CONSTITUTIONAL LAW OUTLINE, FALL 2005, JACOBS Supreme Court Powers 1) The Constitution important notes a) Interpretation i) Understand

d the intent of the drafters the Constitution was written by representatives for all the people. ii) Textual interpretation iii) Spirit arguments b) Establishment i) Originally, the Articles of Confederation controlled the federal government, but there were large problems with the Articles ii) The government did not have the power to tax and it therefore did not have much power at all. iii) The individual states were competing through taxes and wars c) Article I Legislative Branch i) Established first, may be considered the most important branch ii) The legislative branch consists of two houses as a compromise between the larger and smaller states: The large states wanted more voice because they had more people. The small states did not want to lose voice because of small population when the state is sovereign. iii) Section 8 establishes what Congress has the power to do if the power is not enumerated, then Congress may not do that act. (1) The first powers deal with money, naturalization, post office, trademarks and patents, declarations of war, and establishment of tribunals inferior to the Supreme Court d) Article II Executive Power i) The people shall elect one person in whom we invest all executive powers. ii) 1(3) establishes the electoral college that creates the possibility of having a person without a majority of the votes taking power as president. iii) The Presidents powers are not specifically enumerated as Congress are the President may perform more acts than those specifically named. iv) President must swear an oath that is printed in the text that he swears to uphold the Constitution. e) Article III Judicial Power i) Vests all judicial power in the Supreme Court and inferior courts as established by Congress. f) Article IV Interstate Regulations i) All states must respect the laws of other states the full faith and credit clause. g) Article V Amendment Process i) This clause makes it very difficult to amend the constitution, requiring 2/3 of all states to ratify the amendments. h) Article VI Supremacy Clause i) The laws of the United States are Supreme and govern wherever there is conflict with State laws. i) Amendments

i) The amendments are generally negative, removing powers from Congress, where the Constitution itself is positive, establishing power in the government and the president. j) Compared to Articles of Confederation i) Provided no power for the federal government to command individuals to act, only to command the states. New York v. United States ii) No powers of taxation in the Articles of Confederation iii) Limited the governments powers to those expressly given no room for inference. McCulloch v. Maryland 2) Judicial Review of Congressional Acts a) Political check the people elect the members of Congress and may choose who they want to represent them and may choose not to vote for people who act contrary to their views. b) Marbury v. Madison i) Facts: Marbury sued to compel the Secretary of State to deliver his commission that had been held by President Jefferson. President Adams had appointed Marbury just before leaving office. ii) Held: The Judiciary Act of 1789, Section 13, was unconstitutional: it conferred original jurisdiction to the Supreme Court where the Constitution only gave it appellate jurisdiction. iii) Rule of Law: The Supreme Court and all courts have the duty to apply the Constitution as paramount law to supersede statutes enacted in conflict. (1) The argument is not expressly provided for in the Constitution. Instead, Chief Justice Marshall argues that the rule is inherent in the form of the court as nonpolitical and in the fact that the Constitution declares itself to be the Supreme Law of the Land. iv) Note: Marshall makes a distinction between acts of the Executive that are legal acts and discretionary acts that are politically redressable. Of the former, the court may analyze and determine constitutionality. Of the latter, only the people may decide at the next election. c) Jefferson would argue that the Supreme Court has no power to review Acts of Congress as Congress is the voice of the people. 3) Supreme Court Review of State Court Decisions a) Martin v. Hunters Lessee i) Section 25 of the Judiciary Act of 1789 gave the Supreme Court the power to review state supreme court decisions. The Virginia Supreme Court declared it unconstitutional. ii) The Court dissected each portion of Article III 2 to declare that the Judicial Power for appellate review extends to all cases with a federal question, regardless of where the case arose. Word argument that it must therefore extend to ALL (including state decided) CASES (anything with federal question). iii) The Court declared that it must have the right to determine federal questions even if decided by a state high court because decisions must be uniform for all federal questions. iv) Court also declares that the Constitution exhibits concern that states will be unfair and jealous in their decision-making such that the Supreme Court must review decisions to maintain fairness.

v) Rule of Law: The Supreme Court has the power to review all cases and controversies involving a federal question because there must be uniformity in interpreting the Supreme Law. 4) Federal Supremacy a) McCulloch v. Maryland and Constitutional Interpretation i) Facts: Congress created a federal bank that Maryland attempted to tax. The bank refused to pay taxes and Maryland took the bank to court. Maryland later argued that the establishment of a bank is unconstitutional. ii) Analysis: (1) The Court declared that though the power to establish a bank was not specifically enumerated within the powers of Congress, it was implicit in Congress commerce powers. (2) In comparing the Constitution to the Articles of the Confederation, the Constitution certainly permitted implication of powers because it did not limit powers to those expressly given, unlike the Articles of Confederation. (3) The Necessary and Proper clause permits Congress to imply powers that are convenient and within the limits of a broad construction of the Constitution. iii) Taxation Argument (1) States may not lay taxes on the federal government because it would be a part taxing the whole. The whole (including the other states) would not have any say in the taxation while the individual state would gain all the benefits. (2) On the contrary, the federal government represents the whole, and therefore it may tax a part (a state or portion thereof). (3) Note however that if the tax were attached to the land, then it would be appropriate iv) Rule of Law: The federal governments constitutional laws, when in conflict with state laws, will preempt the states laws. 5) Congresss Checks on Supreme Court Power a) General List: i) Constitutional Amendment very difficult to pass ii) Judicial Appointment Presidents ideologies prevail iii) Impeachment very rare iv) Life Tenure v) Public Opinion or Practical Realities think Marbury v. Madison, Newdow b) Ex Parte McCardle i) Facts: After the Civil War, Congress established tribunals to charge war crimes. Congress took away the Courts power to hear the case while the case was under review. ii) Rule of Law: the Supreme Courts appellate review powers may be limited by Congress through limitations on jurisdiction of the appellate and district courts. However, Congress may not remove the Supreme Courts original jurisdiction under the Constitution. c) Concerns: i) If Congress may limit the Supreme Courts power, what is to stop them any time they believe a law is unconstitutional but want it anyway?

(1) Simply the political check that Congress members may be re-elected if they enact laws that the people like, or may be outcast if enacting unfavorable laws. ii) Further, such laws would simply require the State courts to make the determinations. It does not mean that the constitutionality of the laws would not be determined. d) U.S. v. Klein Court declared that certain removal of jurisdiction is inappropriate. Congress does not have absolute power to remove jurisdiction. 6) Standing as a Constitutional Doctrine a) Article III, 2: Judicial Power shall extend to all cases . . . and all controversies . . . i) Court has held that in order to maintain the separation of powers, the federal courts only have the power to hear cases for which the plaintiff has standing. b) Standing requires: i) Injury (1) Concrete (2) Particularized (3) Imminent ii) Causation iii) Redressability c) Injury Element: i) Plaintiff must suffer an injury in fact an injury that happened specifically to the plaintiff individually and not to everyone else in the nation. If everyone in the nation, or if a significant number of persons in the nation, share the grievance, then the people must use political channels for a remedy. ii) Stigmatic Injury: A stigmatic injury is that suffered by all members of a class such that no one individual may claim standing. In order to create standing, the injury must be directly suffered by the complaining party. (1) Remember Allen v. Wright; plaintiffs injuries were suffered by all African Americans and therefore too broad to create standing. iii) Imminent: Plaintiff must have a stake in the controversy. (1) Remember Lujan v. Defenders of Wildlife; plaintiffs injury was not imminent because a mere desire to do something in the future does not create imminent harm. iv) Concrete: There must be actual, identifiable harm. v) Particularized: The injury must affect a very narrow class of persons and must be identifiable. d) Causation and Redressability i) Also called the nexus requirement ii) Where there are many persons involved and the court may not bind all persons involved with its ruling, then the court may have no ability to redress the injury. iii) Further, where the causation is too attenuated and distant from the plaintiff, it may be difficult for the court to redress the problem. There is no guarantee that the intermediate persons involved will cease the action causing injury to the plaintiff. iv) Where there are intervening forces, it is more likely that the defendants actions were not a direct enough cause of plaintiffs injury to create standing e) Statutorily Created Standing i) Congress may extend standing to particularized classes of persons, but may not extend standing to just anyone.

f) Prudential Standing Decisions i) In such cases, the plaintiff may have an identifiable injury possible to redress, but courts will decline to hear the claim on other grounds. ii) EGUSD v. Newdow (1) Highly and politically charged issue. (2) Court declared that Newdow did not have authority to bring the claim on behalf of his daughter because under state law his wife had the final say regarding the childs upbringing, and she wanted her child to be able to say under god in the pledge of allegiance. 7) Political Questions a) Marbury v. Madison first distinguished political questions from legal questions. A political question was that under another branchs discretion as established by the Constitution. b) Luther v. Borden strictly interpreted the Guaranty Clause of the Constitution, Article IV 4, which declared that The United States shall guarantee to every State in this Union a Republican form of Government i) Court held that reference to The United States specifically gave the power to Congress and the Executive branch, but not to the courts because the judicial branch only reviews congressional acts. c) Test for Political Question: i) Textually demonstrable commitment of the issue to a specific branch within the Constitution ii) Lack of judicially discoverable and manageable standards for resolving the issue iii) Impossibility of deciding without an initial policy determination that clearly requires non-judicial discretion iv) Respect to other branches of the government v) The need for unquestioning adherence to political decisions that have already been made (finality) vi) Potentiality of embarrassment from multifarious pronouncements by various departments on one question d) Baker v. Carr the Fourteenth Amendment guarantees that no state shall deny to any person within its jurisdiction equal protection of the laws. i) The Fourteenth Amendment meets the requirements of the above six part test, used to determine the expertise of the judicial branch as compared to the other two branches of government and any prudential reasons for the judicial branch not to have authority. e) Nixon v. United States Article I 3(6), The Senate shall have the sole power to try and impeach. i) Supreme Court declared that though the Constitution discussed impeachment as a trial, it also gave Congress the sole power to conduct that trial. ii) Because of the textual commitment to the Senate, the Court declared that it was a political question only. iii) Further, uncertainty might ensue should the court second guess the previous decision of the Senate. f) Powell v. McCormack Article I 5, each house shall be the judge of the qualifications of its own members.

i) Though each house may determine the qualifications for each member, it may not arbitrarily refuse a member. Where the house does so, it has abused its discretion and the federal courts may intervene. g) Reasons for calling a claim a political question: i) There may be a constitutional violation, but there is no remedy through the courts ii) The act is committed to another branch of government and since they have absolute discretion, there is no violation. Congressional Powers 1) Commerce Clause What is Interstate Commerce? a) Article I 8(3) Congress shall have the Power To regulate Commerce among the several States b) Gibbons v. Ogden i) States may regulate commerce within the states, even though it may affect other states. ii) The federal government still has authority to regulate interstate commerce. (1) Regulate: pass laws or prescribe rules (2) Commerce: commercial intercourse (steamboats, waterways, highways, and any other means of access) (3) Among: intermingled with or involving more than one state iii) Supremacy Clause (1) Article VI 2: The Constitution and the Laws of the United States made in pursuance thereof . . . shall be the supreme law of the land. (2) Because both the States and the Federal Government have authority to pass laws affecting interstate commerce, but where there is a conflict the federal law supersedes. c) Commerce Clause Test i) Use and Channels of Interstate Commerce ii) Instrumentalities of interstate commerce, or persons or things in interstate commerce (1) Protective Principle: Because congress can regulate products, it may regulate their production. Darby. iii) Substantial economic effects test (1) Congress must simply have a rational basis for making the determination that the effects are substantial (2) Aggregate the effects for purely economic activities to determine if the aggregate effects are substantial iv) Jurisdictional Element d) Commerce Clause Timeline: i) 1789 -- Constitution ii) 1824 -- Gibbons v. Ogden (1) Not much analysis until 1890s (2) Civil War took up much of Congresss attention iii) 1890s -- ICC Act, Antitrust Act (1) Strict construction until 1937: Commerce versus mining, production, agriculture, direct versus indirect effects, traditional state functions.

(a) Each of the above are different doctrines that the Court used to get rid of Congresss laws iv) 1937 New Deal Crisis J & L; Darby; Wickard Katz; Heart (1) Broad construction until 1995 (a) The Federal Government passed a number of wage and hour laws in order to stabilize production and get the nation back on its feet. There was such an inherent need. (b) Roosevelt came up with a court packing plan putting a huge number of justices on the court that favored a broad construction of the commerce clause in order to ensure support the welfare of the US as a whole. v) 1995 Lopez (1) Stricter construction. e) Cases: i) Hammer v. Dagenhart (1) 1918 Court looks at the purpose of the regulation which is to protect children. Congress makes a judgment that it is inappropriate to have children work. (2) Court declares that the law is unconstitutional because it is simply a way for Congress to pass moral legislation which belongs under the general welfare power of the states ii) Darby Congress may regulate an activity within a state that affects a product that moves across state lines. Explicitly overruled Hammer. iii) Wickard v. Filburn (1) Congress may regulate activities having a substantial economic effect. (2) Court may look at the aggregate effects of the economic activity to determine if the effect is substantial. (3) Congress may regulate an activity that arises out of a commercial transaction that aggregately substantially affects interstate commerce. iv) Heart of Atlanta Motel v. United States and Katzenbach v. McClung (1) Congress may regulate if it has a rational basis for concluding that the activity has a substantial economic effect on interstate commerce. (a) Legitimate Interest (b) Means Rationally Related v) United States v. Lopez (1) Three Areas that Congress May Regulate: (a) Use and channels of interstate commerce (i) Gibbons v. Ogden, steamboats (b) Instrumentalities of interstate commerce, or persons or things in interstate commerce (i) Darby the manufacturing process of products (c) Substantial economic effects test (i) Aggregate for economic activities (ii) Wickard v. Filburn, regulating home-grown wheat. (2) Statute had purpose of regulating criminal activity. As a result it does not have an economic purpose and cannot be aggregated like other economic activities.

(3) Jurisdictional Element: Should the regulation apply only to products that pass through interstate commerce, it would be within Congresss Commerce Clause powers. vi) Gonzales v. Raich (1) Home-cultivating marijuana is an economic activity in the same way as homegrowing wheat is an economic activity. As an economic activity, the effect may be aggregated to determine if it substantially affects interstate commerce. (2) Congress had authority to regulate marijuana and forbid its transfer between state lines. 2) Spending Clause a) Article I 8(1): Congress shall have power to lay and collect taxes, duties, imposts and excises to pay the Debts and provide for the general welfare of the United States b) Rule: i) In pursuit of the general welfare ii) Unambiguous regulations: clear about how the state need perform to maintain funding iii) Spending related to the federal interest iv) No external constitutional constraint c) Cases i) United States v. Butler (1) 1936 case, prior to expansion of the Commerce Clause powers. (2) Court declares that the federal government may not impede upon the states power to regulate its constituents under the guise of the spending clause. (3) Two views of Scope: (a) Hamilton View: Congress can spend money on anything that promotes the general welfare. (b) Madison View: Congress may only spend money on those items enumerated in Article I. (4) Butler adopted Hamiltons view of the Spending Clause but found this statute unconstitutional because it abrogated the states power to regulate which violated the Tenth Amendment. ii) Steward Machine Co. v. Davis (1) 1937 case, Court broadened the scope of the spending clause, declaring that the spending power allows the federal government to make contracts with states to induce them to act in exchange for federal funding. iii) South Dakota v. Dole (1) Congress passed a law that reduced federal highway funds to states that allowed sale of alcohol to individuals under the age of 21. (2) Elements of the Spending Power: (a) In pursuit of the general welfare (b) Unambiguous regulations: clear about how the state need perform to maintain funding (c) Spending related to the federal interest (d) No external constitutional constraint

(3) The Court held that the law met the above elements but indicated that there might be circumstances where the financial inducement becomes so coercive as to pass the point where pressure becomes coercion. 3) Power of Congress under the Tenth Amendment a) Tenth Amendment of the Constitution: The powers not delegated to the United States by the Constitution, nor prohibited to it by the States, are reserved to the States respectively, or to the people. i) Tautology: The states have all the powers that they didnt give away to the federal government. It is unclear to what extent the Tenth Amendment limits specific powers. b) Treaties i) Missouri v. Holland (1) The executive has the power to execute treaties under the authority of the United States Article VI (2) Where the president makes a treaty that is not self-executing, Congress must execute laws to enforce the treaty. Congress therefore has more expansive powers in pursuance of treaties. (3) Compare with Reid v. Covert: we cannot construe Article VI to permit the United States to exercise power under an international agreement without observing constitutional prohibitions. Congress may not violate express constitutional provisions in enacting laws to further treaties. c) Commerce Clause i) Historically, the Commerce Clause was limited by the Tenth Amendment (Note also limitations on spending powers under United States v. Butler) (1) Congress could not enact legislation that would require states to act. (2) National League of Cities v. Usery (a) In 1976, Congress did not have authority to require state governments to act, even in pursuance of the Commerce Power, and could not issue laws that interfered with traditional state functions (police powers, safety, welfare) (b) The minimum wage act impinged upon traditional state function by forcing state and local governments to abide by federal rules regarding wages, reducing the amount of funds available for other tasks. (3) Overruled by Garcia v. San Antonio Metropolitan Transit Authority, declaring that the rule from Usery was simply unworkable and that there is a political check on Congresss decisions to act contrary to state sovereignty. ii) Expansion of Commerce Clause and Regulation of States (1) Commandeering Principle: (a) Congress may not require states to legislate (b) Congress may not require states as states to use their resources to further federal laws. (2) Rule: (a) Congress may induce states to act as states by giving states a choice: Either regulate or be preempted by federal law. (b) The federal law must be permissible under the Commerce Clause. (3) Cases: (a) New York v. United States

(i) OConnor states that the Tenth Amendment does not actually provide anything contrary to the powers given to the federal government in Article I or Article II. Instead, the Tenth Amendment and the federal governments power act together as a unified whole the mirror image of one another. (ii) In Garcia, Congress simply regulated the state insofar as it acted as a private business entity. In New York, Congress is requiring the state legislature with its governmental powers to enact legislation. (iii) Methods for Congress to induce acts of state governments: 1. Spending Power Attach conditions to the receipt of funds, so long as it meets the Dole criteria. 2. Commerce Power Offer the choice to the states to either have the federal governments laws supersede or have the states regulate the activity themselves. The activity must be one capable of being regulated under the commerce clause for the choice to be constitutional (iv)Choices are necessary in order that the government enacting the laws has accountability for taking that action. (v) State representatives may not waive a state interest in enacting legislation that forces states to act. Goal: protect the people. (b) Printz v. United States (i) Even a law that requires states to provide ministerial tasks requiring reasonable efforts is beyond Congresss power. 1. Reasoning: diverts resources, establishes state policy, holds state accountable for failure to act prudently. (c) Reno v. Condon (i) Congress has the power to regulate the buying and selling of commodities. As a result, it may regulate the buying and selling of personal information as obtained through drivers license records. (ii) Separately, this prohibits the state from performing an act rather than requiring the state to act as in Printz. 4) Dormant/Negative Commerce Clause a) Congress does not have exclusive power to make laws that impact interstate commerce. However, Congress does have exclusive power to regulate interstate commerce. Gibbons. b) Trigger: i) Wherever there is state action that affects interstate commerce and no federal action, a dormant commerce clause issue is present. c) Discriminatory i) If a statute is discriminatory, then it is per se unconstitutional, unless it meets the three part test of legitimate purpose, real difference, and no alternative nondiscriminatory means. ii) Definition: (1) Facially Discriminatory: A statute is discriminatory on its face when it expressly draws a line between in state and out of state products or businesses.

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(2) Clear Discriminatory Effect: A statute may be discriminatory in its clear effect if its impact clearly draws an line at the states border, imposing a large economic burden on other states. Hunt v. Washington State Apple Advertising Commission. (a) Courts must first look to the discriminatory effect before determining whether the statute has a discriminatory purpose. If no discriminatory effect, then the court must only apply a benefit/burden analysis. Minnesota v. Clover Leaf Creamery Co. (3) An act by a city or town can be considered discriminatory though other citizens of the same state are also burdened. Dean Milk Co. v. Madison. (4) Policy: If a statute is not discriminatory on its face or in its clear effect, then the states citizens suffer the same hardships as a result of the legislation. As a result, the citizens of the state may fairly represent the interest of those out of the state. iii) Legitimate State Purpose (1) Purpose must relate to health, safety, and general welfare of the states citizens. (a) A protectionist purpose is not legitimate. (i) Example: Metropolitan Life Insurance Co. v. Ward: purpose was to help in-state insurance companies at the expense of out-of-state life insurance companies. (b) Preventing discrimination in other states is not a legitimate purpose. Must instead use the courts to prevent out-of-state discriminatory acts. (i) Example: Sporhase v. Nebraska statute prohibited withdrawal of groundwater from any well within Nebraska for use in another state that did not provide reciprocal benefits for Nebraska. The Court found that this was not a legitimate purpose. (2) The legitimate purpose must be related to the means used to promote it. (a) Example: Hunt v. Washington State Apple Advertising Commission the purpose of preventing confusion and importing only good quality apples was defeated by preventing use of Washingtons excellent apple rating system. iv) Real Difference (1) Requires a plausible difference between the products/businesses out of state and products/businesses within the state. (2) The difference must relate to the legitimate purpose for drawing the line. (3) Example: Maine v. Tailor more fish outside the state had a specific parasite, making a real difference between fish from inside the state and imported fish. v) Means Narrowly Tailored to Fulfill Desired Purpose (1) United Building & Construction Trades Council v. Camden: Means of reducing unemployment, eroding property values, decline in population, and decline in number of businesses was narrowly tailored to requiring contractors to hire a number of in city residents to encourage economic growth. vi) No Alternate Nondiscriminatory Means (1) Practical alternate means may include inspection of products before import or imposing the same restrictions on citizens of all states. (a) The inspection may be charged to the importers. vii) Exception: Market Participant Doctrine (1) If a state participates as a business in the market, it may act as it chooses, even in a discriminatory fashion.

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(2)

(3)

(4)

(5)

(a) Example: Reeves, Inc. v. Stake State policy restricting sale of cement produced in a state-owned plant to state residents is constitutional because a private cement plant would have authority to do so. Further, the state is expending its own money and time to produce the cement. The state may only regulate within its direct market no remote regulation. (a) Example: South Central Timber Development v. Wunnicke State would sell the trees to anyone so long as they were processed within the state. The action was unconstitutional because the state, as market participant, could only regulate who they sold the trees to, and could not use the market to enact downstream regulation. Policy: (a) Market will constrain a state so the state should have ability to make regulations as it chooses. (b) State operates with tax dollars so it can exercise a regulatory force when acting as a market participant Privileges and Immunities Clause (a) Acts as an exception to the Market Participant doctrine. (b) Article IV 2 Citizens of each state shall be entitled to all privileges and immunities of the citizens of the several states. If the following are met, then the action is virtually invalid per se. (i) State Action 1. City regulations still may affect interstate commerce by drawing a line between persons in the state and persons out of the state. United Building & Construction Trades Council v. Camden (ii) Treats citizens of another state differently 1. Applies to individuals, not companies or corporations. 2. Citizens of another state must be part of the prima facie case, which is not necessary under the dormant commerce clause. (iii) Burdens a fundamental right 1. Not everything is a fundamental right: employment, constitutional rights, items absolutely necessary health services. (c) Virtually invalid per se unless: (i) Legitimate Purpose 1. Example: United Building & Construction Trades Council v. Camden City would provide funds only to companies that hired a certain percentage of Camden residents. The Supreme Court held that the citys purpose of providing jobs for its citizens at the expense of outof-state citizens was a legitimate purpose. (ii) Real Difference (iii) Means Narrowly Tailored (iv)No Alternative Nondiscriminatory Means 1. See explanation above. Equal Protection Clause (a) Fourteenth Amendment: No state shall deny to any person within its jurisdiction the equal protection of the laws. (b) May provide an exception to the Market Participant doctrine

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(c) Elements: (i) State Action (ii) Treats citizens (including corporations) of another state differently (d) Presumptively valid so long as: (i) State has a legitimate purpose 1. A protectionist purpose is invalid. See Metropolitan Life Insurance Co. v. Ward Purpose to help in state insurance companies was not a legitimate purpose. (ii) The means are rationally related to the purpose 1. Very permissive standard: simply ask if there is some reason to draw the line that makes sense. viii) Exception: Subsidies or Tax Exemptions (1) Purpose: A state may expend its money as it so chooses. d) Not Discriminatory on its face or in clear effect i) Analysis: (1) Legitimate Purpose (2) Not Clearly Illusory (a) There must be some legitimate benefit that the state derives from the statute (3) Burden on Interstate Commerce (a) The burden must not outweigh the benefits. (b) When there is a hint of protectionism in an otherwise neutral statute, the court may apply less deference to the state legislature. Kassel v. Consolidated Freightways Corp. exemptions for state residents to have the prohibited size of trucks and exemptions for border cities indicated a possible protectionist measure to favor in-state businesses. ii) Cases: (1) South Carolina Highway Department v. Barnwell Bros.: Court upheld a state law that limited the size of semi trucks on the roads. The Court reasoned that both interstate and intrastate commerce was burdened and as such, the participants in intrastate commerce can adequately represent the interests of those involved in interstate commerce. Further, the legislature acted within its province and the means of regulation were reasonably adapted to the ends sought. (2) Southern Pacific Co. v. Arizona: A statute limiting the number of cars on a train does not have a legitimate safety purpose. If there really is no good legitimate purpose, then the statute is protectionist in nature. (3) Bibb v. Navajo Freight Lines: The Court held that a statute requiring curved mudflaps on semi trucks was too burdensome on interstate commerce because one other state prohibited the curved mudflaps. As a result, any trucks moving through the state would either have to stop at the border and change the mudflaps or would have to go around the state. (4) Kassel v. Consolidated Freightways Corp.: The state enacted a statute prohibiting 65 foot double trailers on the state highways. The statute was not clearly discriminatory on its face because it would affect both individuals in state and out of state. The statute imposed safety burdens on other states by making the long trucks that were more dangerous move through border states, and increasing the traffic in the bordering states, and also imposed cost burdens on interstate

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commerce by requiring cross country travelers to go around Iowa or to stop at the border to reload the shipped items on smaller trucks. 5) Congressional Preemption a) Supremacy Clause, Article VI 1 cl. 2: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. i) Preemption only applies to those laws made in pursuance of the constitution. Therefore, unconstitutional laws cannot be the supreme law b) Three Methods: i) Express Preemption (1) Federal statute contains a provision that specifically refers to preemption, indicating which state laws are preempted by the statute. ii) Implied Preemption (1) Field Preemption (a) The scheme of federal regulation is so pervasive as to make reasonable the inference that Congress left no room for the states to supplement it. (2) Conflict Preemption (a) Actual Conflict (i) Compliance with both federal and state regulations are physically impossible. (ii) Case: Gibbons v. Ogden The regulation requiring all boats in New York waters to have New York licenses directly conflicted with federal law that allowed interstate travel with a federal license. (b) Purpose Frustration (i) Though it is physically possible to comply with both state and federal laws, the compliance with both would frustrate the purpose evident in the federal statute. (ii) Cases: 1. McCulloch v. Maryland Thought it is physically possible for a state to tax the federal bank without directly violating federal law, the taxing would be contrary to the purpose of establishing the federal bank. The Court emphasized that the ability to tax is the ability to destroy. 2. Gade State and federal government each had laws that set standards for employee training. The state laws were more stringent. Though it was possible to have the employers comply with both sets of rules, the Supreme Court held that Congress intended to subject employers and employees to only one set of regulations. 3. Crosby v. National Foreign Trade Counsel Massachusetts barred the state governments departments from doing business with Burma. Congress had given the President broad powers to devise a strategy for imposing sanctions on Burma to induce improvement in the realm of human rights. The Court held that the statute interfered with the federal statutes purpose of ensuring that the President had flexibility

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for devising strategies and sanctions. Good example of purpose frustration preemption. c) TEST: i) State Action that Affects Interstate Commerce (1) Congressional Action Within the Scope of Congresss Commerce Power (a) Preemptive Invalid if the following apply (i) Express (ii) Implied 1. Field 2. Conflict a. Actual b. Purpose Frustration (b) Authorized Valid if following applies (i) Clear statement required (2) No Congressional Action, or Action Outside the Scope of Congressional Power (a) Market Participant (i) Privileges & Immunity Clause 1. State Action 2. Treats citizens of another state differently 3. Burdens a fundamental right a. virtually invalid per se unless: i. legitimate purpose ii. no alternative nondiscriminatory means (ii) Equal Protection Clause 1. State Action 2. Treats citizens (including corporations) differently a. Presumptively valid so long as: i. legitimate purpose ii. means rationally related (b) Not Market Participant (i) Regulation is discriminatory on its face or in clear effect 1. Virtually per se invalid unless: a. Legitimate purpose b. Real Difference c. Means closely tailored to fulfill desired ends d. No alternative nondiscriminatory means (ii) Regulation is not discriminatory on its face nor in clear effect 1. Presumptively valid so long as: a. Legitimate purpose b. No Extraordinary Burden Presidential Powers 1) Executive Action a) Typical Realms of Presidential Authority i) Article II 1 cl. 1: The executive Power shall be vested in a President of the United States of America

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ii) Article II 1 cl. 8: The President shall take care that the laws are faithfully executed iii) Article II 2 cl. 1: The President shall be Commander in Chief of the Army and Navy of the United States. b) Factors of Relativity: Presidential powers are determined in relation to congressional acts. Youngstown Sheet & Tube Co. v. Sawyer, Jackson concurring. i) Where congress says the President may not act, the President may only act if it is within his enumerated powers under the Constitution and the law is unconstitutional. ii) Where Congress says the President may act, the President may act unless the act is reserved for Congress. iii) Where Congress does nothing, the President can rely on his own independent powers, but there is a zone of twilight in which the President and Congress share authority. The efficacy of the Presidential action depends on the imperative of events and contemporary imponderables rather than on abstract theories of law. (1) Longstanding and uncontested acts provide a presumption that the acts are within the executive powers. c) Cases i) Youngstown Sheet & Tube Co. v. Sawyer President seized steel mills and argued that the action was authorized under the commander in chief clause because he needed to ensure that steel was produced for the war. The Court declared that the action was too far removed from the commander in chief powers. (1) Under the Fifth Amendment, the President may not deprive any person of life, liberty or liberty because due process includes legislative and judicial action. (2) Executive power must be distinguished from legislating power. Congress makes the laws and the President executes them. ii) Dames & Moore v. Regan Court held that presidential act regarding the Iran hostage crisis was constitutional because Congress had implicitly accepted the Presidents agreement. Majority adopts Jacksons concurrence in Youngstown. 2) Foreign Affairs a) The President has broad authority to act in the realm of foreign affairs. b) War Powers i) President is Commander in Chief of the military (1) Must balance with Article I, 9 cl. 11: Congress has authority to declare war. (2) Legislative history indicates that Congress is meant to declare war instead of make war in order to ensure minimal inhibitions on the Presidents authority to (3) Sudden attack exception: good legislative history indicates that the President has a certain scope of authority to take military action without direction from Congress to repel sudden attacks. ii) War Powers Act (1) Requirements: (a) Consultation with Congress any time President introduces troops into hostilities. (b) Report on all hostilities (c) Termination must extricate troops within 60 days unless Congress declares war or otherwise authorizes the use of troops. (2) Case Studies (a) Persian Gulf War

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(i) Bush did not comply with the War Powers resolution, arguing instead that he acted in order to repel a sudden attack by Iraq. (ii) Congress passed a resolution that was tantamount to a declaration of war, authorizing the President to use all necessary means to achieve the goals of the UN resolution. (b) Kosovo (i) President authorized air strikes against Kosovo. (ii) A Senate Resolution authorized air strikes; the House rejected a similar measure but also rejected a measure declaring a need for the president to withdraw the troops. (iii) Constitutionality of the military action was never questioned under a Youngstown analysis, there is no starting point for congressional declarations. (c) Hamdi v. Rumsfeld (i) Court refused to address whether the President has plenary powers to declare individuals enemy combatants. (ii) Court declared that Congress authorized the President to declare United States citizens captured in the theatre of war enemy combatants. c) Cases: i) United States v. Curtiss-Wright Export Corp. Congress passed a joint resolution that empowered the president with broad discretion to prohibit certain arms sales to Bolivia. The President issued an executive order to that effect. The Court held that the President was explicitly authorized by Congress to act and therefore the executive action was Constitutional. Further, there was very permissive language indicating the federal power over external affairs was central to the Presidents powers the President is the face of the nation and must have the ability to make policies regarding foreign nations in order to avoid embarrassment and to fully utilize the Presidents knowledge and expertise. ii) Dames & Moore v. Regan the Court declared that the presidential powers were both essential to the exercise of foreign affairs and expressly authorized by Congress. iii) Youngstown Sheet & Tube Co. v. Sawyer The President cannot use war authorities to perform domestic actions. The seizure of steel mills for the purpose of keeping the war going was too far outside the theatre of the Korean war. 3) Presidential Privileges and Immunities a) Disclosure: Courts must balance the administration of criminal justice and the confidentiality interest in the President. i) Levels of Need to Disclose (1) In a criminal trial, the court must determine the rights of individuals as determined by the Constitution, thus the need to disclose is very high. United States v. Nixon. (2) In a civil trial, the information is desired but the extent of loss possible due to an incorrect ruling would be much lower than in a criminal trial. Cheney v. United States District Court. (3) Congressional hearings do not actually decide the rights of individuals, therefore the need to disclose is very deflated. ii) Confidentiality Interest

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(1) Government may claim that all information is intertwined and by disclosing one piece of information to those in the know, then the information may reveal certain informants, thus compromising the government. (2) Any information regarding terrorist activities, war, or highly important information may require secrecy to ensure the safety of the United States (3) Other information must be kept secret to ensure that individuals and advisors will be willing to disclose important information to the government. Risk of disclosure will chill the communication. b) Immunity from Civil Action i) President is immune from suits regarding official decisions while in office. (1) Purpose: The Presidents energies would be diverted and his efficiency will be detrimentally affected if he must consistently worry about the possibility of future lawsuits. Nixon v. Fitzgerald. ii) President does not have immunity from lawsuits for action prior to taking office because it will not harm the Presidents official duties. Clinton v. Jones. 4) Balancing Executive and Legislative Authority: Delegation Principles a) Nondelegation Doctrine i) Congress may authorize the President to take certain action so long as Congress narrows discretion such that the President does not make policy decisions. ii) Congress may not delegate policy-making action to any other branch of the government Congress makes the laws, the executive executes the laws. iii) Panama Refining (The Hot Oil Case) and A. L. A. Schechter Poultry Corp. (The Sick Chicken Case). b) Intelligible Principle Test i) So long as Congress has set some boundaries to the Presidents decision-making, it may delegate the responsibility. (1) The President shall not have the authority to make policy decisions because that would be legislative. Clinton v. City of New York: The line item veto was inherently legislative because the expenditures that the President lined out would then be re-allocated, thus the President was given legislative authority without guidelines. ii) If Congress chooses to delegate its authority, it must delegate it entirely and may not retain any. iii) Congress may not delegate lawmaking authority to a part of itself. (1) INS v. Chadha: Court emphasizes that the single house legislative veto did not adhere to the standard bicameral plus executive veto legislative method. Further, Article I has explicitly laid out the occasions where one house of Congress may act independently. By retaining any amount of power, Congress confuses the accountability of the administrative office. (2) Congress may retain control over administrative agencies through the following: (a) Spending clause remove funding (b) Repealing the law that created the agency (c) Writing laws to explicitly limit the power of the agency (d) Media pressures through oversight hearings. 5) Administrative Role of the President

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a) Article II 2, cl. 2: President has the power to appoint officers of the United States and Congress may vest appointment of such inferior officers in the President, Courts, or the Heads of Departments. b) Appointment of Officers: i) Congress itself may not appoint any officers. Buckley v. Valeo. ii) Congress may delegate appointment of even purely executive officers to the Courts so long as the officer is an inferior officer. (1) Inferior officers: include those who have limited functions and limited tenure, such as the special prosecutor in Morrison v. Olson. c) Removal of Officers: i) Where the officer is purely executive, Congress may not condition removal and the President may remove the officer at will. Myers v. United States. Overruled by Morrison. ii) Congress may condition Presidents authority to remove officers whose functions are not purely executive. Humphreys Executor v. United States. (1) Limited by Morrison v. Olson: So long as the conditions on removal do not impede with the Presidents ability to carry out functions, and the individual officer is not central to the constitutional duty, Congress may impose conditions on removal of even purely executive officers. iii) If the officer has any executive functions, Congress may not remove, nor may Congress delegate the removal power. Bowsher v. Synar. Constitutional Amendments The Rights of Individuals 1) Slavery a) The Constitution leaves decisions regarding slavery to the states. State v. Post. b) Fugitive Slave Act i) The Fugitive Slave Act requires states to return escaped slaves to their masters, even if the state does not recognize slavery. Prigg v. Pennsylvania. c) Challenges to Slavery i) State v. Post: (1) New Jersey Constitution declared that all men are free and independent (a) The New Jersey Supreme Court declared that all men are only free subject to the laws of the government. (b) The laws of the government permit slavery and so all men are free subject to those laws permitting slavery. (2) This ruling was contrary to a Massachusetts case on the same issue: Massachusetts was in a different political climate. ii) Dred Scott v. Sandford: perhaps the most idiotic decision of the Supreme Court (1) Court first declared that no slaves, freed slaves, or descendants of slaves were citizens of the United States. (2) Court further states that one state or territory may not enact a law that will deprive a slave owner of his property without due process. Merely freeing the slave by passing through another state is not enough due process. d) The Civil War ended the era of slavery and new constitutional amendments were enacted: Reconstruction i) Thirteenth Amendment: Ended Slavery

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ii) Fourteenth Amendment: (1) Equal Protection (2) Due Process (3) Privileges and Immunities (4) Enforced by Congress iii) Fifteenth Amendment (1) Gave blacks right to vote 2) Equal Protection and the Fourteenth Amendment a) No state shall deprive any person of equal protection under the laws. 14th Amendment. b) Era of Jim Crow: i) Plessy v. Ferguson: (1) Court declares that separate facilities do not deprive citizens of equal protection. (a) Court applies a rational basis test: (i) Legitimate purpose: to avoid disorder, social well-being (ii) Means rationally related separation to avoid disorder (2) Dissent: Our Constitution is color-blind (a) Should apply a strict scrutiny test: where the state draws a line, must assume wrongful purpose. (i) Compelling state interest (ii) Narrowly tailored to fulfill interest c) Road to Brown i) Lawyers and civil rights activists specifically started with higher education because it was not as divisive an issue as elementary and high school. d) Brown I and II i) Brown v. Board of Education I: (1) Court performed an analysis of the Fourteenth Amendment and declared that it was inconclusive regarding segregation because of the divisiveness of the issue. (2) Court held that separate was inherently inequal. (3) The court did not provide a remedy in Brown I. ii) Brown v. Board of Education II (1) Court required that states dismantle the system of segregation and integrate with all deliberate speed. (2) The Court ordered that district courts oversee the desegregation. e) Massive Resistance i) States resisted Brown and refused to integrate. Some states went so far as to shut down schools altogether. f) 1964 Civil Rights Act i) The Act attaches enforcement of desegregation to the Spending Power such that states would no longer receive money for education if they did not comply. g) Court Desegregation i) Courts finally stepped in and required bussing. ii) Note that the North did not have statutes but Plaintiff was required to show actual instances of state action in segregation in order to obtain a remedy.

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CONSTITUTIONAL LAW, SPRING 2006, JACOBS Constitutional Amendments Continued 3) Fourteenth Amendment Equal Protection a) Generally i) The Constitutional Text (1) No state shall deny any person equal protection of the laws (2) Applies to more individuals than simply ex-slaves because the language says any person (3) Though it says no state, not including cities would defeat the purposes of the amendment, so the statute applies to any governmental action, including cities. b) Rational Basis Review i) What does Equal Protection Entail? (1) Where the state draws a line not based on a suspect class, the division must be rationally related to legitimate government purpose. (a) Does the line make sense? (b) Is there a real difference? (c) Is the states purpose legitimate? ii) Legitimate Purpose (1) Impermissible Purposes (a) Stereotypes are not a legitimate purpose. (b) Naked preferences are not a legitimate purpose. (i) U.S. Dept of Agriculture v. Moreno: Food stamp regulation restricted distribution of food stamps to households with unrelated persons residing together. The regulations purpose was based on a dislike for hippies. Because the regulations purpose was based on a naked preference, the Court held that it violated Equal Protection. (c) Mere negative attitude cannot be a legitimate purpose. (i) City of Cleburne v. Cleburne Living Ctr.: A zoning ordinance that prohibited locating mental patient facilities in a certain area in part because of an irrational fear that junior high school students would harass the mental patients was based solely on a negative attitude toward mental patients. Court held the ordinance violated equal protection. (2) Permissible Purposes (a) The state can always make a law that furthers its health, safety, or general welfare powers. Even economic or efficiency purposes will be legitimate under rational basis. (b) New York City Transit Authority v. Beazer: Transit authority refused to accept any drug or methadone users. Methadone users challenged the action iii) Rational Relationship / Real Difference (1) So long as the legislature could have come up with a rational relationship between the purpose and the means, the court should not second guess the decision. (a) Minnesota v. Clover Leaf Creamery: State legislature drew a line between pulpwood and plastic producers of milk bottles. The state claimed that its purpose was to protect the environment (which is a legitimate purpose). Though the state supreme court had declared that there was no real difference

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between pulpwood and plastic producers, the Supreme Court held that the statute satisfied Equal Protection. (b) Railway Express Agency v. New York: Law stated that cars cannot contain advertising, except for those individuals who own the vehicle and are using it to advertise their own business. The stated purpose was to ensure safety on the roads. The Court found that the legislature could have found a difference between sellers of advertising and self promoters. (c) Williamson v. Lee Optical: Statute required that there be a prescription for any lens grinding for glasses. The stated purpose was safety, to ensure that people had their eyes checked periodically. The Court provided an extremely deferential review of the statute and declared it valid. (2) Under Rational Basis review, the Court must allow the legislature to take small steps to resolve a problem, even if it has some over/under inclusion. c) Heightened Scrutiny and Race i) The Test (1) Compelling Purpose (2) Narrowly Tailored (a) Real Difference (b) Not Over / Under Inclusive (c) No Alternate Nondiscriminatory Means ii) Origins and Development (1) The Fourteenth Amendment was enacted as a response to bad treatment of blacks in southern states after the civil war. (2) Because the original purpose of the Fourteenth Amendment was to protect blacks, it would be illogical to apply only a rational basis review and to require only a legitimate purpose where a statute discriminates against blacks. Strauder v. West Virginia. (3) Government actions that discriminate on the basis of any race are subject to strict scrutiny. (a) Reason: Immutability of features, likelihood of naked preference, history of discrimination / prejudice, political powerlessness. (b) Korematsu v. United States: Government requires all individuals with ties to Japan to go to internment camps. The Court, applying a form of strict scrutiny, still found that the statute was valid because it was just too hard and too slow to separate the good Japanese from the bad Japanese. (i) Congress later issued an apology and passed a statute declaring that the military and Supreme Court were wrong to make such a decision on the basis of race alone. (c) Johnson v. California: CDC has a policy that segregates prisoners based on race for a short period of time. The purpose is to avoid race riots and violence. The Court held that this would have to be reviewed under strict scrutiny. Though there is ordinarily deference under the prison system, the action must still be analyzed under strict scrutiny because there was a race based line. Note, however, that this might represent a good example of where there is a real difference. (4) Real Difference, Compelling Purpose

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(a) Loving v. Virginia: State law prohibited marriage between blacks and whites. The Supreme Court declared that there could be no legitimate purpose for the statute. The only purpose was to maintain White Supremacy. Note that the equal application of the law (whites could not marry blacks, just as blacks could not marry whites) did not preclude most rigid scrutiny. The Court stated that any statutes that discriminate on the basis of race must be shown to be necessary to the accomplishment of some permissible state objective. (i) This court rejected the method used in Plessy v. Ferguson for a different segregation statute. (b) Palmore v. Sidoti: State statute requires that child custody be determined in the best interests of the child. The state judge awarded custody to the father in a large part because the childs mother married a black man. The judge stated that the purpose was that the child would experience discrimination and teasing at school because her step-father was black. The Court did not accept the purpose private bias is not a compelling purpose under the Fourteenth Amendment Equal Protection clause. (c) Generally, national security, safety, and child protection are examples of compelling purposes. (5) Narrowly Tailored (a) A government action must have a compelling state interest, and the action must be narrowly tailored to that purpose. Action is narrowly tailored when it is not over or under inclusive and has no alternative nondiscriminatory means. iii) Facially Neutral Statutes (1) Finding An Impermissible Purpose (a) An invidious purpose may be inferred from the totality of relevant facts. (b) However, coincidental correspondence of race and the effect of a statute do not create a equal protection violation. (i) Washington v. Davis: City required a qualifying test for police applicants. Blacks scored consistently lower on the test, according to statistics. The test measured verbal ability, vocabulary, and reading comprehension. The Court held that the race based line has to be in the purpose of the governmental action, not just in its effects. Because the purpose of this test was to ensure basic language skills of its police officers, it was unrelated to race. (c) Ignoring an obvious discriminatory effect also does not trigger heightened scrutiny. (i) Personnel Administrator of Massachusetts v. Feeney: The government established a benefit for veterans qualifying for civil service positions. The result was that 98% of those individuals receiving benefits were male. The Court said that in order for purposeful discrimination to exist to trigger the heightened scrutiny, the action must be taken because of, and not in spite of, discriminatory effect. (ii) McCleskey v. Kemp: Defendant claimed that Georgia administered capital punishment in a discriminatory fashion because of a study indicating extreme disparities in effect of the capital punishment system. The Court rejected the claim because the study could not tell the Court what was in

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the mind of the jurors that convicted McCleskey. Further, juries need to have some discretion that is why we have them, to create a humanizing effect to the criminal justice system. Regardless of the fact that the State knows of a disparate impact of a particular action, the state does not have to cease so long as they did not take that action with that purpose in mind. (d) Statutes that are facially neutral may require heightened scrutiny if the effect clearly shows that it has a discriminatory purpose. (i) Yick Wo v. Hopkins: Ordinance required a permit to operate laundry in wooden buildings. Almost all Chinese applicants were denied the permit. Because of the dramatic effect, it was clear that the administrative agency was making its decisions based on race. The purpose was easily inferred from effect and so strict scrutiny applied. Distinguishing from Feeney: this was more than incidental effect on a particular class. It was clear that the administration was impermissibly making determinations based on race even though the statute on its face was neutral. (ii) Gomillion v. Lightfoot: Redistricting removed all but four or five of the black voters in a particular district. The effect was so dramatic that discriminatory purpose could be inferred. (iii) Batson v. Kentucky: In jury peremptory challenges, court permits defendant to make a prima facie showing of discrimination on the basis of the effect of the challenges, e.g., striking all blacks from a jury. Person using the peremptory challenges cannot use presumed racial bias of the jurors as an excuse. iv) Affirmative Action (1) Education (a) Diversity in education is a permissible goal, but not remedial measures against societal discrimination. School cannot participate in affirmative action in order to remedy past societal discrimination generally. (b) Schools may give preference to those who help the underprivileged, but they cannot assume that minorities will indeed help the underprivileged simply based on their race. (c) Quota is impermissible. (d) Schools may use a race plus factor to improve chances of minorities to get into schools. (2) Employment (a) Fullilove v. Klutznick: Federal program gave 10% of federal funds to state and local assistance so long as used to procure business from Minority Business Enterprises. The Supreme Court upheld the program, but was split and did not agree whether strict scrutiny must apply. (b) City of Richmond v. J.A. Croson Co.: Similar program to the federal program, but the Court held that state and local affirmative action programs for employment should be subject to strict scrutiny. The localities could not have its own purpose of remedying past societal discrimination. There was no evidence that there had been actual discrimination in that area. Thus the statute violated equal protection. The Court indicated that there were alternate nondiscriminatory means, for example, city financing for small firms.

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(i) Three justices would have applied only intermediate scrutiny. (c) Adarand Constructors, Inc. v. Pena: Court must apply the same rule in affirmative action cases as it applies in other race discrimination cases in order to ensure consistency. (d) Rule: always apply strict scrutiny when there is a race-based line. d) Intermediate Scrutiny and Gender i) The Test (1) When a line is drawn on the basis of sex, the government action must have an important purpose that is substantially related to a real difference. The court will consider over and under inclusion and alternate means, but not as strictly as under strict scrutiny. ii) Early Cases (1) In 1873, the Supreme Court upheld a statute excluding women from practicing law. The purpose? Women are supposed to be home raising the children. The court applied a rational basis test and disregarded the overinclusion. Bradwell v. Illinois. (2) Shortly thereafter, in Muller v. Oregon, the Supreme Court upheld an Oregon statute prohibiting more than ten hours per day employment in factories for women only. Presumably, women are more burdened by long hours than men. Besides, if the women are out working at the factory, who is home with the kids? iii) Intermediate Scrutiny Development (1) Gender was not immediately identified as a suspect class subject to heightened scrutiny under the Fourteenth Amendment. (2) Rational Basis (with bite): Reed v. Reed, 1971: The state law classified certain individuals to administer decedents estates. In the case of a tie, male relatives were always selected over female relatives. If the Court had applied a rational basis test, it would have survived. Instead, the Court declared that, when dealing with a gender classification, the line cannot be drawn for the sole purpose of efficiency and administrative convenience. (3) Strict Scrutiny: Frontiero v. Richardson: For male service members, a wife is presumed to be dependent. However, female service members must prove that the husband is dependent to receive the same benefits. The Court held the law to violate the Equal Protection clause. The plurality applied a strict scrutiny test, based on the fact that gender, like race, is immutable, there has been a history of discrimination that the court has decided is unacceptable, and the classification tends to be arbitrary. The plurality also stated that women were politically powerless. Is that really true? (a) In Frontiero, the plurality applied a strict scrutiny standard. (b) Though it was specifically a due process question because of federal action as opposed to state action, the court had recognized that the equal protection portion of the Fourteenth Amendment had to apply to the Fifth Amendment as well. (4) Adopting Intermediate Scrutiny (a) Where government action draws a line based on gender, it is presumptively unconstitutional unless it has an important purpose that is substantially related to the action. Consider over and under inclusion.

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(b) Craig v. Boren: State set the drinking age differently for a particular type of beverage for men and women. The Court rejected the Frontiero Courts assertion that women were politically powerless, and stated that there are inherent differences between genders. Applying an intermediate scrutiny review of the statute, the Court held that it was unconstitutional. (i) Rehnquist dissented because in a case involving discrimination that harms men, there is no history of invidious discrimination, and definitely no political powerlessness. Therefore, rational basis should apply. (5) Pregnancy (a) The Supreme Court has held that drawing a line based on pregnancy was not a line based on gender. Therefore, the test in such circumstances is still rational basis. Geduldig v. Aiello (using rational basis review to find no equal protection violation from a statute that removed pregnancy from government disability insurance program). (b) Congress subsequently amended Title VII to include pregnancy as a protected class. iv) Archaic and Overbroad Generalizations Versus Real Difference (1) A gender line drawn based on archaic and overbroad generalizations cannot satisfy intermediate scrutiny because there is no real difference. (2) When a state tries to embody traditional stereotypes or old ways of thinking by forcing individuals to fall into gender roles, it will violate the equal protection clause. See discussion in Planned Parenthood of Southeastern Pennsylvania v. Casey about role of women as mothers. (3) Desire to preserve the prestige of an all male institution by continuing to have the institution remain all male is impermissible as a purpose. Its sole basis is the archaic generalizations of gender and societal bias. United States v. Virginia. (a) Diversity in educational systems is not an important purpose. (b) It is an inappropriate remedy to start a similar but different program at a different school in an attempt to ameliorate the difference. This is like the separate but equal view before Brown v. Board of Education. However, the court says that the schools just are not equal in quality because of SAT scores, prestige, qualifications of professors, participation in the alumni association, and the educational structure (abandonment of adversative system at substitute school for women). (c) Note also that the justification for the action cannot arise after the decision has already been made. e) Sexual Orientation i) Toward a Stricter Classification? (1) History of invidious discrimination? (a) The discrimination must come from the government directly. Though the government has historically drawn lines based on sexual orientation, it has not been invidious. (2) Immutability? (a) There is still debate whether homosexuality is an immutable characteristic. The Supreme Court justices are not ready to rely on this fact to make a stricter scrutiny test.

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(3) Political Powerlessness? (a) Even though gays are a minority, they have political power. Gays have the ability to garner support from heterosexuals and have done so. ii) No Dice: (1) As yet, sexual orientation has only been reviewed under rational basis. However, it has been a form of rational basis with bite. (2) Romer v. Evans: A statute enacted by the state prohibited localities to enact ordinances prohibiting discrimination against queers. The state declared that its purpose was based on a moral disapproval of homosexuality. The Court held that a bare naked preference for heterosexuals is an insufficient purpose and the statute violated the Equal Protection clause. Justice Scalia dissented, arguing that the state has the right to make a policy decision that reflects a moral disapproval of homosexuality, just like it has the right to make a policy decision that reflects moral disapproval of murderers. f) Other Candidates for Heightened Scrutiny i) Aliens (1) Congress is subject only to rational basis in reviewing its action that draws a line against illegal aliens because Congress has explicit immigration and naturalization power granted in the constitution. (2) States, however, will be subject to strict scrutiny. ii) Age (1) Courts have rejected age as a reason to more strictly scrutinize equal protection claims. iii) Obesity (1) Has not been addressed by courts. iv) Illegitimacy (1) Courts at first considered moving above a rational basis test for equal protection claims based on illegitimacy. (2) Modernly, does not seem to be an issue. v) Wealth/Poverty (1) Though this might meet the classifications that gave rise to stricter scrutiny on the basis of race (immutability, history of discrimination, political powerlessness), it still requires only a rational basis review. 4) Substantive Due Process a) Generally i) Due Process: No state shall deny any person life, liberty, or property without due process of the law. ii) The Constitution on its face appears to have no further need than fair procedures before taking such action. However, the Court eventually adopted a substantive due process approach. b) Lochner v. New York i) Lochner itself is no longer the law. The right to contract is not a fundamental right. The Supreme Court has overruled Lochner, and essentially views Lochner as an embarrassment based on judicial overreaching. Regardless, Lochner still spawned substantive due process.

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ii) New York passed a law that limited the hours that bakers could work during the week. The bakers argued that they had a right to contract to work more than ten hours per day, if they so chose. The Supreme Court agreed, declaring that the right to contract is a liberty included under the Due Process clause as a fundamental and natural human right. Because it is included as such, the democratic majority could not make laws to affect those rights. iii) In Lochner, the court weighed the individual right against the government interest (adjust the bargaining relationship between workers and employers) and found that the interest had such little value that it was not even legitimate. The court applied a strict scrutiny review. (1) Harlan in Dissent stated that the test used was greater than rational basis. iv) The Test (1) Fundamental Right Significantly Burdened (a) Compelling Interest (b) Narrowly Tailored (c) Real Problem (d) Not Over or Under Burdensome (e) No Alternate Means (2) Not a Fundamental Right or Not Significantly Burdened (a) Legitimate Purpose (b) Rational Related (c) Real Problem (no naked restraints) v) The Great Depression and the New Deal resulted in a need to regulate contracts between individuals, thus Lochner was necessarily rejected. (1) Since 1937, there has been no invalidation of laws based on substantive due process. c) Fundamental Interests and the Equal Protection Clause i) What is a Fundamental Right? (1) Justice Holmes in Lochner declared that a fundamental right must be one that is based on fundamental principles as they have been understood based on traditions of the people and the law. ii) When there is no Fundamental Right? (1) After Lochner, the Court gradually worked its way toward greater and greater deference to the legislature. (2) In West Coast Hotel Co. v. Parrish, the Court rejected the idea that the right to contract is a fundamental right. Instead, it held that a state law that set minimum wages for women was rationally related to the legitimate purposes of protecting individual workers, protecting the public from greedy employers. (3) Eventually, the court stopped even analyzing the purpose and rational relationship in Ferguson, dispensing all formalities and upholding the statute against a due process challenge. iii) Hybrid Cases (1) Where state action draws a line that impinges a fundamental interest, the Court should apply an equal protection strict scrutiny analysis (compelling interest, narrowly tailored, real difference, no over/under inclusion, no alternate nondiscriminatory means).

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(2) Skinner v. Oklahoma: State law sterilized criminals after three strikes. However, the statute did not sterilize embezzlers. The Court applied an equal protection analysis and found that there was no legitimate purpose for drawing a line between chicken thieves and embezzlers. Though the line drawing was not based on race, the Court applied a strict scrutiny analysis because there is a fundamental right to procreate that the statute substantially restricts. d) Modern Substantive Due Process i) Determining Fundamental Rights (1) Look to traditional understandings of things fundamental to an ordered society that no one would think didnt exist. ii) Privacy (1) There is a fundamental right to marital privacy in the bedroom. (a) Griswold v. Connecticut: Law prohibited the use of contraceptives. (i) The Court could not apply the rule from Skinner, because Skinner involved both a fundamental right and line drawing. (ii) The Court found that there was a fundamental right to privacy generally, within the subtext of the Bill of Rights. Further, the right to marriage is also central to the country and the Court declares that it is a right of privacy older than the bill of rights. (iii) Griswold performed a strict scrutiny analysis of the statute without actually performing a due process analysis. They claimed that they centered their analysis in the right to privacy that was in the Bill of Rights. (2) The fundamental right to marital privacy in the bedroom cannot be limited to married couples only. (a) Eisenstadt v. Baird: The state prohibited distribution of any drug or device to unmarried persons for the prevention of conception. (i) The Court applied a rational basis review under equal protection based on line drawing between married and unmarried couples. (ii) Under rational basis, the court still invalidated the statute because it believed that pregnancy and childbirth should not be punishment for premarital fornication. The statute was too under-inclusive protecting only the health of married persons who used contraceptives but not the health of unmarried persons who needed contraceptives. The underinclusiveness was related to the fact that there is no real difference between protecting the health of married and unmarried persons. (iii) Note that the court was not prepared at this point to expressly say there was a fundamental right to unmarried private consensual sexual conduct, which is why it did only an equal protection analysis. (3) All individuals have a fundamental right to choose whether or not to become pregnant. (a) Carey v. Population Services: Statute required that non-prescription contraceptives be given over the counter at the pharmacy. (i) The Court applied a due process / fundamental right burdened analysis. (ii) The Court held that where there is a significant burden on a fundamental right, strict scrutiny applies.

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A significant burden exists when there is a class of persons who will absolutely lose the right because of imposition of the law. (iv)The statute was not justified by a compelling state interest and therefore was invalid. iii) Abortion (1) Roe v. Wade: Held that mothers have a fundamental right to choose whether to carry a child to term, or whether to abort. (a) The court located its analysis in Fourteenth Amendment Due Process. (b) If the statute/action of the government is going to either make it illegal for some individuals to perform an act that is in their fundamental right, or if it will discourage some persons from acting altogether, then it must be subject to strict scrutiny. (c) The court broke the pregnancy into trimesters and held that during the first trimester, fetal life interest and health of the mother were not compelling state interests to prohibit abortion. During the second trimester, the health of the mother became a compelling interest and thus the states could place certain restrictions on abortion, but could not prohibit it altogether. After the third trimester, when viability attached, the states interest in fetal life was compelling enough to allow the state to prohibit abortion if it so chose. (2) Funding and Aid (a) The government does not have to fund or facilitate the exercise of a fundamental right, it just cannot unnecessarily restrict it. Where the allegation is that the state is not facilitating the fundamental right, the court must only apply rational basis to determine if the action is constitutional. (b) Distinguish from the states need to act in criminal trials to provide an attorney or transcript on appeal. In those circumstances, the state is required to affirmatively act because prisoners have compelled participation, unlike women choosing abortion. (3) Planned Parenthood v. Casey (a) The Court named the necessary elements to consider when deciding to overrule a case: (i) The rule announced by the court has proven unworkable in practice. (ii) Persons have relied upon the ruling. (iii) Changes in the law, such as erosion of legal principles of the case that undermine the rule. (iv)Passage of time and factual changes. (b) The Court removed the trimester framework of Roe. (c) If the state imposes an undue burden by placing a substantial obstacle to the fundamental right to obtain an abortion, then the important interests of fetal life and mothers health will not survive a constitutional challenge before the line of viability. (i) The court draws its line at viability, but does not determine when viability attaches. (ii) Fetal life and mothers health are still important interests, they just cannot be compelling before viability. iv) Family

(iii)

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(1) History (a) In Meyer, the court invalidated a statute that prohibited the teaching of a foreign language. The Court held that because there was a fundamental right to contract, the state could not prohibit that act. Note that this was prior to the Courts overruling of Lochner. Underpinning the case was an idea of parents ability to direct their childrens upbringing. (b) Later, Pierce v. Society of Sisters also indicated that parents have a fundamental right to direct the upbringing of their children, which includes the right to choose private schooling. (2) Fundamental Rights include the right to live with family members. (a) Moore v. City of East Cleveland: State statute limited the types of family members that could live together in one house. The State claimed that its purpose was to reduce traffic and congestion. The Court held that there was a fundamental right to live with family members, based on the fundamental right of parents to choose how to raise their children. (b) Belle Terre: There is no fundamental right to live with whomever one chooses. It has never been traditionally important. (3) Funding / Subsidies (a) When the act that allegedly impinges a fundamental right is one of refusal to fund or subsidize the behavior, the burden on that right cannot be significant. When funding is denied to certain persons and that places some burden on a fundamental right, the court must apply a rational basis test to determine if it violates due process. (b) Even losing access to a handout based on the exercise of a fundamental right does not cause a significant burden on that right. Califano v. Jobst. Note that this involved disability payments and not welfare payments, which are arguably more necessary for survival. (4) Right to Marry/Divorce (a) There is a fundamental right for heterosexuals to marry. (i) Zablocki v. Redhail: The Court invalidated a statute that required persons providing child support to go through court proceedings to determine that their support obligations are met before they can marry. The court used the Equal Protection clause because this is a hybrid case (see above) where legislation both draws a line based on wealth and places a significant burden on the fundamental right to marry. Thus, the court applies strict scrutiny and determines that the law is not sufficiently narrowly tailored. (ii) Turner v. Safley: The Court invalidated a requirement that prisoners obtain the wardens permission before they could marry. The fundamental right to marry applies broadly and requiring permission created a significant burden because the warden only granted permission in cases of pregnancy. (b) There is a fundamental right for married persons to divorce. (i) Boddie v. Connecticut: Statute requiring a filing fee before individuals could divorce was unconstitutional as applied to those individuals who would be entirely barred from divorcing because of inability to pay. (5) Right to Raise Ones Children

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(a) The right to raise ones own biological children is limited to those individuals within the traditional family unit. (b) Stanley v. Illinois: Fundamental right to raise ones own biological children was unconstitutionally burdened when children of an unmarried mother who died were automatically presumed wards of the state. The court found that the statute drew a line between unwed and wed fathers, and applied a hybrid equal protection analysis. (c) Quilloin: A biological father who has never been part of the family home does not have a fundamental right as recognized by tradition. Thus, the above right is limited to those biological parents who also participated in raising the children. (d) Michael H. v. Gerald D.: The state law presumed children born in wedlock to be the child of the husband. The biological father, an adulterer, challenged the law. Though the father did spend some time raising the child, thus he had biology plus child rearing on his side, he was an adulterer and the right did not extend that far. Note that the state was interested in protecting the marriage itself, an institution recognized by society as fundamental, as opposed to protecting the rights of the adulterers. (i) Michael H. represents an example of breadth versus narrowness of viewing the right, and how that breadth can change the way the right is treated. The dissent, Brennan, disagreed with the specificity of the majority as stated by Scalia. Brennan argued that the right is biology plus rearing and the Court should look no deeper. He stated that it was always possible to classify a right in a way that it would no longer be traditionally accepted in society. (ii) Specificity of a right provides legitimacy because it provides certainty to state legislators and other government actors. Generality of a right relates to the view that we must never forget it is a Constitution we are expounding, Marshall, C.J., McCulloch v. Maryland, and the idea that it is a living, breathing document that must adapt to a changing society. (6) Homosexuality (a) History (i) There is no fundamental right to engage in homosexual consensual sodomy, according to Bowers v. Hardwick. Because the court found no fundamental right, it needed only look at the rational basis of the statute and find that the purposes of preventing the spread of disease and protecting public morals were rationally related to the means of outlawing such conduct. (b) Lawrence v. Texas (i) The court first looks at more recent traditions, rather than traditions from the time that the Fourteenth Amendment was enacted, and determines that there is a fundamental right for adults to engage in private consensual conduct. In fact, the sodomy laws were historically limited in enforcement to non-consensual acts. (ii) The court essentially declares that in Bowers, it looked too closely at the right and defined it to narrowly. The level must be a broad look at the

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right to engage in intimate relationships. However, the court did not expressly declare that there is a fundamental right to engage in homosexual conduct. (iii) The court invalidated the law because it had no legitimate purpose, thus only looking at rational basis. v) Right to Die (1) It is unclear if individuals have a right to die. (2) If a right do die did exist, it would be tied to the right to refuse medical treatment. (3) Cruzan v. Director, Missouri Department of Health: The Court upheld a law that required a finding of clear and convincing evidence of the patients wishes before removing life-sustaining devices. (a) The court assumed without deciding that the right to die was a fundamental right that followed from the right not to get a vaccine or not to get antipsychotic drugs (as found in precedent). Thus, the court applies a due process strict scrutiny analysis and determines that there was a compelling purpose (interest in life), real problem (some will die who wouldnt have wanted to refuse treatment), and it was narrowly tailored (no suitable alternate means). (4) Even if there is a fundamental right to die, it is not a fundamental right to commit suicide. (a) Washington v. Glucksberg: The Court upheld a statute that prohibited assisted suicide. The court applied only a rational basis test and found that the test passed. The court looked to history, that had traditionally outlawed suicide and imposed a number of penalties on the estate of persons who committed suicide. e) Procedural Due Process i) Procedural due process is triggered when the application of the law somehow deprives an entitlement without some sort of hearing. ii) The court must apply a balancing test to determine that procedural due process is met, considering the interests of the individual as weighed against the interest of the government and the cost of the proposed procedures. 5) First Amendment Free Speech a) Generally i) Text (1) Congress shall make no law abridging the freedom of speech. (a) Congress means also states and localities. Any government actor. (b) No Law is not interpreted as actually meaning no law. Instead, the court just must apply a test. ii) Purpose: (1) In a democracy, there must be a marketplace of ideas to improve the government. Where there is a clash of ideas, it is more likely that the truth will come out. (2) People must have the right to self govern and thus they must be able to speak their mind. (3) People in a democracy will feel more self fulfillment if they can speak their mind and be heard. Thus, even if things dont go their way, at least they will know that they had a voice. iii) History and Clear and Present Danger

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(1) The clear and present danger test is no longer good law. (2) Schenck v. United States: Where there is a clear and present danger of illegal action, the government may restrict speech. The Court declares that it is clear that an individual cannot shout fire in a crowded theater. Clear and present danger requires a tendency of certain words or circumstances to cause another to perform. The publishers must have the intent to cause an illegal act, determined by looking at the content of the speech. Further, it must have the likely effect of causing an illegal act, even if the illegal act does not actually occur. (3) In Abrams v. United States, the Court upheld a statute that punished communication because that communication encouraged a strike in a munitions plant, which would hindered the war effort, which violate the statute prohibiting hindrance of the war effort. (a) Holmes dissented, stating that in order for clear and present danger to exist, there must be either clear and present danger of illegal action, or there must be intent for an illegal act to occur, which was stronger than the test applied in Abrams. (b) Holmes defined clear and present danger in the following way: (i) Clear: Likely that people will understand and likely that people will respond (ii) Present: Immediacy of the danger, speech creates an emergency that the police power cannot react by stopping the illegal action. If there is an alternate delay, alternative means would include counter-education and more speech. (iii) Illegal Action: Must be severe. (c) Holmes: While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is necessary to save the country. (4) Whitney v. California: The court inferred an individuals own specific intent to overthrow the government from her involvement in a communist party. The statute criminalized not just the speakers, but also those who associated with the speakers, and thus the state prosecuted Whitney for her involvement. The Court upheld the conviction and did not even consider whether her behavior or speech constituted a clear and present danger. (a) Brandeis in concurrence (which was actually a dissenting opinion) held that the clear and present danger doctrine must apply. It also requires that illegal action that the states fear must be extremely severe and dangerous. Brandeis articulates that the government should, in any possible instance, talk itself rather than limit the rights of individuals to speak. (5) After Whitney (which used a rational basis test), the court again began to make the test stricter. (a) 1919: Clear and present danger, tendency (b) 1925: Directed at speech, rational basis (c) 1951: Clear and Present / Risk / Probability (d) 1969: Brandenburg.

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iv) Content Based versus Content Neutral (1) Content based: (a) A statute is content based when the public must actually understand the words or message being sent in order for the statute to restrict that particular speech. (b) Example: No proselytizing in the residential neighborhoods after 8:00 PM. (2) Content Neutral (a) A statute is content neutral when the public need not understand the words or message for the statute to still restrict that particular speech. (b) Example: No loudspeakers in the residential neighborhoods after 8:00 PM. b) Content Based Restrictions and Low Value Speech i) The Government can regulate and even prohibit so-called low-value speech because it is not protected under the constitution. The restriction must only satisfy rational basis. (1) Note that the restriction may be content based in such cases. (2) Where the government attempts to restrict speech in a content based manner, then the statute restriction is presumptively unconstitutional unless it passes strict scrutiny. (a) Compelling Purpose (b) Narrowly Tailored (i) Not Over / Under Inclusive (ii) No Alternative Less Burdensome Means ii) Incitement (1) Incitement is speech directed to inciting imminent lawless action and likely to produce it. (a) Brandenburg v. Ohio: A KKK leader was convicted under a state statute for advocating duty, necessity, or propriety of crime as a means of accomplishing political reform. The Court rejected earlier tests and declared that speech must be likely to and intended to produce imminent lawless action for states to regulate it. The Court looked at the government action itself, not the type of speech that was being restricted. (b) If a government makes no pronouncement upon the value of the speech, and has not set out to suppress speech, then an incidental impact on speech is not unconstitutional. (2) If speech is incitement, the government may regulate it. (3) Hostile Audience (a) The government cannot regulate speech simply because it creates public aggression. Where the speech does not amount to incitement, the government must survive strict scrutiny in order for the regulation to survive constitutional review. (b) Historical Cases / Examples of Hostile Audiences (i) Terminiello, 1949: looked solely at the face of the statute to determine that it was directed at preventing speech that would cause a hostile audience. Because the jury instruction was too broad, it was unconstitutional. The jury was instructed to convict if the speech actually stirred the public to danger, but that is simply not the test.

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(ii) Cantwell, 1940: Cantwell was arrested because of his speech (playing a victrola attacking the Roman Catholic religion) and charged with breaching the peace. The Court concluded that his purpose was not to cause harm or to have others cause harm. He intended to promote religious beliefs, not incite anyone to take lawless action. Thus, the conviction was unconstitutional. (iii) Feiner v. New York, 1951: The Court upheld imprisonment of Feiner where the police took him into custody after first giving him a warning, because of the restlessness and growing unrest of the listening crowd. The Court relies on inability of police officers to control the crowd should a riot have occurred. Feiner is the only case where the Court has allowed the government to use hostile audience as a means for arresting a persons. (c) Licensing and Fees (i) Cities may license speech that is performed in public streets and parks in order to ensure safety. (ii) Licensing must be content neutral. A city may not refuse licenses or impose higher fees because the speech is unpopular and will cause anger. (iii) The licensing board must also have clear rules to ensure consistency. The board must not have the discretion to choose which groups may speak. (4) Fighting Words (a) The Government may restrict fighting words. (b) Fighting words are those words that are directed to an individual and are likely to cause an average addressee to fight. The words are not intended to express an idea, only to incite a response. (i) It is not the same as incitement because if an individual broke the law as a result of the speech, it would not be because the speaker told him to act, it would be because what the speaker said made him so angry. (c) Example of Fighting Words (i) Chaplinsky v. New Hampshire: The Court upheld an arrest based on a statute No person shall address any offensive, derisive or annoying word to any other person who is lawfully in any street This is the only time the court has upheld a statute based on fighting words. When addressing insults to an individual, the Court feels that there is no communication of ideas, thus restricting such speech will not hurt the purposes of free speech. In this case, the defendant told a police officer, Youre a damn racketeer. (d) Examples of Near Misses (i) Street v. New York: Burning a flag in the street is not directed at any single individual and is therefore not fighting words. (ii) Cohen v. California: Wearing a jacket bearing the words Fuck the Draft is not directed at the person of another and thus it is not fighting words. (iii) Gooding and Rosenfeld: Curses and threats toward police officers were not held to be fighting words because of the circumstances (protest). Police officers should not be given discretion to arrest individuals who say

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words that they dont like. Further, police officers in such circumstances should have a thicker skin. (5) Hate Speech (a) States may not freely regulate hate speech. Hate speech is valuable speech. iii) Obscenity (1) States may regulate obscenity. (2) Definition (a) Obscenity is defined by the following test, defined in Miller v. California: (i) Whether the average person, applying contemporary community standards, will find that the work as a whole appeals to a prurient interest. (ii) Whether the work depicts patently offensive sexual conduct specifically defined in state law. (iii) Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. (b) In Miller v. California, the court upheld the arrest of an individual for mailing sexually explicit materials to random homes for marketing. (c) The above test applies local standards and is a question for the finder of fact. (3) Rationale for Restrictions: (a) Violence (b) Protecting individual character (c) Protecting community standards (d) Irrational provocation of sexual feelings (e) Protecting children (f) Protecting unwilling adults. (4) History (a) Roth v. United States / Alberts v. California: Held that the test to apply to obscenity was whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest. Obscenity does not serve any of the interests that the First Amendment was trying to protect not artistic, not communicating ideas, not contributing to the marketplace of ideas or self government, solely prurient. (b) After Roth, the Court applied ad-hoc decision making because it could not come up with a clear test. (5) Mere private possession of obscenity may not be punished as a crime. Stanley v. Georgia (relating the right to view obscenity in ones own home to the right to use contraceptives). (a) However, one can be punished for sending obscenity into someone elses home. (6) The regulation of obscenity may be based on the legitimate purpose of protecting social interest in order and morality. Paris Adult Theatre I v. Slaton. (a) The Miller standard applies even if the original rationale for finding obscenity unprotected do not (protecting children, unwilling adults). Morality is the primary rationale for prohibiting obscenity. (7) Violence

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(a) States may not freely regulate speech containing violence (such as videogames or movies). Violence in speech is valuable and obscenity standards cannot be extended to other forms of speech. (8) Child Pornography (a) Child Pornography is an unprotected area of speech, so states may regulate and even prohibit such speech, even if it does not satisfy the standard for obscenity. United States v. Farber. (b) However, pornography using actors that appear younger are not unprotected. States cannot regulate such speech unless such regulation passes strict scrutiny. Ashcroft v. The Free Speech Coalition. (c) The government may prohibit private possession and use of child pornography. Stanley v. Georgia does not extend to child pornography. Osborne v. Ohio. iv) Pure Threats (1) Pure threats are not protected speech. R.A.V. v. City of St. Paul, Virginia v. Black. v) Further Content Based Categorization (1) Where a statute limits the above non-protected categories, but makes a further content-based restriction, then the court must apply strict scrutiny. (a) Distinguish a further content-based restriction from further restrictions based on the reason the particular speech is unprotected to begin with. It is the difference between a restriction on threats to African Americans to a restriction on threats of murder. (b) The need for strict scrutiny is based on a fear of government censorship of ideas. (2) R.A.V. v. City of St. Paul: Court invalidated a statute that prohibited the display of certain inflammatory symbols that arouse anger, alarm, or resentment in others on the basis of race, color, creed, religion, or gender. The Court adopted the view of the court below and assumed without deciding that the statute applied only to fighting words. However, the Court still invalidated the statute because of the further content based distinction. The statute was specifically tied to the message of the symbol as fighting words, and further tied to the message of the symbol as hatred of particular classes. Therefore, the court applied strict scrutiny and found that the statute was under-inclusive and not narrowly tailored. (3) Virginia v. Black: (a) The Court upheld the first portion of a statute that prohibited cross burning with the intent of intimidating others, but invalidated the second portion of the statute that held that the act of cross burning itself provided prima facie evidence of intent to intimidate. (b) The Court held that the first part of the statute fell within the category of true threats. The statute, on its face, was not content-based because it made no race or religion distinctions. Any time a cross is burned with intent to intimidate, for any reason, the act falls within the purview of the statute. (c) The Court held that the prima facie evidence provision was overly broad and included even those without intent to intimidate. Underlying the decision was the fact that persons are not required to defend themselves and a prima facie

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showing would automatically convict those persons who did not defend themselves. (4) Compare: Hate Crimes Statutes (a) Hate crimes statutes do not constitute government action that abridges speech. (b) Wisconsin v. Mitchell: The Court upheld a statute that permitted greater punishment for assaults based on race. The Court held that a physical assault was not itself speech. Therefore, the government could place a greater restriction on the motive for the action by punishing hate crimes differently. c) Content Based Restrictions and Zoning of Speech i) Protecting the Unwilling Hearer (1) The government often claims that its purpose in enacting legislation that restricts speech based on content is to protect unwilling listeners and children. While that is a legitimate purpose, it is only compelling when the speech is low value as in the list above. (2) Government may protect the unwilling listeners by allowing them to opt-out of unwanted mail by directing the post office to inform the senders. Rowan v. Post Office Department. (3) However, government actors may not themselves prohibit certain types of communication, even that traveling through the mail, because such a regulation would be too over-inclusive, preventing those willing viewers from receiving wanted mail. Bolger v. Youngs Drug Products Corp. ii) Profanity and Pornography (1) Profanity has its own independent value and cannot be prohibited. (a) Cohen v. California: Draft protester wore a shirt with Fuck the Draft written on it to the courthouse. The words did not fall into any existing low value speech category, and so any regulation would have to satisfy strict scrutiny to survive. The Court found that unwilling viewers would be able to avert their eyes and the real purpose of the statute was to protect the value of societal morals. (b) Protecting the value of societal morals is not a compelling purpose for restricting profanity, only for restricting obscenity. (c) Protecting the unwilling viewer/listener is not a compelling purpose for restricting profanity outside the home. (2) Pornography has its own independent value and cannot be entirely prohibited. (a) Where the government attempts to regulate such speech, it must satisfy strict scrutiny. (b) Erznoznik v. Jacksonville: Ordinance restricted the showing of movies with bare breasts or buttocks. The citys claimed purpose was to protect the unwilling adult viewers and to protect children. The Court applied a strict scrutiny analysis and did not find that those purposes were compelling because the movies were not in persons homes. The city also claimed that it was concerned over traffic safety, but the Court did not accept that purpose under the strict scrutiny test because the ordinance was under-inclusive. (3) The Government may, however, regulate the time, place and manner of profanity. (a) FCC v. Pacifica Foundation: George Carlin gave a monologue on the radio during the day including numerous curse words. The Court applied the lower

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level content neutral test and determined that the FCC could give sanctions in such circumstances. The Court focused on the form of media (the radioa pervasive media that goes into the home), the time of broadcast (afternoon), the type of speech (profanity), and the level of the prohibition (a note in the stations file). (b) Sable Communications, Inc. v. FCC: The Court in this case provides a contrast to the Carlin case above. In Sable, the Court found a restriction on dial-a-porn was unconstitutional. The type of media is not pervasive because it is only the telephone. Further, it will not be going into peoples homes unless they choose to partake. The limit is also over-inclusive by lowering the standards for adults to the standards of children restrictions to protect children were already in place for the phone calls. (4) Zoning Balancing (a) When zoning restrictions apply, the court must determine if the restriction satisfies balancing. (b) Balance the following to determine if the zoning is too restrictive: (i) The Level of the Prohibition (ii) The Value of the Speech (iii) The Government Interest 1. Includes interests in protecting children and unwilling listeners. 2. Includes interests in societal values. (iv)The Level of the Punishment (v) The Media Type (5) The Government may also regulate such quasi-low value speech to prevent the secondary effects. (a) Barnes v. Glen Theatre, Inc.: The Court upheld a statute that required dancers to wear pasties and G-strings. The Court held that requiring dancers to wear pasties and G-strings did not violate the First Amendment because it satisfied the content-neutral OBrien Test. The Court applied OBrien because the statute was not directed at speech on its face the conduct covered by the statute was not inherently speech. Though the dancing itself was expressive conduct, the face of the statute simply restricted all nudity and not speech itself. (b) City of Erie v. Paps A.M.: The Court again upheld a statute that restricted public nudity, requiring dancers to wear , at minimum, pasties and a G-String. Though this particular statutes legislative history indicated that the purpose was to prevent nude dancing itself, the Court still found that the statute was not directed at speech. The court emphasized that, even if it were to look at the alleged purpose of the statute, the real aim was to prevent secondary effects of nude erotic dancing, such as impacts on public health, safety and welfare, not the nude erotic dancing itself, thus it could regulate the speech. (i) Many critics thought it was clear that this statute was directed at speech and thus strict scrutiny should apply. (ii) Essentially, the court said that the statute was not directed at speech, but at the secondary effects, and so only OBrien would apply. See discussion below concerning symbolic speech for more detail.

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d) Content Neutral Restrictions i) The Test (1) The government may enforce content neutral restrictions if the restrictions are content neutral, narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication. (a) Look at the government interest, alternate government means, speakers interest and the burden on the speaker, alternate means for the speaker, and characteristics of the place. ii) Content Neutral Statutes (1) A statute is content neutral if one would not need to understand what is being said for the statute to make the action unlawful. (2) Kovacs v. Cooper: The Court upheld a city ordinance that prohibited the use of sound trucks on the public streets. The statute was a content neutral restriction of speech. (3) City of Ladue v. Gilleo: Court invalidated a city ordinance that prohibited homeowners from displaying signs on their property because alternative channels of communication were not adequate. iii) Application of the Test (1) NAACP v. Alabama: Court invalidated a statute that required disclosure of the names and addresses of all Alabama members. The Court expressed concern that such compelled action would remove the freedom of association. The speakers interests and the burden on the speakers significantly outweighed the states interest in obtaining the information. (2) Bartnicki v. Vopper: The Court invalidated the conviction of a radio commentator who played an illegally obtained tape of a conversation on the air. The Court balanced the interests of the government in removing incentive for parties to intercept private conversations and minimizing the harm on persons whose conversations have been so taped, with the interests of the public in learning of information of such public importance. The state could instead punish the individual who performed the recording. (3) Martin v. City of Struthers: The Court invalidated an ordinance that prohibited solicitors from knocking on peoples doors. The ordinance in this case was also a manner restriction on speech and is content neutral. However, the burden on the speaker is high because it is too expensive to advertise in the newspaper or use other means, and the government has alternative means, like allowing homeowners to post no solicitor signs and punishing those who do not comply. e) Public Forums i) Public Forum (1) Definition: (a) A public forum is a location where persons have traditionally been permitted to speak. (b) History (i) In 1897 in Commonwealth v. Davis, the Court held that the government had special ability to regulate speech on government owned property. (ii) In 1939 in Hague v. CIO, the Court had an opportunity to address the issue, but it chose not to. Justice Roberts in dictum, however, stated that

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The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied. (c) Schneider v. State: An ordinance prohibited distribution of leaflets on public streets. The ordinance was a manner restriction on speech. The statute is content neutral because persons did not have to understand the leaflet for it to be illegal to be distributed. The Court rejected the governments argument that it could regulate public roads and parks because from time immemorial these things have been held in the public trust for all the people to express their freedom of speech. As a result, the government cannot readily restrict speech in such areas. (d) Grayned v. Rockford: A public sidewalk adjacent to school grounds is a public forum. However, restrictions on noise are acceptable because of ample alternative means of communication and a compelling state interest. (e) Frisby v. Shultz: A public street running through a residential neighborhood is a public forum. However, restrictions on picketing in protest in front of one particular individuals home are constitutional because of narrow tailoring and alternative channels of communication. Further, such activity interferes with the individuals own right to privacy in his home, and targeting a resident in this manner does not seek to disseminate a message to the general public, but just to intrude on that private individuals rights. (f) Clark v. Community for Creative Non-Violence: A public park is a public forum. However, a statute that prohibits sleeping overnight in parks is a reasonable time/place/manner restriction because it is content neutral and narrowly focuses on the governments substantial interest [in] maintaining the parks in an attractive and intact condition. (g) Ward v. Rock Against Racism: Court upheld the requirement that concerts use of citys own sound technicians for use of the Central Park Bandshell, even though the public park is a public forum. The Governments interest in minimizing sound levels in the area was substantial and there were ample alternative channels of communication. (h) Madsen v. Womens Health Center, Inc.: Court upheld an injunction creating a fixed buffer zone around abortion clinic doorways, parking lots, and doorways as a valid time, place, and manner regulation, even though it extended into the public forum (the street). However, the court held that a floating buffer zone surrounding cars leaving the area would prevent protestors from communicating their message on the public sidewalks. (2) Time, Place, Manner (a) Test: (i) The government may regulate the time, place, and manner of speech conducted on public forums only so long as the regulation is content neutral, narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication. United States v.

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Grace (invalidating a federal statute prohibiting any person to display on public sidewalks surrounding the Supreme Court building any flag, banner or device designed to bring into public notice any party, organization or movement). 1. Look at the government interest, alternate government means, speakers interest and the burden on the speaker, alternate means for the speaker, and characteristics of the place. 2. Note: Narrowly Tailored really means well-tailored. (b) Licensing: (i) Licensing is okay for public parks and streets, so long as standards and procedures are laid out in the statute or ordinance to limit administrators discretion. (ii) Fees are also okay so long as they are not extremely high, and so long as they do not gauge the level of offensiveness in the speech. (iii) Cox v. New Hampshire: The City required that all persons obtain a permit before having any parade or procession upon a public street. The Court upheld the convictions of a group who failed to obtain a permit. The Court emphasized that the licensing authority could only consider conservation of public convenience in making time, place, and manner restrictions. Further, the permit requirement gave the city the opportunity to get police in place and to prevent overlaps of parades. The licensing board did not have any arbitrary power and was forbidden from exercising its discretion in a discriminatory fashion. ii) Other Publicly Owned Property (1) Where property owned by the government is not a traditional public forum, the government need only show a rational basis for regulations on speech, so long as the government does not restrict based on viewpoint. (a) If the government does do further viewpoint based restrictions, they must pass strict scrutiny to survive constitutional challenge. (2) Regulable Property (a) Jail and Surrounding Area (i) Adderly v. Florida: The Court upheld the convictions of protestors for trespassing on government property when they went to the jail to protest an arrest. The Court determined that groups have not been traditionally permitted to protest or speak in the area surrounding the jail. The location where the protest took place was reserved for jail purposes it was a driveway used for transporting prisoners and deliveries. Thus, the government had the right to regulate so long as the regulation was rationally related to the purpose. (b) Military Bases (i) Greer v. Spock: The Court upheld a regulation that prohibited demonstrations, picketing, sit-ins, protest marches, political speeches, and similar activities on the military reservation. The court held that, though the public was allowed access to the reservation, the reservation did not become a public forum. Access was not sufficient. Further, the

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reservation was in place to train soldiers, who would likely perform better if free from entanglement with partisan political campaigns. (c) Fairgrounds (i) In Heffron v. International Society for Krishna Consciousness, the Court held that a fair was not a traditional public forum, unlike public streets. The Court indicated that the needs of control would be more pressing in a closed event with many visitors. Thus, the government could regulate the manner with which participants distributed their messages. (d) Post Office and Walkway (i) United States v. Kokinda: The Court upheld a statute prohibiting any person from soliciting contributions on postal premises as applied to individuals who set up a table on a sidewalk near the Post Office entrance. The Court distinguished the postal sidewalk from the public sidewalk, in that the postal sidewalks sole purpose was to permit people access to the government property. Thus, the statute needed only satisfy rational basis. (e) Airport Terminal (i) International Society for Krishna Consciousness v. Lee: The Court upheld a statute prohibiting solicitation, but invalidated the portion of the statute that prohibited sale and distribution of literature at an airport terminal. Five justices did not believe that an airport terminal could be considered a public forum because a) they were not around from time immemorial as a public trust, b) they are mainly operated as a business, and c) they have not been opened up by their operators to public speech. The court only invalidated the second portion of the statute because OConnor joined the plurality, stating that she did not believe that the statute was rationally related to a legitimate purpose. The plurality, on the other hand, had wanted to invalidate the second portion because the distribution of literature lies at the heart of the liberties granted and the statute does not satisfy the OBrien test. (f) Mail Boxes (i) U.S. Postal Service v. Council for Greenburgh: The Court upheld a statute that prohibited placing unstamped mail in mailboxes. The Court states that historically, the public has not been permitted access to mailboxes and access has been unlawful since 1934. The Court did not believe that the mail box could be a public forum. (g) Utility Poles (i) Members of the City Council of Los Angeles v. Taxpayers for Vincent: The Court upheld an ordinance prohibiting posting of signs on public property, including public utility poles. The Court declined to find that a utility pole is a public forum. However, the court applied the intermediate scrutiny test, which the ordinance passes, perhaps because the statute broadly prohibited posting of signs on public property. (3) Viewpoint Discrimination (a) Consider Greer v. Spock above. If the regulation had prohibited only speech contrary to existing foreign policy, for example, that would constitute a

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further viewpoint based regulation. Therefore, it would have to survive strict scrutiny. f) Symbolic Conduct i) Elements of Symbolic Speech (1) Speaker Intends to Convey a Message (2) The Audience is Likely to Understand the Message. ii) Where government action incidentally restricts symbolic speech, apply mid-level balancing. (1) In this case, the statute on its face does not intend to restrict speech. (2) United States v. OBrien Test (a) Significant Government Interest (b) Narrowly Tailored (i) The Government Interest Itself (ii) Alternate Government Means (iii) Speech Interest / Burden (Including Listeners) (iv)Alternate Speaker Means (v) Characteristics of Place traditional public forums, streets, public parks (c) Leaves Open Ample Alternate Channels of Communication. (3) United States v. OBrien: The Court upheld a statute that prohibited burning of draft cards. The Court looked at the face of the statute and found no purpose to restrict speech, even though the statute was duplicative of another statute that required individuals to keep their draft cards with them and there was information in the congressional record indicating a purpose of preventing burning of cards as a protest. In finding that the statute was not directed at speech, the court applied a mid-level balancing test (stated above) and found that the statute was constitutional. iii) Where government action purposefully restricts symbolic speech, the court must apply strict scrutiny. (1) On its Face: The court must look on the face of the statute to determine if the purpose of the statute is to affect symbolic speech. (2) Stromberg v. California: Court invalidated a statute that prohibited use of red flags as a symbol of opposition to organized government. The statute on its face was directed at the content of speech. (3) Tinker v. Des Moines Independent Community School District: Court invalidated the suspension of three public school students who wore armbands to school to protest the governments policy in Viet Nam. The Court held that the use armbands to express a message is akin to true speech, and thus could not be singled out for prohibition based on the content of that speech. (4) Schacht v. United States: Court invalidated a statute that authorized the wearing of an American military uniform in theatrical productions, only so long as the portrayal does not tend to discredit the armed forces. The Court held that the government could prohibit the unauthorized use of uniforms altogether, but it could not place a content based restriction, which the statute did on its face. iv) Flag Burning Statutes (1) Origins

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(a) Street v. New York: Court invalidated punishment of appellant for speaking defiant words about the American flag. (b) Smith v. Goguen: The government invalidated a statute prohibiting public defacement of the flag as applied to an individual wearing pants with a flag sewn into the seat. The Court depended upon the vagueness of the statute to declare it invalid, stating that neither the Court, nor speakers, could tell what behavior they were supposed to avoid. It did not decide the decision based on freedom of speech. (2) Restrictions Under Freedom of Speech (a) Spence v. Washington: Court invalidated a statute that prohibited misuse of the flag as applied to an individual who put a peace sign on a flag with removable tape. The Court found that the statute was directed at speech on its face because the flag itself is symbolic. (b) Texas v. Johnson: Court invalidated statute that prohibited flag defacement in a way that the actor knows will seriously offend others. The Court declared that the statute was unconstitutional because the statute was extremely under-inclusive to protect the governments purpose of protecting the flags integrity. Further, the government could always encourage more speech rather than restricting the flag burning. The Dissent in Texas v. Johnson expressed a feeling that there is something special about the flag that makes flag defacement a personal insult to others, thus making the action fighting words and unprotected speech. (c) United States v. Eichman: The Court invalidated yet another statute that prohibited defiling the flag, even though it did not include the language of the statute in Johnson. The Court found that the statute was viewpoint based because there was no reason to restrict the behavior except to restrict the viewpoint of the actor. The court indicated that the flag itself is a symbol with its own inherent message and any restrictions are therefore aimed at protecting the message. 6) First Amendment Religion a) Establishment Clause i) Generally (1) Text (a) Congress shall make no law respecting an establishment of religion . . . (2) Defined (a) Historically: Congress cannot establish a national church or restrict the ability of the people to establish their own religion. (b) Modernly: No government actor may promote religion. (3) Lemon Test (a) Though the Lemon Test is no longer used in and of itself, it provides the framework for modern cases. (b) The Lemon Test requires three factors: (i) Secular Purpose of the Government Action (ii) Effect is Not to Advance Religion (iii) No Excessive Entanglement of the Government Action with Religion

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ii) Coercion / Psychological Coercion (1) The Constitution guarantees that the government may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way which establishes a state religion or religious faith, or tends to do so. (a) Lee v. Weisman provides a good example of psychological coercion. In Lee, the school brought in a rabbi to perform a non-denominational prayer at the graduation ceremony. Kennedy discusses the fact that the children were required to stand in respectful silence, there was peer pressure to participate because of the age of the children, and other individuals watching might believe they were participating. (2) Strict coercionists would not extend the amendment to cover psychological coercion, only physical coercion or legal coercion. (3) Defining Coercion (a) Walz v. Tax Commission: The Court upheld tax exemptions for charitable organizations that included religious organizations. The Court based its decision in part on the secular purpose to help charitable organizations. Further, the Court found that the exemption creates only a minimal and remote involvement between the church and state. Thus, the exemption would in no way coerce non-believers into practicing religion. (b) Engel v. Vitale: The Court invalidated public school reading of prayers before school, even though individuals who did not want to participate could leave the room. The Court found that the simple use of government power, prestige, and financial support to conduct these prayers created a coercive environment. (c) Santa Fe Independent School District v. Doe: Court declared unconstitutional the districts authorization of students to select another student to conduct a prayer before football games. The Court emphasized that some students would be compelled to attend football games, including cheerleaders and football players, and they would be coerced just like in Lee. iii) Endorsement (1) Generally (a) Endorsement is a concept that combines the Lemon elements of purpose and effect. It is simply a new articulation. (b) Court must draw a distinction between acknowledgement and endorsement based upon what the reasonable nonadherent would believe about the government action. The core of the establishment clause is to prevent the reasonable nonadherent from feeling like an outsider in the political community. See OConnors concurrence in Lynch v. Donnelly. (2) Lynch v. Donnelly: The Court upheld the placement of the crche in a Christmas display including other figures and decorations associated with Christmas, including Santa Claus, a Christmas Tree, colored lights, etc. The court held that it was neither the purpose nor effect of the act to establish religion. (a) Justice OConnor concurred, stating that The purpose prong of the Lemon test asks whether governments actual purpose is to endorse or disapprove of religion. The effect prong asks whether, irrespective of governments actual purpose, the practice under review in fact conveys a message of endorsement

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or disapproval. An affirmative answer to either question should render the challenged practice invalid. In applying the test, OConnor emphasized that the display celebrated a holiday that itself had a great many secular components, and the crche constituted no more endorsement of religion than placing In God We Trust on coins. In this case, all the reasonable observer would believe would be that the government is solemnizing a special occasion, not that the government is endorsing religion. iv) Strict Separationists (1) Strict Separationists believe that nearly everything is in violation of the establishment clause except accommodating the recognition of religion. (a) McGowan v. Maryland: Provides an example of accommodation of religion, of which all groups are okay. The court upheld a Sunday closing law. The Court stated that it is okay for the government to choose to have a uniform day of rest, and it is okay for the government to select a day that accommodates a majority of the religions. (2) Ceremonial Deism: Recognition of religion that has been in the culture so long it just isnt religious anymore. Similar to In God We Trust on the coins or God Save This Court before opening of Supreme Court session. (a) Marsh v. Chambers: The Court upheld the practice of having a state legislative chaplain read a prayer at the beginning of each legislative session. The Court found that it was simply tradition and did not have religious impact. Further, it simply solemnizes the occasion. Such prayer did not have the elements of psychological coercion found in the school prayer case because it does not involve children and prayer has been historically observed. (b) Elk Grove Unified School District v. Newdow: Though the Court declined to decide whether the words under god in the Pledge of Allegiance violated the establishment clause, it could be upheld under the theory of ceremonial deism. If distinguished from a prayer, it simply is said in a rote fashion. (3) Strict Separationists also permit secularized religious symbols, such as the menorah in a display of assorted Christmas and Chanukah symbols. County of Allegheny v. ACLU. (a) Note that in County of Allegheny, the Court held the nativity scene unconstitutional because it was set aside from the rest of the displays and was surrounded by flowers, like a frame. Every group but the coercionists felt that the nativity scene was unconstitutional, whether because it was psychologically coercive, or because of endorsement. v) Impermissible Purposes (1) Certain symbols and practices fall under impermissible purpose because there is simply no secular purpose. This is usually when there is an overt association of religion with the symbol or practice. (a) If the sole purpose for enacting a statute or taking governmental action is based on religion, then the statute violates the establishment clause. (2) Engel v. Vitale: school prayer. (3) Abington School District v. Schempp: Reading from the bible advances religion. (4) Wallace v. Jaffrey: The Court invalidated a statute that permitted a moment of silence for children, which would have been okay on its own, but was amended to

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include for meditation or voluntary prayer. The Court looks to the history of the statute to find that the purpose was to promote prayer in schools. (5) Evolution Cases (a) Epperson v. Arkansas: The Court declared unconstitutional a statute that prohibited teaching of evolution. The reason: only religious doctrine causes people to disbelieve evolution. (b) Edwards v. Aguillard: The Court also declared unconstitutional a statute that required equal treatment of evolution and creation science. The court was fractured, but it still declared it unconstitutional. Creation Science is not actually a science, according to the court, but pure religious doctrine. Therefore, the statute requires teaching of religious doctrine, which is unconstitutional. vi) Entanglement and Incidental Aid (1) The government may provide financial aid to churches and private religious schools if aid is incidental. (a) Look for Neutrality and Indirect aid. (2) Mueller v. Allen: Court permits tax deductions for tuition and books, even though it is almost exclusively parents whose students attend private schools who will use the deduction, and 96% of the private schools are religious. The Court finds that the tax deductions were not pinpointed to help religion, but were instead enacted with the purpose of helping education. Any effects on religion are incidental. Further, the aid comes indirectly to the schools through tax deductions to the parents. (3) Witters v. Washington Department of Services for the Blind: Court upheld a statute as it applied to providing disability payments to a blind individual who wanted to go to school to become a minister. Again, the statute was neutral and had only the purpose of promoting education, not religion. The aid also went indirectly to the school through the recipient. The recipient makes the private choice to use the funds for a religious school. (4) Aguilar v. Felton to Agostini v. Felton (a) Agostini overruled Aguilar, declaring that it was okay for states to use Title I funds to assist students in private schools and to place public school employees on private school campus. (b) The decision reflects movement away from excessive entanglement prong of the Lemon Test. b) Free Exercise Clause i) Generally (1) Congress shall make no law . . . prohibiting the free exercise [of religion]. ii) Test (1) If the government action is obviously lifting a burden that would otherwise be placed on religious practice, it does not constitute an establishment clause violation. (2) If the government intends to restrict religion, then the court must apply strict scrutiny. (a) Church of the Lukumi Babalu Aye v. City of Hialeah: The Court invalidated a citys ban on ritual slaughter as applied to animal sacrifices conducted by a

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local Santeria church. The Court determined that the description of slaughter in the statute had been gerrymandered to affect only Santeria based sacrifices, and it therefore had the purpose of restricting religion. As such, the court applied strict scrutiny and found that the statute was not narrowly tailored to accomplish the citys purpose of protecting animals. (3) The Free Exercise clause does not mean that individuals with religious objections may simply opt out of generally applicable law. iii) History and Evolution: (1) Braunfeld v. Brown: Court upheld Sunday closing laws against a challenge alleging that the law restricted the free exercise of religion for Jews because they could not work on Saturdays because of their religion, and were therefore forced to lose a large portion of their business. The Court stated that there were no means by which the state could accomplish its goal of a uniform day of rest without commercial noise without interfering with some religion. (2) Unemployment Compensation (a) Sherbert v. Verner: The Court held that denial of unemployment compensation to a woman who could find no work because she was a Seventh Day Adventist and could not work on Saturday was a violation of the free exercise clause. The woman would be forced to either give up her religious practice, or give up her job. The Court emphasized that the Governmental imposition of such a choice puts the same kind of burden upon the free exercise of religion as would a fine imposed against appellant for her Saturday worship. In applying the strict scrutiny analysis, the court could find no reason why the government could not provide exemptions to those individuals burdened. (3) Education (a) Wisconsin v. Lee: The Court held that imposition of a fine against Amish parents for refusing to send their children to school unconstitutionally violated the free exercise clause. The Court emphasized that Amish children who do not attend higher levels of school still perform well in society and become productive members, thus the government could provide an exemption without defeating its educational purpose. (4) Taxes (a) The Court rejected a claim in United States v. Lee that the Amish could not pay Social Security tax because of religious beliefs that the Amish should care for their own elderly. The Court stated that with so many possible exceptions to the social security system, it would prove unwieldy. The system needs to run smoothly, and so there cannot be accommodations made. (5) Restricted Environments (a) Goldman v. Weinberger: The Court rejected the free exercise challenge to a regulation that Air Force personnel refrain from wearing headgear while indoors. The challenger wanted to wear his yarmulke indoors. The Court stated that because of the unique nature of the military, and to ensure uniformity, the Air Force did not need to make accommodations. (6) Exemptions

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(a) Oregon Department of Human Resources v. Smith: The Court upheld the Oregon Supreme Courts ruling that the states controlled substances law prohibited peyote use, even in religious ceremonies. The Court stated that the law applied broadly to all persons and was generally acceptable. As such, the appellants could not simply opt-out. Scalia, who wrote the opinion for the court, declared that there need be no compelling purpose examination where the government action does not intentionally restrict religion. A concurrence of four other justices used the compelling purpose test.

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Equal Protection 1) Government Action 2) Draws a Line a) On its Face b) In Effect i) Clear Purpose 3) Suspect Class a) Race i) Strict Scrutiny b) Gender i) Intermediate Scrutiny c) Other i) Fundamental Right (1) Yes - Strict Scrutiny (2) No Rational Basis EP Strict Scrutiny 1) Compelling Government Interest a) Real Difference 2) Narrowly Tailored Means a) Over / Under Inclusive b) Alternate Nondiscriminatory Means EP Intermediate Scrutiny 1) Important Government Purpose a) Real Difference 2) Substantially Related to Means a) Over / Under Inclusive b) Alternate Nondiscriminatory Means EP Rational Basis 1) Legitimate Purpose a) No Naked Preference 2) Rationally Related Substantive Due Process 1) Government Action 2) Impacts Life / Liberty / Property Interest a) Privacy b) Family c) Abortion 3) Due Process Fundamental Interest 4) Substantial Burden a) Yes Strict Scrutiny b) No Rational Basis

DP Strict Scrutiny / Free Speech SS 1) Compelling Government Interest a) Real Problem 2) Narrowly Tailored a) Over / Under Burdensome b) Alternate Nondiscriminatory Means DP Rational Basis / Free Speech RB 1) Legitimate Purpose a) No Naked Restraints 2) Rationally Related Free Speech 1) Government Action Restricts Speech 2) Unprotected Speech a) Categories Rational Basis i) Incitement ii) Fighting words iii) Libel iv) Obscenity v) Child Porn vi) Threats b) Further Content Based Strict Scrutiny 3) Non-Public Government Property a) Viewpoint Neutral i) If Yes, Apply Rational Basis ii) If No, Apply Strict Scrutiny 4) Conduct as Speech a) Action Directed at Speech SS b) Not Directed at Speech OBrien 5) Content Based a) Yes Strict Scrutiny b) No OBrien Free Speech OBrien Test 1) Significant Government Interest 2) Narrowly Tailored a) The government interest itself b) Alternate government means c) Speech Interest / Burden (Including Listeners) d) Alternate speaker means

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e) Characteristics of place traditional public forums, streets, public parks 3) Leaves Open Ample Alternate Channels of Communication.

Establishment Clause 1) Government Action Advances Religion 2) Lemon Test a) Purpose b) Effect i) No coercion (1) Compare Psychological to Actual ii) No endorsement 3) Financial Aid a) Neutral i) not pinpointing religion religion is something incidental b) Indirect if pure money Free Exercise Clause 1) Government Intends to Target Religion a) Yes Strict Scrutiny i) Compelling Government Interest ii) Real Problem iii) Narrowly Tailored (1) Over / Under Burdensome (2) Alternate Nondiscriminatory Means b) No Rational Basis i) Legitimate Purpose ii) Rationally Related

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