act, the gov. may act as arbitrarily or unfairly as it wishes. ii. Different from substantive due process in that procedural will only exist where the government al action at issue involves an individualized determination. 1. Daniels v Williams: Officer left pillow on stair (negligence). Did officer deprive inmate of life, liberty or property? No in constitutional sense because it has to be deliberate an intentional delivered action from the government. There may be an action in tort law, but no basis to sue the state.

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b.

c.

d.

e.

2. Sacramento v Lewis: Cop was grossly negligent in a high speed chase going over 100 mph. He did deprive a person of life and liberty but not deliberately. Killing was not intentional because it was spur of the moment. 3. DeShanny v Winnebago Social Services: One can not have a due process right protected by the government when they are threatened by a private person. The state did not deprive child of L,L, or P A private actor did. Due process is to protect people from the state, not to ensure that the states protects them from each other. Before 1970 Court takes a broad view of liberty and property; includes rights to contract and engage in common occupations of life etc. i. Traditionally Court did not find a liberty in benefits flowing from the public sector, including governmental employment and welfare. These were considered privileges. During 1970s Court held benefits previously thought of as privileges were now rights, and interests in liberty or property. i. Goldberg v Kelly: Court held that a welfare recipient must be given an evidentiary hearing before his benefits may be terminated. Its a right protected by the constitution. Tenure Cases: Cutting back benefits which would be deemed to create an interest in liberty or property. i. BOR v Roth: P had a non-tenured one year contract to teach. School declined to hire him after contract was up without reason. Court held Ps interest in being rehired was not an interest in liberty or property and had no right to procedural due process. Nature of Ps interest counted, not the weight. 1. To be a property interest he must have had a legitimate claim of entitlement. Unless a person is already enjoying a benefit, he has no procedural due process right. ii. Perry v Sinderman: Informed practices or customs may be sufficient to create a legitimate claim of entitlement to a benefit. Here P was also nontenured, but had a handbook that said if youre here for X amount of years you may expect to get reappointed. Narrowing protected liberty interests. 67

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i. Paul v Davis: P, after being arrested for shoplifting was listed as a shoplifter in a flyer handed out to merchants. Court held Ps interest in his reputation by itself, was not a constitutionally-protected liberty or property interest. They werent stopping him from shopping or entering the store, no deprivation. 1. This decision was made largely to avoid the federalization of tort law. f. Rights of Students: Goss v Lopez: Court held that a suspension from public school constituted deprivation of a constitutionally-protected property interest. g. What process is due? i. Notice: How far in advance do you need notice? Indictment in criminal case, summons in civil case. Bill of particulars, what you have to defend yourself against. ii. Opportunity to be heard: Opportunity to appear personally or by mail, usually have a right to present witnesses, but not in Sandin v Conner. 1. Lassiter: Wanted to take child away from parent, state now has a duty to proved counsel. iii. Impartial Decision: Entitled to impartial decision maker. 1. Santowski v Kramer: Look for someone who is removed from the decision making. Standard of proof is a role, degree of confidence our society thinks should have in correctness of actual conclusions for particular type of adjudication. 2. Decision maker is judge or jury. If you dont have a jury you want findings: findings of fact and conclusion of law or you have no way of challenging the decision. h. The Balancing Test: Illustrated in Matthews v Eldridge: Court held that disability benefits could be terminated without a prior evidentiary hearing. Following factors to be balanced: i. One side of the equation (1) the strength of the private interest that would be affected by the official action, and (2) the risk of erroneous deprivation of such interest through the procedures used, and the probable value, if any or additional or substitute procedural safeguards. ii. Other side of equation: Governments interest, including the function involved and the fiscal and Constitutional Law 68

administrative burdens that the additional or substitute procedural requirements would entail. iii. A is the additional procedural safeguard to which the individual asserts that he is entitled: procedural safeguard, A will be required if 1. (amount at stake for individual) x (likelihood that administrative error will be reduced by using A) < cost to the government of granting A. iv. Application to Matthews: 1. Lower stake: Disability payments were less likely to be the individuals sole source or income, so his stake was lower than Goldberg. 2. Value of safeguard: Value of evidentiary hearing was less than in Goldberg because disability issue turned upon medical assessment and could probably be evaluated through written documents rather than oral testimony. 3. Burden of supplying full hearing on government was likely to be substantial and expensive. v. Cleveland Bd of Ed v Loudermill: Court weighed a tenured employees interest in retaining his employment against the govs interest in having a quick way to fire unsatisfactory employees; factored in risk of erroneous termination. 1. Conclusion that hearing was required only oral or written notice of charges against him and an explanation of employers evidence and opportunity to present his side of the story. vi. A state cant establish procedures for terminating the right even if they created the statutory requirement. i. Liberty interests for prisoners: i. When incarcerated loss of liberty interest for that many years. Once released on probation that creates a liberty interest and thus have a due process right to a hearing whether or not entitled to parole. ii. Where state had no obligation to create liberty interest, they created one so now subject to due process hearing see Sandin v Conner. EQUAL PROTECTION I. INTRODUCTION a. Impose a general restraint on the use of classifications, whatever the area regulated, whatever classification criterion used. Constitutional Law 69

II.

i. Before Warren court EPC played a minor role: Means had to be rationally related to the legislatures purpose and statute was upheld. ii. Under Warren Court statutes were subject to strict scrutiny: law is upheld only if it was necessary to achieve a compelling governmental interest. Used with race and national origin suspect classifications. 1. Rigid two tier structure: Either a classification was suspect or impacted on a fundamental right (strict scrutiny use) or it did not (rational basis used). iii. Burger/Rehnquist Court kept things the same except added Mid-Level scrutiny usually in gender and alien cases. Statutes are given a scrutiny more rigorous than the extreme deference with which general economic and social welfare classifications are treated. b. Broad overview of clause i. Applies both to state and federal government. EPC of 14th Amend applies only to state a local governments. ii. Nothing in constitution explicitly requires federal gov. provide equal protection of the laws, but where federal gov. makes a classification which, if it were by a state would violate the 14th Amendment, the Court has treated this as a violation of 5th Amendments due process clause which is directly applicable to federal government. Bolling v Sharpe. iii. Applies to the making of classes: If a classification scheme is proper, the issue of which class a particular individual belongs in is not and equal protection matter. iv. The clause guarantees: (1) That people who are similarly situated will be treated similarly; and (2) that people who are not similarly situated will not be treated similarly. 1. Allege you are a member of a distinctive group being discriminated against. 2. Law or regulation that impedes the ability to exercise a protected liberty interest. v. Over inclusiveness: Includes more people that it should, Underinclusiveness: Doesnt include as many people as it should. MERE RATIONALITY TEST

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a. Statute will not be stricken down if its conceivable that there is some rational relation between the means selected by the legislature and a legitimate legislative objective. Law will be stricken if it is purely arbitrary. b. Courts give extreme deference to legislatures right to define its objectives. i. Court often reviews various conceivable objectives which might have motivated the legislature, and as long as there is at least one it is upheld. c. Legislation will not be invalidated merely because the legislature dealt with only one part of a problem. Legislature may deal with a problem One step at a time. Under-inclusive is not necessarily invalid. i. Railway Express Agency v New York: NYC traffic regulation bans placing of advertising on vehicles except that the owner of a vehicle is permitted to advertise his own products. HELD: Doesnt violate EP, No requirement of EP that all evils of the same genus be eradicated or none at all. d. Determine a statutes purpose: Must be a sufficiently close link between means an end and must somehow determine what the purpose is. i. If court agrees that this purpose may have motivated the legislature and that purpose is legitimate and rationally related to the means used by the legislature, the statute will be upheld even if there is no hard evidence that that purpose was in fact a motivation to the legislature. 1. U.S. Railroad Retirement v Fritz: Held so long as there was a plausible reason for Congress to have made the classification scheme it did, lowest level EP review was satisfied. It was constitutionally irrelevant whether this reasoning in fact underlay the legislative decision. 2. See Also FCC v Beach Communication and NYC Transit v Beazer. e. Legal disabilities motivated by animus towards unpopular groups and Court has been willing to strike down such legislation through mere rationality. i. Romer v Evans: Court struck down a CO constitutional amendment that would have prevented the state or any of its cities from giving certain protections to gays or lesbians. Flunked rationality because there was no legitimate state interest being served and the means chosen by the Constitutional Law 71

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state were not rationally related to the possibly legitimate interest that the state asserted. 1. Scalias dissent: The end is legitimate. Singled out one group (homosexuals) and made it more difficult for them to get a statute or law passed. Doesnt violate EP. ii. U.S. Dept of Agriculture v Moreno: Court struck down state statute that required a household getting food stamps, all members of house must be related to each other. iii. Court is now taking into account the likelihood of bias against a moderately-unpopular class such as mentally retarded. 1. City of Cleburne v Cleburne Living Center: Court struck down TX citys denial of a special use permit for the operation of a group home for the mentally retarded. Court refused to treat mental retardation as an explicitly quasi suspect classification like gender or illegitimacy. Court clearly challenged this at a more rigorous review than mere rationality which was motivated by historical and current prejudice against the retarded. SUSPECT CLASSIFICATION RACE a. Carolene Products footnote: Prejudice against discrete and insular minorities may be a special condition which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities and which may call for a correspondingly more searching judicial inquiry. b. Dred Scott v Sandford: P was brought to Illinois where slavery was prohibited so he thought he was free and sued his master to be free. It was determined P had no citizenship at all so therefore had no capacity to sue and complaint should be dismissed. Not freed. i. MO compromise declared unconstitutional. Congress cant take away masters property because would violate his due process rights. c. Strict Scrutiny: Statute upheld only if it is found to be necessary to the attainment of some compelling governmental objective. A way of ferreting out discriminatory purposes. i. Korematsu v U.S.: Only racial classification that survived strict scrutiny. Japanese exclusion case. Excluding all people of Japanese ancestry from certain areas on the west coast because there was a 72

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compelling need to prevent espionage and sabotage and that there was no practical and sufficiently rapid way for the military to distinguish loyal from the disloyal. ii. Plessy v Ferguson: Separate but equal which Court upheld, the Jim Crow laws. States argument that segregation had no disadvantage to either race. Neither race is inferior. 1. Attack on separate but equal because no law schools for blacks in certain states. 2. Sweatt v Paint: Separate but not equal. When blacks were admitted to schools couldnt be made to sit in the back because thats not equal. iii. Brown v Board of Education: Court explicitly rejected the separate but equal doctrine for public education. Separate educational facilities are inherently unequal. 1. Same day Brown was decided the Court held that the federal government could not be permitted to operate racially segregated schools any more than the states could. 2. Remedying the situation is difficult because specific performance is hard to supervise. Lower courts were ordered to implement desegregation with all deliberate speed. iv. Specific rules for desegregating: 1. Minority to majority transfer invalid 2. Closing of public schools to fund private white schools was invalid 3. Freedom of choice, for students to chose which school to go to were rejected. v. Swann v Charlotte-Mecklenburg: A federal court may not order de facto segregation no matter how sever, to be cured by adjustment of racial balance. Court could start with a ratio of blacks to whites in shaping a remedy, even though there are single race schools, doesnt mean desegregation hasnt been accomplished, Rezoning, redrawing of attendance zones is permissible, approved bussing as a means of bringing about desegregation. d. Once the effects of official segregation have been temporarily remedied later imbalances cause by changing residential patterns may not be cured by federal court order.

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i. Bd of Ed v Dowell: Court held that as long as the school board had complied in good faith with the desegregation decree, and if de jure discrimination had been eliminated to the extent practicable, desegregation decree should be lifted and the school district allowed to revert to a system of neighborhood schools. ii. Milliken v Bradley: If a citys school system is shown to be de jure segregated, may a federal judge order a remedy which includes suburban school districts? No. The scope of the remedy is determined by the nature and extent of the constitutional violation. e. Purposeful Discrimination: Need proof of legislative intent to discriminate against the disfavored group. Here is discussed facially neutral laws with discriminatory impact. i. Dejure Where a discriminatory purpose is found to exist. ii. Defacto Found not to result from a discriminatory purpose. Without intent. iii. Washington v Davis: Set forth an explicit requirement that an intent to discriminate be found before an equal protection racial discrimination claim would be found. Percentage of people who take the test and one group is succeeding less than other groups. 1. Title VII: A hiring practice which disqualified a substantially disproportionate number of blacks will be stricken, even without a showing of discriminatory impact. 2. McClesky v Kemp: Trying to invalidate the death penalty based on a statistic. Only one case of racial discrimination proved by statistics, Yick Wo v Hopkins, where Chinese were denied a pass by city council to have a laundry and nobody else was. Problem in the present case is that D had no standing. Test for discriminatory impact is rational basis. 3. City of Mobile v Bolden: To determine whether there is intentional discrimination look at statistical history and look at history of intentional discrimination. 4. Palmer v Thompson: Hard to prove discriminatory intent with facially neutral laws. City had operated segregated swimming pools and closed to pools instead of desegregating. Constitutional Law 74

IV.

No evidence of dominant motive being segregation. iv. Although a discriminatory purpose is required for invocation of strict scrutiny, such a purpose need not be the sole purpose of the statute, Its enough if it was a motivating factor. Arlington Heights v Metro Housing. 1. P needs to show an intent to discriminate was a motivating or substantial factor in legislatures enactment decision, then burden shifts to D to show that the statute would have been passed anyway even without that intent. v. PA of Mass v Feeney (on final): The statute must have been enacted because of a desire to bring about a discriminatory impact, not merely in spite of the probability of such an impact. 1. The challenge was to a MA civil service statute which gave an absolute hiring preference to any veteran who obtained a passing score on a competitive exam. Court held a significant number of men were also non-veterans therefore too many men are affected by the law to permit the inference that the statute is but a pretext for preferring men over women. vi. Use of statistics: Court has allowed statistical proof of discriminatory impact. One of the bets ways to prove discrimination by prosecutors in their use of peremptory challenges. 1. Prosecutors may not use this challenge based solely on race of the juror. 2. Batson Rule: If D raises issue whether challenges are based on discrimination, the burden shifts to prosecution to explain in a race-neutral way. Court will then decide if the pretext is enough to block discrimination. AFFIRMATIVE ACTION AND BENIGN DISCRIMINATION a. Trying to reverse the effects of past discrimination i. Strict scrutiny is used for benign, reverse discrimination, affirmative action. Justified only when they are necessary to fulfill a compelling governmental objective. b. Benign use of sex classes: Where a sexual classification disadvantages women, it is subjected to mid level scrutiny must be substantially related to the achievement of important governmental objectives.

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i. These statutes usually pass of fail scrutiny based on whether the means part of the test was satisfied. 1. Orr v Orr: An outright ban on alimony awards against women was not substantially related to the worthy objective. ii. Difficulty in verifying beningness because sometimes special legislation is reinforcing a negative and untrue stereotype of women. iii. Statute more likely to be upheld where its purpose is to remedy specific, objectively-verifiable past discrimination against women. 1. Califano v Webster: Court upheld a social security act provision which in computing a wage earners average monthly wage allowed women to exclude three more lower-earning years than a man could. Statute must operate directly to compensate for past economic discrimination. 2. Califano v Goldfarb: Court struck down a provision of SSA which paid benefits to a widow of a covered worker, but paid them to a widower only if he proved dependency on his deceased wife. This was an attempt to aid dependent spouses of deceased wage earner, with a presumption that wives are usually dependant. iv. Statutory Rape: Michale M. v Superior Court: The fact that only women may become pregnant led a majority of the Court to declare Californias statutory rape law valid even though it applied only to male defendants. 1. Upheld because the statute was to prevent illegitimate teenage pregnancies, important gov. purpose. It bore a substantial relation between objective and classification because (1) Since only women became pregnant, male had not direct disincentive from having sex with an unmarried minor, (2) More feasible if girl was exempted from prosecution since it would require her testimony. v. Draft registration of women: Rostker v Goldberg: Court upheld male-only draft registration. 1. In area of military affairs, Congress authority is broad, deference. Women werent eligible for combat which was the army and navy rules. There are certain areas where Congress has Constitutional Law 76

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special competence so all needed is rational basis. Race: Richmone v J.A. Croson: Race based classification will face a presumption of unconstitutionality. Strict scrutiny used, purpose of furthering some compelling gov. interest and racial classification must be necessary to achieve that compelling gov. interest. i. Less than 1% of construction contracts have been awarded to minority owned businesses. Infers that general contractors have discriminated against minority owned firms, and therefore requires 30% of dollar amount of city funded construction go to minority owned firms. HELD: City did not have hard evidence of such past discrimination by general contractors. ii. Quotas are especially vulnerable to equal protection things set aside for minorities. Preferential Admissions: Regents of U of California v Bakke: The university reserved 16 seats in each entering class of 100 for disadvantaged minority students. i. Powells view: Any racial or ethnic classification must be subjected to strict scrutiny. Not necessary to use a quota scheme like this. Establishing a quota is an illegitimate end, but can take into account racial factors to make students more diverse. ii. Brennans View: Mid-level scrutiny should be used, and this met the test so using quotas was ok. Fullilove v Klutznick: Upheld a law that had a quota, set 10% slots aside for minorities, because it was under a federal program. i. Under 14th Amendment (1) Congress has special competence to enforce 14th Amendment, (2) Special competence to enforce commerce clause, (3) Congress has spending plan power. ii. Paradise: Could use quotas if directly related to a particular discrimination that occurred. Remedy a specific incident. iii. Wygant: Laying off teachers, ordinarily those with least senority, but as a result of recent integration, needed black teachers for students. This was unconstitutional because no evidence that black teachers had been discriminated against. Cant counteract societal wide discrimination. Set Asides by Congress: Adarand Construction v Pena: Court overturned prior law (Metro Broadcasting v FCC, which applied intermediate level review, not strict scrutiny) 77

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and announced that strict scrutiny must be applied to racebased affirmative action schemes imposed by Congress. Congressionally-authorized race-conscious affirmative action programs must be subject to strict scrutiny. Written by Preisers favorite judge, OConnor. g. Hiring, Lay-Offs and promotions are strictly scrutinized. h. Drawing of Election districts: Process by which boundaries of election districts are drawn has often led groups of voters to claim unconstitutional reverse racial discrimination. P can succeed with reverse racial discrimination claim by showing either(1) that the lines were drawn with the purpose and effect of disadvantaging the group or Ps part; or (2) that race was the predominant factor in how the district lines were drawn. i. Claims have been brought based on dilution of voting strength, Ps group ability to elect representative of their choice has been weakened by drawing of boundary lines that advantage some other group. ii. Gerrymander districts for political advantage. CLASSIFACTIONS BASED ON SEX a. Traditionally if was rational basis standard, rationally related to some legitimate state objective. b. 1970s Stricter standard Mid-level scrutiny. i. Frontiero v Richardson: Mere rationality standard rejected and intermediate scrutiny now used. ii. Craig v Boren: Court settled permanently on intermediate level of scrutiny for gender based classifications, whether benign or not. About the sale of beer to males under 21 and women under 18. iii. Even if the fit between the means chosen by the legislature and the governmental objective is far from perfect, Court may conclude that there is the required substantial relation between the means and end. Nguyen v INS: Court held that Congress could make it easier for the out of wedlock child of an American mother to achieve citizenship for such a child of an American father. 1. Scheme was upheld. Congress was promoting parent-child bonding by requiring that an opportunity for a parent-child relationship occur during the formative years of the childs minority. c. Court is likely to strike down schemes based on faulty generalizations or stereotypes about the differing abilities and interest of the two sexes.

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i. U.S. v Virginia: Publicly operated men-only military academy violated equal protection. Their reasons for rejecting women was that (1) single sex education offers some benefit, and (2) Rigorous physical activity. ii. The remedy dealing with equity is directed toward the constitutional violation, no longer discrimination. d. Remedial statute: Remedy past discrimination. It must be the case that this statute improvement comes in a particular narrowly-defined sphere in which women have previously been disadvantaged. i. MUW v Hogan: University that only enrolled women in the nursing program. Statute of women only was struck down. Would be required to show that women were disadvantaged in the field of nursing, not merely in the general sphere of education or employment. CLASSIFICATIONS BASED ON ALIENAGE a. Alienage: Not having U.S. citizenship. Aliens are politically powerless, since they are not permitted to votes and the trait is beyond the power of the individual to change it, born with it. i. Difference between federal and state law. Rational basis is used for federal law and strict scrutiny is used for state law. b. Strict scrutiny is the general rule. i. Sugarman exception: A state could prevent aliens from holding state elective executive legislature and judicial positions, and even important nonelective positions in any of the branches in state government. ii. Foley v Conelie: Court held that NY could prevent aliens from becoming state troopers. Since state troopers were engaged in execution of broad public policy and since they held a large degree of discretion in doing so they fall within the Sugarman exception. iii. Bernal v Fainter: Court held that notaries public do not perform functions that go to the heart of representative government. Since duties of notary public are essentially clerical and ministerial aliens may be barred only if the state can establish a justification that survives strict scrutiny. 1. Look at the categories that are excluded. Secretary of State doesnt have to be a citizen.

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Gets into scrutiny and the purpose of scrutiny is to prevent discrimination. c. Intermediate scrutiny used for statutes involving illegal aliens. i. Plyler v Doe: Illegal aliens of school age may not, consistent with equal protection, be charged a fee for public school education. 1. Public education is not a constitutional right. Illegal aliens are not a suspect class. 2. Equal protection doesnt apply because you need a deprivation of a constitutional right to a discrete class of children. ILLEGITIMACY a. Mid level scrutiny is used, classification disadvantaging illegitimates must be substantially related to an important gov objective. i. Are a suspect class because they are born with the traits, cant change them. ii. Look at whether the end is legitimate AGE a. Not a suspect class on theory that old age marks a stage that each of us will reach if we live out our normal span. i. Use a rational basis test to determine if statute can be upheld. ii. MA Board of Retirement v Murgia: MA statute required state police officers to retire at age 50, to maintain a physically-fit police force. The statute was upheld. The link between being over 50 and being physically unfit was not so attenuated as to be irrational. WELFARE, ABORTION, AND MENTALLY RETARDED a. Dandridge v Williams: Court upheld a MD welfare scheme which set a maximum monthly payment of $250, regardless of family size or need. i. Called for mere rationality test because welfare schemes lay in the area of economics and social welfare. It bore a rational relation to several legitimate state objectives (scarce public benefits). b. Maher v Roe (On Final): Financial need alone does not identify a suspect class. State does not have to provide public funds for abortions. If the only place one can get relief is from state then state cant discriminate against the party. c. Heller v Doe: State law distinguished between mentally retarded (not a suspect class) and the mentally ill.

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i. Mentally retarded can be committed by proof of clear and convincing evidence, plus family could join in as plaintiffs. Happens from the time of birth. ii. Mentally ill need proof beyond a reasonable doubt and happens as a person ages. iii. Court ruled this distinction wasnt irrational. Court will lean over backwards to find some rational basis deference. Finding a rationale is usually found by a difference or something financial. STATE ACTION I. INTRO a. Nearly all the rights and liberties which the Constitution guarantees to individuals are protected only against interference by governmental entities. i. Only constitutional right which is self-executing (without specific legislation) is the 13th Amendment that prohibits slavery. ii. Usually the court can grant relief only if it finds there has been a state action, some sort of participation by a governmental entity. iii. Gov. is broad, includes actions by a city, county, municipally owned utility etc. b. Early interpretations of state action: Greatest importance of state action is the connections with the 14th Amendment. i. The Civil Rights Cases: Whether Congress had the power to enact a statute that prohibited all persons from denying, on basis of race, any persons equal access to inns, public transportation etc.? Court made three holdings: 1. 1 of the 14th Amendment applies solely to state action. 2. 5 of the 14th Amendment, power to enforce guarantees, did not authorize Congress to regulate solely private conduct. There was an ability to pass laws to prevent states, by their own action from interfering with these rights. 3. 13th Amendment is applicable to private as well as state conduct. II. PUBLIC FUNCTION APPROACH a. Holds that when a private individual is entrusted by the state with the performance of functions that are a gov in nature, he becomes an agent of the state and his acts constitute state action. Constitutional Law 81

b. Public function developed concerned actions taken by the owners of company towns and shopping centers. i. Whether the owner of the property had the right t use state trespass laws to keep out people who wished to speak or distribute literature on the property? If operation of property was held to be a public function 1st amend, applicable, barring use of trespass laws. No public function then no 1st Amend. Rights and the owner had the ability to keep people off his property. ii. Marsh v Alabama: Since this was a town just like any other town (except title was vested in a private company), operation of the town was a public function. iii. Shopping Centers: First shopping centers treated as engaged in a public function, then overruled by Hudgens. 1. Amalgamated Food v Logan Valley: Court held that a privately owned shopping center was the functional equivalent of the business district in Marsh. Therefore the centers owner could not constitutionally be permitted to use state trespass law to bar peaceful union picketing of a store in the center. 2. Lloyd Corp. v Tanner: Marsh and Logan Valley were not relevant to 1st Amendment rights in a shopping center if the speech did not relate to the centers operation. 3. Hudgens v NLRB: Lloyd had overruled Logan Valley. Held a large self-contained shopping center was simply not the equivalent of the company town in Marsh and no 1st Amend. Guarantees were applicable to activities in it. c. Requirement of state exclusivity: Public function applies by requiring that the function be one which has traditionally been exclusively the domain of the government. i. Jackson v Metro Ed Co.: Operation of a privately owned utility licensed and regulated by the state was held not to be performance of a public function. Monopoly status does not make it a state action. 1. Hypo: FINAL Outfit sets up to give special training to kids with learning problems and city makes contact with the outfit. Service until psychologist says theyre done. They send J home saying she no longer needs service. Is J entitled to a hearing? No because its not a Constitutional Law 82

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state action and psychologist is not a state actor, independent decision. ii. Flagg Bros. v Brooks: FINAL Court held that sale by a warehouseman of goods stored with him in which he had a warehousemans lien for unpaid storage charges was not a public function. State authorized it, but no state actor. iii. Rendell-Baker v Kohn: Court held that operation of a private school, even one whose income comes primarily from public grants is not a public function. FINAL Does the fact that this school receives money from state make it a state action? No. iv. Blum v Yaretsky: Operation of nursing homes was found not to be a public function. Seemed to impose another requirement that the activity be one which the state is required to provide by statute or state constitution. NEXUS THE SIGNIFICANCE OF STATE INVOLVEMENT a. Nexus theory: Relates to the conduct of the gov. If the gov. is sufficiently involved in the private actors conduct or encourages it, or benefits from it, the private partys acts will be deemed state action. b. State can become responsible for a private partys conduct is by commanding that conduct. i. Where state by applying facially neutral laws enforces private agreements. ii. Shelley v Kraemer: Court held judicial enforcement of the restrictive covenant would constitute state action and would therefore violate the 14th Amendment. The judge is a state actor. 1. Batson: Peremptory challenge: State authorizes the challenges (so first part of test met) and the lawyer is not a state actor, but the judge is, who has to dismiss the juror. c. Encouragement of Discrimination by the state i. Reitman v Mulkey: Court found state action where CA voters amended their constitution to prohibit the gov from interfering with any private individuals right to discriminate in the sale or lease of residential real estate. Seems unlikely that the mere failure by a state to forbid private discrimination constitutes state action. d. Symbiosis between state and private actor: Mutually beneficial relation between the state and the private discriminator. Extensive contacts between the state and

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the private party in such a way that each benefits from the others conduct state involvement may be found. i. Burton v Wilmington Parking Authority: Relationship between D (a state agency) and a restaurant run by a private company within the building. Restaurant refused to serve blacks. Court agreed a state action was present, holding that the restaurant was essential to successful operation of the overtly public facility (parking portion). ii. American Insurance v Sullivan: That symbiotic relationship is no longer the test. Places of public accommodation (open doors to anyone who wishes to come in for that purpose) cant discriminate. e. Involvement of entanglement by state: Ruling out the symbiosis approach. i. Where state licenses a private entity to perform a function this private conduct is not a state action. 1. Moose Lodge No. 107 v Irvis: A private club refused to service to the black guest of a member. Court held that the mere fact that a state grants a license to an entity does not transform the latters conduct into state action, even where the number of licenses is limited. The issue was whether the state was significantly involved with invidious discrimination. a. Norwood v Harrison: Intent to discriminate, giving textbooks to private segregated schools. Negative value that states cant help to finance invidious discrimination. ii. Grant of monopolies will generally not be deemed state action. See Jackson v Metro Edison. iii. The fact that a private entity receives substantial state funding will not by itself convert its activities into state action. See Rendell Baker v Kohn. iv. Joint participation was used to find a state action in Lugar v Edmondson Oil Co.: Held because the clerk and the sheriff acted together with D, Ds conduct in obtaining the attachment was state action. Only the statutory procedure itself was unconstitutional, not Ds alleged misuse of the statute. v. Peremptory challenges as joint participation See Edmonson v Leesville Concrete Co.

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vi. Entwinement: Links between a state entity and a private groups are so extensive can be said to be entwined thats strong enough that the private group will be deemed a state actor. Brentwood Academy v Tennesse: FINAL Court did away with symbiotic relationship and replaced it with entwinement. 1. Polk County v Dodson: When trying to sue saying a public defender was incompetent this was not a state action because public defenders interest was opposed to the state. 2. Tarkanian: The universitys involvement with the NCAA was not enough to make the NCAAs own acts state action. EQUAL PROTECTION a. Racial classes and the political process. i. Hunter v Erickson: City adopted a fair housing ordinance and was amended to prohibit any ordinance dealing with racial discrimination in housing, unless it had first been approved by a majority of the voters. HELD: This amendment was violative of EP because it was and explicitly racial classification and clearly made it more difficult to enact antidiscrimination ordinances than other types of ordinances. 1. Law designed to disadvantage a specific group is not a legitimate end. b. State a congressional efforts to curb bussing. i. Washington v Seattle SD: States effort to nullify the bussing plan was ruled unconstitutional. Reallocation of governmental decision making power must be done in a racially neutral manner. For EP (1) Look at the law; (2) Look at the intent of the law ii. Crawford v LA Board of Ed: Court upheld an amendment to the state constitution which had the effect of preventing judicially ordered busing in cases of de facto segregation. State courts cant order mandatory assignment or transportation of students unless federal court would do so to remedy 14th Amendment. SUMMARY OF STATE ACTIONS a. Must have a public function: Serving a public function doesnt count. i. Whether traditionally and exclusively been a function of the state.

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1. Ex: Company towns and voting system. Toughest thing to overcome is a public function. b. Is there a state actor? i. Authority to act for the state and not an adverse interest, like a public defender. ii. Action or decision required by state law, not by an independent person. iii. Has person acted jointly with a state actor? Hiring a sheriff to do something or working with a state actor. CONGRESSIONAL ENFORCEMENT OF CIVIL RIGHTS I. INTRO a. Congress power to enforce the post civil war amendments, 13th, 14th and 15th. i. Civil provisions: 1. 42 U.S.C. 1981 General rights - Gives all persons within the U.S. the same right as is enjoyed by white citizens to make and enforce contracts etc. a. Runyon v McCrary: Establish private school puts add in paper accepting qualified students, but a black person is rejected because of his race. Section 1981 applies to prohibit discrimination in private contracting. 2. Hypo: FINAL Person advertised upstairs apartment for rent and there is no law that one cant discriminate. Wont rent to 2 gay men, nor to blacks. What is the distinction between the two? It is a violation of a constitutional right to discriminate against blacks. The 13th Amendment applies to everyone, not just state action. Sexual orientation is not an ethnic characteristic. II. CONGRESS POWER TO REACH PRIVATE CONDUCT a. Issue: What extent may Congress appropriately enforce the 14th and 15th Amendments by proscribing conduct which the court would not construe to be state action? i. Congress has some latitude. 1. Private conduct which prevents state officials from giving equal protection or due process to others may clearly be prohibited by Congress. b. U.S. v Morrison: the court decided Guest did not represent a holding of the Court and should be disregarded. Now clear it is not within Congress 5 powers

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to reach purely private conduct even if that conduct interferes with rights protected by 14th Amend. i. Used Rational basis as the test here. c. Present law: 14th Amendment section 5: i. Congress cant reach purely private conduct that has nothing to do with state officials. ii. If Congress merely prohibits individuals from interfering with state officials attempts to furnish equal protection or due process it is within Congress power. iii. Where private party acts in conjunction with a state official it is quite clear that Congress may punish the private conduct. d. Aspects of 1983: Allowing civil suits against officials for violation of constitutional or federal statutory rights carried out under color of law. i. P does not have to show that D had the specific intent to deprive him of his constitutional rights. ii. State governments are completely immune to such suits but local governmental units arent. CONGRESS POWER TO REMEDY CONSTITUTIONAL VIOLATIONS, OR TO MODIFY CONSTITUTIONAL RIGHTS a. Substantive modifications: Congress attempt to define the scope of Constitutional guarantees themselves. i. Congress may not redefine scope of guarantees. ii. City of Boerne v Flores: Congress has no right to specify the substantive contours of constitutional rights. Court held that Congress could not use its 14th Amend remedial powers to prevent local governments from unintentionally burdening individuals religious freedom in certain ways. 1. Prior case of Smith: Wound up getting the RFRA, religious freedom. City of Boerne overruled the RFRA, held it unconstitutional. 2. In Boerne used intermediate scrutiny. No substantial relationship here because it is too broad. Congress does not have the power to determine what constitutes a constitutional violation. a. Katzenbach v Morgan: Voting rights act provision upheld in this case, Congress prohibited states with a history of voting-rights violations from applying literacy tests. Court is yielding to Congress here and used rational basis.

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b. New test of congruence and proportionality Intermediate scrutiny and the RFRA was so out of proportion to any supposed remedial or preventive object that it cannot be understood as responsive to or designed to prevent unconstitutional behavior. b. Federal attempts to stop states from discriminating. i. 11th Amendment: States are immune from being sued for money damages by private citizens in federal court. Congress has the power to override this state immunity by using 13th, 14th or 15th Amend. Remedial powers to create a valid remedy against state violations of the rights protected by those amendments. 1. Age and disability discrimination: When Congress tired to make the states liable in federal court for age and disability discrimination, Congress exceeded its 14th Amend powers. a. Kimel v Florida Bd of Regents: Florida prevailed with two prong argument, states liable for ADEA violations only if Congress acting under its power to enforce the equal protection clause and Congress didnt find states were major violators of EP when discriminated by basis of age. b. Bd of Trustees v Garret: Same decision reached with respect to people with disabilities. Used rational basis because not a suspect class. THE 11TH AMENDMENT, AND SUITS AGAINST STATES a. The 11th Amendment imposes limitations on the jurisdiction of the federal courts. i. Article III 2 Whether federal jurisdiction extends to a suit against state itself. The categories: 1. Hans v Louisiana: Bars suits by a citizen against his or her own state in addition to people of other states. 2. Covers federal question suits, not just diversity suits 3. A core constitutional limitation on federal judicial power. Congress generally cannot overrule this broad reading, and cannot

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authorize a state to be sued by its own citizens in federal-question suits. 4. Also applies to suits at equity. Thus a private citizen cannot sue to have a state enjoined or ordered to do something any more than she can sue to recover damages. ii. Exclusions from coverage of the 11th Amend: 1. Does not prevent suits against state officials in which the relief sought is an injunction against the violation of federal law. Established in Ex Parte Young. a. Edelman v Jordan: Sue a state official for violation of a federal law and sue for damages. Show an official knowingly violated federal law. Damages based on deliberate violation of federal law. Official has defense of qualified immunity, unless federal official should have known they were violating the law. 2. Doesnt bar suits against a state official for money damagers as long as the damages are to be paid out of the officials own pocket. If a successful suit leads to a state being ordered to pay out of its own pocket then it is barred by the 11th Amendment. 3. Pennhurst State School Hosp v Halderman: 11th Amendment does apply to bar injunctions prohibiting state officials from violating state (as opposed to federal) law. 4. Does not bar suits by the federal government against a state. 5. Does not bar suits against cities or other political subdivisions of a state. 6. Does not bar suits by one state against another. 7. Only applies in federal courts, doesnt prevent a private individual from suing a state in state court, even to vindicate a federal right. 8. If Congress passes a statue to enforce post civil-war amendments and that statute gives private citizens the right to sue a state in federal court, this statute will be enforced and wont be deemed to violate the 11th Amendment.

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iii. Outside the post civil war area, Congress may not abrogate the 11th Amendment, no matter how explicitly it tries to do so. 1. Seminole Tribe of Florida v Florida: The statute of Indian Gaming Regulation violated the 11th Amendment. 11th restricts the judicial power under Article III and Article I cannot be used to circumvent the constitutional limitations placed upon federal jurisdiction. Even though Article I gives Congress full authority to regulate commerce with the Indian tribes, Congress cannot allow a tribe to sue a state in federal court. 2. Florida Prepaid v College Savings Bank: Court held that just as Congress may not abrogate the 11th Amendment when acting under authority of commerce power, Congress may not do so when acting under its patent power. Therefore Congress may not force the state to defend a private patent damage suit in federal court. iv. The doctrine of sovereign immunity generally prevents Congress from subjecting the state to private suits in their own courts, even where the right sued on is federal. 1. Alden v Maine: Held Congress had no constitutional authority to force the Maine courts to hear the workers suit, even though the suit was based on a federal right that Congress had authority to confer upon the workers. A states immunity from private suits for money damages in the states own courts was a fundamental aspect of the sovereignty which the states enjoyed before the ratification of the constitution and which they still retain today. a. Means that the state now have full sovereign immunity from any private suit in the states own courts seeking damages for the states violation of federal law. b. See also Fitzpatrick v Bitzer. b. Misc: Board of Trustees v Garret: If talking about Equal protection two levels: (1) Not a suspect class which puts complaint in a worse position, would have to show state action is irrational. (2) Property right get into congruence Constitutional Law 90

and proportionality directed at what it found as problem and cant overreach evidence it has. Necessary and Proper Clause Congress has to prove at least rational basis. FREEDOM OF EXPRESSION I. GENERAL THEMES a. Government cant use content discrimination discriminate on content of your ideas. b. Clear and Present Danger Test: Test used by Holmes (during WWI) Clear and Present Danger that people will succeed in overthrowing the government. Prosecuted people who belonged to communist party because it advocated overthrowing the U.S. Federal Government. c. Whitney v California: i. CA Criminal Syndicalism Act forbade the knowing membership in any organization advocating the use of force or violence to effect political change. Conviction of P was upheld because the Court believed that the legislatures conclusion that mere knowing membership in an organization advocating criminal syndicalism was substantively dangerous which must be given great weight. ii. Whitney was overruled in Brandenburg v Ohio. d. Threat of communism and the Smith act: i. Dennis v U.S.: The Court purported to apply the clear and present danger standard but did so in a manner that gave dramatically less first amendment protection to political speech than Holmes or Brandeis would have wanted. 1. Test applied was whether the gravity of evil discounted by its improbability justifies such invasion of free speech as is necessary to avoid the danger. ii. Significance was that once the evils seriousness became a substitute for its immediacy, speech could be restricted no matter how remote its anticipated consequences. Ends criminal syndicalism. e. The Modern Standard: The court gives greater protection to free speech at least in the political area, than at any previous time. i. Brandenburg v Ohio: Court combined the most speech-protective aspects of both the clear and present danger test and the advocacy/incitement distinction. 1. New Test: Speech advocating the use of force or crime could only be proscribed where two Constitutional Law 91

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conditions were satisfied; (1) the advocacy is directed to inciting or intent producing imminent lawless action and (2) the advocacy is also likely to incite or produce such action. a. Hess v Indiana: Campus anti-war demonstration in which demonstrators blocked a street. The statement was nothing more than advocacy of illegal action at some indefinite future time; only words intended to produce imminent disorder could be punished. REGULATION OF CONTEXT TIME, PLACE, AND MANNER a. The hostile audience and fighting words: Words which are likely to make the person to whom they are addressed commit an act of violence, are unprotected. i. Chaplinsky v NH: Conviction of jehovahs witness who shouted things out at a marshall was upheld because Court believed Ds words were indeed ones which would likely provoke the average person to retaliate. Then held fighting words are not protected by 1st Amendment; those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. Such words are no essential part of any exposition of ideas and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. ii. Court limited the fighting words doctrine: 1. Stirring to anger not enough 2. Wherever police have the physical ability to control the angry crowd as a means of preventing threatened violence, they must do so in preference to arresting the speaker for using fighting words. 3. Generalized fears are insufficient, only specific words or acts by the speaker will the fighting words doctrine apply. 4. Mere dislike of speakers identity not sufficient. b. Offensive words and the sensitive audience: The Court has not allowed government to suppress speech or expressive conduct on the grounds that others would find it offensive unless substantial privacy interests are at stake. i. Cohen v California: Stands for the proposition that profane offensive language is nonetheless first amendment speech, and may not be suppressed 92

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under the guise of regulating the manner of speech. State had power to protect such captive audiences from offensive language, unsuspecting viewers. ii. Collin v Smith: Nazi supporters were marching through a Jewish village was allowed because Court cant restrict due to content of the ideas expressed and villagers would not form a captive audience, since they could avoid the village hall area during the demonstration. c. Regulation of Hate Speech: Anti hate speech statutes run afoul of the requirement of content neutrality and violate the 1st Amendment. i. RAV v City of St. Paul: Cross burning on black familys property. Prosecuted under Bias-Motivated Crime Ordinance. Law was held unconstitutional because it was impermissible content-based because it prohibits otherwise permitted speech solely on the basis of the subjects the speech addresses. SYMPBOLIC EXPRESSION a. Expression may sometimes consist solely of non-verbal actions. i. Two track analysis: (1) Where the Court believes that certain symbolic expression is prohibited because the government objects to the communicative content of the expression, (2) the Court applies strict scrutiny. Conversely where the Court believes that the govs interest in regulating the conduct has nothing to do with the conducts expressive content a balancing test is used. ii. U.S. v OBrien: Draft card burning to protest the Vietnam War. Court rule conduct combining speech and non-speech elements could be regulated if 4 requirements were met: 1. The regulation was within the constitutional power of the government 2. It furthered an important or substantial governmental interest (mid-level scrutiny) 3. That interest was unrelated to the suppression of free expression and 4. The incidental restriction on 1st Amendment freedoms was no greater than is essential to the furtherance of the governmental interest. iii. Nude Dancing: City of Erie v Paps AM: Majority of the court believed that the ban was a content-neutral regulation and thus voted to uphold it.

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1. The ordinance forbade nude dancing, requiring any dancer wear panties and a g-string. Using the OBrien test: (2) Increase in certain crimes based on nude dancing; (3) Interest was unrelated to the erotic message; (4) Restriction is no greater than necessary, panties only in areas effected by secondary effects (crime). b. Flag Desecration: Most states make it a crime to desecrate an American flag. Most statutes enacted for preserving the flag as a symbol of national unity. If such a statue applies to some flag-related conduct but not others based on the actors message, the Court will presumably apply strict scrutiny and probably strike the statute. i. Texas v Johnson: Statute: Made it crime to intentionally or knowingly desecrate a state or national flag. Statute struck down, violated the 1st Amendment. 1. Court determined the prosecution of Johnson was directly related to expression. Two objectives TX was pursuing was (1) preventing breaches of the peach; and (2) preserving the flag as a symbol of nationhood and national unity. As to objective (2) this objective was directly related to expression; the need to protect the flag for unity would only be implicated if Ds conduct had a contrary message associated with it. 2. Court applied strict scrutiny COMMERCIAL SPEECH a. Until recently commercial speech was unprotected, but now Court has given substantial 1st Amendment protection to commercial speech. b. The Virginia Pharmacy revolution: Court held that even purely commercial speech is entitled to 1st Amendment protection. i. VP involved a state statute making it unprofessional conduct for a pharmacist to advertise prescription drug prices. The statute was stricken, it violated the 1st Amendment. 1. Court relied on societys strong interest in the free flow of commercial information. Court concluded 1st Amendment flatly forbids the state from deciding that ignorance is preferable to the free flow of truthful information. False or misleading advertisements could be prohibited. 94

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c. Commercial speech doctrine curtailed: Does not receive the full range of the 1st Amendments protections. i. The Central Hudson Test: Four part test to determine whether a given regulation of commercial speech violates the 1st Amendment. 1. Protected Speech: All commercial speech receives at least partial protection except for: (1) speech that is misleading; and (2) speech which concerns unlawful activity. 2. Court must ask whether the governmental interest asserted in support of the regulation is substantial. If not, the regulation will be struck down. 3. Court will decide whether the regulation directly advances the governmental interest evaluated in pat ii of the test. 4. Court will ask whether the regulation is not more extensive than is necessary to serve the governmental interest. Means and the Ends be narrowly tailored to serve the governmental objective. d. Current status i. No right to ban advertisement of legal gambling. Greater New Orleans Broadcasting v U.S.: Court agreed a federal statute violated the 1st Amendment when it prohibited radio and television advertising of private casino gambling in states where such gambling is legal. The power to prohibit or to regulate particular conduct does not necessarily include power to prohibit or regulate speech about that conduct. ii. Cigarettes and other tobacco products: Lorillard Tobacco Co. v Reilly: MA decided to regulate tobacco advertising extensively, principally addressed to advertising that might be enticing to minors. 1. Court concluded everything MA had done was preempted by a 1965 federal statute that regulated advertising on cigarette packages. TIME PLACE AND MANNER a. Intrusive Speakers vs right to be left alone i. The captive audience: Whenever speech is directed towards a captive audience, one which cannot easily avoid exposure to the speech, this is a factor the court will weigh in favor of allowing restriction on that form of expression. 95

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1. Print advertising on city buses: Lehman v Shaker Heights: Court upheld restrictions on some but not all types of print advertising on city-owned buses. The fact that commercial advertising was accepted did not give political candidates a right to have their advertising accepted; majority relied in part upon citys interest in limiting access so as to reduce the risk of imposing upon the captive audience. FINAL: What is the difference between that and a case where a city gives bus company an exclusive franchise for certain roof and then puts campaign adds on the roof? Content discrimination? ii. Women visiting abortion clinics: Hill v Colorado: A state may create a buffer zone around the entrance to any healthcare facility, inc which no one may make an unwanted approach to another person to counsel, pass out a leaflet or picket. 1. Valid regulation that its unlawful to knowingly approach another without the latters consent in a healthcare facility. It was content neutral and the statute was narrowly tailored to protect the states interest in protecting citizens from unwanted speech. 2. Ward v Rock Against Racism: No requirement that the least restrictive means have to be used. Means and end just must be fairly close. b. Canvassing and soliciting: i. Solicitation in public places: Reasonable time place and manner regulations which satisfy content neutral and not giving excessive discretion who and who not may solicit will be upheld so long as they serve a significant governmental interest and leave open ample alternative channels for communicating the same information. 1. Heffron v ISKCON: Gov. was found to be entitled to make greater regulation of solicitation on the grounds of a state fair than on city streets. a. Regulation upheld because the restriction served a significant governmental interest and other alternative channels for communication were left. Constitutional Law 96

VI.

c. Viewpoint discrimination not allowed, see Chicago Police v Mosley. d. Public Forum i. Recap of rules 1. Regulation must be content neutral 2. Can only be regulated in narrow ways which the gov. shows to be necessary to serve significant gov. interests. Availability of alternative channels for communication is not enough to make the regulation valid. ii. Non-public forum: 1. If interference is substantial the same rule applies as in PF, regulation must be narrowly drawn and necessary to serve some significant gov. interest. 2. If interference is not substantial, gov must only show a rational justification for its regulatory scheme. 3. Availability of alternative channels is sufficient to make the interference insubstantial. iii. Hague v CIO: True public forums: streets, sidewalks and parks; Rights to these places is part of the privileges and immunities of being a citizen of U.S. See also Schneider v NJ iv. Non-Public Forums: 1. Jails: Adderly v Florida: Sustained trespass conviction of civil rights demonstrators who protested segregation at a county jail. 2. Military bases: Greer v Spock: This is a limited public forum and some speech permitted based on subject matter. Military is viewed traditionally as politically neutral. 3. School mail system: Perry Education Assn v Perry Local Educators: The fact that the official teachers union as well as a number of other outside organizations were permitted to use the mail system was not enough to convert the system into a public forum. SPECIAL CONTEXTS a. Government as speaker or as funder of speech: When gov. is speaker and/or funder of speech, gov. has greater ability to prefer one viewpoint over another than it does when it merely regulates. i. Government as funder of third-party speech: 1. Legal Services Corp v Velazquez: Court held that Congress violated free speech when 97

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it put limits on the types of litigation positions that LSC lawyers could take. Gov can control whats advocated by people who are on gov. payroll. FREEDOM OF ASSOCIATION a. Court has held that freedom of association derives by implication from the explicitly-stated right of speech, press, assembly, and petition. i. All that has been recognized is a right to join with others to pursue goals independently protected by the 1st Amendment. Goals include political advocacy, literary expression and religious worship among others. ii. Before gov may significantly interfere with protected associational activity two showings must be made: (1) the gov interest being pursued is a compelling one and (2) that that interest cannot be achieved by means less restrictive of the freedom of association. Strict scrutiny is applied. 1. Roberts v US Jaycees: Gov interest found to be compelling is the interest in preventing discrimination, so the Court held that MN could constitutionally required D to admit women members even though there might be some impairment of existing members freedom of association or freedom of speech. Divides right of association into Right of privacy (fundamental liberty) and right to assemble. a. Bd of Directors v Rotary: Court held CA could constitutionally force D in that state to admit women because the relationship between Rotary club members is not the kind of intimate or private relation that warranty constitutional protection. b. Court also recognizes a right not to associate, individuals have a constitutional right not to be compelled to support most types of expressional activities by organizations of which they do not approve. Additionally an association or group has a right not to be compelled to accept unwanted members whose presence would significantly interfere with the groups message. i. Parades: Hurley v Irish American Gay Lesbian etc: Court held that MA could not require a private group that conducts a St. Patricks day parade in Boston to include gay and lesbian marchers 98

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marching under their own banner. Private parties who conduct a parade may exclude unwanted members, or messages from its parade. 1. Court found that a parade inevitably has expressive content and that gays marching under a banner would be sending a message that the parade organizers had a right to refuse to endorse. ii. Right to exclude from membership in group: An association has a 1st Amendment interest in not being forced to accept unwanted members. 1. Boy Scouts of America v Dale: Court held that because opposition to homosexuality was part of the Scouts expressive message, the Scouts freedom of association was violated by a state anti-discrimination law that barred the group from excluding gays as members. a. To keep people out must be able to justify exclusion, admission into group will detract from message trying to convey, need a modicum of proof. FREEDOM OF RELIGION I. INTRO a. Establishment clause: Prohibits any law respecting an establishment of religion. Prevent government from endorsing or supporting religion. i. Put a wall between church and state: Government action that has some relationship to religion will violate the EC unless it satisfies all three parts of this test: 1. Gov. action must have a secular legislative purpose 2. Gov. actions principal or primary effect must not be to advance religion. 3. Gov. action must not foster an excessive gov. entanglement with religion. b. Free Exercise Clause: Bars any law prohibiting the free exercise of religion. Prevent government from outlawing or seriously burdening a persons pursuit of whatever religion he/she chooses. i. Prevent Gov from unduly burdening both a persons abstract beliefs as well as a persons religiously oriented conduct. ii. Prevents gov. from unduly interfering with religion whether the gov does so intentionally (strict scrutiny) or unintentional Constitutional Law 99

II.

THE FREE EXERCISE CLAUSE a. Bar gov. from making any law prohibiting the free exercise of religion. i. General principles: 1. Whenever the purpose of a gov. action is to negatively effect a particular type of religion, that act will automatically be found to violate FEC. It is strictly scrutinized. 2. When not motivated by intent, but has that effect Court applies a heightened scrutiny; the state must demonstrate first that the regulation pursues a particularly important gov. goal and second, that an exemption would substantially hinder the fulfillment of that goal. a. An exemption must be given to those religious beliefs that dictate noncompliance. b. Only in the very limited case of unemployment benefits will the Court give heightened scrutiny to gov.s refusal to grant an exemption from laws burdening religious beliefs. b. When gov takes an action whose purpose is to forbid or interfere with particular conduct because the conduct is dictated by a religious belief, gov. action will be strictly scrutinized and almost always struck down as a violation of the FEC. i. Church of Lukumi v Hialeah: Involved ritual animal sacrifice by practitioners of the Santeria religion. This was directed at the practitioners of a particular religion had intent- so the end is not legitimate. State has to have a compelling interest regulation practices of a particular religion. Law must be (1) neutral and (2) a law of general applicability. Subjected to the strictest form of scrutiny. c. Modern Approach to unintended effect cases: Uphold laws only when they are the least restrictive means of accomplishing a compelling state objective. Where the states objective could be served as well or almost as well by granting an exemption to those whose religious beliefs are burdened by the regulation, such an exemption must be given. i. Sherbert v Verner: A 7th Day Adventist fired for unwilling to work on Saturdays, religious day of rest. All jobs available required being able to work on Saturdays. Court held the states refusal of 100

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unemployment compensation violated Ps right to the free exercise of her religion. 1. SC burdened Ps free exercise of religion, since it forced her to choose between receiving benefits and following her religion. There was a discriminatory component to the states action since Sunday worshippers were not put to this choice. ii. Wisconsin v Yoder: Court invalidated WSs refusal to exempt 14 and 15 year old Amish student from the requirement of attending school until the age of 16. There is a fundamental right to bring up and educate your own children. Freedom of Religion bolsted by substantive due process. iii. Goldman v Weinberger: Court held that an Orthodox Jewish air force captain did not have a free exercise right to wear a yarmulke while on duty, in contravention of an Air Force regulation requiring uniform dress. 1. Air Force made a judgment that the use of standardized uniforms encourages the subordination of personal preferences and identities in favor of the overall group mission. iv. Employment Division v Smith: Court held that such a generally applicable criminal law is automatically enforceable apparently regardless of the degree of burden it causes on an individuals religious beliefs. The right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes conduct that his religion prescribes. 1. Tougher for P to win here because gov. action has the unintentional effect of burdening religion. THE ESTABLISHMENT CLAUSE a. Some basic types of governmental action which violate the Establishment Clause. i. No official church ii. No coercion from the government iii. No one can be punished for religious beliefs iv. Gov may not prefer one religion over another v. Gov may not participate in the affairs of religious organizations b. Lemon Test: Whether gov has violated the Establishment clause; must satisfy each of the following conditions: 101

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i. Must have a secular legislative purpose; ii. Its primary effect must neither advance nor inhibit religion; iii. Must not foster an excessive government entanglement with religion; c. Began with release time: Releasing children early to go to religious instruction was held valid. d. Prayers in public schools: Official reading of prayers in public schools has been held by the Court to violate the Establishment Clause. i. Engle v Vitale: In-classroom reading of a statecomposed prayer violated the Establishment clause, even though no child was compelled to recite the prayer. ii. Lee v Weisman: Where school officials can fairly be said to be sponsoring the religious message, a prayer will be found to be a violation of the Establishment clause. 1. A rabbi gave a speech in the middle of graduation; since graduation is official school function students are expected to attend; for those who dont believe in religion they are being told theyre not fully accepted by the school. This ends official school sponsored prayer. iii. Santa Fe SD v Doe: Court struck down a pre football game prayer delivered by an elected student speaker. OConnor Test: Whether an objective observer, acquainted with text and legislative history (an educated person) would perceive this as state sponsorship of prayer in public school? Makes outsiders feel like they are not part of the in group. iv. Religious groups in elementary schools: No Establishment Clause problem when the school allows religious groups to meet on the same after school basis as non-religious groups. 1. Good News Club v Milford: Limited forum; as long are equally open to both religious and non-religious organizations. Teaching moral lessons from a Christian perspective; cant say the danger that children would misperceive the endorsement of religious is any greater than the danger that they would perceive a hostility toward religious viewpoint if they were excluded.

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a. If group was excluded it would be unconstitutional viewpoint discrimination; a religious viewpoint. 1st excessive entenglement is a compelling interest so gives them a right to make content discrimination; however, D hasnt raised this to justify content discrimination. b. Never decided whether viewpoint discrimination can overcome content discrimination. e. Sunday closing law do not violate the Establishment clause: i. Secular purpose and effect: providing a uniform day of rest for all citizens. Doesnt violate establishment clause if it has both a religious and secular purpose. f. Entanglement by church involvement in government: The converse is true that Establishment clause is violated by excessive involvement of the church in affairs of government. i. Larkin v Grendels Den: Court struck down a MA statue prohibiting issuance of a liquor license to any premises located within 500 feet of a church or school if the church or school makes a written objection to the issuance of the license. 1. Final: Can a state delegate a law making function to a religious group? No, cant have this entanglement; use the Lemon test. g. Ceremonies and Displays: Establishment clause problems will often result. i. Religious displays: Gov allows a private religious group to display a nativity scene, a Christmas tree, A menorah, etc; Does this violate the establishment clause? Test applied: Would a reasonable observer seeing the display conclude that the government was endorsing religion in general or endorsing a particular religion? If yes violates the Establishment clause; if no does not. 1. Allegheny v ACLU: Nativity scene violated the Establishment Clause because several factors would lead a reasonable observer to believe gov was endorsing a Christian message. There was no other non-religious symbols near by as there had been with the menorah, so an observer would not think that the city was merely celebrating the holiday season. Constitutional Law 103

2. Capitol Square v Pinette: KKKs attempt to display a cross in a state-owned park in front of Ohio Statehouse did not violate the Establishment Clause. a. 3 justices led by OConnor believed that reasonable observer test was the correct one. Since the park was essentially open to any private display; meeting simple content-neutral permit requirements, a reasonable person would not have concluded that government was endorsing religion. Aware of history and context. h. Financial Aid to religious schools: i. Three prong test: (1) must have a secular legislative purpose (may also have a religious one, so long as a secular one exists); (2) Its principal or primary effect must neither advance nor inhibit religion; (3) Court disallowed programs which are likely to be politically divisive. ii. Transportation: Public buses to private schools are allowed; where parents are reimbursed. Any benefit to religion is incidental and remote. iii. Textbooks etc: Textbooks may be loaned to parochial school students as long as (1) a similar policy is followed with respect to public school and private ones; and (2) Textbooks are secular rather than religiously oriented. 1. Mitchell v Helms: Audio visual equipment is allowed as long as (1) material themselves are not religious in nature; (2) material are not diverted for religious purposes (money is going into a public trust) and (3) all school are eligible for the aid on the same terms. iv. May not subsidize parochial education by reimbursing parochial schools for a portion of teachers salaries. v. If state takes public school teachers and sends them into parochial ones this does not violate the establishment clause; if the public school teachers teach in a secular manner without curricular interference by the parochial school. Dropped last part of the Lemon test (excessive entenglement). vi. Publicly funded services may be supplied to parochial school students and the only limitations is that (1)

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they must be offered to all schools; (2) and must be exclusively secular. vii. Tax benefits may be provided that the benefit scheme at least theoretically applies to public school students as well. 1. Rosenberger and Mueller: Establish when the state disburses funding, the neutrality (between religion and non-religion) of the overall program is by itself practically enough to overcome any Establishment Clause problems.

The End =)

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