CONSTITUTIONAL LAW OUTLINE

PROFESSOR KELSO

 

OUTLINE FOR POSSIBLE QUESTION 1 TOPICS:
  1. WHAT JUDGES USE TO DETERMINE MEANING OF CONST.
    1. What does the text say?
    1. look only at the language (words) used in the clause
    1. What is the purpose of the text?
    1. look at the words used and the purpose of the framers
    1. Arguments of structure:
    1. context- when one places the provision in question in context with others that may work with it to form govt. structure.
    2. Federalism- the balance of power b/w fed. and state govt.
    3. Separation of power- what did the framers have in mind when they were separating the powers among the 3 branches of govt.
    4. Role of the court- what should be the role of judicial decisions
    1. History:

*this is known as "contemporaneous with ratification"; it refers to what they meant when they drafted the constitution.
    1. Subsequent Events
    1. Legislative or Executive practice- what have the judges and legislature think the constitution gave them power to do. Have these branches exercised a certain power since the constitution was drafted and has it become known as a power they possess. (i.e. Have presidents always thought they had a certain power and exercised it?) Also, what powers has the legislature uses subsequent to the drafting of the const. ?
    2. Judicial Precedent- what have the judges in the past thought about their powers under the const., and what do modern precedents say. History may say one thing, but judicial precedent may hold another. Modern decisions show where the law is moving.
    3. Social Policy- this refers to what outcome would be socially acceptable. More of a non-interpretive view, rather it looks to see which reading of the const. Would provide the most socially acceptable outcome. (1954-1986)

MAJORITY APPROACH TODAY:
  1. INDIVIDUAL INTERPRETIVE BIASES (decision-making styles)
    1. TRADITIONAL NATURAL LAW APPROACH: this refers to the approach that the judges should use precedent to decide cases. The judges should decide what the const. Means and decisions should be from the natural reason applied to the human nature. Judges should pay great attention to the traditions of Anglo-American ways and precedents. (1789-1873)
    2. FORMALIST: this interpretation uses the literal text and specific intent of the framers only. They do not like to look at the purpose of the framers, rather the specific intent at the time they drafted. (1873-1937)
    3. HOLMESIAN: this view supports a strong deference to leg. And exec. Practices to determine what the const. Framers intended. These advocates do not trust the judicial interpretation based on a judge's intuition of what would advance sound social policy or a natural law approach. (1937-1954)
    4. INSTRUMENTALISM: this refers to the interpretation that will provide the most acceptable outcome (social policy based) **most liberal opinions come from the court in this era** (1954-1986)
    5. MODERN NATURAL LAW- judges do have a duty to promote a sound just society, but their intervention should be done with a resort to principles of a natural law approach, not merely an instrumental approach which would have the court standing on the side of those individuals that seem to be left out of main stream society. The approach should be one that follows the natural law approach but updated a bit. (like people should not be judged or discriminated against for things they can not control (i.e. Race) (1986-present)

 

 

 

 

    1. PURPOSE OF DUAL SOVEREIGNTY
    1. DOUBLE SECURITY (TWO CHECKS FOR POWER ABUSE)
    2. ASSURES DECENTRALIZED FED. GOVT.
    3. BETTER MEANS TO SATISFY THE PEOPLE
  1. JUDICIAL REVIEW OF STATUTES

"THE UNITED STATES SUPREME COURT IS THE AUTHORATATIVE INTERPRETER OF THE US CONSTITUTION"
    1. JURISDICTION OF THE SUPREME COURT
    1. ORIGINAL JURISDICTION
    1. Exclusive- "over cases with ambassadors, public ministers, or consuls as defendants, or where it is State v. State
    2. Non-exclusive- " over cases where A, PM, C are plaintiffs or State v. Citizens, foreign citizens
    1. APPELLATE JURISDICTION: congress has large control over their appellate jurisdiction and can expand or contract it.
    1. dist. Ct. decisions
    2. writs of prohibition
    3. mandamus – warranted by law
    1. The interpretation of the supreme court controls over the federal legislature (this was shown in Marbury v. Madison when the court decided that the judiciary act was unconstitutional because it expanded the original jurisdiction of the supreme court.)
    2. They also control over the federal executive branch. In US v. Nixon, the court ordered Nixon to hand over the tapes, after he tried to plead his absolute immunity due to his executive position)
    3. It also controls over the state leg. And exec. Branches (Cooper v Aaron, in which the Arkansas state govt. thought they did not have to comply with the Brown v Board decision, they were wrong)
    4. It controls over the state supreme courts (martin v hunters lessee)
  1. POWERS OF THE LEGISLATIVE BRANCH (CONGRESS)
    1. IMPLIED POWERS: NECESSARY & PROPER CLAUSE
    1. McCulloch v Maryland: Congress created a bank, and used the Necessary and Proper Clause to say they had the power.

"Congress shall have the power to make all the laws which are necessary and proper for carrying into execution the foregoing powers, and all other powers vested by the constitution…"

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    1. COMMERCE CLAUSE POWERS

1. TEXT: "Congress shall have the power to regulate commerce with foreign nations, and among the several states"

commerce- buying, selling, transporting. Also manufacturing of any product that will end up in the stream of commerce is included.

Among several states- includes more states than one, or commerce that has a substantial effect on any other state.
    1. commerce that is completely internal to a state,
    2. which does not affect other states,
    3. and it is not necessary for congress to interfere for executing some general power of the govt.

UNDER MODERN NATURAL LAW APPROACH:
    1. Congress has the power to regulate activities which substantially effect interstate commerce, whether that effect is direct or indirect. (Steel Case)
    2. Substantial effects are measured by taking the party’s own contribution, along with others similarly situated.

      3. (Wickard v Filburn) this was the case about the wheat farmer who produced too much wheat after congress passed law restricting production. Congress held that his contribution alone was not enough to effect other states, but combined with those similarly situated it would have substantial effect on other states.

    3. Lopez Case: this case was about the teen bringing the gun to school. It gives us the rule that a substantial effect on other states must exist. The framers did not intend to have congress regulating everything. There was no connection b/w the gun at school and interstate commerce. They tried to say it would effect education, but this did not work.
    4. Heart of Atlanta Hotel / Mclung(restaurant): (discrimination against blacks in this hotel effects interstate commerce)
    1. US v Darby: Can congress regulate the # of hrs. worked and wage rates? Yes; if the goods are going to be put into the stream of commerce.

QUICK SUMMARY OF COMMERCE POWERS:

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    1. TAXING AND SPENDING POWERS

TEXT: "congress shall have the power to tax to pay debts and to spend for the general welfare".

1. TAXING
    1. SPENDING
    1. there must be a rational relation b/w the desired result and the spending; if it is for a specific reason and is for general welfare of people, then it is ok.

      2. Example: withholding highway funds if a state does not increase gun control. These two are not rationally connected. Whereas highway funds and drinking age are (drunk driving by teens).

    2. Once again, cannot covertly regulate an activity by using the spending power as a coercive tool.
    3. But, so long as the conditions upon giving money to states is made clear and unambiguous then it is ok.

South Dakota v Dole: this case was about the state having the right to control its drinking age (21st amend.). Congress said they would not give the state $ if they did not raise their drinking age to 21. This was found to be an ok use of spending power because it passed the following requirements: DOLE TEST:
    1. rational relationship b/w spending and result

      2. ex. Highway funds & gun control = no connection

      Highway funds & drunk driving = connection

    2. conditions were clear & unambiguous
    3. it was for the general welfare of the people of the state
    4. it was found that it was not a coercive method because the consequences of non-compliance was not destructive (5% withholding of highway funds)

**the court alluded to the fact that at some point the incentive scheme (5% withholding) could become coercive, but they did not say when. (maybe 10% would have been too harsh?)

 
    1. 10TH AMENDMENT

TEXT: "The powers not delegated to the united states by the constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people"

Garcia Case:

New York Case:

    1. The first was that the states could charge higher rates to those states that did not create sites (ok because gives states an option)
    2. the second was the states could be charged with higher surcharges if they did not meet the deadline (ok because it is the leg. Regulating the state, and not telling the state how to regulate)
    3. the third incentive was that if the states did not create a site they would take ownership of the problem (this is not constitutional because it tells the state to pass a regulation for the clean-up or it will own the problem.

Printz Case:

ARGUMENTS USED:
    1. HISTORY (federalist papers): the framers assumed the state officials would have its officers help out, but they did not require them to. State must volunteer its officials.
    2. LEG/EXEC PRACTICES: all the past statutes require the state judges to be under federal law, but not the other state officials and officers.

**UNDER THE ABOVE READING OF PRINTZ, A STATE OFFICER WOULD NOT HAVE TO ARREST A PERSON FOR BREAKING A LAW THAT IS UNIQUE TO THE FEDERAL GOVT. (however, this never happens. Only in theory)

SUMMARY OF 10TH AMENDMENT:
    1. ART. IV, SEC. 2: THE PRIVILEGES AND IMMUNITIES CLAUSE

examples: (1) hunting license = can discriminate
    1. college education = can discriminate
    2. getting a job = cannot discriminate

So, once a person can show that a state has placed a burden on a right sufficiently basic to livelihood of nation, the state must then show
    1. that there is a substantial reason for the difference in treatment b/w residents & non-residents, and
    2. the discrimination practiced bears a substantial relationship to the state’s objective for discriminating, and that
    3. it is narrowly tailored to achieve that end.
  1. SEPERATION OF POWERS
    1. ART II: EXECUTIVE POWERS (PRESIDENT)
    2. ART. I: LEGISLATIVE POWERS (CONGRESS)
    3. ART III: JUDICIAL POWERS (SUPREME COURT)
    1. ART II: EXECUTIVE POWERS (powers of the president)
    1. The executive power is vested in the president
    2. Commander in chief of armed forces: president is commander of army and navy, but ART I gives congress the power to declare war.
    3. President shall take care that the laws are faithfully executed.

 

 

 

    1. So, does the President have the power or does Congress?

MAJORITY VIEW TODAY: (functional approach) Youngstown Sheet Steel Seizure Case (page 921-925): president seized the steel industry without congress' permission. Roosevelt got away with it 3 times but this should not be enough to gloss the actual meaning of it not being allowed. If it had been done over a long period by other presidents then we could say that congress has acquiesced to the event.
    1. The president's executive or commander in chief power varies depending on whether the president acts:
    1. with express or implied congressional authorization
    2. with subsequent congressional ratification
    3. where congress has been silent,
    4. with subsequent congressional disapproval
    5. despite implied or express congressional disapproval (however, even when president acts after congress has disapproved, if it is dealing with a foreign enemy he is given more latitude than when dealing with a domestic incident such as a dispute b/w labor and industry.
    1. BASIC FACTORS USED TO PREDICT THE CONSTITUTIONALITY OF THE EXERCISE OF EXECUTIVE POWER:
    1. Nature of the problem
    2. Nature of the action
    3. The need to act (is it an emergency?)
    4. Was it commander in chief power exercised?
    1. NATURE OF THE PROBLEM
    1. pure foreign affairs, military, or national security (most power) i.e. Recognizing foreign govts.
    2. primarily foreign affairs (curtiss-wright)
    3. mixed foreign / domestic (i.e. Dames and Moore Case: case where the two men were not allowed to execute judgement against the foreign govt. because of settlement that the president settled with the country; they were given alternate way to settle their judgement so it was ok)
    4. primarily domestic (Youngstown steel seizure case)
    5. pure domestic; least amount of power for pres. (president impounding funds passed pursuant to congressional enactment; he can't do this; this is unconstitutional)

2. NATURE OF THE ACTION

    1. with express or implied congressional authorization
    2. with subsequent congressional ratification
    3. where congress has been silent,
    4. with subsequent congressional disapproval
    5. despite implied or express congressional disapproval (however, even when president acts after congress has disapproved, if it I

[foreign affairs and/or congressional approval = most presidential power]

[domestic affairs and/or congressional disapproval = least pres. power]

3. IS IT AN EMERGENCY SITUATION?
    1. COMMANDER IN CHIEF ARGUMENT FOR PRES. ACTION

WAR POWERS ACT:

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CONSTITUTIONAL IMMUNITIES:

A. EXECUTIVE IMMUNITIES: PRESIDENT
    1. CRIMINAL CASES
    1. as a witness: president has qualified immunity; military, diplomatic, & natl. security information is confidential when he is witness (other than these he does not have immunity as a witness)(in camera inspection)
    2. as a D : majority say absolute immunity from being prosecuted while he is in office. (could impeach him and then bring suit)

US v Nixon: there must be a "specific need" for the information in the trial. Otherwise they can not get the information.
    1. CIVIL CASES
    1. as a P :
    1. as a D : (two types of possible cases as a D )
    1. acts done while in office = absolute immunity; should not 2nd guess the president's decisions while he is in office (firing some guy) USED AS SHIELD!!!
    2. acts done before term = no immunity; as long as it does not distract from presidency it will be heard.

OTHER OFFICERS:
    1. no absolute immunity for executive officers; the factors involved in determining what extent of immunity for them include:
    1. historical or common law basis for immunity
    2. is the task analogous to judicial or quasi judicial function for which absolute immunity is granted
    3. do other checks exist for official misconduct
    1. objective reasonable person test- for most executive officials the above balance yields a qualified immunity as long as the official's conduct was objectively reasonable in light of clearly established statutory and constitutional law at the time the act was performed.
    2. prosecutors- they have been granted absolute immunity for things done during their prosecutorial role; of course, this does not extend to their criminal acts, since those acts are not part of their role.

JUDICIAL IMMUNITY: judges are granted absolute immunity for actions taken in the course of judicial function

INDIVIDUALIZED IMMUNITIES FROM BILLS OF ATTAINDER: congress cannot enact individualized punishments on particular citizens, rather they must legislate "generally applicable rules of conduct."

B. LEGISLATIVE IMMUNITIES

    1. SPEECH & DEBATE CLAUSE: "a member of congress cannot be sued for something he or she said while on the floor, even if what you said was not true, and you knew it.
    1. no liability if on the floor of congress
    2. circulation of info to other members
    3. participation in committee meetings
    4. applies to the "core legislative activities"
    5. not casual or incidentally related acts

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B. ARTICLE II: LEGISLATIVE POWERS

THE NON-DELEGATION DOCTRINE & CONSTITUTIONAL STATUS OF AGENCIES:

    1. FORMALIST APPROACH: (scalia, thomas) don't like legislation at all, but they will allow it if there is a clear policy and standard declared.

B. MAJORITY VIEW TODAY: (functional approach)
    1. a liberal application of these requirements of congress:
    1. must declare a policy,
    2. must set standards to guide implementation of policy
    1. liberal application that president or admin. Agency:
    1. follow congressionally mandated procedures,
    2. make any findings required by congress prior to action
    1. ADMINISTRATIVE AGENCY ACTION
    1. Basic doctrine: Where congress has the power to preempt state laws, congress may delegate that power to admin. Agencies. The question is usually the following:
    1. has congress actually delegated the power
    2. has the admin. Agency followed the congressional standards in making its determination or has the agency acted in an arbitrary or capricious manner.
    1. Implementing the basic doctrine:
    1. congress should address any foreseeable preemption issues clearly
    2. agencies should establish procedures to ensure full consideration of the need to preempt state laws
    3. where preemption is contemplated, the agency should consult the state authorities if practicable
    4. in any event of preemption the state and those with interests that will be affected should be given notice and an opportunity to participate in the proceedings.

Mistretta Case: this is the case in which congress delegated the sentencing of crimes to the US sentencing committee. The court upheld the delegation because they did declare a policy, and there was some standard for the agency to follow in implementation. Legislature wanted uniformity in sentencing, congress set guidelines so the court said it was ok.
    1. DELEGATION WITH STRINGS: THE LEGISLATIVE VETO
    1. there is a formal requirement that congress must:
    1. satisfy the bicamerlism (the law must pass through both houses of congress; ART I)
    2. presidential presentment; (president must be given the opportunity to veto the law. ART I)
    3. unless explicit constitutional exception: it is explicit in the constitution that in these four situations one house may act alone with the unreviewable force of the law, not subject to the president's veto:
    1. the house's power to initiate impeachment's
    2. the senate's power to conduct impeachment trials
    3. the senate's power to confirm presidential appointments
    4. the senate's power to ratify treaties

So, can congress retain veto power after delegation to an agency? NO! (unconstitutional) but they use appropriations $ as incentives

CHADHA CASE:
    1. chadha was an alien that had been living in US
    2. INS had been delegated power by congress to decide on whether he was deportable or not (they said he was not)
    3. Congress didn't like some of the decisions they made, so they vetoed the law, and deported Chadha.
    4. Since congress acted, and altered chadha's status, it had legislative effect and should have gone through both houses and to president.
    5. Also, when congress did this there would be a general separation of powers argument since it basically acted as judiciary and not legislative. (unconstitutional)

RULE: IF IT HAS LEGISLATIVE EFFECT, SUCH AS THE ONE IN THE CHADHA CASE, YOU MUST PASS IT B/W BOTH HOUSES (BICAMERALISM) AND IT MUST ALSO BE PRESENTED TO THE PRESIDENT FOR APPROVAL. IF HE VETOES, YOU NEED 2/3 OF HOUSE & SENATE TO APPROVE.
    1. So, for 50 yrs and 200 statutes, this one house veto has been in effect and now Chadha has held it unconstitutional, why?
    1. the text of the constitution says you must have bicameralism (explicit language that tells us it shouldn't be done
    2. federalist papers express what the framers intended when writing this section (specific intent was for bicameralism to be process)

B. What do we do with the 200 unconstitutional statutes?
  • Try to sever out the provision that is unconstitutional
    • 98% of provisions are severable; however, if congress would not have passed the law without the provision, then the whole statute will fall w/ provision.

 

 

 

APPOINTMENTS & REMOVALS: (ART II, SEC 2)

APPOINTMENTS: if the commission is merely an investigative arm of congress then the appointments clause will not apply to the case. (see pg 980)

    1. "appointments of ambassadors, other public ministers, and counsels, judges of the supreme court, and heads of depts, and all other officers of the United States (principal); Must be made by the president with the advice and consent of the senate." (called "principal officers")
    • there are other officials that qualify as principal officers that are not listed above; see 4 ways to determine listed below to decide if an unlisted official might be a principal officer.
    1. Congress has the power to vest power of appointments, as they think proper, of inferior officers to the president alone, the courts of law, or the heads of dept. without the advice and consent of the senate." (but, congress can still require the advice and consent of the senate)

MAJORITY VIEW TODAY:

APPOINTMENT OF INFERIOR OFFICERS: interbranch appointments (by other branches of govt.) are ok to the extent that they do not "impair the constitutional functions assigned to one of the other branches, and are not incongruous" (an example of interbranch appointment was the judicial appointment of the IC)

REMOVAL OF INFERIOR OFFICERS: congress can place restrictions on even purely executive inferior officers, so long as it does not "impede the president's ability to perform his constitutional duty by impermissibly undermining the executive branch" (president can remove principal officers at his own will, and no restrictions can be placed on president removing principal office b/c he needs to make sure the laws are "faithfully executed" by his officers;for inferior officers=show good cause.

MORRISON v OLSON CASE: this was the case about the independent counsel that was appointed to investigate misleading testimony given by Olson (head of justice dept.) to a congressional subcommittee.

    1. Who appointed the official in question? (the IC is appointed by the court of law, then the official must be inferior for appointment to be constitutional)
    2. Is the independent counsel position "inferior" or "principal"? (if inferior the appointment is ok, if IC is principal, then unconstitutional)
    3. IC is an inferior office, so it is constitutional.
    1. FACTORS TO CONSIDER: PRINCIPAL OR INFERIOR OFFICER?
    1. Is the officer subject to removal by a higher branch executive official?
    • If so, then probably inferior officer
    1. Does the officer only have limited duties?
    • If so, then probably inferior officer
    1. Does the officer have limited jurisdiction?
    • If so, then probably inferior officer
    1. Does the officer have limited tenure?
    • If so, then probably inferior officer
    1. Is a military judge a principal or inferior officer? Principal; b/c they were already appointed by president as commissioned officers in the military.

REMOVALS: nothing explicit in the constitution about removal powers.

    1. Framer's historical intent- executive should have unitary power over removals; the legislative branch should not have removal power (b/c then the people executing the laws would be biased b/c the leg. Would be watching them all the time)
    2. Leg/exec practices in past- was to only give the exec. Branch removal powers.

If it is dealing with independent agencies (such as the FTA, SEC, etc…those that are independent from the president) then the president can only remove these if he has a "good cause". (FBI, INS are under justice dept. so they are not independent)

FOR "GOOD CAUSE" THE PRESIDENT MUST SHOW:
    1. malfeasance of office
    2. neglect of duty
    3. inefficiency

RULE: IF A PERSON IS GIVEN EXECUTIVE POWERS, THEN CONGRESS CANNOT RETAIN DIRECT REMOVAL POWERS OVER THIS PERSON. NO EXECUTIVE OFFICER CAN BE REMOVED BY CONGRESS. BUT, THEY CAN PLACE RESTRICTIONS ON THE PERSON'S REMOVAL AS LONG AS THEY ARE INFERIOR OFFICERS.

IF GIVEN EXEC. POWER = EXEC. OFFICIAL

IF EXEC OFFICIAL = CONGRESS CAN'T REMOVE

LOOK ALSO FOR GENERAL SEPERATION OF POWERS ISSUES:
    1. too much power given to a certain branch at the expense of another branch
    2. taking away a constitutionally granted power from a branch
    3. giving a branch power that conflicts with the constitution

ARTICLE III COURTS: (FEDERAL COURTS)

  • LIFE TENURE & NO SALARY DIMUNITION WHILE SERVING AS JUDGE
  • CAN SERVE ON COMMISSIONS IF THEY BRING SKILL TO THE COMMISSION (SOMETHING HELPFUL)

 

 

OUTLINE FOR POSSIBLE QUESTION 2 TOPICS:

 

CHAPTER 9: LIMITATIONS ON JUDICIAL POWER

  1. POLITICAL QUESTION DOCTRINE
    • Some issues should be left for other branches of govt. to decide; they are inappropriate for the supreme court to hear.
    1. A political question exists if:
    1. there is a textually demonstrable constitutional commitment to another branch of govt. to decide the issue at hand
    2. there is a lack of judicially manageable standards (this means that there is not a standard or clear doctrine the court can use to decide the issue)
    3. this factor involves many prudential principles that may cause the court to decide not to hear a case; some of these would be (1) the need for adherence to a political decision already made in the past, (2) the potential of embarrassment by having different pronouncements by various depts on one question, (3) the impossibility to hear the case without showing a lack of respect to other branches of govt., (4) an impossibility to hear the case without first making a policy decision that should clearly not be left up to judicial discretion. (IN SHORT, FINALITY,RESPECT, POLITICAL POLICY, AVOID EMBARRASSMENT)
    1. Examples of some subject matter that contains political questions:
    1. FOREIGN RELATIONS: the president needs to speak with one voice when dealing with foreign affairs.
    1. validity of treaties
    2. recognition of a foreign govt.
    3. Sabbatino case gives us an example of foreign expropriations of property of US citizens that are non-justiciable b/c there were no judicial standards to determine when compensation was appropriate; said the US should respond by using diplomatic channels.
    4. Note: not all foreign affairs issues are political questions

PRACTICE PROBLEM: HOW TO WORK A POLITICAL ? ISSUE:

WAR POWERS RESOLUTION QUESTION:
    1. is there any text that commits the issue to another branch?
    • No, it says that congress can declare war, and the president has the commander in chief power. So, this does not tell us much
    1. is there a lack of judicially manageable standards?
    • There is some standard for judging, but they are vague, so go to 3.
    1. are there prudential principles as to why the court shouldn't hear the case?
    • Yes, it would embarrass either the president or congress if the court decided the case. Could also say the court should pay respect to these branches of govt. and let them decide the case themselves.
    1. MATTERS OF WAR / MILITARY:
    1. dates of duration of hostilities
    2. training of troops (there is a TDC to another branch to oversee military training in ART I sec. 8, cl. 16)
    3. involvement in undeclared wars
    1. POLITICAL ARRANGEMENT MATTERS:
    1. validity of constitutional amendments
    2. questions of republican form of govt., the guaranty clause
    • "the US shall guarantee to every state in this union a republican form of govt." ; but, this does not specify judicial, leg., or exec,. But there are no JMS existing, so court won't hear it
    • Baker case: malapportioned state leg. Districts not a pol. Question b/c the challenge was not based solely on the Guaranty clause but also on the Equal protection clause for which there is JMS to hear the case on. It was an equal protection case and not a political question doctrine case. (so, the court will hear the case)
    1. questions regarding exclusion of members of congress or impeachments
    • Nixon v. US: federal district judge was impeached by the house of reps for making false statements to a federal grand jury. Impeachment procedure committee was set up, and Nixon says a committee should not be able to decide his fate, rather the whole senate should act as a jury. Court finds TEXT in ART I sec 3 cl 6 that says the Senate shall have the "sole" power to hear impeachments. So the court will not interfere in this and hear the case. (TDC to another branch of govt.)
    • EXCEPTION: in Powell v McCormick, the court said that it can rule on whether congress can exclude a member of congress. They said that it was there job to interpret the constitution and make corrections when another branch has construed it in a conflicting manner to their construction.
    1. Court will not hear questions regarding apportionment & political gerrymandering
  1. STANDING (applies to all federal courts; state court has own standing req.)
    1. Art III requirements for a person to be able to bring suit:
    1. injury in fact- this is actual injury to the person bringing the suit
    2. the injury must have been caused by the conduct that is being challenged
    3. the injury must be one for which the court can redress (redressable)

Further Explanation:
    1. INJURY IN FACT: under ART III an injury in fact must be one that is sufficiently immediate "distinct and palpable", not abstract, conjectural, or hypothetical.
  • The injury can be based on a denial of a right to compete on equal terms
    1. INJURY CAUSED BY THE CHALLENGED CONDUCT: the injury must be fairly traceable to the conduct; can not have speculative tracing to find the conduct that caused one's injury.
    2. INJURY MUST BE REDRESSABLE BY THE COURT : The court must be able to grant some kind of relief such as money damages or injunctive relief, or else the person does not have standing to bring the suit.

NOTE CASES:

    1. ALLEN v WRIGHT: this was the case where the black parents sued b/c IRS was granting tax exemptions to racially discriminatory private schools. They said their injury was that their children were being denied integrated schooling; but, this was not found to be a discrete and palpable injury to satisfy the ART III requirements. A general injury is not good enough for standing. Also the speculation of harm was to far reaching.
    • Just suing b/c you are a citizen is not good enough
    • You must show an injury that is not shared with everyone else
    • Members of a certain group is not good enough either (blacks, whites,etc…)
    1. JACKSONVILLE CASE: they were denied the equal right to have the opportunity to get the jobs. They don't have to show they would have got the job, only they didn't have an equal opportunity to get the job.
    2. LUJAN v DEFENDERS OF WILDLIFE: environmental case; they alleged that they would not be able to enjoy the wildlife next time they went back to that area b/c of the D 's actions; court said that they did not have a distinct and palpable injury as citizens; if they could have produced some plane tickets showing exactly when they were going back then maybe the case would have gone the other way b/c they could have shown a distinct injury; PAST EXPOSURE TO ILLEGAL CONDUCT IS NOT GOOD ENOUGH FOR A PERSON TO GET STANDING. They would have had to show it was certain they would return and suffer an injury in fact.
    1. There are also several PRUDENTIAL LIMITATIONS the court looks at:

(however, congress has the power to overrule these b/c they are created by the court on the constitution.)
    1. generalized grievances do not give one standing (this means that your injury is common to a large number of people)
    2. the person must be within the zone of interest (used in statutory cases today);

Statutory Cases:
    • it is used in statutory cases today for the purposes of determining if the person bringing suit actually falls under the class of people for which the statute was trying to protect. So, one must look at the legislative history to find out who the leg. Was trying to protect.
    • Bennet v Spear: the person must show they fall within the class of people that was meant to be protected by the statute. (farmers were within the zone of interest b/c the statute was meant to strike a balance b/w them and the wildlife.)

Constitutional Cases:
    • Must satisfy a two part test:
    1. there must be a link b/w the parties status and congressional action. (ex. Taxpayer standing must link to taxing & spending clause; or taking property and the property clause)
    2. the parties are challenging a specific constitutional limitation on govt. power. (ex. Establishment clause)
    1. 3rd party standing: when someone is vindicating the rights of another person; this is only allowed if:
    • if you can show you have a special relationship with a person, and can show a reason why the person cannot bring the suit themselves. (i.e. abortion---privacy reasons) (courts are skeptical about these suits)

 

 

TWO BASIC REQUIREMENTS FOR 3RD PARTY STANDING:
    1. there are practical limitations that prevent a party from asserting rights on their own behalf + special relationship.
    2. litigant can reasonably be expected to frame the issue properly (i.e. doctor in the abortion case)

OTHER SPECIAL STANDING CASES:

ORGANIZATIONS- an organization can sue on behalf of its members where:

    1. its members would have standing
    2. the interest to be protected is germane to the organization
    3. neither the claim nor the relief requires the participation of individual members.

STATES- if a state is suing on behalf of its citizens then it must pass the test laid down above for organizations. State suit is also permissible to protect the state's own sovereign powers of govt. or in its own proprietary capacity as owner of business activity.

OFFICIAL SUIT BY LEGISLATURES- in general a legislature can bring suit if:
    1. individual interests are intertwined w/ legislative activities
    2. as representative of constituents (majority required)
    3. as officially designated representative of legislative body
    4. vindicator of personal interest in official legislative powers

Note: ART III 's requirement of case or controversy keeps the supreme court from issuing advisory opinions

EQUITABLE DISCRETION DOCTRINE is a doctrine that tests whether the case is actually a case or controversy under ART III. It is a way to implement judicial restraint by not finding standing b/c there might not be an actual case or controversy after discretion.
    1. there must be a real earnest and vital controversy for the court to hear
    2. the court will not anticipate a constitutional question of law before it is actually necessary for them to decide a case
    3. the court will not formulate constitutional rules broader than needed to solve the case at hand (only those facts)
    4. the court will not decide on a constitutional question if there is some other way the case can be decided
    5. one has to actually be injured by a statute for the court to rule on the statutes validity
    6. the court will not rule on the validity of a statute for a person who has availed himself of the benefits of the statute
    7. before the court will rule a statute passed by congress unconstitutional, they will first decide if there is a way it can be construed in which the constitutional question could be avoided.

 

OUTLINE FOR POSSIBLE QUESTION 3 TOPICS:

 

  1. EQUAL PROTECTION CLAUSE ANALYSIS
    • AIMS TO CREATE EQUAL OPPORTUNITY, NOT EQUAL RESULTS
    1. specific intent of framers- equal protection for everyone; as long as everyone is treated equally, then it is ok. (so, separate but equal would be ok under this view)
    2. general intent of framers- to get rid of any discrimination based on race; so, under this view we see many more statutes that are struck down.
    3. MODERN NATURAL LAW APPROACH: they focus on the discrimination against an individual not a group. So, one cannot get preferential treatment b/c he is part of a group that is discriminated against. One must ask, has this actual person been discriminated against?
    1. DE JURE RACIAL CLASSIFICATIONS: statutes that on their face discriminate
    • This applies to any legislation that uses racial or ethnic criteria even if used for remedial (affirmative action) purposes. This type always gets Strict Scrutiny (SS).
    1. DE FACTO RACIAL CLASSIFICATIONS: statutes that are racially neutral on their face, but evidence surrounding the statute shows that the legislature had a discriminatory intent/purpose when they passed the statute.
    1. FACTORS TO CONSIDER WHEN ANALYZING A FACIALLY NEUTRAL STATUTE TO DETERMINE IF THERE WAS DISCRIMINATORY INTENT/PURPOSE:
    1. discriminatory effect/impact - if the effect of the statute cannot be explained on any neutral ground.
    2. A practical inquiry shows that the statute was passed "in part" b/c of the discriminatory effect it would have.
    • IF NO DISCRIMINATORY INTENT FOUND, APPLY RR.
    • BUT, AFTER YOU HAVE FOUND DISCRIMINATORY EFFECT IN A STATUTE, LOOK AT THE FOLLOWING TO DETERMINE ACTUAL INTENT OR PURPOSE:
    1. LEGISLATIVE MOTIVE
    2. LEGISLATIVE HISTORY
    3. BACKGROUND CIRCUMSTANCES

(4) FORESEEABILITY OF CONSEQUENCES
    1. THE GOVT. MUST THEN SHOW A LEGITIMATE NUETRAL REASON FOR PASSING THE STATUTE.
    2. DISCRIMINATORY INTENT OR PURPOSE DOES NOT HAVE TO BE THE "ONLY" REASON FOR PASSING THE STATUTE, BUT, IF YOU CAN SHOW THAT DISCRIMINATORY INTENT WAS A "MOTIVATING FACTOR" IN THEIR PASSING THE STATUTE, THEN IT WILL BE STRUCK DOWN.
    3. GOVT. CAN THEN JUSTIFY THIS DISCRIMINATORY INTENT BY SHOWING THAT THE SAME DECISION WOULD HAVE BEEN REACHED EVEN IF THE DISCRIM. INTENT HAD NOT BEEN CONSIDERED.

NOTE CASE: WASHINGTON v. DAVIS
    • In this case the DC police dept. gave a competency test to its applicants before hiring; 4x more blacks than whites failed the test; the blacks thought it was discriminatory
    1. discriminatory effects = 4x as many blacks failed
    2. no evidence of discrim. Motives, leg. History, & background circumstances do not show discrim.
    3. Neutral reasons = having competent police dept.
    • So, apply rational review to the statute.
    • So, the statute is upheld as constitutional after the above analysis.

_________________________________

3 STANDARDS OF REVIEW USED BY THE COURT:

    • UNDER EACH OF THESE THE COURT LOOKS AT 3 THINGS WHEN ANALYZING THE STATUTE IN QUESTION:
    1. THE END OR GOAL THE LEGISLATURE WAS TRYING TO ACHIEVE WHEN PASSING THE STATUTE
    2. HOW CLOSELY THE MEANS IN WHICH THE LEGISLATURE USED TO ACHIEVE THIS END OR GOAL IS RELATED TO THE END OR GOAL WHICH THEY WISH TO ACHIEVE.
    3. HOW BIG IS THE BURDEN ON THE PARTY THAT IS BEING DISCRIMINATED AGAINST
    • EACH OF THE FOLLOWING 3 STANDARDS HAS DIFFERENT REQUIREMENTS FOR THE ABOVE 3 PARTS
  1. RATIONAL REVIEW: THE MINIMUM RATIONALITY REVIEW FOR WHICH ALL STATUTES ARE ANALYZED; THE BURDEN IS ON THE CHALLENGER TO SHOW THE STATUTE IS DISCRIMINATORY; USE WHEN THERE WAS NO INTENT TO DISCRIM. FOUND IN STATUTE
    1. THERE MUST BE A LEGITIMATE GOVT. INTEREST IN PASSING THE STATUTE (ANY CONCIEVABLE INTEREST WILL DO; THE COURT CAN COME UP WITH IT LARGE DEFERENCE TO GOVT.)
    2. THE MEANS USED TO ACHIEVE THE END MUST BE RATIONALLY RELATED TO THE END
    3. THE BURDEN ON THE PARTY DISCRIMINATED AGAINST MUST NOT BE AN IRRATIONAL BURDEN.

EXAMPLES: sexual orientation, wealth, age, retarded, disabled, vets.

3 DIFFERENT VERSIONS OF RATIONAL REVIEW:
    1. MINIMUM RATIONALITY - legitimate govt. interest; this carries great deference to the legislature's reasoning for passing the statute
    1. used for economic & social regulations, equal protection clause analysis
    1. BASIC (2ND ORDER) RATIONAL REVIEW - legitimate govt. interest; no special deference to the legislature in this standard
    1. used for procedural due process questions, 1st amendment, equal protection of mentally impaired, non-textually specific fundamental rights, free exercise clause, establishment clause
    1. RATIONAL WITH BITE - legitimate govt. interest; however, the burden in these cases shifts to the govt. to show the statute passes all 3 steps of review.
    1. used for rights of govt. workers to speak on public matters, discrim. Impact against the handicapped
  1. INTERMEDIATE SCRUTINY: MID-LEVEL STANDARD OF REVIEW; BURDEN LIES ON THE GOVT. TO PROVE UP THE STATUTE; ONLY PLAUSIBLE INTERESTS THAT COULD BE ADOPTED BY AN IMPARTIAL LEGISLATURE. (harder to show than any conceivable interest that was used in rational review; must be something govt. raises in litigation)
    1. THERE MUST BE A SUBSTANTIAL GOVT. INTEREST IN PASSING THE STATUTE. (higher level of interest than legitimate)
    2. THE MEANS AND END MUST BE SUBSTANTIALLY RELATED ,
    3. THE STATUTE CANNOT BE SUBSTANTIALLY OVERBROAD.

EXAMPLES: gender, illegitimate children, aliens
  1. STRICT SCRUTINY: ALL RACIAL DISCRIMINATIONS AND SEVERE BURDENS ON FUNDAMENTAL RIGHTS ARE ANALYZED UNDER SS; THE GOVT. HAS THE BURDEN TO DISPROVE ALLEGATIONS
  1. MUST BE A COMPELLING GOVT. INTEREST; THIS MEANS THE ACTUAL PURPOSE AT THE TIME THE STATUTE WAS DRAWN. NOT WHAT THE GOVT. MIGHT SAY WAS THE PURPOSE
  2. THE MEANS USED MUST BE DIRECTLY RELATED TO THE END THE GOVT. IS TRYING TO ACHIEVE; THIS MEANS THAT 100% OF THE TIME THE MEANS USED HAS THAT EFFECT.
  3. IT MUST BE THE LEAST BURDENSOME ALTERNATIVE; THIS MEANS THAT IF THERE IS ANOTHER LESS BURDENSOME ALTERNATIVE THE GOVT. COULD HAVE USED, THEN IT WILL BE STRUCK DOWN.

EXAMPLES: race, affirmative action, ethnicity, religion, origin
  • COURTS ARE MORE LIKELY TO FIND AN INTENT TO DISCRIMINATE IN CASES SUCH AS VOTING RIGHTS, JURY SELECTION, & SCHOOL DESEGREGATION, B/C THEY ARE BASIC CONSTITUTIONAL RIGHTS; COURT LESS LIKELY TO FIND DISCRIM. INTENT IN JOBS & HOUSING CASES.
  1. STATE ACTION DOCTRINE
    • THE EQUAL PROTECTION CLAUSE OF THE 14TH AMENDMENT ONLY APPLIES TO ACTIONS IN WHICH THE STATE IS INVOLVED; IT DOES NOT AIM TO PREVENT PRIVATE DISCRIM.
    • AT SOME POINT, PRIVATE ACTIONS MUST BE ATTRIBUTED TO THE STATE B/C THE STATE IN SOME WAY HAS ENCOURAGED, ENFORCED, OR AIDED IN THE DISCRIM.
  1. 3 SITUATIONS IN WHICH STATE ACTION IS FOUND TO BE PRESENT:
  1. A FEDERAL, STATE, OR LOCAL LAW; CAN BE JUDICIAL, LEGISLATIVE, OR EXECUTIVE (remember, there can be a state law that only ratifies "self-help" remedies, and therefore, is not a state action)
  2. WHEN THE PRIVATE ACTION IS "FAIRLY ATTRIBUTABLE TO THE STATE"; THIS OCCURS WHEN THE STATE IS INTERTWINED IN THE PRIVATE ACTIVITY, OR IS A JOINT PARTICIPANT IN THE ACTIVITY.

 

 

EXAMPLES:

FOUND STATE ACTION:
    1. state action was found in BURTON case where the state owned the parking lot that guests used for the restaurant, the land was leased from the govt.,
    2. also found in public defender hiring and firing decisions on behalf of the state
    3. creditor obtains a pre-judgement attachment; this uses state enforcement so it is a state action

      4. NO STATE ACTION FOUND:

    4. state action was not found in MOOSE LODGE case where the state only supplied the private lodge with a liquor license, and there were no remaining liquor licenses left in the state to issue.
    5. Private school employment decision, despite over 90% of school funds coming from the state.

  1. IF THE ACTION IS A PUBLIC FUNCTION; elections, primaries, (shopping mall is not enough to be considered a state action

QUESTION: IF THE GOVT. HELPS FUND A PRIVATE PROJECT, IS IT AUTOMATICALLY CONSIDERED A STATE ACTION?

ANSWER: YES, IF THE GOVT. ATTACHES STRINGS TO THE FUNDS

NO, IF IT IS A GENERALIZED GRANT IN WHICH THE PRIVATE PARTY IS MAKING THE DECISIONS ON HANDLING FUNDS

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SO, FOR MODERN APPROACH TODAY (EDMONSON CASE), REMEMBER THESE 3 PRONGS TO BE ABLE TO DETERMINE IF IT IS A STATE ACTION:
    1. THE EXTENT TO WHICH THE ACTOR RELIES ON GOVT. ASSISTANCE AND BENEFITS (BURTON CASE: state owned the property and parking lot of the restaurant)
    2. WHETHER THE ACTOR IS PERFORMING A TRADTIONAL GOVT. FUNCTION (MARSH CASE: this involved the company town in which a company operated the post office, sewage dept., etc… found state action)
    3. AND WHETHER THE INJURY CAUSED IS AGGRAVATED IN A UNIQUE WAY BY THE INCIDENTS OF GOVT. AUTHORITY (SHELLY CASE: judge enforced restrictive housing covenant against blacks)

 

 

 

CASE EXAMPLES OF ABOVE 3 POINTS:

(1) EXTENT TO WHICH ACTOR RELIES ON GOVT.
    1. BURTON CASE: joint participants in the restaurant b/c the state owned the parking lot and the property (state action found)
    2. EVENS v NEWTON: public park where the state kept up with cleaning the park, watering, sweeping, and patrolling (state action found in this case)
    3. JACKSON CASE: private electrical utility decision to terminate service not a state action despite state utility board specifically authorizing and approving the termination practice (no state action)
    4. RENDELL-BAKER CASE: private nursing home decision to transfer patients despite Medicaid payments & state and federal regulation requiring use of review committee to review transfer decisions. (no state action found)

(2) IS ACTOR PERFORMING A TRADITIONAL GOVT. FUNCTION?
    1. MARSH CASE: a company owned a town and ran all the functions, this was like a state function so it was considered a state action
    2. TERRY CASE: political primaries = state action
    3. HUDGENS CASE: shopping center = not state action
    4. FLAGG BROS.: purely private self help remedies laid down by the UCC are not considered state action b/c no enforcement by court

(3) IS THE INJURY AGGRAVATED BY GOVT. AUTHORITY?
    1. EDMONSON CASE: 3 preemptory strikes can not be used to remove someone for their race; the use of these was considered a state action b/c of court

*********************************************************************

  1. AFFIRMATIVE ACTION CASES
    1. The same level of review should be applied for invidious and benign discrimination (benign is helping the group that has been discriminated against and not meaning to discriminate against the majority) Thus, affirmative action statutes using racial classifications are subject to SS. (CROSEN CASE)
    2. ADARAND CASE: congress cannot pass legislation that would give affirmative action statutes a less vigorous review standard.

THE FOLLOWING MUST BE PRESENT:
    1. A COMPELLING GOVT. INTEREST
    1. those found to not be compelling govt. interests:
    • reducing the historic deficit to minorities in some profession absent a showing of past or present discrimination (CROSON)
    • increasing the number of minorities for role model purposes (WYGANT)
    • diverse broadcasting (lutheran church case)
    1. those found to be compelling govt. interests:
    • increasing the number of individuals serving communities that are presently under-served
    • obtaining a ethnically diverse student body (BAAKE)
    • remedying prior racial discrimination; but, there must be a "strong basis in evidence" for past or present discrimination with respect to the specific area and job involved in the affirmative action program.
    1. this evidence can come from leg., exec., or judicial findings of discrimination or from the party's firmly grounded view that it exists
    2. for employment discrim. Cases, look at minority labor market and the minorities employed for low level, unskilled, entry level positions
    1. THE MEANS USED TO ACHIEVE IT MUST BE DIRECTLY RELATED TO THE GOAL OR END

    1. race can be used as a factor, not a quota (BAAKE, UT MED. SCHOOL CASE)
    2. to be a direct relationship, it must achieve this end 100% of the time
    1. IT MUST BE THE LEAST BURDENSOME ALTERNATIVE:
    • in WYGANT, the majority said that affirmative action could be used to respond to prior discrimination, but that the layoffs that were used to respond to the past discrimination were not the least burdensome alternative, b/c they could effect a person must worse than simply not hiring them for the job initially. (they could always seek work elsewhere, but once they have taken the job, they passed up other available opportunities. (MUST BE NARROWLY TAILORED TO REACH IT'S OBJECTIVE)
  • In redistricting cases which are suspect to be done according to race, one must show that race was a "predominant factor" to trigger SS. Whereas, in racial classifications, all you have to show was that race was a "motivating factor".

 

 

 

 

 

 

 

 

 

 

  1. CHAPTER 4: GENDER DISCRIMINATION
    1. QUASI SUSPECT CLASS - these types of classes get intermediate scrutiny.
    2. DE FACTO discrimination (evidence reveals) triggers IS if one can prove the discriminatory intent/purpose. The discrim. Impact suggests discrim. Intent if:
    1. the impact cannot be explained on a neutral ground
    2. a practical inquiry suggests statute passed in par "b/c of " not merely "in spite of " discrim. Impact. (they passed it in part b/c they knew the impact it would have on women)

    1. NOTE CASES ON INT. SCRUTINY:
    1. Craig v Boren- this case established IS as the standard of review for gender discrim. Cases. This case was that boys under 21 could not buy beer but the girls 18 and up could. It failed the 1st and 2nd prongs of the IS review, b/c it did not substantially relate to traffic safety.
    2. Micheal M. case - dealt with statutory rape discriminating against men b/c women are not held criminally responsible if they are under age, but boys are. Court said that equalizing the burdens was ok, b/c women had a built in deterrence (pregnancy).
    3. Draft registration case - upheld the law that only men had to register for draft b/c it was for combat purposes and only men could go to combat, not women.
    4. Mississippi Nursing School case - court struck down a state supported school that only allowed women b/c it is traditional for women to be nurses.
    5. J.E.B. case - court held it unconstitutional for a lawyer to use all his preemptory strikes based on gender. (extended Batson to gender)
    6. VMI case - a military school that only allowed men was held unconstitutional b/c it was state supported. Saying that they want to preserve their method of teaching was not considered a substantial or important govt. interest. Also, they could not prove that by allowing girls in it would effect their teaching methods.
    7. Feeney case- this case classified and gave preferential treatment to veterans, and it just so happens that 95% were men. Is this gender discrim? No. classifies by veteran, not sex.(95% could have been women)

 

 

 

 

 

  1. SEXUAL ORIENTATION
    1. BAEHR v LEWIN: two couples file on the Hawaii court. b/c they will not recognize same sex marriages; court distinguishes b/w sex discrimination (male/female) and sexual orientation (gay/lesbians) and decides it is ok for them to not recognize same sex marriages. BUT, THIS MAY GO UNDER SS B/C IT MAY BE CONSIDERED A FUNDAMENTAL RIGHT (MARRIAGE).
    2. ROMER v EVANS: this statute banned the local protections that were given to gays/lesbians in Colorado. The court held that it was "animus toward the group that it discriminated against" and could not even withstand rational review.
  1. TRADITIONAL MINIMUM RATIONALITY REVIEW
    1. Economic and social regulations all must pass this standard of review. A state must treat all people that are similarly situated the same.
    2. ACTUAL ANALYSIS AT THIS LEVEL:
    1. LEGITIMATE GOVT. INTEREST
    1. could be something like traffic safety
    2. "any conceivable basis the court can come up with will do"
    1. THE MEANS (STATUTE) MUST HAVE A RATIONAL RELATIONSHIP TO THE BENEFITS THE STATE IS TRYING TO GET
    2. BURDENS CANNOT BE ARBITRARY OR IRRATIONAL
    1. Railway Express Case: this case was about NY not allowing ads for hire on vehicles, but business owners were allowed to advertise; under minimum rational review, a strong deference to govt., so court upheld the statute saying they will not question why they excluded one kind and not the other, but this is how rational review is applied. The court will assume the reasons that have been given if they are conceivable.
  1. FACTORS TO DETERMINE WHEN TO USE HEIGHTENED SCRUTINY
    1. SPECIFIC INTENT OF FRAMERS- the 14th amendment was aimed at preventing racial discrimination, so it should get the strictest scrutiny
    2. IS THE RIGHT IN QUESTION A FUNDAMENTAL RIGHT- these are so important to us that we should use the strictest scrutiny to determine if the statute in question is violating a fundamental right.
    3. DOES THE LEGISLATION IMPACT A "DISCRETE & INSULAR MINORITY"- these groups may not be able to protect themselves as well as others so the govt. feels that a statute affecting them should be given a stricter scrutiny.
    4. IS THE CHARACTERISTIC THAT IS BEING DISCRIMINATED AGAINST AN IMMUTABLE (UNCHANGEABLE) ONE? If it is not the product of the person's choice, then it is likely the govt. feels they should be protected from being discriminated against for something they could not help or change. (ex. Race, ethnicity,sex, etc..)
    5. HAS THIS GROUP HAD A HISTORY OF DISCRIMINATION AGAINST IT? The court tends to use higher scrutiny against statutes that affect groups that have been discriminated against in the past (ex. Blacks)

 

  1. WHEN WE DON'T WANT TO USE HEIGHTENED SCRUTINY:
    1. IF THE CLASSIFICATION IS NOT ONE THE FRAMERS THOUGHT NEEDED HEIGHTENED SCRUTINY
    2. WHEN THE JUDGES ARE NOT COMPETENT TO MAKE THE SUBSTANTIVE DECISIONS REQUIRED AT THE HEIGHTENED SCRUTINY LEVEL (USUALLY REQUIRES 2ND GUESSING THE LEGISLATURE
    3. IF A PANDORA'S BOX WOULD BE OPENED BY ALLOWING A PARTICULAR ISSUE TO RECEIVE HEIGHTENED SCRUTINY (this means that other groups would come forward and demand heightened scrutiny for their rights as well)

________________________________________________________________________

  1. CHAPTER 5: EQUAL PROTECTION & FUNDAMENTAL RIGHTS
  • THE RIGHTS UNDER PRIVLEGES & IMMUNITIES OF THE 14TH AMENDMENT WERE READ NARROWLY, (Slaughter house cases) SO THE COURT THEN BEGAN TO READ THESE RIGHTS UNDER A BROAD CONSTRUCTION OF THE 14TH DUE PROCESS CLAUSE (substantive due process clause rights)
    1. ENUMERATED RIGHTS - takes what is in the original bill of rights and reads them into the 14th amendment so that the states must also give you these rights. (falls under "LIBERTY") (so most of bill of rights are included in the 14th amendment for states)
    • Rights that were not included: grand jury indictment, jury trial in a civil case, right to bear arms
    • ANY BURDEN ON AN ENUMERATED RIGHT TRIGGERS HEIGHTENED SCRUTINY, AND DOES NOT ASK WHAT TYPE OF BURDEN IT IS (SEVERE OR LESS THAN SEVERE)
    1. UNENUMERATED RIGHTS- these are the rights that are not given explicitly by the constitution, but we say they are part of the substantive rights of the due process clause.

(1) We determine these rights by asking if:

    1. the right is fundamental to the American system of justice (DUNCAN TEST : MODERN MAJORITY TEST TODAY
    2. it is implicit in concepts of ordered liberty (this test applies when looking at the federal bill of rights)
    3. the right is "so rooted in the traditions and collective conscience of the American people so as to be ranked fundamental.

(2) TWO TYPES OF BURDENS AND THE LEVEL OF REVIEW TRIGGERED:
    • SEVERE/UNDUE BURDEN OF FUND. RIGHT = SS
    • LESS THAN SEVERE BURDEN OF FUND. RIGHT = MRR OR 2ND ORDER RR.
    1. FUNDAMENTAL RIGHTS (APPLIED TO STATES UNDER SUBSTANTIVE DUE PROCESS CLAUSE OF 14TH AMENDMENT)
    1. no unreasonable search and seizure (6) jury trial in crim case
    2. self incrimination (7) cruel/unusual punish.
    3. double jeopardy (8) no excessive bail
    4. right to counsel (9) free speech/religion
    5. right to speedy public trial (10) free press

(11) right to confront opposing witness (12) just compensation
    • THE 9TH AMENDMENT SAYS THAT THERE ARE OTHER RIGHTS RETAINED BY THE PEOPLE AND THE BILL OF RIGHTS IS NOT EXHAUSTIVE.
    • NON-TEXTUALLY SPECIFIC RIGHTS THAT HAVE BEEN ADDED UNDER THE SUBSTANTIVE DUE PROCESS CLAUSE OF 14TH:
    1. RIGHT TO BEAR CHILDREN
    2. RIGHT TO MARRY
    3. RIGHT TO PRIVACY
    4. RIGHT TO TRAVEL

D. RIGHT TO TRAVEL
    1. SEVERE BURDENS ON TRAVEL TRIGGER SS.
    2. LESS THAN SEVERE BURDENS ON TRAVEL TRIGGER MRR OR 2ND ORDER RR. (PROBABLY 2ND ORDER)

SHAPIRO V THOMPSON: if you are receiving welfare in one state and then travel to another state they must honor your welfare qualifications. They cannot deny you of benefits for a certain period. This was considered a severe burden so it triggered SS (severe due to a person can not live without welfare check)
    • Traveling to another state to get a divorce and you have to wait a certain period of time in the state to be able to get it is considered a less than severe burden. (triggers 2nd order rational review)
    • HOWEVER, THE RIGHT TO TRAVEL HAS NOW BEEN CONSIDERED A LONG FORGOTTEN RIGHT THAT SHOULD FALL UNDER THE PRIVILEGES AND IMMUNITIES CLAUSE OF 14TH. SO, WITH THIS WE WOULD THINK THE COURT SHOULD APPLY INTERMEDIATE SCRUTINY B/C OTHER P&I CASES ARE ANALYZED UNDER THIS LEVEL OF REVIEW, BUT THE COURT DOES NOT SAY.
    1. RIGHT OF PRIVACY

INCLUDES:

    1. RIGHT TO MARRY
    2. RIGHT TO PRO CREATE/ NOT PRO CREATE
    3. BEAR AND RAISE CHILDREN
    4. ESTABLISH A HOME

MYER CASE: (foundational case) this case said that it was unconstitutional to prohibit teaching children in any language except English (established the freedom to acquire useful knowledge, freedom to pursue common occupations, freedom from bodily restraint; all of these are included in the term "liberty")

SKINNER CASE: this case questioned a statute that said that all habitual offenders of "moral turpitude" crimes should be sterilized. THE RIGHT TO PRO-CREATE IS A FUNDAMENTAL RIGHT. "MARRIAGE AND PRO-CREATION ARE FUNDAMENTAL TO SURVIVAL OF THE RACE"

So, to get to the scrutiny, we use the equal protection clause b/c they classified criminals and then took away a fundamental right from them.

SO, IF SEVERE BURDEN (which this is) = STRICT SCRUTINY

BUT, IF LESS THAN SEVERE BURDEN =MRR OR 2ND ORDER

E. TWO WAYS TO GET TO HEIGHTENED SCRUTINY THUS FAR:
    1. BY CLASSIFICATION OF "SUSPECT" OR "QUASI-SUSPECT" CLASSES IN STATUTES
    2. OR, BY VIOLATION OF A PERSON'S FUNDAMENTAL RIGHT (SKINNER CASE, PRO-CREATION)
    1. JUSTICE HARLAN FEELS THAT THE RIGHT TO NOT PRO-CREATE BY USE OF CONTRACEPTION IS AN UNENUMERATED RIGHT (VIA HIS DISSENT IN POE CASE, 1961).
    1. HE SAYS LOOK AT PRECEDENTS; TRADITIONS ARE EVER CHANGING & EVOLVING OVER THE LAST 200 YRS.
    2. LATER LEG./EXEC. ACTION SHOWS THAT USE OF CONTRACEPTION HAS NOT BEEN A CRIME (SHOULD BE A CHOICE OF THE COUPLE)

GRIZWALD CASE: This case said that the right to have contraceptives in one's house and use them is a "fundamental right". This is an unenumerated right that is not explicit in the constitution

EISENSTANDT CASE: this case extended the above ruling to single individuals right to not pro-create. Gave single people the right to own and use contraceptives.

 
    1. RIGHT TO ABORTION (SUBPART OF RIGHT OF PRIVACY)

ROE v WADE: (1973) This case laid down three main points that were made by the majority and that were still adhered to in Casey. (1) the right of the woman to choose to have an abortion before viability of fetus, (2) the state's power to restrict abortions after viability, if the law contains exceptions for pregnancies which endanger the life of the mother, and (3) the fact that the state does have a legitimate interest from the outset of the pregnancy to protect the health of the mother and the life of the fetus.

CASEY CASE: (pg. 506 1992) MODERN ABORTION DOCTRINE

In this case the 3 main points of ROE were affirmed, but 3 justices (o'connor, souter, kennedy) modified the analysis to give us the modern doctrine that controls in abortion cases. They say that ROE does protect the "HEART OF LIBERTY" idea ("right of a person to define one's own concept of existence, of meaning, of the universe, and of the mystery of life") and that is why they affirmed it in part. But, leg./exec. Action could have taken the decision either way b/c some regulated and some did not. Adhering to the precedent laid down by ROE became a deciding factor and also a reason why ROE was only modified.

So, the 3 justices came up with the doctrine that the state could regulate abortion at any time b/c they had a legitimate interest in the mother and the child. If the regulation placed an undue/severe burden on the mother, then SS would apply and hold the regulation unconstitutional. If the burden was not undue/severe then RR would apply to it like any other regulation.

 

 

 

HOW DO WE DISTINGUISH B/W SEVERE AND LESS THAN SEVERE IN ABORTION CASES? (FROM CASEY CASE)
    1. SPOUSAL NOTIFICATION WAS FOUND SEVERE AND THEREFORE UNCONSTITUTIONAL
    2. 24 HOUR WAITING PERIOD WAS LESS THAN SEVERE AS LONG AS THERE IS A MEDICAL EXCEPTION
    3. INFORMED CONSENT AND REPORTING REQUIREMENTS FOR STATISTICAL PURPOSES WERE FOUND LESS THAN SEVERE BURDENS (INCIDENTAL BURDENS)
    4. PARENT CONSENT REQUIREMENT WOULD BE UNCONSTITUTIONAL IF IT LACKED JUDICIAL BYPASS

NOTE: THE COURT IN CAREY (PG 487) SAID THAT IF THE STATE WANTS TO PLACE DIFFERENT RULES ON MINORS AND ADULTS TO GAIN ACCESS TO CONTRACEPTIVES (AN UNDUE BURDEN) IT ONLY HAS TO PASS SOME SORT OF MID-LEVEL SCRUTINY TO DO THIS.

WHEN MAY PRECEDENT BE OVERRULED THEN?

  1. THE COURT CAN OVERRULE WRONGLY DECIDED CASES, UNLESS:
    1. THE CASE IS SETTLED LAW
    2. THERE IS SUBSTANTIAL RELIANCE ON THE RULE LAID DOWN IN THE CASE, SUCH THAT PEOPLE HAVE MADE DECISIONS IN THEIR LIVES THAT CANNOT BE CHANGED AND SHOULD NOT BE UNDERMINED BY THE COURT CHANGING THE LAW.

    1. OTHER FACTORS THAT MUST BE PRESENT TO OVERRULE PRECEDENT:
    1. THE PRIOR DOCTRINE MUST BE UNWORKABLE
    2. DOCTRINAL ANACHRONISM (this means that the law has evolved in a way that should leave this ruling behind)
    3. FACTS HAVE CHANGED CONCERNING THE RULING (this means that if since the prior case was decided, new facts or info has emerged that would have made the outcome different, such as that views have changed after considering the new info.)
    4. IF THE RULING IS SUBSTANTIALLY UNJUST/WRONG

REMEMBER: THE NATURAL LAW APPROACH (MODERN) FAVORS A DEFERENCE TO PRECEDENT

 
    1. RIGHT TO CONSENSUAL SEXUAL ACTIVITY

      2. BOWERS v HARDWICK: (pg 523) In this case two males were having consensual sex and they were arrested for violating state laws that prohibited sodomy. The court held that there is no fundamental right to sodomy since it does not relate to marriage, family, pro-creation, or child rearing, which are the other right to privacy rights listed under 14th amendment unenumerated rights. History shows us that it was a crime at common law. Leg/exec action shows us that most states have laws that outlaw homosexual sodomy. It was not a traditional right in the states. For these reasons, it is not found to be a fundamental right.

      NOTE: A state can hold different than the supreme court concerning this issue under its state constitution. This case merely says that homosexual sodomy is not an enumerated right under the 14th amendment of the constitution.

    2. THE RIGHT TO DIE

WASHINGTON v GLUCKSBERG: In this case there were three different ways of right to die that were analyzed:
    1. a right to refuse unwanted medical treatment if you are competent and say you don't want it was recognized
    2. a right for a doctor to give a terminally ill patient that is in great pain large amounts of pain killer to alleviate the pain, but he knows the large amounts will hasten death has not actually been ruled on, but some justices acted like it would be ok
    3. physician assisted suicide was found to be unconstitutional; a state cannot say whether a doctor can assist a person in taking his own life. Leg/exec actions show us that the state leg has always denied the right of physician assisted suicides

(doesn't this conflict with the "heart of liberty" idea of privacy?)

NOTE: the only difference b/w the 2nd method and the 3rd method was the purpose for which the dosage is given. In the 2nd the doctor says he is merely alleviating the patient's pain, all the while knowing it will kill him. In the 3rd the doctor is actually doing it for the purpose of causing the death of the patient (slim difference).

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SUMMARY OF FUNDAMENTAL RIGHTS UNDER THE SUBSTANTIVE DUE PROCESS CLAUSE OF THE 14TH AMENDMENT:

  • FOR SOMETHING TO BE A FUNDAMENTAL RIGHT IT MUST BE "DEEPLY ROOTED IN THIS NATION'S HISTORY SO AS TO BE IMPLICIT IN THE CONCEPT OF ORDERED LIBERTY"
  • THE SOURCES USED TO DETERMINE THESE FUNDAMENTAL RIGHTS ARE TRADITIONS ESTABLISHED BY LEG/EXEC ACTION, HISTORY, AND PRECEDENTS
  • THE TERM "LIBERTY" IS TO BE CONSTRUED LIBERALLY

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  1. PROCEDURAL DUE PROCESS OF 14TH AMENDMENT
    • "no state shall deprive any person of life, liberty, or property without due process of law" (14th amendment, sec. 1)
    • only applies to state action though! Not private!
    1. When the govt. is depriving a person of life, liberty, or property it must be done only after procedurally constitutional manner. (even if the govt. can do it under substantive due process analysis, they still must satisfy procedural)
    2. LIFE: this means the govt. cannot deprive a person of their life (death penalty) without heightened standards of due process procedures that apply to capital cases.
    3. LIBERTY:
    1. fundamental liberties- this means the freedom from bodily restraint, the right to contract, to engage in common occupations of life, to acquire useful knowledge, to marry, to establish a home, to raise children, and to enjoy those privileges long recognized as essential to orderly pursuit of happiness.
    2. Other liberty interests- these refer to the fact that one is owed due process if his reputation, good name, honor, or integrity is likely to be harmed by the action.
    1. PROPERTY:
    1. by contract - a person with contract rights has a property interest in his contract, and gets due process before he is deprived of this right or interest.
    2. By statute- the govt. can create a property right by passing a statute; however, once they create the property right, they can not say what process would be considered due when depriving the interest; that is for the court to do.
    3. By practice- in some situations it is implied by practice that a property interest exists. An example of this would be if the person and the employer had a mutual expectation that the employee would be rehired and then he is not. (Sinderman Case , pg. 550 bottom)

 

 

    1. DEFINING WHAT PROCESS IS DUE:
    • LEADING CASE: MATTEWS v ELDRIDGE: in this case a man's social security benefits were taken away b/c the agency said he no longer was disabled and he had other sources of income. Not as harsh of requirements here b/c it is not such a great deprivation as welfare deprivation is. The cost of pre hearing in all social security deprivation cases would be great.
    • THE COURT HAS ADOPTED A BALANCING APPROACH TO DETERMINE WHAT PROCESS IS DUE:
    1. THE PRIVATE INTEREST OF THE INDIVIDUAL THAT WILL BE AFFECTED BY THE ACTION
    2. THE RISK OF AN ERRONEOUS DEPRIVATION THROUGH PRESENT PROCEDURES AND THE PROBABLE VALUE, IF ANY, OF ADDITIONAL OR SUBSTITUTE PROCEDURES
    3. THE GOVERNMENT'S INTEREST, INCLUDING THE FISCAL AND ADMINISTRATIVE BURDENS AND COSTS THAT ADDITIONAL PROCEDURES WOULD ENTAIL
    • WHEN DECIDING ON THE ABOVE THREE ISSUES, THE MAIN ISSUES THE COURT LOOKS AT ARE:
    1. DOES THE PERSON GET A PRE OR POST DEPRIVATION HEARING?
    1. welfare cases (Goldberg case) = pre deprivation hearing b/c the deprivation of welfare check has a greater weight than does the cost of govt. giving the hearing.
    2. Social security cases (Matthews case) - in these cases the govt. burden outweighs the burden on the individual so person will only get a post deprivation hearing in which he can contest the deprivation of his benefits.
    1. WHAT TYPE OF HEARING SHOULD THE PERSON RECEIVE?
    1. welfare cases= oral hearing b/c the court needs more info. To decide if the person should no longer receive welfare check; ask neighbors, friends, etc… about their lifestyle.
    2. Social security cases= written submission in which the person gives a statement and the decision usually rests on the medical reports on whether the person is still disabled.

 

 

 

    1. DO THEY HAVE A RIGHT TO CROSS EXAMINE WITNESSES OR DO THEY ONLY GET TO TELL THEIR OWN STORY?
    1. welfare cases= usually get to cross examine the witnesses in order to challenge the opposing testimony
    2. social security cases= only get to tell your own story, and the judge will look at the DR.'s reports and decide the case
    1. WHAT KIND OF RECORD IS TAKEN FOR THESE CASES?
    1. Welfare cases= formal
    2. Social security cases = informal (govt. favors these b/c they are less costly)
    1. DOES THE PERSON GET A COURT APPOINTED ATTORNEY?
    1. this usually only occurs in criminal cases; rarely get this in a property matter
    2. neither welfare nor social security cases get a court appointed attorney
    • The policy behind the above distinctions is that deprivation of one's welfare check is viewed as a greater deprivation since it is likely their only source of income. Whereas in deprivation of social security the person is likely to have other sources of income. Also the risk of erroneous deprivation is not high due to medical testimony.

DEPRIVATION OF PROPERTY INTEREST= JUST COMPENSATION

DEPRIVATION OF LIBERTY INTEREST= INJUNCTIVE RELIEF

Regents v. Roth: in this case a professor at a state university was released after his contract came up without a hearing. He filed a due process complaint and the court found that he had no property interest in getting re-hired b/c the school did not have a contract to rehire him. If he had been tenured then he might have an argument under the "by practice" type of property interest. His name or reputation was not at stake either so no liberty interest in this case. To have a property interest a person must actually have entitlement to the interest, not just unilateral expectation of receiving the interest.

Goldberg case: this case gave us the rule that when the govt. deprives a person of their welfare (AFDC) benefits, they must do so only after due process requirements such as pre hearing and others mentioned above.

 

OUTLINE FOR POSSIBLE QUESTION 4 TOPICS:
  1. FIRST AMENDMENT ANALYSIS
    1. FREE SPEECH
    1. if regulating pure or symbolic speech = constitutional analysis
    • an example of symbolic speech would be burning a flag.
    1. if regulating conduct = no constitutional analysis
    • pure conduct is not protected by the 1st amendment
    1. HOW TO WORK THROUGH A FREE SPEECH ISSUE:
    1. FIRST ASK, IS THE GOVT. REGULATING PURE OR SYMBOLIC SPEECH, OR CONDUCT?
    1. if conduct, then no further 1st amendment analysis
    2. if pure or symbolic speech go to step #2

Texas v Johnson: a man burned a American flag and the court said this was symbolic speech that is protected by the first amendment; court said that govt. cannot prohibit the expression of an idea just b/c most people find it offensive.

Barnes v Glen Theater: nude dancing is considered symbolic expression of eroticism and protected by 1st amendment.
    1. SECOND, IS THE GOVT. REGULATING IN A PUBLIC FORUM (sidewalk, park, street) OR IS IT A NON-PUBLIC FORUM (one owned by the govt. such as a prison)?

IF PUBLIC FORUM OR PRIVATE PROPERTY:

(1) Is the govt. regulation content-based or a content-neutral?

CONTENT BASED- this is actually regulating what the person is saying b/c of its content; directly related to "suppression of free expression".

TWO TYPES OF CONTENT BASED REGULATION:

(1) viewpoint- this is regulation based on what the person's views are on the topic; the most offensive type of regulation; always fails; APPLY STRICT SCRUTINY

(2)subject matter- this refers to regulating the actual subject or topic from being discussed b/c of what they are saying; examples are certain types of politics such as local might be banned, but national political criticism is ok. APPLY STRICT SCRUTINY (sometimes the govt. wins these cases)

 

CONTENT-NEUTRAL- this refers to the govt. regulating for some other reason than the content of the protest or speech; such as the littering that accompanies most protests; these are easier for the govt. to regulate; APPLY INTERMEDIATE SCRUTINY! NOTE: IN THIS IS ANALYSIS, FOR PRONG #3 THERE MUST BE AMPLE ALTERNATIVES FOR THE PERSON TO GET MESSAGE OUT.

IF NON-PUBLIC FORUM (GOVT. OWNED)
    1. CONTENT BASED
    1. viewpoint = strict scrutiny
    2. subject matter = minimum rational review

(2) CONTENT NEUTRAL = minimum rational review

IF GOVT. OWNED LIMITED PUBLIC FORUM

    1. same standards as public forum standards if the challengers were using the forum for the purpose it was there for
    2. same standards as the non-public forum if the challengers were using it for something other than the reason it was there for.

PUBLIC FORUM / PRIVATE PROPERTY

NON-PUBLIC FORUM (GOVT. OWNED)

CONTENT BASED

CONTENT BASED
  • viewpoint = SS
  • viewpoint = SS
  • subject matter = SS
  • subject matter = RR

CONTENT NEUTRAL = IS CONTENT NEUTRAL = RR

POSSIBLE CONTENT NEUTRAL REASONS:

  1. administrative need:
  2. protection from a breach of the peace
  3. protection from prostitution & sexual assaults
  4. secondary effects that result from the speech
  5. residential privacy
  6. traffic control
  7. noise pollution
  8. security
  9. property values, retail sales, quality of life (Renton case dealing with not allowing the porn theater within a certain area of residential area, school, etc…

(10) burning of draft cards (O'brien case in which the govt. proved it had content neutral reason for banning the burning of draft cards.

 

EXCEPTIONS TO PROTECTION OF FREE SPEECH:

  1. advocacy of illegal conduct (not on exam)
  2. obscene speech
  3. indecent speech where there is a possibility that children might hear it
  4. fighting words
  • there is no 1st amendment right for the above types of speech unless the govt. regulation is one of viewpoint, in which strict scrutiny will apply. This shows the court's strong feeling about the govt. taking sides based on views and then passing legislation. (court does not like this)

EXAMPLE OF ANALYSIS OF FREE SPEECH USING (TEXAS v JOHNSON)
  1. burning of flag took place at city hall = public forum
  2. govt. reasons for regulating the symbolic speech: (only one reason has to pass test)
    1. protect from breach of peace; this is content neutral so we analyze under intermediate scrutiny
    1. important/substantial interest? Yes
    2. substantially related to end or goal? No; no relation b/w flag burning and breach of peace was proven by govt.
    3. is it substantially overbroad? Yes. It bans all flag burning
    1. "preserve the flag as a symbol of nationhood"; court says that any regulation done for purpose of symbolic reasons is considered content based regulation. So, we apply strict scrutiny here.
    1. compelling govt. interest? Maybe
    2. directly related to end or goal? No
    3. *least burdensome alternative? No, this is the main reason this statute fails; the court says that the least burdensome alternative that would have been effective would have been counterspeech by the govt. against burning flag, not banning all flag burning.

R.A.V. v City of St. Paul (1992) pg 566: a group burned a cross in a black family's front yard and the court found this to be an expression of fighting words under the "exceptions" that are not protected. However, the govt. regulation was held to be viewpoint regulation so the regulation must still undergo strict scrutiny. It was viewed as content-based ,"viewpoint" regulation b/c it did not allow expression of racial intolerance but it was ok to express racial tolerance in this manner. For this reason the statute did not pass strict scrutiny b/c it is not the "least burdensome alternative". REGULATING SPEECH ON PRIVATE PROPERTY IS SUBJECT TO SAME STANDARDS AS THOSE FOR PUBLIC FORUM.

 

 

U.S. v O'brien 1968 pg. 575: in this case man burnt a draft card in protest of the war in vietnam. The court held this was an expression under the 1st amendment, but the govt. gave a content neutral reason for banning the burning of draft cards. The govt. said that the Administrative necessity and costs that allowing this would render make it a valid substantial govt. interest. Under IS, the statute was upheld. The court laid down what is known as the "O'brien Test". "If the govt. interest is unrelated to the suppression of free expression then it will be upheld". Also if the person has "ample alternatives" of expressing himself then the statute will not be held as overbroad.

  1. EXCEPTIONS TO FREE SPEECH DOCTRINE (no protection)
    1. OBSCENITY (OBSCENE SPEECH)

MILLER v CALIFORNIA (1973) pornography case in which the court lays down the rule for which one can determine what is obscene and not protected by the 1st amendment:

MILLER TEST: MODERN MAJORITY TODAY

IT WILL BE UNPROTECTED BY 1ST IF:
    1. THE WORK TAKEN AS A WHOLE, ACCORDING TO CONTEMPORARY COMMUNITY STANDARDS, APPEALS TO THE PRUIENT INTEREST OF THE AVERAGE PERSON. (NY and TX will have different standards)
    2. IT CONTAINS PATENTLY OFFENSIVE REPRESENTATIONS THAT ARE SPECIFICALLY DEFINED BY A STATUTE
    3. THE WORK TAKEN AS A WHOLE, LACKS SERIOUS LITERARY, ARTISTIC, POLITICAL, OR SCIENTIFIC VALUE. (judged by an American standard)
    1. CHILD PORNAGRAPHY
    • ONLY DIFFERENCE IN THESE CASES (NY v FERBER) IS THAT THE COURT BANNED ANY MATERIAL WITH CHILDREN AS MODELS OR ACTORS THAT IS SEXUAL MATERIAL. THE SPEECH (EXPRESSION) ONLY HAS TO BE INDECENT.
    1. INDECENCY OVER PUBLIC AIRWAVES WHEN CHILDREN ARE LIKELY TO HEAR OR BE PRESENT
    • PACIFICA TEST: IF THE MATERIAL IS INDECENT THEN IT CAN BE BANNED B/C THE RADIO IS EASILY ACCESSIBLE TO CHILDREN, EVEN THOSE THAT CANNOT READ.

 

 

    1. ZONING OF TOPLESS BARS

      2. CITY OF RENTON v PLAYTIME THEATERS: (1986, PG 614) in this case a city said no topless bar within 1000 ft of school, residential area, etc… the govt. used a content neutral reason of "secondary effects" on the property value, retail market, and overall preservation of a good quality of life for residents. Since it is content neutral, apply IS. The bars were left with 5% of land in the city in which to locate a bar so the were left with "ample alternatives". The statute passes all 3 prongs of IS, and is upheld.

       

    2. FIGHTING WORDS

COHEN v CALIFORNIA: (1971, PG 620) : in this case the defendant was arrested for wearing a jacket in the courthouse that said "fuck the draft". This was in protest of the vietnam war. The arrest was based on the fact that his words were offensive, not based on his actual conduct of wearing the jacket. If the words are considered "fighting words" then they are not protected by the 1st amendment. The govt. used "breach of peace" reason for banning. So, IS applies. Statute does not pass the substantially related prong b/c no relation b/w his jacket and breach of peace.

How do we determine if the words are "fighting words"?

Chaplinski test: this case gave us the rule that words that by their very utterance inflict injury or tend to incite an immediate breach of the peace in a reasonable person.
    1. must be personally abusive (race, gender, sex)
    2. the more the statement is directed at an individual the more likely it is to inherently invoke a violent reaction
    3. today it is very difficult to find an expression that falls under fighting words.

    1. RADIO & TELEVISION REGULATION

      2. PACIFICA CASE: when addressing regulations of radio and television, even when dealing with content based regulations, the court uses intermediate scrutiny instead of strict scrutiny in these cases. The govt. issues license for the limited airwaves so it can also limit the material that goes out on these airwaves.

    2. CABLE :However, cable may be somewhat different. Some say it should be SS and some say it should be same as radio and television. Probably b/w IS & SS.

H. INTERNET: SS applies to internet b/c it is an affirmative act by a person to view things on the net. It is not intrusive like the TV, radio, and cable.

" IF CHILDREN ARE LIKELY TO HEAR THE OBSCENITIES, THEN THE HARSH CHILD STANDARDS REGULATIONS APPLY JUST LIKE THE ONES FOR CHILD PORNOGRAPHY. THE GOVT. CAN REGULATE THE TIMES THAT CERTAINT PROGRAMS CAN BE AIRED TO PROTECT CHILDREN."

 
    1. COMMERCIAL SPEECH

MODERN TEST FOR COMMERCIAL SPEECH: "central hudson gas test"
    • It is a hybrid b/w SS and IS:
    1. is the statute regulating illegal speech? If so, then ok. If the speech is not illegal then do the next 3 step analysis.
    2. the govt. must have a substantial govt. interest (IS)
    3. it must be directly advanced to achieving the interest (SS)
    4. it cannot be substantially overbroad and must provide ample alternatives (IS)

**it applies to content based regulation of commercial speech. Content - neutral regulations are still reviewed under IS.

VIRGINIA BOARD OF PHARMACY v CITIZENS CONSUMER COUNCIL

Statute banned advertisements of prices by pharmacist; govt. reasons for regulations were consumer safety that would be jeopardized with lower professionalism resulting from the advertising. Did not pass the "central hudson gas" hybrid test b/c it does not directly advance consumer safety. (banning ads)

Note: court has always found a direct relationship b/w advertising and demand for a product. (more advertising=higher demand, less advertising=lower demand)

So, if govt. interest was decreasing demand it would pass hybrid test.

Posadas gambling case: "just b/c the govt. can ban something does not mean they can constitutionally place any restrictions on the activity once they do not ban it (once they legalize the activity)

US v Grace: this case held that the sidewalks outside the courthouse were public forum and the people can have right to free expression on these sidewalks. So, time, manner, and place restrictions would pass IS, but the total ban of picketing will not pass the IS review.

 

 

Ward v Rock against Racism: this was a case in which the city placed regulations on the band such that the bands had to use the cities' sound equipment in order to keep the volume levels down. This park was considered a public forum, and the regulations were content neutral, so we analyze under IS. It passes IS b/c the regulations were subst. Related to noise reduction and the band was left with "ample alternatives" to get their message out. (people could still hear it)

 

    1. PUBLIC vs. NON-PUBLIC FORUM (how to classify) KRISHNA CASE:

TWO DIFFERENT APPROACHES:
    1. REHNQUIST APPROACH:
    1. look at the tradition and history of the place to see it has been public or non public
    2. has the govt. opened the property for public use, such as businesses
    3. location: to what extent has the place been marked as separate from other public areas.
    • Under this approach, Rehnquist finds an airport to be a non-public forum b/c of traditionally it was not public, and it is mostly open for business reasons. Also says that the govt. could close it off to the public at anytime.
    • So, under this approach we would have to apply only RR b/c the standard of review for non-public forums is not as strict (see chart above). The govt. reason for the ban was "free flow of traffic" which is content-neutral. Under rational review the banning of leafleting and solicitations in the airport are upheld.
    1. KENNEDY APPROACH:
    1. does the property share some of the same physical characteristics as other established public forums?
    2. has the govt. permitted access broadly to the public in this forum?
    3. Does allowing the expressive activity tend to "significantly" interfere with the uses the govt. has dedicated the property for. (i.e. airport=easy, quick, travel)?
    • Under this approach, Kennedy finds the airport to be a public forum b/c he feels it shares the same characteristics as other public places, the govt. has opened it up to the public, and also that passing out leaflets does not disrupt the travel.
    • We apply intermediate scrutiny in this case for a public forum with a content-neutral reason for the regulations. The leafleting did not pass the scrutiny, b/c it does not slow the travelers down, and therefore the regulations were found to be not substantially related. But the actual ban on solicitation of money did pass b/c it was found to slow the travelers and so substantial effect was found.

"TODAY, THERE ARE PROBABLY 3 JUSTICES THAT AGREE WITH REHNQUIST, BUT 6 THAT AGREE WITH KENNEDY. SO, TODAY PROBABLY LEAFLETTING WOULD BE PERMITTED, BUT SOLICITATION WOULD NOT BE PERMITTED.

 
    1. REGULATIONS USED WITH GOVT. FUNDING (conditions)
    1. THE GOVT. CAN DECIDE ON WHAT TO SPEND ITS MONEY AND WHAT NOT TO SPEND ITS MONEY WITHOUT VIOLATING THE 1ST AMENDMENT. SO, THERE IS NO 1ST AMENDMENT PROTECTION OF REGULATIONS ON THE APPROPRIATION OF FUNDS BY THE GOVT. UNLESS ONE OF THE FOLLOWING IS PRESENT:

UNCONSTITUTIONAL CONDITIONS ON PERSONS RECEIVING GOVT. FUNDS:
    1. if the condition of receiving the funds is based on viewpoint then it will be reviewed under SS
    2. if the place that is receiving the funding is a traditional property that has been dedicated to free speech
    3. university research grant should not be given with conditions by the government.
    4. Special relationships such as doctor/patient are protected by 1st amendment (also Medicare and Medicaid cases)

Rust v. Sullivan: In this case the health services act said that govt. funds would be used for "family planning" but abortion could not be discussed at all. This meant for abortion or against abortion counseling could not be given. The suit alleged this was a violation of 1st amendment b/c it was "viewpoint" discrimination on the distribution of funds for family planning. The court said it was not b/c it banned discussion of pro abortion and anti abortion. If it had only banned one or the other the case would have come down different. In these cases, there is a strong bias for the court to find that the govt. has not conditioned the funds based on viewpoint, so very often the conditions are constitutional.

 

 

 

 

 
    1. SPEECH WITHIN GOVT. INSTITUTIONS

Tinker case: this was the original case that laid down the rule that "students do not shed their constitutional rights when they enter the school building"

Hazelwood case: in this case some journalism students wrote an article about abortion and divorce that occurred in the school. The principal pulled both the articles from the paper and did not allow them to be printed. The students brought suit under the 1st amendment.

RULE: THE SCHOOL CAN BAN THINGS THAT ARE FOUND TO BE "SUBSTANTIALLY LIKELY TO INTERFERE WITH THE WORK OF THE SCHOOL, OR IMPINGE ON THE RIGHTS OF THE OTHER STUDENTS, SO LONG AS THEY ARE RELATED TO TEACHING CONCERNS.
    • SCHOOL IS A NON PUBLIC FORUM SO ANY REGULATIONS IN THE SCHOOL SUCH AS HAIR, OUTFIT, ETC… WOULD BE ANALYZED UNDER RR.
    • FOOTBALL FIELD PROBABLY PUBLIC FORUM, SO CONTENT BASED REGS. TRIGGER SS, AND NEUTRAL TRIGGER IS.
    1. PRIOR RESTRAINTS
    • PRIOR RESTRAINTS ON A PERSON'S FREEDOM OF EXPRESSION ALWAYS TRIGGER STRICT SCRUTINY EVEN IF THE REGULATION IS CONTENT NEUTRAL.
    • THIS SHOWS THE COURT DOES NOT FAVOR REGULATIONS THAT RESTRICT SPEECH BEFORE IT HAPPENS B/C THEY ARE NORMALLY TOO BROAD.
    1. PERMITS FOR FREE SPEECH
    • REGULATIONS THAT REQUIRE A PERSON TO GET A PERMIT BEFORE DEMONSTRATING ARE ANALYZED UNDER THE NORMAL 1ST AMENDMENT ANALYSIS. SEE THE QUICK CHART UNDER FREE SPEECH FOR STANDARDS OF REVIEW.
    • A VALID CONTENT NEUTRAL REASON FOR REQUIRING A PERMIT IS ADMINISTRATIVE NEED (this refers to not having two groups protesting at same place/time.)
    1. INJUNCTIONS

Madsen v Women's Health Center: this case was about the injunction that was issued by the court to keep the abortion protestors from being so close to the clinic. The govt. used the content neutral reason of "free flow of traffic" in and out of the clinic. However, injunctions receive a hybrid scrutiny that is in b/w IS and SS. Scrutiny for injunctions: HYBRID SCRUTINY FOR INJUNCTIONS
    1. must be a substantial govt. interest (IS)
    2. the regulation must be substantially related to the government interest (IS)
    3. No more speech may be burdened than necessary to serve the significant government interest. (b/w IS & SS; it is not necessarily the least burdensome alternative, but it is stricter than just "not substantially overbroad."
    • Under the above standard, the following findings were made:

(a) 36 ft buffer around the clinic = upheld (free flow of traffic)
    1. noise level = upheld
    2. ban on signs outside the clinic=struck down; too burdensome
    3. 300 ft no approach zone=struck down; too broad
  1. THE RELIGION CLAUSES

A. FREE EXERCISE CLAUSE: "congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof"

Wisconsin v Yoder: (1972) this was the case in which the Amish people did not want their kids to go to school past the eighth grade b/c they would not need the education to live in the Amish paradise, and the schooling would subject them to things they did not need to be involved in. the court held that one does have a fundamental right to exercise religion and so they triggered the SS test of the state requirement of these children to attend school. The statute did not pass strict scrutiny b/c it was not the least burdensome alternative.

"any burden on the exercise of one's religion triggered strict scrutiny so long as it was a "sincerely held religious belief". (court would believe you if it was a plausible argument)

Employment Division v Smith: (1990) this case was the two men that smoked peyote for their religion, were fired from their job for doing it, and then could not receive worker's compensation b/c of