I. Introduction to the Constitution

A. Articles 1 - 7 of the Constitution from 1789
        1. Establishes the mechanics of the gov‘t and allocates power between the branches of
        this new federal gov‘t (Horizontal division of power)
                 a. Article I:
                          i. Set up Congress
                          ii. Congress can only do what is stated in the Constitution
                 b. Article II:
                          i. Executive Branch
                          ii. No specific prohibitions on presidential power
                 c. Article III:
                          i. Judiciary
                          ii. Creates the Supreme Court
                          iii. Authorizes Congress to set up lower courts
                 d. Everything that happens requires the cooperation of a couple of branches
                          i. Can be a good thing to check power
                          ii. Can also be very frustrating, i.e. when the Congress can‘t get any of
                          their laws passed
                 e. Constitution not concerned with efficiency – wanted to challenge tyranny
                          i. Believed that legislators were inherently skeptical of the President and
                          would do their elected job with that in mind
        2. Tenth Amendment: Congress has limited power (those enumerated in Article I and
        other places in the Constitution) and the states have everything else.
                 a. Vertical Division of Power – FEDERALISM
        3. Why so little protection of individual rights?
                 a. Faith that new structure was going to protect people
                 b. In fact, one argument against the Bill of Rights was that it was unnecessary

B. Bill of Rights – First Ten Amendments
        1. Designed to protect individual rights and liberty (not really covered in Arts. 1-7)
                a. Framers originally thought that the structure of the govt. was enough to
                protect individual rights, so BoR not enacted until 3 years after signing of
        2. Limited Congressional (Federal) authority, but not state power
        3. Even though now expanded to states as well as federal governments, still doesn‘t
        apply to private individuals.
                a. States have power to pass limitations, but not governed by the Constitution.

C. Post-Civil War Amendments (XIII – XIX)
       1. The Nation survived the Civil War, but the Constitution really didn‘t
       2. Fourteenth Amendment
               a. Big Change 1: ―All persons born‖ – expansion of ―We the People‖ to include
               slaves, women; overruled notion the slaves are property, not people
               b. Big Change 2: Applies the Bill of Rights to the States, and established equal
               protection and due process to ALL people in EVERY state
                        i. Demonstrates awareness that it‘s not just the Federal gov‘t that needs
                        to be checked… state power can also get out of control and be abused
               c. Big Change 3: [Section 5] Congress can now pass regulating states

II. Federal Judicial Power (Courts)
A. The Authority for Judicial Review:
       1. Federal Review:

                           Constitutional Law – ADLER / Spring 2008
        a. Marbury v. Madison (2): establishes the authority for judicial review of both
        federal executive and legislative acts, since there is no express authority written
        into the Constitution. M filed suit in the United States Supreme Court seeking a
        writ of mandamus to compel Secretary of State Madison to deliver his
        commission papers to federal judge, per statute. Court found that commission to
        the position was complete as soon as Adams affixed the presidential seal, and
        unlike a deed, delivery to M was not required.                  Therefore, withholding
        commission is the wrong, and M wanted a remedy. However, Court found it did
        not have power to issue any remedy. Held Even though the Judiciary Act of
        1789 purported to grant the Supreme Court the right to issue a writ of
        mandamus, because that right is not expressly enumerated in the Constitution,
        the Court‘s jx. is null and void
                 i. Established Art III as ceiling on federal court jx., rather than the floor
                           1. Constitution grants limited power, is not aspirational
                           2. Not like the Declaration of Independence – instead, places
                           real limits on the gov‘t and binds all branches to some extent.
                 ii. ―Government of laws and not of men‖ – No man above Constitution
                 iii. ―The Constitution is [ ] a superior, paramount law, unchangeable by
                 ordinary means . . . [and] an act of the legislature repugnant to the
                 Constitution is void.
                 iv. ―It is emphatically the province and duty of the judicial department to
                 say what the law is. Those who apply the rule to particular cases,
                 must of necessity expound and interpret that rule. If two laws conflict
                 with each other, the courts must decide on the operation of each.‖
                           1. Because judges have lifetime appointments, they don‘t have
                           to worry about politics and can make a more informed and moral
                           decision (at least in theory)
        b. Original Jx. [parties cannot just agree to be in federal court first]
                 i. Cases affecting ambassadors
                 ii. Cases affecting public ministers and consuls, OR
                 iii. Cases is which the state is a party
        c. Appellate Jx.:
                 i. Admiralty and maritime
                 ii. Where U.S. is a party
                 iii. Between citizens of different states
                 iv. Between citizens of same state claiming lands by grants of diff. states
                 v. Between a state (or its citizens) & foreign states, citizens, or subjects
        d. What about jx. stripping?
                 i. Can Congress limit the cases that the Supreme Courts can hear (such
                 as limiting review of School Prayer or abortion)?
                 ii. Huge, unresolved issue before the Supreme Court (and has been
                 throughout the past 200 years).
2. State Court Review:
        a. Martin v. Hunter’s Lessee (9): Dealt with 2 competing claims to a plot of
        land. Court recognized state‘s authority to have taken and disposed of land.
        Further Held Supreme Court has the authority to review state court judgments if
        their decisions generate federal constitutional issues; in this case, the Court
        found the federal treaty controlling.
                 i. Constitution based on recognition that ―state attachments, state
                 prejudices, state jealousies, and state interests might sometimes
                 obstruct, or control, or supposed to obstruct or control, the regular
                 administration of justice.‖
                 ii. ―Supreme Court review is essential to ensure uniformity in the
                 interpretation of federal law.‖
        b. Cohens v. Virginia (10): Brothers convicted of selling fake lottery tickets in
        violation of state law appealed to USSC. Ct. reasoned that state courts often

                  Constitutional Law – ADLER / Spring 2008
               could not be trusted to adequately protect federal rights b/c ―in many States the
               judges are dependent for office and for salary on the will of the legislature.‖
               Therefore, reaffirmed the constitutionality of Supreme Court review of state court
               judgments. Held Criminal defendants can seek Supreme Court review if they
               believe their conviction violates the U.S. Constitution.
        3. Executive Branch Review
               a. The executive cannot be sued on matters that involve executive discretion.
                        i. Example: if the president vetoes a bill, the decision is not reviewable
               b. Only when questions arise with respect to which the law imposes a duty to act
               upon a high official of the executive branch can the court intervene.
                        i. Example: If the president (or his agent) has a duty to carry out an act,
                        and he fails to do that, then the aggrieved party arguably has a legal right
                        and remedy (perhaps a writ of mandamus)
        4. Other review (Executive Actions of the State):
               a. Cooper v. Aaron (9): Court orders Little Rock High School to Desegregate;
               because 14th Amendment does not allow discrimination on the basis of race.
               School argues that it is doing what the Constitution requires – separate but
               equal. Court Held all judges sign an oath to support the Constitution and it‘s up
               to the USSC to dictate what the law actually is; therefore court can exercise
               review over Prez, Congress, State Court judges, AND ALSO executive actions of
               state Governors.

B. Limits on the Federal Judicial Power
       1. Interpretive Limits: raises questions about how the Constitution should be
       interpreted, and determines the power and import of the Court. (self-imposed)
                a. Originalism / Narrow Judicial Power (democracy = rule by elected officials)
                        i. Court is justified in protecting constitutional rights only if they are stated
                        in the text or intended by the Framers.
                                  1.    ―Judges deciding constitutional issues should confine
                                  themselves to enforcing norms that are stated or clearly implicit
                                  in the written Constitution.‖
                        ii. Desirable way to limit unelected judges in a democratic society.
                                  1. If Constitution is silent, it is for the legislature, unconstrained
                                  by the Courts, to decide that law.
                                  2. Constitution evolves by amendment only.
                        iii. Variations on approach:
                                  1. Specific Intent
                                  2. Abstract Intent
                        iv. PROBLEM: intent of the framers not always clear
                b. Non-originalism / Broad Judicial Power (Ct. determines Constitution)
                        i. Believe it is important that the Constitution evolve by interpretation and
                        not only by amendment.
                        ii. ―Courts should go beyond that set of references and enforce norms
                        that cannot be discovered within the four corners of the document.‖
                        iii. Don‘t want the Constitution to remain static; rather, it should evolve to
                        meet needs of a society that is advancing technologically and morally.
                                  1. Ex: racial discrimination favored under the constitution
                                  2. Ex: equal protection originally not meant to apply to women
                c. Tools for Constitutional Interpretation
                        i. Constitutional Text (O and Non-O)
                        ii. Intent of Framers (Non-O, and sometimes O)
                                  1. Originalists look only at the intent at the time of the Const,
                                  2. Non-originalists consider what Framers would do today
                        iii. Tradition/Historical analysis (Non-O)
                                  1. Look at what the states have been doing
                                  2. Contemporary morals and values

                            Constitutional Law – ADLER / Spring 2008
                 iv. Precedent (Non-O and O)
                 v. Policy / social costs / democratic process (non-O only)
                            1. Often interested in improving processes of gov‘t (efficiency)
                 vi. Natural Law Principles
2. Congressional Limits: refers to the ability of Congress to restrict federal court jx.
        a. Art III, § 2: ―Supreme Court shall have appellate jurisdiction, both as to Law
        and Fact, with such Exceptions, and under such Regulations as the Congress
        shall make.‖
        b. Does this include the power to limit the matters before the Supreme Court?
                 i. Ex: Jennings-Butler Bill prevented review of State Board of Bar
                 Examiners‘ decisions concerning who could practice law in a state (24)
        c. If not, then what does power to make ―exceptions and regulations mean?‖
                 i. Some reason that Congress has broad authority to remove matters
                 from the Supreme Court‘s purview, and that the Constitution intended
                 Congress to be able to check the judiciary
                 ii. Others contend that Congress is limited in its ability to control USSC
                 iii. Still others believe that even though Congress is given the authority
                 to limit Supreme Court jurisdiction in the text of Article III, removing
                 particular topics from review is an unconstitutional abuse of that
        d. However interpreted, Congress cannot use jx. stripping power to violate the
        constitution (i.e. Due Process)
3. Justiciability Limits: refers to a series of judicially created doctrines that limit the
types of matters that federal courts can decide.
        a. Art III, § 2 authorizes federal courts to hear several types of ―cases‖ and
        ―controversies,‖ giving rise to a series of limitations on federal judicial power
                 i. Case or Controversy language ―limits the business of federal courts to
                 questions presented in an adversary context and in a form historically
                 viewed as capable of resolution through the judicial process‖
                 ii. Some limits are ―constitutional‖ so Congress cannot override them
                 iii. Others are ―prudential,‖ meaning that they are based on prudent
                 judicial administration and can be overridden by Congress
                            1. Usually inspired by public policy
                 iv. Collectively, limits conserve judicial resources, and promote fairness
        b. Five Major Doctrines:
                 i. The Prohibition Against Advisory Opinions: Federal courts cannot
                 issue advisory opinions.
                            1. There must be an actual dispute between adverse litigants
                                    a. Ex: page 32; in dispute between France and
                                    England, U.S. adopted position of neutrality, but asked
                                    the USSC to answer long list of questions about
                                    country‘s conduct. Court refused to answer questions,
                                    reasoning that it was a court of last resort.
                                    b. Ex: page 32; Congress adopted a law permitting
                                    veterans to file pension claims in the circuit courts.
                                    USSC found that duty of making recommendations
                                    regarding pensions ―was not of a judicial nature.‖
                            2. In order for a case to be justiciable and not an advisory
                            opinion, there must be a substantial likelihood that a federal
                            court decision in favor of a claimant will bring about some
                            change or have some effect.
                            3. Rationale:
                                    a. Might be difficult for the court to envision the
                                    circumstances under which the law might be
                                    unconstitutional – need the benefit of concrete facts in
                                    order to assess constitutionality.

                  Constitutional Law – ADLER / Spring 2008
                 b. Want to conserve judicial resources
        4. Note: Declaratory judgments are okay, as long as there is an
        actual dispute.
ii. Standing (ELEMENTS: Injury, Causation, and Redressability)
        1. INJURY: req. of Art. III for there to be case / controversy
                 a. Must be injury P has suffered, or will imminently
                         i. City of Los Angeles v. Lyons (42): P placed
                         in chokehold by POs. Sued for damages and
                         injunction against future use of chokehold in
                         nonviolent arrests. Court found that P could sue
                         for past damages, but found that he lacked
                         standing to seek future injunction. Court Held P
                         lacks standing because he is unable to show
                         that he is likely to suffer future injury.
                                   1. DISSENT Majority‘s holding amounts
                                   to finding that the federal courts are
                                   without the power to enjoin enforcement
                                   of the City‘s policy, now matter how
                                   flagrantly unconstitutional.
                         ii. Lujan v. Defenders of Wildlife 1992 (43):
                         Citizens brought a suit challenging US
                         compliance with the Endangered Species Act,
                         and its decision that it would only follow the Act
                         in the U.S. or on the high seas. Ps alleged that
                         they were harmed by this failure to comply with
                         the Act abroad because they had a special
                         interest in endangered animals, and would likely
                         return to areas of the world where animals are
                         most at risk. Court rejected Ps arguments,
                         including (1) ecosystem nexus, (2) animal
                         nexus, and (3) vocational nexus; further found
                         that Ps interest in wildlife failed to establish an
                         ―imminent‖ injury. Court was willing to accept
                         that one with an interest in a particular animal
                         might have standing; however, Held Ps lack
                         standing because they have failed to assert an
                         injury; further, even though the Endangered
                         Species Act purports to extend standing to the
                         Ps, Congress cannot expand standing (since
                         Article III is a ceiling on federal jx); standing is a
                         justiciability limit, not a prudential limit.
                                   1. DISSENT: Ps advance sufficient
                                   facts to create a genuine issue for trial.
                                   Further, argues that a Ps unilateral
                                   control over his or her exposure to harm
                                   does not necessarily render future harm
                                   speculative – matter for trial.
                                   2. Dissent quoted Marbury: ―The very
                                   essence of civil liberty certainly consists
                                   of the right of every individual to claim
                                   the protection of the laws, whenever he
                                   receives an injury.
                 b. Injury must be distinct from 1 suffered in general
                         i. Article III does not grant the courts an
                         unconditioned authority to determine the
                         constitutionality of executive or legislative acts.

 Constitutional Law – ADLER / Spring 2008
                             1. Fed. courts can only decide rights of
                             individuals, not of citizens in general.
                    ii. Hein v. Freedom From Religion 2007 (S10):
                    Court explored whether taxpayers have standing
                    to challenge government spending from
                    executive funds that aid religion. Ps claim that
                    the Prez‘s Faith Based Initiatives violates the
                    Establishment Clause, and that they have
                    standing to sue because of their taxpayer status.
                    In Flast v. Cohen, court recognized a narrow
                    exception to the general principle that taxpayer
                    status alone cannot create standing to sue.
                    There, the court held that the a plaintiff has
                    standing to challenge a law authorizing the
                    use of federal funds that allegedly violates the
                    Constitution.      Here, court found that b/c
                    Congress did not specifically authorize spending
                    on faith-based conferences, the Flast exception
                    did not apply. Instead, Congress appropriated
                    general executive funds to be used at the
                    discretion of the President. Court found that the
                    Ps legally cognizable interest in the taxes that
                    were paid to create these funds was generalized
                    and attenuated.        Held In order to uphold
                    separation of powers, taxpayers lack standing to
                    challenge federal spending that is not the result
                    of an express Congressional mandate.
                             1. Scalia concurrence: Believes Flast
                             should be repudiated.              Focused
                             discussion on distinction between
                             ―Wallet Injury‖ and ―Psychic Injury.‖
                             Reasoned that in this case, argument
                             for wallet injury is attenuated at best,
                             and that psychic injury should not be
                             basis for standing. On this basis, the
                             majority‘s conclusion that Ps lack
                             standing to sue is the correct result.
                             2.    Souter dissent:       Believes there
                             should be no distinction between Flast
                             and this case. In both cases, Ps were
                             injured because tax money was spent to
                             aid religion.       Recognized ―[i]f the
                             Executive could accomplish through the
                             exercise of discretion exactly what
                             Congress cannot do through legislation,
                             Establishment Clause protection would
                             melt away.‖
                             3. O‘Connor dissent: believes that the
                             Court has gutted the Establishment
                             Clause, making it impossible for any P
                             to bring a cause of action.
                             4. Two-part test taken from Flast:
                                      a. Taxpayer must establish a
                                      logical link between [taxpayer]
                                      status and the type of legislative
                                      enactment attacked.

Constitutional Law – ADLER / Spring 2008
                                          b. Taxpayer must establish a
                                          nexus between that [taxpayer]
                                          status and the precise nature of
                                          the constitutional infringement
     2. CAUSATION: P must allege and prove that D caused harm
              a. Came up in Lujan: US provided only 10% of funding
              for the project, so injunction would not necessarily assist
              wildlife protection
     3. REDRESSABILITY: P must prove it is likely that a favorable
     court decision will remedy the injury (extension of the
     causation requirement]
              a. Lujan: Since the agencies funding the projects
              abroad were not parties to the case, relief could be
              accorded only against the Secretary, which would not
              redress the citizens‘ specific concerns. In addition,
              these agencies contribute only a fraction of the funding
              for the challenged programs.
              b. Because redressability is primarily a factual question,
              courts are criticized when it‘s determined based on the
              pleadings, as all decisions about standing are.
     4. Additional Prudential Requirements: even if technically
     able to show standing, Ct. could still refuse jx. over suit.
              a. Prohibition on third-party standing
                        i. P must assert his own legal rights and
                        interests, since he will litigate most effectively if
                        bringing own interests
                                 1. Ex: Gary Gillmore on death row and
                                 wanted to die, but his mother kept trying
                                 to bring appeals to his death sentence.
                                 Does she have standing to try and
                                 protect her son when they have
                                 conflicting interests? Court says no.
                                 2. May get different result when the
                                 interests are the same, such as when
                                 physicians bring suits on behalf of their
                                 patients who desire abortions.
                        ii. Exceptions:
                                 1. Where the 3 party is unlikely to be
                                 able to sue (substantial obstacles to the
                                 3 party asserting his or her rights &
                                 reason to believe that the advocate will
                                 effectively represent the interests of the
                                 3 party)
                                 2. Close relationship btwn P / 3d party.
              b. Outside zone of protection
                        i. someone might have an actual injury that falls
                        under a specific statute, but the court may find
                        that the statute was not created to address that
                        type of injury.
                        ii. Ex: cattle ranchers won‘t get relief under
                        Endangered Species Act if death of their cows is
                        the unintended result of protecting an
                        endangered species.
              c. Prohibition of generalized grievances
                        i. Must be a violation of an individual right.

Constitutional Law – ADLER / Spring 2008
                                      1. EX: Taxpayer cannot complain gov‘t
                                      spending 25 cents/$ on armed forces
                             i. Lujan might have been decided this way.
iii. Ripeness (when litigation may occur)
         1. Seeks to separate matters that are premature for review
         because the injury is speculative and may never occur, from
         those cases that are appropriate for federal court action.
         2. Some overlap with standing requirement of a real injury.
                   a. However, ripeness is usually used to ask a more
                   specific question: When may a party seek pre-
                   enforcement review of a statute?
                             i. P may come to court and ask for clarification
                             on a law before it has to be violated; Ex: All
                             contraception illegal.
                   b. Court will balance Ps rights against prohibition on
                   advisory opinions.
                             i. What is the hardship on P if we make them
                             wait and don‘t given them immediate review?
                             ii. Are the issues sufficiently focused, or should
                             the court wait until more are developed?
iv. Mootness (when litigation may occur)
         1. P must present a live controversy at all stages of federal
         court litigation
         2. If anything occurs while a lawsuit is pending to end the
         plaintiff‘s injury, the case will be dismissed as moot.
                   a. EX: resolved, party dies, law changes, case settles
         3. The Court has often explained that the mootness doctrine is
         derived from Article IIIs prohibition against federal courts issuing
         advisory opinions.
                   a. This is because if a dispute is resolved before a
                   decision is handed down, then the court‘s decision is not
                   likely to have any effect.
         4. Not as strictly enforced as other justiciability limits
v. Political Question Doctrine
         1. Courts cannot decide ―political‖ questions, since that subject
         matter is committed to Congress by the Constitution (raises
         separation of powers issues)
                   a. Ex: Congressional self-governance
                   b. Foreign policy issues
                   c. Impeachment
         2. Baker v. Carr 1962 (78): Residents of TN claimed that the
         TN legislature was ―malapportioned,‖ with votes in rural districts
         having much greater weight than those in urban districts [similar
         to a case brought 15 years earlier in which the Court invoked the
         political question doctrine to decline review – Colegrove]. Ct.
         departed from precedent and refused to apply doctrine to this
         case. Reasoned ―the mere fact that the suit seeks protection of
         a political right does not mean it presents a political question.‖
         Stated that determining if the doctrine applies requires looking at:
         (1) The appropriateness of the court attributing a final judgment
         to the action of the political departments (i.e. does the
         constitution say that this issue should be decided by the
         legislature, or by the executive; such as impeachment: ―The
         house shall impeach, and the senate shall try‖); (2) the lack of
         satisfactory criteria for a judicial determination; and (3) the
         inability for Ct. to decide without making some kind of policy

 Constitutional Law – ADLER / Spring 2008
                                 determination. Held because the Ps claim is an equal protection
                                 claim (some votes are being diluted by bad division of
                                 representation), it does not implicate the relationship between
                                 the judiciary and the coordinate branches of the fed gov‘t, which
                                 gives rise to the political questions doctrine. instead, this case is
                                 about the federal judiciary‘s relationship to the States.
                                          a. Frankfurter Dissent: The majority‘s opinion ignores
                                          precedent and hurts the Court‘s reputation as ―the
                                          Supreme law of the land.‖ In order to ensure public
                                          confidence in the Court, it must refrain from political
                                          entanglements. Ultimately, majority decision tips the
                                          balance of powers towards federal courts.
                                 3. Veith v. Jubelirer 2004 (81): Held that challenges to partisan
                                 gerrymandering are non-justiciable political questions because
                                 such issues are not judicially discoverable or manageable
                                 standards. The court upheld this opinion again in 2006.
                c. Brandeis’ General Principles of Avoidances:
                       i. Court will refrain from passing upon the Constitutionality of an Act of
                       Congress UNLESS obliged to do so in the proper performance of its
                       judicial function, when the question is raised by a party whose interest
                       entitles him to raise it.
                                 1. Since constitutional decisions are ―legitimate only in the last
                                 resort‖, Ct. will not rule in friendly, nonadversary proceedings.
                                 2. Ct. will not anticipate constitutional questions in advance
                                 3. Ct. will not decide constitutional rule broader than necessary
                                 4. Ct. will not decide a constitutional question if there is some
                                 other ground upon which he case may be disposed of
                                 5. Ct. will not decide the constitutionality of a statute in a suit
                                 brought by one who fails to show he was injured by its operation.
                                 6. The Court will not decide the Constitutionality of a statute in a
                                 suit brought by one who has availed himself to its benefits.
                         ii. Some overlap with justiciability limits

III. Federal Legislative Power

A. Introduction: Congress v. The States
        1. Federalism: National gov‘t must co-exist with each respective state government
               a. Article I: Federal power
                       i. Federal gov‘t has limited constitutionally enumerated power
                                1. Immigration, bankruptcy, copyright, high seas, laws of the
                                nation, declare war, raise armies and navies, commerce, 14
                                amend, tax/spend (big ones for this class)
                       ii. Congress can act only w/ express or implied authority
                                1. M v. M: Court found authority in Necessary & Proper Clause
                       iii. Supremacy Clause: allows the removal of all obstacles to Congress‘
                       actions within its own sphere
                                1. M v. M: States have no power by taxation or otherwise, to
                                retard, impede, burden, or in any manner control the operations
                                of constitutional laws enacted by Congress to carry into
                                execution the powers vested in the general govt.
               b. Tenth Amendment: States’ rights
                       i. States have inherent police power to protect the health, safety and
                       general welfare of state residents.

                          Constitutional Law – ADLER / Spring 2008
                                    1. 10 Amendment acknowledges ―leftovers go to the States;‖
                                    gives states sovereignty over any powers not explicitly given to
                                    the fed. gov‘t in Constitution.
                          ii. State laws valid UNLESS they violate a constitutional provision
        2. Arguments for Federalism – smaller federal gov’t
                 a. National government should not be too broad and powerful over states.
                 b. States should be experimental and try out new laws or ways of handling
                 problems without interference from the federal government.
                 c. Smaller state governments are better equipped to protect individual rights.
                 d. Avoid tyranny by the federal government and the loss of individual rights.
        3. Arguments against Federalism – bigger federal gov’t
                 a. Also afraid of tyranny on individual rights (this time by the states)
                 b. Afraid that state governments, in political process, will infringe on individual
                 rights by majority rule, and ignore the individual rights of the minority voice
        4. In all challenges to the Constitutionality of an act of Congress, 2 questions:
                 a. Does Congress has the authority under the Constitution to legislate?
                 b. Does the law violate another constitutional provision or doctrine, such as by
                 infringing separation of powers or interfering with individual liberties?
        5. Broad reading of Congress’ power: McCulloch v. Maryland 1819 (101): Court
        considered whether it is constitutional for Maryland to tax newly created Bank of the US.
        Maryland objected to the bank because it called in loans owed to the US . . . so it taxed
        the hell out of it. When the bank refused to pay, Maryland sued to collect. Court first
        found that the U.S. has the authority to create a Federal bank: Congress has the right to
        pass ―necessary and proper‖ laws for carrying out the powers expressly delegated to it,
        including the responsibility of raising and collecting taxes. Secondly, when Congress
        exercises this power, the Constitution requires that its laws be the ―law of the land.‖
        Court reasons the framers meant ―necessary and proper‖ to be a guide for Congress‘
        authority, and its it not the role of the judiciary to ―inquire into the degree of its necessity.‖
        Instead, Necessary = convenient, not essential. Held states cannot impose a tax on a
        constitutional bank without violating the Supremacy Clause; as long as the end is
        legitimate and within the scope of the constitution, any appropriate and convenient acts
        by Congress that further that end and that are not prohibited by the constitution, are
        constitutional. (rational basis)
                 a. ―The government of the Union is, emphatically and truly, a government of
                 the people. In form, and substance, it emanates from them. Its powers are
                 granted by them, and are to be exercised directly on them, for their benefit.‖
                          i. Constitution bound the states under its authority, and not the reverse.
                 b. ―The government of the Union, though limited in its powers, is supreme
                 within its sphere of action . . . . It is the government of all; its powers are
                 delegated by all; it represents all, and acts for all.‖
                 c. Congress has the right to pass laws ―essential to the beneficial exercise‖ of its
                 enumerated powers under the Constitution.

B. The Commerce Clause
       1. Art. 1, § 6: ―The Congress shall have the power . . . [t]o regulate Commerce with
       foreign Nations, and among the several States, and with the Indian Tribes‖
               a. Serves as the authority for a broad array of federal statutes, from criminal
               statutes, to securities law, to civil rights and environmental laws.
       2. Four distinct eras of interpretation:
               a. Early American history – 1890s:
                        i. Commerce power broadly defined, but minimally used
               b. 1890s – 1937:
                        i. Court began to adopt bright-line rules that caused difficulty, and an
                        increasing amount of federal legislation was overturned
                        ii. Court narrowly defined the scope of Congress‘ commerce power and
                        used the Tenth Amendment as a limit

                           Constitutional Law – ADLER / Spring 2008
                iii. Court‘s majority deeply committed to laissez-faire economy
       c. 1937 – 1990s:
                i. Court expansively defined the scope of the Commerce clause and
                refused to apply the Tenth Amendment.
       d. 1990s – today: [Rehnquist Court]
                i. Court has again narrowed the scope of the commerce power and
                revived the Tenth Amendment as an independent, judicially enforceable
                limit on federal actions.
3. Three Important Questions:
       a. What is commerce?
                1. One stage of business vs. all aspects of business vs. life is US
       b. What does ―among the several states‖ mean?
                i. See Gibbons v Ogden: must be between states, not within state.
                ii. Direct effect on interstate commerce vs. ANY effect
       c. Does the Tenth Amendment limit Congress?
                i. The more broadly the Court interprets the fed‘s commerce power, the
                less state power is protected by the 10th Amendment
                          1. This interpretation believes the 10 amendment is not a
                          separate restraint on Congress, but rather an reminder that
                          Congress only may legislate if it has authority under the
                ii. The more Court restricts fed power, the more state power expands.
                          1. This interpretation believes that the 10th amendment protects
                          state sovereignty from federal intrusion, and may serve as a
                          restraint on Congressional authority
4. Gibbons – Starting point for a broad definition that later gets trimmed back:
       a. Gibbons v. Ogden 1824 (113): New York statute granted a monopoly for
       steamboat operation to Fulton, who licensed the monopoly to Ogden. Gibbons
       later started to run his own steamboat company under the authority of a Federal
       statute, breaking up the monopoly. Ogden argued against fed authority to
       legislate; he wanted commerce defined as barter, trade, and buying/selling, but
       NOT transportation. Court disagreed, Marshall defined commence to include not
       only transportation, but much more – ―commercial intercourse.‖ Marshall did
       impose some limits, however, and reasoned that this definition does not apply to
       commerce purely within one state. Held Congress can regulate local activity, but
       ONLY when that activity has substantial affect on INTERstate commerce.
                i. Defined ―Among the states‖ as ―intermingled with‖ commerce, which
                concerns more states than one state.
                ii. Thus, Commerce power trumped 10 amendment in this case.
       b. Wickard v. Fillburn 1942 (136): Fed. Agricultural Adjustment Act of 1938
       limited the amount of wheat that can be grown to avoid fluctuation in the market.
       P challenged the law because he wanted to grow more for his own use, but the
       secretary of agriculture fined him. P claimed that Congress cannot legislate
       because he is not selling the wheat across state lines. However, Court
       disagreed and found that his growth still impacts interstate commerce: supply will
       go up but demand will stay the same; Court also reasons that by using his own
       wheat he isn‘t buying wheat from the market, which also affects commerce. Held
       Congress‘ commerce authority extends to all activities having a substantial
       effect on interstate commerce, including those that do not have a substantial
       effect individually, but do when judged by their national aggregate effect.
                i. Gives the Court crazy power to legislate over even local matters
                ii. Considered to be the high water mark of the reach of Congress
                under the Commerce power
                iii. Effectation Doctrine: Even though activity is local, not commercial, if
                ALL farmers held back wheat, that might undermine the federal
                legislation as a whole.

                  Constitutional Law – ADLER / Spring 2008
                            1. Disregards the nature of the regulated activity, e.g. whether it
                            is local, and looks at whether economic effect is substantial.
         c. 1964 Civil Rights Act challenged under the Commerce Act, but failed
                  i. Court reasoned cases like Wickard allow extension of governance.
5. State of the Commerce Clause Pre-Lopez:
         a. Congress can regulate commerce in three ways:
                  i. When the activity ―substantially affects intestate commerce‖
                            1. This is where all the trouble comes up!
                  ii. Instrumentalities of interstate commerce (infrastructure, trains),
                  plus people/things that move across state lines
                  iii. Use of channels of Interstate Commerce
                            1. Telephone lines, rivers, highways, etc.
                            2. Congress can regulate channels even if activity at issue is
                            completely intrastate.
6. United States v. Lopez 1995 – first time in almost 60 yrs. that Ct. found that a
law exceeded Congress’ Commerce Clause authority (153): Federal Gun Free Zones
Act of 1990 makes it a felony to knowingly possess a firearm within 1000 feet of a school.
Act neither regulates a commercial activity nor contains a requirement that the
possession be connected in any way to interstate commerce. D charged with this crime,
but argues law is unconstitutional because Congress does not have the power under the
Commerce Clause to legislate this activity. Rehnquist, writing for the majority, agrees.
Plays with first justification for regulation of commerce: SUBSTANTIAL impact (he added
this new requirement). Also adds new test that the local activity must be commercial
or economic, which is why possession of a gun falls outside Congress‘ legislative power.
Held Holding a gun is not economic, therefore, Congress cannot regulate gun ownership,
even its effect on interstate commerce.
         a. Breyer dissent: First, who says impact has to be commercial? Second,
         Aren‘t all gun purchases commercial? We should use rationale basis: ―Could
         Congress have thought it was reasonable that leg would have a substantial
         impact on commerce?‖ Yes! Even if means are attenuated, Congress has a
         right to use them. But, Instead of deferring to the legislature, the majority‘s
         opinion ―changes the direction of the court‖ over the last 100 years
         b. Stevens dissent: Joins Breyer; also, guns are inherent articles of interstate
         commerce, therefore Congress can regulate even under Rehnquist‘s test.
         c. Thomas concurrence: Originalist; Get rid of substantial effects prong
         altogether b/c it wasn‘t intended by the original framers. Instead, the Court
         should go back to traditional commerce like trading, bartering, buying and selling.
         d. Kennedy & O’Connor concurrence: Don‘t like disturbing precedent.
         Traditionally, education is left up to the individual states‘ power – like marriage,
         criminal law, etc. Also an issue of experimentation—this might be better left to
         the states. Perhaps in a different case, we would extend Commerce Clause.
         e. Reversal of roles – liberals want to defer to Congress (not usually the case)
7. Lopez applied: (the court was serious about substantial and commercial!)
         a. U.S. v. Morrison 2000 (165): P allegedly raped by two football players.
         School initially imposed penalty, but penalty later removed and P sued for civil
         damages, per authority of VAWA. She relied on justifications in the H.R. record
         that the VAWA clause allowing private suits is legitimate because of the
         detrimental affect violence against women has on interstate commerce: jobs,
         health care, unwillingness to travel, etc. In another Rehnquist opinion, court
         reasoned that Lopez is the law in this area and Congress had once again over-
         legislated. P attempted to distinguish this case from Lopez because of the
         substantial legislative record indicating Congress‘ contemplation of the economic
         impact. Court rejected this argument. Held Local activity must be commercial in
         nature AND have a substantial effect on interstate commerce; regulation of non-
         commercial/economic activity should be left to the states.

                   Constitutional Law – ADLER / Spring 2008
                 i. Ex. of the court refusing deference to Congress, even when Congress
                 has thought through the law and provided justification for its legislation.
                 ii. In Lopez, O‘Connor was concerned about state politics in areas that
                 she considered to be the traditional preserve of the state. She was not
                 comfortable with regulation of right to bear arms. Thus, Ps pitched
                 argument to Kennedy and O‘Connor that violence against women is not
                 a state-run activity such as education (in Lopez). She didn‘t bite.
        b. Gonzalez v. Raich 2006 (S29): CA passed prop 215, legalizing use of
        medical marijuana (even though marijuana illegal under fed. law since 1937). D
        arrested for using homegrown weed. Drugs were confiscated per the Controlled
        Substance Act. She sued, claiming that the CSA surpassed Congress‘ authority
        under Commerce Clause. She argued medical marijuana doesn‘t affect
        commerce since it‘s a local activity and is being grown only for self-consumption.
        Predictably, Court disagreed and upheld the fed statute. Stevens, writing for the
        majority, reasoned that neither Lopez nor Morrison applied since marijuana is a
        popular part of commerce, and the Clause applies whether the commerce is legal
        or not. Instead, Stevens found Wickard controlling (in both cases price and
        national market conditions are affected). Held Congress may regulate non-
        economic intrastate activities where the failure to do so undercuts its legitimate
        regulation of interstate commerce (N/P Clause); Here, Congress had
        RATIONALE BASIS for finding that leaving home-gown weed outside fed control
        would have affect on price and market, issues within the fed gov‘t purview.
                 i. Conservatives don‘t want broad federal power, but do want to crack
                 down on drug use.
                 ii. Liberals want broad federal power, but don‘t like trumping CA law.
                           1. Liberals remain true to their position in Lopez, but Kennedy
                           and Scalia switch and try to justify that the Commerce Clause
                           reaches the growing of marijuana.
                 iii. O’Connor dissent: here, the majority endorses making it a federal
                 crime to grow small amounts of marijuana in one‘s own home for one‘s
                 own medicinal use. ―This overreaching stifles an express choice by some
                 States, concerned for the lives and liberties of their people, to regulate
                 medical marijuana differently. If I were a California citizen, I would not
                 have voted for the medical marijuana ballot initiative; if I were a California
                 legislator I would not have supported the Compassionate Use Act. But
                 whatever the wisdom of California’s experiment with medical marijuana,
                 the federalism principles that have driven our Commerce Clause cases
                 require that room for experiment be protected in this case.‖
                           1. O‘Connor also believes that under this holding, Congress can
                           go back and play games.
                           2. Encourages Congress to take on power and legislate broadly
                           by stating that whatever law they want to pass is a ―broad
                           regulatory scheme,‖ such as the Gun Act at issue in Lopez.
                 iv. Thomas dissent: Ds marijuana was never bought or sold, never
                 crossed state lines, and had no demonstrable effect on the nat‘l market
                 v. Renders enumerated powers meaningless to construe CC so broadly
8. State of the Commerce Clause POST-Lopez (and Morrison and Raich):
        a. Congress can regulate commerce in FOUR ways:
                 i. When the activity ―affects intestate commerce‖
                 ii. Instrumentalities of interstate commerce
                 iii. Use of channels of Interstate Commerce
                 iv.    AND Where there is a non-economic activity, which, if
                 unregulated, would punch a hole in a federal scheme that regulates
9. Effect of the Tenth Amendment – How much does it limit Congress?

                   Constitutional Law – ADLER / Spring 2008
a. First question when analyzing a statute under the CC: Who does the statute
attempt to regulate?
         i. If STATE, implicates State sovereignty, and must determine whether
         State is acting in its governmental role or as a private actor:
                  1. If governmental role, federal gov‘t may only prohibit State
                  action, but may not impose affirmative duties on States.
                           a. Printz v. U.S.: Fed Brady Bill requires background
                           checks before the sale/purchase of a gun. Two sheriffs
                           sued to prevent the provision from being enforced.
                           USSC agreed that the provision was unconstitutional.
                           Court reasoned that while the power to regulate gun
                           sales might sound like it falls within the Commerce
                           Clause (it‘s a local commercial activity that has an
                           impact on interstate commerce), Congress lacks the
                           power to command a states‘ executive authorities to do
                           anything. Held per the Tenth Amendment, Congress
                           cannot constitutionally compel state executive branch
                           officials to administer a federal regulatory program any
                           more than it can compel the states themselves to enact,
                           enforce, or administer a federal regulatory program,
                           even if the act is only temporary or administrative and
                           requires limited discretion.
                                     i. O’Connor concurrence: Court can entice
                                     participation w/ funding programs, but can‘t
                                     require it.
                                     ii. Stevens, Souter Breyer, Ginsburg dissent:
                                     When Congress exercises the powers delegated
                                     to it by the Constitution, it may impose
                                     affirmative obligations on executive and judicial
                                     officers of state and local governments, just as
                                     much as ordinary citizens. Congress has always
                                     depended on states to enforce laws locally. The
                                     only relevant question is whether Congress had
                                     the power to enact the law to begin with.
                                              1. Stevens also concerned with the
                                              practical affect of this decision in a time
                                              of national emergency (a la 9/11)
                                     iii. ADLER: Seems like Scalia creates a bright-
                                     line rule—doesn‘t matter how small the intrusion
                                     or how important the matter.
                                              1. Factors to consider::
                                                       a. Role of State gov‘t: acting in
                                                       traditional governmental role or
                                                       as a private actor?
                                                       b. Affirm. req. or prohibition?
                                                       c. Whose resources are being
                                                       used: federal or state?
                  2. If commercial actor, fed. gov‘t may regulate. (makes gov’t
                  look more like Sears than a sovereign state)
                           a. Reno v. Condon 2000 (195): Congress passed the
                           Driver‘s Privacy Protection Act of 1994 to keep DMVs
                           from selling drivers‘ personal information without their
                           consent. Reports stated that information was being
                           bought and used by criminals such as stalkers and
                           groups targeting abortion clinic employees.              South
                           Carolina DMV didn‘t want to follow the Act and claimed it

          Constitutional Law – ADLER / Spring 2008
                                         was unconstitutional under the Tenth Amendment.
                                         USSC disagreed. Court accepted the gov‘t‘s argument
                                         that DPPA is a constitutional exercise of Congress‘s
                                         Commerce Clause power (since information is sold
                                         interstate). Court then acknowledged that following the
                                         rules of the DPPA will require time and effort, but finds
                                         that this is not dispositive. Instead, there are many
                                         federal regulations that require time and effort for
                                         compliance which are constitutional under the Tenth
                                         Amendment.         Therefore, Held while the Tenth
                                         Amendment prohibits the federal government from
                                         forcing the states to enact policies or regulations
                                         that would impact the state’s citizens, Congress can
                                         regulate activities of the states themselves.
                                                  i. The law does not require the states to
                                                  regulate their own citizens in any particular
                                                  way—merely demands that the state, acting as
                                                  an owner of a database, not do something.
                                                  ii. Case implies that to the extent that the state
                                                  is acting as a commercial enterprise it may be
                       ii. If PRIVATE PARTY, fed. govt. may regulate as long as the statute
                       falls within constitutional power.
                                 1. See Lopez, Morrison, and Raich
                b. Printz implies that the 10th Amendment is an independent limitation on
                the commerce power.
                       i. Congress can pass a statute prohibiting the sale of guns to individuals
                       who don‘t pass a background check.
                       ii. However, in actuality, fed statute does something more than require a
                       test: it requires that local law enforcement assist.
                       iii. While the law is a valid execution of commerce power, the statute
                       infringes on state sovereignty… so is unconstitutional.
                       iv. Court reads the Tenth Amendment as protect state sovereignty.

C. Congress’ Tax & Spend Powers
      1. Art I, § 8: ―Congress shall have Power To law and collect Taxes, Duties, Imposts and
      Excises, to pay the Debts and provide for the Common Defense and general Welfare of
      the United States; but all Duties, Imposts and Excises shall be uniform throughout the
      United States.‖
              a. Hamilton: the only limitation is ―general welfare‖ requirement
              b. Madison: The power to tax is limited by the enumerated powers in Section 8
                       i. This view ultimately wins!
      2. Congress has broad authority under this provision:
              a. Steward Machine Co. v. Davis (200): Court considered whether Congress
              had the authority to levy taxes for unemployment compensation through the
              Social Security Act. The Court rejected the argument that the fed cannot tax a
              privilege, and instead characterized the right to work as a natural right, subject to
              taxation. Held ―what an individual does in the operation of a business is
              amenable to taxation jut as much as what he owns, at all events if the
              classification is not tyrannical or arbitrary. [must also be levied uniformly].
              b. Helvering v. Davis (201): Court affirmed broad reach of the tax and spend
              powers, and upheld tax provision for an old age pension program.
      3. Some suggestion that current court may use 10 amend as a limit to Congressional
      power, and to protect state sovereignty, but that hasn‘t happened yet.
      4. Limitations on Congress’ Power:
              a. The exercise of spending power must be in pursuit of ―general welfare‖

                          Constitutional Law – ADLER / Spring 2008
                        i. Derived from the text of the Constitution itself.
                        ii. In considering whether this test is met, Court has held that there
                        should ―substantial deference‖ to the judgment of Congress.
                b. If Congress desires to condition the States’ receipt of federal funds, it
                must do so unambiguously, enabling the states to exercise their choice
                knowingly, cognizant of the consequences of their participation.
                        i. Pennhurst State School and Hospital v. Halderman 1981 (206):
                        Congress created a grant program to provide better case for the
                        developmentally disabled. Pennhurst violated the ―bill of rights‖ created
                        in the Act and gov‘t sued. Held If Congress intends to impose a
                        condition on the grant of federal moneys, the conditions must be clearly
                        stated so that states will know the consequences of their choosing to
                        take federal funds; here, the Act failed to introduce the bill of rights s a
                        condition on the grant.
                c. Conditions on grants might be illegitimate if they are unrelated to the
                federal interest in particular national programs or projects. (NEXUS req.)
                        i. South Dakota v Dole 1987 (205): Congress enacted the National
                        Minimum Drinking Age Amendment, and instructed the DoT to withhold a
                        small percentage of federal highway funds from states where the
                        drinking age is below 21. South Dakota, where the age is 19, objected
                        that Congress id not have authority to regulate the drinking age. Held
                        regulating the drinking age is sufficiently related to the reason for which
                        highway funds are expended – safe interstate travel – and the tax is
                        therefore constitutional.
                                 1. Rehnquist implies that the 10 might kick in under
                                 circumstances where the financial inducement is so coercive the
                                 pressure turns into compulsion. (% so great).
                                 2. Brennan dissent: Regulating drinking age is squarely within
                                 the ambit of those powers reserved to the states by 21 Amend,
                                 and Congress cannot condition a fed grant in a manner that
                                 abridges this right.
                                 3. O’Connor dissent: In my view, the establishment of a
                                 minimum drinking age of 21 is not sufficiently related to interstate
                                 highway construction to justify conditioning funds appropriated
                                 for that purpose. Instead, the relationship between the drinking
                                 age (the regulation of which is reserved to the Sates) and
                                 highway use or safety is attenuated and tangential.

D. Congress’ Power Under the Post-Civil War Amendments
      1. Thirteenth Amendment:
              a. Prohibits slavery and involuntary servitude, except as a punishment for crime
              b. § 2: Congress has the power to enforce this article by appropriate legislation
      2. Fourteenth Amendment:
              a. Provides that all persons born or naturalized in the United States are citizens
              b. NO STATE can abridge the privileges or immunities of such citizens
              c. Nor may states deprive any person of life, liberty, or property without due
              process of law, or deny any person equal protection of the law.
              d. § 5: ―Congress shall have the power to enforce, by appropriate legislation, the
              provisions of this article‖
      3. Fifteenth Amendment:
              a. ―The right of citizens to vote shall not be denied or abridged by the U.S. or by
              any State on account of race, color, or previous condition of servitude.‖
              b. § 2: Congress has the power to enforce this article by appropriate legislation
      4. Whom May Congress Regulate Under the Post-Civil War Amendments?
              a. Civil Rights cases of 1883: repealed CRA of 1875; Court finds that Congress
              can regulate gov‘t actions for discrim, but not public accommodations.

                          Constitutional Law – ADLER / Spring 2008
               i. Congress can abolish ―all badges and incidents of slavery,‖ but cannot
               use the 13 amendment to ―adjust what may be called the social rights of
               men and races in the community.‖
      b. BUT, then… Jones v. Alfred H. Mayer 1968 (208): Congress can use its
      power under the 13 amendment to prohibit private racial discrimination. Held
      ―Congress has the power under the 13 Amendment rationally to determine what
      are the badges and incidents of slavery, and the authority to translate that
      determination into effective legislation.‖
               i. 42 U.S.C. § 1982: All citizens shall have the same right, in every State
               and Territory, as is enjoyed by white citizens thereof to inherit, purchase,
               lease, sell, hold and convey real and personal property.
               ii. Ct. found this was a constitutional exercise of power.
                         1. Similarly approved 42 U.S.C. 1981, which prohibits discrim in
                         private contracting
      c. Court also broadly stated in Civil Rights cases that 14 Amendment applies
      ONLY to gov’t action and cannot be used to regulate private behavior.
               i. ―Individual invasion of individual rights is not the subject matter of the
               ii. Even though courts go back and forth on this [Guest p. 209],
               restriction on reach of the 14 amend recently reaffirmed by USSC.
      d. Revisiting U.S. v. Morrison (209): VAWA rape case; court previously found
      Congress didn‘t have authority under commerce clause to provide private right of
      action for violence against women. Gov‘t argued in the alternative that the
      authority comes from § 5 of the 14 Amendment. Court first reaffirmed that the
      14 Amendment prohibits only discriminatory STATE action. Held Because
      VAWA is directed at individuals who have committed gender-motivated crimes,
      and not at any State or state actor, it is unconstitutional; If Virginia wants to give
      the victim a remedy, it can, but the feds don‘t have that same authority.
               i. Breyer dissent: Here, Congress used 14 amend to remedy the
               actions of state actors: those states which, through discriminatory design
               or discriminatory intent, failed to provide any (or adequate) state
               remedies for women injured by gender-motivated violence. Therefore
               although aimed at private parties, law really addresses state inaction.
               ii. ADLER: If Congress did address remedy to the states, then there
               would be a problem under Printz because Feds would be requiring the
               states to pass legislation to remedy gender inequality.
                         1. So, what can Congress do? Perhaps use its spending power
                         to offer state additional funds for police protection if they pass
                         this legislation re: violence against women.
5. What is the scope of Congress’ Power? i.e. How much substantive content can
Congress read into the 14 amend?
      a. NARROW VIEW: [modern trend] Congress only has authority to prevent or
      provide remedies for violations of rights recognized by the Supreme Court
               i. Under this view, Congress cannot expand the scope of rights or
               provide additional rights.
               ii. Congress is not ―enforcing‖ the 14 amend if it creates new rights
               iii. Advocates want limited Fed power and more state governance
               iv. City of Boerne v. Florida 1997 (217): In a previous case [Smith],
               USSC gave great deference to states and held that the Free Exercise
               Clause cannot be used to challenge neutral laws of general applicability,
               including a state law prohibiting the use of peyote. In response to this
               decision, Congress enacted the Religious Freedom Restoration Act,
               which prohibits gov‘t. from substantially burdening a right to exercise
               religion in the absence of a ―compelling state purpose‖ (strict scrutiny)
               In this case, archbishop applied for a permit to do some construction, but
               was denied according to a local zoning ordinance. He sued under the

                  Constitutional Law – ADLER / Spring 2008
       RFRA for interfering with his religion, but the City claimed the act was
       unconstitutional. Held § 5 of the 14 amendment gives Congress the
       power to enact laws as remedial measures and to prevent constitutional
       violations, but does not allow them to define the substantive scope of
       constitutional guarantees as already established by the Supreme Court.
                  1. Kennedy reasoned that the RFRA constitutes a considerable
                  congressional intrusion into the States‘ traditional prerogatives
                  and general autonomy to regulate for the health and welfare of
                  their citizens.
                  2. Also intrudes on judiciary‘s fundamental role to ascertain
                  scope of constitutional guarantees.
                  3. Bottom line: Congress can provide a remedy for due process
                  and equal protection problems when a state has none, or is not
                  protecting a right, but Congress cannot protect a right that
                  requires them to interpret that right differently than the Supreme
                  Court has.
b. BROAD VIEW: accords Congress great authority to interpret the 14 amend
and expand the scope of rights, or even to create new rights.
       i. Under this view, Congress may create rights by statute where the
       Court has not found them in the Constitution
                  1. Congress cannot dilute or diminish constitutional rights.
       ii. Advocates claim need to craft national power to protect civil rights and
       civil liberties.
       iii. Katzenbach v. Morgan & Morgan 1966 (212): New York required
       an ability to read and write English as a condition of voting. Federal law
       purported to preempt NY law by allowing anyone who completed at least
       6 grade in PR the right to vote. Voters in NYC challenged the fed law,
       claiming that Congress lacked the authority under the 14 amend to
       regulate literacy requirements (since the USSC had previously held that
       literacy requirement were constitutional – and thus, Congress was
       creating a new right NOT to be subject to literacy tests). Brennan,
       writing for the majority, disagreed. He reasoned that Congress does not
       need to wait for cues from the court since the 14 amend confers as
       much authority as N and P clause. Held § 5 of the 14 amendment
       authorizes Congress to enact remedial legislation to enforce the 14
       amendment due process and equal protection clauses.
                  1. Brennan embraces rational basis as appropriate test:
                            a. Leg appropriate to enforce the equal protection/due
                            process clause of 14 amendment? (goal or purpose)
                            b. Is it plainly adapted to that end? (means)
                            c. Not prohibited by, and is consistent with, the letter
                            and spirit of the constitution?
                  2. Harlan dissent: We cannot allow Congress to determine the
                  scope of a right. If we give Congress this power to determine the
                  reach of our Constitution, our rock solid structure will start to
                  erode. The majority also allows Congress to legislate individual
                  rights, which has traditionally been left to the States.
c. ATTACK PLAN (after Boerne):
       i. Fed statute must target state or state actors.
       ii. Fed has to be enforcing a right already recognized by the USSC
                  1. Congress can‘t expand rights, so if Ct. hasn‘t already
                  recognized right, its going to look suspect if Congress tries to.
       iii. If so, then we move to some level of scrutiny:
                  1. EX: Court recognizes that equal protection covers Americans
                  with disabilities. Congress then goes and passes the ADA (per
                  direction signaled by court). An employer challenges the ADA

          Constitutional Law – ADLER / Spring 2008
                                 and claims that it is unconstitutional. Court will look at the
                                 congruence and proportionality of the act – remedy should be
                                 proportionate to the injury. This involves two inquiries:
                                         a. Is there a record that discrim against disables
                                         workers is a problem (or whatever protected right we
                                         are talking about)
                                         b. If so, is the proposed remedy excessive? (don‘t
                                         want to hit a flea with a sledgehammer)

IV. Federal Executive Power

A. Powers Explicit in the Constitution
      1. Explicit Powers/Obligations mentioned in the Constitution:
              a. Art. I, § 7, par 2: Veto Power
              b. Art. II, § 1, par 1: Tenure and Oath of Office
              c. Art. II, § 2, par 1, 2, 3: Commander of Chief, Appointment of Officers, Treaties
              d. Art. II, § 3: State of the Union; take care laws are faithfully executed
              e. Art. II, § 4: Impeachment; Removal from Office
      2. If president has an express constitutional power, then the sole issue is whether the
      President is acting w/in the SCOPE of that power.
      3. Congress can also give president statutory power.
              a. The only question here is whether the law is constitutional?
              b. Ex: Ct. deemed line item veto unconstitutional, as it violated the constitutional
              procedures for enactment of legislation.

B. Inherent Presidential Power
       1. Because Article II does not limit the President to powers ―herein granted‖ [like with
       Congress], Hamilton argues that the President has authority that is not specifically
       delineated in the Constitution.
       2. Okay, so when does the President have this so-called inherent power?
               a. Youngstown Sheet & Tube Co. v. Sawyer 1952 (272): During Korean War,
               steel workers threatened to strike. On eve of strike, Truman issued an executive
               order not just enjoining the strike (pursuant to Taft-Hartley Act), but actually
               directing the Secretary of Commerce to take possession of the steel mills and
               keep them running. Congress twice informed what was going on, but remained
               silent on the issue. Steel mills brought suit in federal ct., arguing Truman acted
               outside the scope of his constitutional authority. Truman argued that he had the
               inherent power to act as chief executive and commander of the armed forces.
               Plurality Held President has NO inherent power in this case; he cannot order the
               involuntary surrender of private property to the Government (and here he tried to
               take over the steel mills to keep them running).
                        i. Four Separate Concurring Opinions:
                                1. Black: [Ultimate textualist] There is no inherent power;
                                presidential powers must be in the constitutional text or an
                                explicit act of Congress. In this case, Truman was legislating.
                                2. Justice Douglas: There may be inherent power if Congress
                                and Constitution are both silent on the issue. However, the
                                power CANNOT interfere with another branch‘s power and
                                authority (separation of powers).
                                          a. Here, the Constitution says this is a taking, for which
                                          the gov‘t must pay due comp. Since only Congress can
                                          raise money for the taking, President interfered with
                                          other powers and his actions are unconstitutional.
                                3. Jackson / Frankfurter (most important opinion—analysis
                                used in subsequent cases): President may have inherent

                          Constitutional Law – ADLER / Spring 2008
                        power. Proposes a spectrum for inherent power, dependant
                        on what Congress has or has not said on the issue – if Congress
                        is aligned with the President, then it‘s probably okay:
                                 a.     President‘s actions have maximum force and
                                 authority when he acts pursuant to an express or
                                 implied authorization by Congress.
                                          i. Seizure executed by the President pursuant
                                          to Act of Congress supported by the strongest of
                                          presumptions and the widest latitude of judicial
                                          ii. In this case, the burden of persuasion would
                                          rest on the person attacking authority.
                                 b. ―The zone of twilight‖: When Congress is silent
                                 (or is not clear), authority is uncertain and President may
                                 act independently or concurrently.
                                          i. Congressional indifference may, as a practical
                                          matter, may enable / invite independent
                                          presidential responsibility
                                          ii. Test of power left to politics (―imperatives of
                                          events and contemporary imponderables‖)
                                          rather than abstract theories of laws.
                                 c. Where the president acts in contradiction to the
                                 express or implied will of Congress, his power is at its
                                 lowest ebb, and president may only on his own
                                 constitutional powers, minus any congressional power.
                                          i. Jackson thinks that Youngstown falls in this
                                          last category, b/c when passing T/H, Congress
                                          expressly rejected proposal that would give
                                          President power to do exactly what he did.
                                                    1. Read as explicit Congressional opp.
                                          ii. While President may command the armed
                                          forces, Congress alone has authority to raise
                                          and supply the armed forces.
                                 d. Fourth (unstated) Model: President may get more
                                 deference and have more inherent authority w/ regard to
                                 foreign policy [also see C. below]
                                          i.    This is true even if Congress opposes
                                          president‘s actions
                                          ii. But still must be constitutional
                ii. Dissenters: Stood up for Truman. Argued that all the support
                Congress has given to the Korean war acts as quasi-statutory authority.
                Instead, only when the president violated an express provision of
                Congress does he act outside of his power.
3. Executive Privilege – Not mentioned in Constitution, but Presidents claim it.
       a. Rationale: Art. II gives me the power to run the executive office, and I cant
       run my office unless my advisors are candid with me.
       b. United States v. Nixon 1974 (282): Allegations that President Nixon and his
       re-election team were involved with a burglary at the DNC.                     During
       Congressional investigation, a presidential aide revealed that there was a secret
       audio recording system in the oval office. Special prosecutor filed a subpoena
       for audiotapes, and Nixon refused. Said he would release edited transcripts, but
       that his executive privilege protected some of the content. Nixon further claimed
       that he alone could determine the nature and scope of that privilege. In a
       unanimous decision, UCCS disagreed. Ct. first recognized the continued need
       for inherent executive privilege to keep certain documents/memos/conversations
       secret, for the purposes of receiving candid advice from advisors, and for

                  Constitutional Law – ADLER / Spring 2008
                national security and diplomatic purposes. However, Ct. held that this power is
                not absolute. Held Court must weigh the claim of Privilege against the necessity
                of the evidence to ensure due process and exercise of justice in a criminal case;
                in this case, the need for evidence outweighs Nixon‘s interest in privilege.
                         i. Nixon made no claim that he needed the privilege for national security,
                         diplomatic secrecy, or military/ foreign affairs.
                                  1. In those case, the court‘s balancing might lead to a different
                                  result and a broader privilege might be justified.
                                  2. However, here the Ds rights in a criminal trial (governed by 6
                                  Amend) outweigh Nixon‘s generalized reliance on privilege
                                           a. Different in Cheney – civil suit; D less protected
                         ii. Court seems to follow Douglas’ model: No inherent power here
                         because the power claimed interfered with the power of the judiciary to
                         hear cases and carry out the ends of justice.
                         iii. ADLER: should the court have even heard this case at all?
                                  1. Nixon argued this is a matter wholly within the Executive
                                  branch: a dispute b/w an executive subordinate and his chief
                                  executive officer; therefore, no justiciability.
                                           a. No case in controversy
                                           b. Also, it is a political question. No justiciability
                                  2. However, Ct. can interpret the Constitution, and that is all
                                  they need for justiciability.
                                           a. Reaffirms Marbury: no man is above the law.
                                           b. Plus if the Ct. can‘t check the President, then no one
                                           can, and very little would be left of Separation of Powers

C. Separation of Powers & Foreign Policy
      1. Introduction
              a. Constitution says very little about foreign policy decision-making
                       i. Reliance on framer intent difficult b/c of the many changes in society:
                                1. Harshest weapon framers had then was a musket
                                2. Now we have instant communication, missiles that can be
                                sent across the world in minutes, etc.
              b. Very few judicial opinions consider this question since any issues of foreign
              policy are considered non-justiciable political questions.
      2. Domestic v. Foreign Policy: Does President have more inherent foreign policy
      than with domestic affairs?
              a. in 1930s, Court was aggressively enforcing the non-delegation doctrine, the
              principle that Congress cannot delegate legislative power to exec agencies.
              b. BUT… Broad executive authority with foreign affairs:
                       i. U.S. v. Curtiss-Wright Export Co. 1936 (321): Congress authorized
                       president to issue an executive order banning the sale of arms to South
                       American nations. D was convicted of selling arms to Bolivia in violation
                       of the order. D argued that Congress had unconstitutionally delegated
                       law-making power to the president and that his executive order was
                       therefore void. Court disagreed, reasoning that the role of the president
                       is different in foreign affairs than with domestic policy. Held Congress
                       can delegate lawmaking power to the president in the realm of foreign
                       affairs; President also had the authority to act here pursuant to his
                       inherent foreign policy powers not stated in the Constitution.
                                1. Pres is only the organ that deals with other nations, holds
                                secrets, and represents US to world; therefore, he‘s in a better
                                position to know what‘s going on in the world and make the call.
                                2. U.S. must also show a united front to avoid embarrassment
                                and achieve foreign policy aims.
                                         a. President must be given discretion and latitude.

                          Constitutional Law – ADLER / Spring 2008
                          3. Only limit on President w/ foreign affairs = Constitution
       c. War Powers
                i. Lack of detail in the Constitution on this issue raises the difficult
                question, ―What is the relationship between Congress‘s power to
                declare war and the President‘s authority as Commander in Chief?
                          1. What constitutes a declaration of war?
                          2. When may the President use American troops in hostilities
                          without Congressional authority?
                ii. Because these tend to be political questions, the answers are not
                likely to come from the judiciary.
                          1. Only foray into this area: Prize Cases (327): Court ruled that
                          the President had the power to impose a blockade on Southern
                          states without a Congressional declaration of war.
                iii. War Powers Resolution of 1973: Congressional response to
                Vietnam; restricted the engagement of American troupes to 3 situations;
                also required reporting and withdrawal requirements with which
                President must comply.
                          1. Declaration of war
                          2. Specific Statutory Authorization
                          3. A nat‘l emergency created by an attack on the U.S
                iv. Constitutionality of the War Powers Act unknown, and pretty much,
                won‘t go before the Court because of the political question doctrine;
                instead, it‘s up to Congress to try and enforce it or not, such as by cutting
                off funds (Can we say Iraq?)
3. War on Terror
       a. 9/11 raised important Constitutional questions regarding war and the power of
       the President, as opposed to that of Congress.
                i. When may the Executive detain American enemy combatants?
                ii. When, if at all, are military tribunals Constitutional?
       b. Historical lead-up to 9/11 legal crisis:
                i. In 1950, Congress passed the Emergency Detention Act, which
                authorized the President to detain individuals in an emergency (a la
                Japanese Internment).
                ii. In 1971, Congress repealed the Act and Passed the Non-Detention
                Act, which stated: "no citizen will be imprisoned or detained except for
                an act of Congress"
                          1. This meant no more Presidential orders invoking this ability.
                iii. 9/18/01: Congress passed the Authorization of the Use of Military
                Force, which the President later used to go to war with Afghanistan
       c. Hamdi v. Rumsfeld 2004 (331): American citizen seized in Afghanistan;
       gov‘t claims he is an enemy combatant and that his status justifies holding him in
       the US indefinitely – without formal charges or proceedings. Court first reasoned
       that the AUMF authorizes the President to use ―necessary and appropriate force‖
       in the war on terror, including, per the Ct., the right to detain combatants for the
       length of the conflict. Thus, the Court reads the statutes as consistent with
       the president’s actions. However, court also recognized that Hamdi is entitled
       to some element of due process and cannot be detained indefinitely. Held
       Although Congress authorized detention of combatants in narrow circumstances,
       Due Process demands that the citizen by given a meaningful opportunity to
       contest the factual basis for that detention by a neutral decision-maker.
                i. Plurality’s Due Process decision;
                          1. At a minimum, Hamdi MUST:
                                  a. Have his habeas petition heard in federal court.
                                  b. Meaningful factual hearing, including:
                                           i. Notice of the charges
                                           ii. Right to respond

                  Constitutional Law – ADLER / Spring 2008
                                      iii. Right to be represented by an attorney
                   2. Does not mean, however, that Hamdi might be afforded less
                   protections than federal court Ds usually enjoy, including:
                            a. Hearsay might be admissible
                            b. Court might shift the burden to D to prove innocence
                   3 Remanded for further determination per 3-part balancing test
                   of Mathews v. Eldridge, which weighs:
                            a. The importance of the interest to the individual
                            b. The ability of additional procedures to reduce the risk
                            of an erroneous deprivation.
                            c. The government‘s interests
         ii. Thomas concurrence: believes that President has the inherent
         power to hold enemy combatants, irrespective of the AUMF. Does not
         believe that D needs due process, either.
         iii. Souter, Ginsburg, Stevens dissent: Vehemently disagreed with the
         plurality that the president has the authority to detain an enemy
         combatant without charges or a trial. Instead, although authorization can
         come from Congress, it must be explicit, which the AUMF is NOT.
         iv. Scalia dissent: In this case, Ds habeas rights might trump gov‘t
         interests. Since only Congress ahs the power to suspend habeas,
         president must go there to seek authority to detain D.
                   1. Art. I, § 9 (re: Limits on Congress): "the privilege for the writ of
                   habeas corpus will not be suspended except in case of rebellion
                   or invasion‖  Court finds this must be explicit.
d. Hamdan v. Rumsfeld 2007 (S47): Ct. considered whether there was
adequate Congressional authorization for the Executive Order that provided for
military tribunals at Gitmo. D was Bin Laden‘s driver and was one of the first to
come before a military tribunal at Gitmo. He brought a habeas appeal, and
during appeal, Congress enacted the Detainee Treatment Act, which stripped the
courts of the authority to hear Gitmo appeals, and sent all cases to the D.C.
Circuit. Stevens, writing for the plurality, reasoned that its dangerous not to have
checks and balances in this situation, particularly since there is no exigency.
Held the administration did not have authority to set up these particular military
commissions without congressional authorization, because they did not comply
with the Uniform Code of Military Justice (as approved by Congress) and the
Geneva Convention.
         i. FN 1, p. 50: Can‘t disregard the Congress' own war powers limit the
         President‘s powers  President can‘t supercede what Congress has
         already laid down, and UCMJ limits what Congress can do.
                   1. Draws from Jackson framework under Youngstown, even
                   though Curtiss-Wright attempted to distinguish domestic policy
                   from foreign policy.
                   2. Finds that Bush is operating at the lowest ebb of power,
                   operating at odds with Congress.
                   3. The Court also assumes that Jackson‘s lowest ebb of power
                   means that the president CAN‘T act if he is operating in
                   opposition to congress.              ADLER: Hamdan may have
                   strengthened the Jackson decision.
         ii. Up there w/ Youngstown - shows that Pres doesn't have blank check
         is and subject to constraints from the Court
         iii. After this decision, Congress passed explicit authorization for Military
         tribunals in the Military Commission Act of 2006. Court granted cert. for
         a hearing in Oct 2007 about whether the Act is constitutional.
         iv. Thomas dissent: In times of war, the President should be granted
         more leeway b/c he can act quicker than Congress. (concerned with the

          Constitutional Law – ADLER / Spring 2008
                        most effective allocation of power) Indeed, as Commander in Chief, he is
                        in the best position to direct foreign policy decisions and fight a war.
                 e. SUMMING UP: Hamdi and Hamdan are good examples of how separation
                 of powers, checks and balances, and cooperation between the branches works.
                        i. First, there is legislative action (the Non-Detention Act, the AUMF)
                        ii. Second, the executive claims power from those statutes to do certain
                        things through executive orders;
                        iii. Third, someone challenges what the president can do and the court
                        gets involved… and all three branches try to determine the president‘s
                        power in the context of foreign policy.

D. Checks on the Presidents
      1. Many informal checks: pressure of public opinion, and checks by Congress, such as
      the budget process.
      2. Formal procedure – Civil Lawsuits
              a. Nixon v. Fitzgerald 1982 (354): Fitzgerald, a cost-management expert for the
              air force, was fired after testifying in front of Congress about cost overruns in
              certain military projects. He alleged retaliatory firing and tried to sue. Nixon
              claimed he made the decision to fire him, but retracted the next day claiming he
              confused Fitzgerald with another former exec employee. Claimed immunity from
              suit. Court reasoned that President‘s ability to perform his duties under Art. II, §
              1 would be comprised if he had to be haled into court. In addition, by nature of
              his position, President is bound to arise intense feelings at would be at risk if
              opened up to suit Because there are other formal and informal checks, Held the
              President of the US is shielded by absolute immunity from civil damages
              liability for acts done in his official capacity as president during his tenure.
                         i. Court fears that fear of suits would chill political and crucial decisions.
                         ii. Also relied on the separation of powers argument: weary of judiciary
                         interfering w/ the executive (see Douglas dissent in Youngstown)
                         iii. White, Brennan, Marshall, Blackmun dissent: Immunity places
                         Pres above the law, like a king w/sovereign immunity. Goes against
                         basic principles of US gov‘t; The court‘s decision is a policy decision w/o
                         support, and is ambiguous in its reach.
              b. Clinton v. Jones 1997 (357): Clinton accused of making inappropriate sexual
              advances toward a subordinate while governor of Arkansas. He sought to
              postpone the civil lawsuit until he left office, so that it would not distract him or
              impair his executive duties. He argued this would be judicial infringement on the
              executive. Court disagreed, finding that the suit wouldn‘t be a big deal or take
              that much time (HA!). Court also considered history and stated that it didn‘t
              expect a deluge of litigation to flow from this holding. Held a sitting President
              does not enjoy immunity from civil lawsuits when the suits are based on (1) his
              unofficial acts (2) acts taken prior to becoming Pres.
                         i. Distinguished from Nixon since alleged tort happened before Clinton
                         took office, and would not require inquiry into presidential acts.
                         ii. Court also acknowledged that if Congress wants to give the president
                         greater protection, it can pass appropriate legislation.
                         iii. Breyer concurrence: suggests that the court should have some
                         discretion to delay proceedings if necessary (e.g. pres dealing w/ an
                         international crisis.) Balance victim‘s rights against the national welfare.
              c. HYPO: What if a president is sued for divorce while in office?
                         i. Arguments for allowing suit to proceed:
                                  1. Interests of the petitioner are greater than in a civil suit.
                                  2. President only on the hook for one suit, no open flood gates
                                  3. Not about President acting in his official capacity
                         ii. Arguments for giving President immunity:
                                  1. Time Constraint; distraction

                           Constitutional Law – ADLER / Spring 2008
                                  2. Might air dirty laundry; don‘t want to embarrass Prez.
        2. Formal Procedure 2 – Impeachment
               a. Art. II, § 4: ―The President, Vice President, and all civil Officers of the U.S.
               shall be removed from office on Impeachment for, and Conviction of, Treason,
               Bribery, or High Crimes & Misdemeanors.
               b. Art. I, § 2: House of Representatives has sole power to impeach
               c. Art. I § 3: Trial in the Senate; requires concurrence of 2/3 members present
               d. What constitutes a ―High Crime & Misdemeanor‖?
                         i. Clinton was charged w/ perjury and obstruction of justice.
                         ii. Does that count?
               e. Impeachment is a last resort.
                         i. Very serious, and very taxing on everyone; Not easily done.
               f. USSC has held that challenges to the impeachment and removal process
               pose non-justiciable political questions.

E. Executive Agencies
       1. Never mentioned in the text of the Constitution, yet they are enormously powerful.
              a. They exercise legislative power, quasi-judicial power, and executive power.
              b. There is an argument that the whole separation of powers collapses.
       2. Raise a couple of problems:
              a. Question of whether congress has given too much legislative power away.
              b. Question of whether the agencies are thwarting the aims of the legislation.
                       i. Ex: the FDA just proposed a rule that directly contradicts the statute
                       that empowered the FDA to make certain decisions.
              c. Also a concern that the president has chosen heads of these agencies that
              don‘t have any interest in the purpose of the agency.
                       i. Ex: the EPA is headed by people who don‘t have much concern over
                       environmental issues.
       3. Legal doctrine: non-delegation doctrine.
              a. Congress cannot delegate legislative power to executive agencies.
              b. Historically, concern in the courts about this, but over time, practical pressures
              have led the court to allow Congress to delegate power to the agencies.
       4. Benefits of delegating power:
              a. There is no way congress can oversee the minutia that agencies regulate.
                       i. Congress doesn‘t have the expertise or resources.
              b. Some congressmen do not want to be associated with some causes and
              instead set up agencies to press the issue.
                       i. Hence there is no accountability when the agency passes regulations.
                       ii. Eg. Homophobic congressman sets up the family values agency.
       5. Thoughts from the bench:
              a. Scalia recently wrote a unanimous opinion that says its ok for congress to
              delegate legislative authority to the executive branch:
                       i. As long as Congress gives the agency some ―intelligible principles to
                       operate under, we will consider the agency is executing the law and not
                       ii. Congress has to limit what the agency does.
                                1. Ex: When congress said that it wanted the EPA to establish
                                air quality standards to protect the public health, that was
                                considered to be an intelligible principle and ok for congress to
                                delegate power to the agency with that guidance.

V. Limits on State Regulatory & Taxing Power
A. Preemption of State & Local Laws
       1. Art. VI, Supremacy Clause: Constitution, and laws and treaties made pursuant to it,
       are the supreme law of the land.

                          Constitutional Law – ADLER / Spring 2008
2. Where Congress has acted
      a. If there is a conflict between fed. and state law, the federal law controls & the
      state law is invalidated because fed. law is supreme.
      b. What constitutes a conflict?
               i. Fed law expressly preempts state or local law; OR
                        1. Four corners of the statute
                        2. Ex: Congress requires that all cigarettes sold in US contain a
                        warning: You smoke, you cough, you die. No state is required to
                        include anything further. State adds info about secondary
                        smoke; cig companies sue, claiming state law is unconstitutional
                        because it is expressly preempted by the federal law.
                                 a. Result? Look at intent of framers – federalism
                                 b. The more broadly the intent of Congress is read, the
                                 more states will be limited.
                                 c. The more narrowly the intent of congress is read, the
                                 less states will be limited.
               ii. Preemption implied by clear congressional intent to preempt
                        1. Field preemption:
                                 a. Scheme of federal regulation is so pervasive as to
                                 make reasonable the inference that Congress left no
                                 room for the States to supplement it.
                                          i. Congressional intent to occupy the field.
                                 b. Ct. will consider:
                                          i. Whether the law covers a matter traditionally
                                          left to fed. control, i.e. immigration or
                                          bankruptcy; vs. state control, i.e. education,
                                          insurance, or safety
                                                    1. Example: Immigration law is the
                                                    exclusive province of the federal
                                                    government. In California voters passed
                                                    Proposition 187 that said that
                                                    undocumented people will not get any
                                                    California services. The court decided
                                                    the issue not on equal protection, but on
                                                    preemption. The proposition was
                                                    unconstitutional because the federal
                                                    government is the body that deals with
                                                    immigration issues. It is not for the state
                                                    to determine immigration policy
                                          ii. If there is a broad pattern of federal regulation
                                          already in place, i.e. nuclear energy; and
                                          iii. If Congress has set up an agency with broad
                                          powers i.e. FCC, with which the law ―conflicts‖
                        2. Conflict preemption:
                                 a. Occurs when compliance with both federal and state
                                 regulations. is a physical impossibility, OR
                                 b. Where state law stands as an obstacle to the
                                 accomplishment and execution of the full purposes and
                                 objectives of Congress.
                                 c. Ex: federal law requires all trucks that travel interstate
                                 have to be at least 20 feet long… but a state law
                                 provides that no truck in the state can be no more than
                                 18 feet long.
                                          i. Not okay – impossible for truck driver to
                                          comply with both laws at the same time
                                          ii. Therefore, implied preemption

                   Constitutional Law – ADLER / Spring 2008
                              d. What about environmental law? Can a state require
                              pollution to be even cleaner than federal law. Is there a
                                        i. Have to look at legislative intent.
                                        ii. Congress could explicitly provide that federal
                                        statute is a ceiling and not a floor.
                                                 1. If a ceiling, then state can go below
                                                 2. If it is a floor, the state can go above.
                      3. Impede Preemption:
                              a. Occurs when state law arguably impedes federal goal
                                        i. Ex: If the federal government wants to
                                        encourage the number of nuclear power plants
                                        and requires a license, but the state makes it
                                        more difficult to get a license then the state may
                                        be impeding a federal goal.
                                        ii. The state goal of requiring more safety may
                                        frustrate the federal goal of building more plants.
                                        iii. However, if the state requires a license to
                                        determine financial solvency then maybe the
                                        state law isn‘t frustrating the federal goal.
3. Where Congress has not acted / Judiciary decides that state law not preempted
      a. State and local laws can still be challenged under 2 principles:
              i. Dormant Commerce Clause – only applies to the states
                      1. Sometimes called the negative Commerce Clause
                      2. Principle that State and local laws are unconstitutional if they
                      place an undue burden on interstate commerce.
                      3. Frankfurter: ―The doctrine is that the Commerce Clause, by
                      its own force and without national legislation, puts it into the
                      power of the Court to place limits on State authority.‖
                      4. Exception:
                              a. Okay if Congress authorize the state or local action
                              b. ―Market Participant exception:‖ a state or local
                              government may favor its own citizens in receiving
                              benefits from state or local governments or in dealing
                              with gov‘t-owned businesses.
                      5. Rationale:
                              a. The Constitution wanted states to avoid competing
                              with each other by placing barriers to trade.
                              b. The framers wanted to create a national economy.
                              c. If states got into tariff wars then the national economy
                              would become balkanized.
                              d. it would become very inefficient for congress to
                              enumerate what can and cannot be done.
                      6. Discriminatory laws trigger tough scrutiny:
                              a. Granholm v. Heald 2005 (71): No federal law
                              regulates wine sales, so the states get to work.
                              Michigan and New York passed laws limiting direct sales
                              of wine from out of state vendors to in state purchasers.
                              Court uses the dormant commerce clause to invalidate
                              the state statute.         Held State laws that mandate
                              FACIALLY different treatment of in-state and out-of-state
                              interests (to benefit in-staters) face ―a virtually per se
                              rule of invalidity.‖
                                        i. Court also recognized there is room for the
                                        court to uphold a discriminatory law where the

                  Constitutional Law – ADLER / Spring 2008
                                           state has a compelling interest to
                                           discriminate against the out of state interest.
                                                    1. Ex: Out of staters wanted to import
                                                    bait fish, but Maine refused because the
                                                    fish would endanger a different species
                                                    of fish. The court allowed Maine to keep
                                                    the out of staters out, but this is RARE.
                         7. How do we know if there is discrimination?
                                  a. Facial discrim is easy to tell
                                  b. BUT a neutral standard might still discrim
                                           i. Ex: You have to put a California inspection
                                           sticker on every apple sold in California. This
                                           discriminates against out of staters because the
                                           out of staters have to comply with two
                                           regulations: their own state regulation and the
                                           California regulation. Therefore the out of state
                                           apples will cost more and make it more difficult
                                           for the out of state sellers to engage in
                                           transactions in California.
                                  c. Leg history of statute might suggest that the purpose
                                  was to protect a special interest.
                                  d. Burden of proving discrimination is on the party
                                  challenging the statute.
                                  e. TEST: Does the law impose burdens on interstate
                                  commerce that are clearly excessive relative to the
                                  state‘s expressed interest.
                         8. What if the law is deemed non-discriminatory?
                                  a. American Trucking v. Michigan Public Service
                                  Comm’n 2005 (S80): State law imposed flat $100 fee
                                  on trucks engaging in intrastate commerce. Out-of-state
                                  truckers who don‘t do much intrastate travel sued for
                                  discrimination. Breyer, writing for majority, reasoned the
                                  law does not facially discriminate, b/c it applies equally
                                  to all carriers. Also reasoned it does not reflect an effort
                                  to tax activity that takes place, in whole or in part,
                                  outside the state. Held this neutral, locally focused fee
                                  is entirely consistent with the commerce clause.
                         9. Criticism of the DCC:
                                  a. Scalia says this leaves the court too much discretion
                                  b. Thomas says that there is no such thing as the
                                  dormant commerce clause.
               ii. Art IV, § 2: Privileges and Immunities Clause
                         1. ―The Citizens of each State shall be entitled to all Privileges
                         and Immunities of Citizens in the several States.‖
                         2. Limits the ability of states to discriminate with regard to
                         constitutional rights or important economic activities.
                                  a. These laws can also e challenged under the Equal
                                  Protection Clause of the 14 Amendment.
      a. If Congress has passed a law in the area in which the state regulates:
               i. Go through the regular approach on the federal law (justiciability,
               power of congress, limitations).
               ii. If the federal law is constitutional, go through the preemption issues.
      b. If there is no federal law in the same area or the federal law is invalid:

                  Constitutional Law – ADLER / Spring 2008
                         i. Look to see if the dormant commerce clause applies (since the
                         dormant commerce clause applies only if there is no obvious federal law
                         in conflict).

VI. Constitution’s Protection of Individual Rights
A. Introduction
        1. Constitution before Bill of Right did little to protect individual liberties; limited to:
                 a. Art. I, § 9: Congress can only suspend habeas in public safety emergencies
                 b. Art. I, § 9: No ex post facto
                 c. Art. I, § 10: No ex post fact for state gov‘t‘s either.
                 d. Art. III, § 2: Trial by Jury
                 e. Art. III, § 3: Limits convictions for treason
                 f. Art. IV: No religious test as a pre-req for pubic office
                           i. Court later used Free Exercise clause to extend this to States, too
        2. Framers thought an enumeration of specific rights was unnecessary because of
        gov‘t of separated powers would not be able to violate basic liberties (HA!)
        3. Also concerned that listing some rights would give the mistaken impression that
        Constitution was an exhaustive list of rights
                 a. Ninth Amendment: ―The enumeration in the Constitution of certain rights
                 shall not be construed to deny or disparage others retained by the people.
        4. Supreme Court initially thought that the Bill of Rights applied only to the Fed.
                 a. BUT, in the 1900s, the Court applied most of the Bill of Rights to the states,
                 finding that provisions were incorporated into the Due Process Clause of the 14
B. State Action – the Application of the Constitution to Private Conduct
        1. ―State Action Doctrine:‖ basic rule is that generally private entities and individuals
        are not required to comply with the Constitution.
                 a. State action = federal, state, local, and government officers
        2. Proponents argue that the doctrine preserves a zone of private autonomy and
        advances federalism.
        3. Opponents argue the doctrine has serious costs; absent statutory restrictions, private
        conduct can infringe or trample our most basic rights
        2. Exceptions:
                 a. Thirteenth Amendment is the one provision that regulates private conduct.
                           i. ―Neither slavery nor involuntary servitude, except as the punishment
                           for a crime whereof the party shall have been duly convicted, shall exists
                           within the United States, or any place subject to their jurisdiction.‖
                 b. Statutes, federal and state, can apply constitutional norms to private citizens
                 c. Public Function Exception
                           i. Rationale:
                                    1. The gov‘t should not be able to avoid the Constitution by
                                    delegating its tasks to a private actor.
                           ii. Commonly applied to:
                                    1. Management of private property
                                    2. Control over the electoral process
                                    3. Running/regulating schools
                           iii. Marsh v. Alabama 1946 (474): Jehovah‘s Witnesses wanted to
                           distribute information in a company-owner shipping town. The company
                           (which provided all the public services) refused to allow solicitation
                           without prior permission. Ds went ahead anyway, and were criminally
                           punished. They appealed, claiming their action were protected by the
                           First Amendment. Court agreed. Held running a City is a public
                           function, and therefore it must be done in compliance with the
                           Constitution, whether by the gov‘t or a private entity.
                                    1. ―The more an owner, for his advantage, opens up his property
                                    for use by the public in general, the more do his rights become

                           Constitutional Law – ADLER / Spring 2008
                                 circumscribed by the constitutional and statutory rights of those
                                 who use it.‖
                                 Rehnquist court later restricted this rule, finding it too broad.
                                         a. Held: not only must the private actor be performing a
                                         traditional government function; the function must be an
                                         exclusive government function.
                                         b. So a publicly run public utility has to give you notice
                                         and a hearing if it is going to cut off your electricity.
                                         c. A privately run utility doesn‘t have to give you notice
                                         and a hearing if it is going to cut off your electricity
                                         because the government is not an exclusive provider of
               d. Entanglement Exception
                       i. Private conduct must comply with the constitution if the gov‘t has
                       authorized, encouraged, or facilitated the unconstitutional exception.
                       ii. remedy: Either the gov‘t must cease its involvement with the private
                       actor, or the private actor must comply with the Constitution.
                       iii. Arisen in four areas:
                                 1. Judicial and law enforcement
                                 2. Government licensing and regulation
                                 3. Government Subsidies
                                 4. Votes Initiative permitting discrim
        3. The broader the Court expands these exception, the more we can regulate discrim
        4. The more narrowly we apply them, the more freedom the private party has

VII. Equal Protection
A. Introduction
        1. After Civil War, discrim against former slaves led to passage of the 14 Amendment,:
        ―No state shall . . . deny to any person w/in its jdx the equal protection of the laws.‖
                 a. Brown v Board of Education 1954 (617) ushered in new era in civil rights
                 b. Since then, Ct. has relied on the Equal Protection Clause to combat discrim
                 c. Applies to both Fed gov‘t (through Due Process / 5th) and the states
                         i. Some criticize this is aggressive judicial lawmaking
        2. Equal Protection Analysis: If laws are challenged based on EP, the issue is whether
        the Government can identify a sufficiently important objective for making a distinction
        about a group of people based on specific characteristics
                 a. EP also sometimes used if gov‘t discriminates against a fundamental right
                 b. See Skinner v. Oklahoma
        3. All equal protection issues can be broken down into three questions:
                 a. What is the classification (the Gov‘t is using to draw distinction)?
                         i. Could exist on the face of the law
                                   1. Ex: a law that prohibits black people from serving on juries
                         ii. Could also be a ―neutral‖ law with a discrim impact AND purpose
                                   1. If the law is facially neutral, demonstrating a race or gender
                                   classification requires proof of discriminatory motive
                                   2. Ex: A law that requires all cops be at least 5‘11, 160 lbs
                 b. What level of scrutiny should the court apply? [Also applied in DP and
                 First Amendment analysis]

                         Means                     Relationship             Ends
Rational Basis           Reasonable                Rational                 Legitimate
Intermediate                                       Substantial              Important
Strict                   Necessary                 Necessary                Compelling

                          Constitutional Law – ADLER / Spring 2008
i. Strict Scrutiny: Gov‘t must prove that law is necessary to achieve a
compelling gov‘t purpose and must show that it can‘t achieve its
objective thru any less discriminatory alternative.
         1. Race, national origin and discrimination against aliens.
                  a. Suspect classifications suggest that animus is at work.
         2. Gov‘t has burden of proof
         3. Key word is ―compelling‖
         4. Strict scrutiny is usually fatal to the challenged law
ii. Intermediate Scrutiny: Gov‘t must show that law is substantially
related to an important Gov‘t purpose.
         1. Gender and non-marital children
         2. Gov‘t still has burden of proof
         3. Keyword is ―important‖
                  a. Ct. need NOT find the gov‘t objecting is compelling
iii. Rational Basis: A law will be upheld if it is rationally related to a
conceivable, legitimate Gov‘t purpose;
         1. All laws not subjected to strict or intermediate scrutiny are
         evaluated under rational basis test.
                  a. Enormously deferential to the gov‘t and only rarely
                  have laws been declared unconstitutional for failing to
                  meet this level of review.
                  b. Laws often upheld when there is ANY legitimate gov‘t
                  purpose, even if that purpose differs from the
                  statute’s actual goal.
         2. The means need only be a rational way to meet the end goal
                  a. Cannot be arbitrary or irrationally related to ends
         3. Challenger has the burden of proof
         4. Keyword is ―legitimate purpose‖
iv. How the Court will decide which level of scrutiny to use:
         1. Immutable characteristics (race, gender, etc) and the marital
         status of one‘s parents warrant heightened scrutiny.
                  a. Comes from the notion that it is unfair to punish
                  someone for something they haven‘t chosen
         2. Ability of the group to protect itself through political process
                  a. Ex: women significantly underrepresented in politics
                  b. Ex: aliens do not have the ability to vote
         3. History of discrimination against the group
                  a. If prejudice has been around for a while, not likely to
                  be remedied through the political process.
                  b. Also reflects likelihood that the classification is based
                  on prejudice, rather than some permissible gov‘t purpose
                           i. Ex: race classification not likely permissible
                           ii. Some gender classifications, on the other
                           hand, may be.
                  c. ADLER: Court is are looking for a bias that is strong
                  enough to make a legislature act irrationally.
v. Three-tier system sometimes criticized for being too rigid.
         1. This is especially true since the selection of the level of
         scrutiny usually determines the outcome
         2. Opponents argue that ct. should consider factors such as the
         constitutional and social importance of the interests adversely
         affected and the invidiousness of the basis on which the
         classification was drawn.
         3. Want a ―sliding scale‖
                  a. Some claim ct. already does this.
                           i. Rational basis has been applied w/ ―bite‖

 Constitutional Law – ADLER / Spring 2008
                                             ii. Or when intermediate scrutiny is applied in a
                                             very deferential manner that is essentially
                                             rational    basis,   while     in    other cases
                                             indistinguishable from strict scrutiny.
                c. Does the particular government action meet the level of scrutiny?

B. Rational Basis Review
       1. Is there a legitimate purpose?
               a. Doesn‘t need to have been articulated by Congress.
                        i. Ct. has never required Congress to give reasons for legislation
               b. ANY conceivable legitimate purpose is GENERALLY sufficient
       2. Are the classifications reasonable in light of the statute’s purpose?
               a. Many statutes are both overinclusive and underinclusive
                        i. Underinclusive: ex: requiring that driver‘s be 16 years old might be
                        underinclusive since there are many 17 year old who shouldn‘t be driving
                        ii.   Overinclusive: the gov‘t‘s decision to intern ALL Japanese-
                        Americans on the West Coast – radical, because it harmed a large
                        number of people unnecessarily.
                                 1. Overinclusive laws risk ―burdening a politically powerless
                                 group which would have been spared if it had enough clout to
                                 compel normal attention to the relevant costs and benefits.‖
                        iii. Not a determinative evaluation, just helpful to judge how the means
                        achieve the ends.
                                 1. Railway Express Agency v. New York 1949 (634): New
                                 York passed a law prohibiting ―advertising vehicles,‖ but allowed
                                 an exception for business owners putting business notices on
                                 vehicles engaged in regular work. Purpose is pedestrian and
                                 driver safety.       Owner of nation-wide advertising business
                                 objected to the statute. He argued that business trucks with
                                 advertisements are no less distracting than his advertisements
                                 just because his have nothing to do with ownership of the truck.
                                 Court disagreed, and found that law was constitutional. Issue is
                                 not whether the city‘s justifications are rational, but rather,
                                 whether the city could have thought they were rational.
                                 Held the law has the legitimate purpose of enhancing traffic
                                 safety because the City might have perceived that the prohibited
                                 advertisements could be more distracting.
                                           a. ―It is no requirement of equal protection that all evils
                                           of the same genus be eradicated or none at all.
                                 2. New York Transit Authority v. Beazer 1979 (637): NYC
                                 passed a regulation that prohibited anyone in a methadone
                                 treatment program from working for the Transit Authority. Court
                                 acknowledged that there is an effective cure for heroin addiction,
                                 ad in fact, that most people in treatment are beating the addition.
                                 Thus, those in a methadone clinic pose no safety risk to the
                                 Transit Authority. Nonetheless, Ct. ignored overinclusiveness,
                                 finding that any alternative cut-off would be arbitrary and difficult
                                 to apply. Held The Transit Authority‘s rule places a meaningful
                                 restriction on all of it employees and job applicants; in that
                                 sense, the rule is one of general application, and it satisfies the
                                 EP principle without further inquiry.
                                           a. White dissent: ―The question before us is the
                                           rationality of placing successfully maintained or recently
                                           cured persons in the same category as those just
                                           attempting to escape heroin addition or who have failed

                           Constitutional Law – ADLER / Spring 2008
                          to escape it, rather than in with the general population.
                          That up to 30% of participants are unemployable after 1
                          year does not say anything about the other 70%.
                          b. ADLER: Maybe the TA doesn‘t have time to waste on
                          individual interviews; conservation of resources can be a
                          legitimate goal under RB test.
                                   i. In contrast, when the court applied a higher
                                   level of scrutiny, arguments about cost are rarely
b. Exceptional Cases: Court still maintain degree of discretion, even under RB
       i. Quasi-suspect classifications
                 1. Where the court sees bare animus against a group, court may
                 apply a higher standard even if not protected classification
                          a. No presumption of validity
                          b. Heavier the burden, the more likely the court will find
                          bare animus and apply rational basis with bite
       ii. USDA v. Moreno 1973 (640): Ct. looked at the Food Stamp Act,
       which excludes any household with an individual who is unrelated to
       another member of the house. Moreno, elderly woman living with
       another family, challenged the statute. Court found the statutory
       classification was irrelevant to the stated purpose of the Act: to alleviate
       hunger and malnutrition among needy segments of our society. Ct. also
       explained that the express Congressional purpose of discriminating
       against ―hippies‖ could not constitute a legitimate purpose. Gov‘t argued
       that even if not to advance the purpose of the Act, the distinction helps to
       reduce fraud. Ct. found this claim ―wholly unsubstantiated‖ – more
       ―bite‖ than previous cases. Held If the Constitutional conception of EP
       means anything, it must at least mean that bare congressional desire to
       harm a politically unpopular group (without further policy justifications)
       cannot constitute a legitimate governmental interest.
                 1. Ct. found this law went beyond merely lacking ―mathematical
                 nicety,‖ and found the statute not only imprecise, but irrational.
                 2. Rehnquist dissent: ―Questions such as this are for
                 Congress, rather than for this court.‖ Court‘s role should be
                 limited to whether there is a rational basis on which Congress
                 could have made the decision to discriminate.
                 3. ―with bite‖ because the statute attacks a vulnerable group.
       iii. City of Cleburne v. Cleburne Living Ctr 1985 (643): Texas city
       relied on a zoning provision to deny a special use permit for a mentally
       retarded group home. Court reversed the lower court‘s application of
       heightened scrutiny – there are many types of mental disability and it
       cannot be classified as a discrete class; court also worried about
       discouraging legislators from passing laws to protect this group; finally,
       worried abut a slippery slope – don‘t want this reasoning to extend to
       aged, disabled, etc. Ct. nonetheless found that the ordinance did not
       pass muster under the lesser rational basis test. City argued that it
       passed the ordinance to protect the home from taunting and safety re:
       occupancy levels, since the zone is in a flood plan. Ct. finds that the city
       is really concerned about reducing property values, and doesn‘t want the
       legislature to capitalize on it‘s unwillingness to apply heighten scrutiny.
       Held there is no rational basis for believing that the home would pose
       any threat to the city‘s interests, especially not more than several other
       groups not included within the ordinance.
                 1. Court refuses to accept the statute at face value
                 2. Also suspect that it is underinclusive:
                          a. What about mentally retarded kids who go to school?

          Constitutional Law – ADLER / Spring 2008
                                           b. What about other densely populated areas?
                                           c. What about other areas in the flood zone?
                                  3. Brennan, Marshall, Blackmun concurrence: agree with the
                                  result, but acknowledge that the majority actually applied higher
                                  scrutiny and called it RB.
                        iv. Romer v. Evans 1996 (625): 3 cities in Colorado had laws
                        prohibiting discrimination against gays/lesbians. In response, the State
                        passed Amend. 2 which prohibits all action at any level of state/local
                        gov‘t designed to protect gays/lesbians. State argues this measure does
                        no more than deny gays special rights. Court disagrees, finding that CO
                        acted with impermissible animus in passing amendment.                   Court
                        reasoned that the exclusion of gays from ALL state laws in ALL spheres
                        imposes a special disability on them, in that they are forbidden
                        safeguards that others readily enjoy. Court used rational basis with
                        bite! Held an amendment declaring that in general it shall be more
                        difficult for one group of citizens than for all others to seek aid from the
                        gov‘t is itself a denial of EP of the laws in the most literal sense.
                                  1. State Supreme Court denied amendment using strict scrutiny
                                           a. Wanted to recognize LGBT as a suspect class.
                                           b. USSC hesitant to agree since not discrete and insular
                                           c. Hard to classify what makes someone homosexual
                                  2. May also reason LGBT deprived of a fundamental right
                                  3. Scalia dissent: It is the state‘s role to express its moral
                                  judgments through political measures. The amendment is a
                                  moral judgment. This is a legitimate interest. States have always
                                  had a legitimate interest in letting people express their moral
                                  beliefs. Scalia also points on that the Court allowed
                                  criminalization of homosexual sodomy. If the state can limit
                                  freedom to this extent, then it is inconsistent for the state not to
                                  be able to limit homosexual freedom under the less onerous
                                  4. ADLER: first time the Court invalidated legislation based on
                                  sexual orientation. It suggests a willingness to protect
                                  homosexuals from discrimination.

D. Strict Scrutiny: Classifications Based on Race and National Origin
        1. History
                a. Racial classifications were permitted under the Constitution
                b. Dred Scott: [Originalist opinion] reversed the Missouri Compromise and
                reconfirmed that slaves are property.
        2. Modern, Always use Strict Scrutiny – In order to pass muster, racial classification
        has to be necessary to achieve compelling state interest
                a. Must be NO non-racial or less racial way for gov‘t to achieve the same goal
                b. Examples:
                        i. Protective affirmative action statute
                        ii. If a particular disease is exhibited by a particular racial group,
                        requiring that group be screened may be in the national interest.
                        iii. Might sometimes be wise to segregate for safety reason (aka prison)
                c. Used regardless of whether the classification is designed to disadvantage or
                help minorities
        3. Facial Classifications
                a. Race-specific classifications that disadvantage a racial minority:
                        i. Strauder v. West Virginia 1879 (654): No blacks allowed in jury pool.
                        Court used strict scrutiny. Held unconstitutional b/c expressly ―singled
                        out‖ and disadvantaged blacks. Quintessential Racial Facial case.

                         Constitutional Law – ADLER / Spring 2008
       ii. BUT just b/c apply strict scrutiny doesn‘t mean law is unconstitutional
                 1. Korematsu v. United States 1944 (654): Out of fear for
                 national security, US Army ordered the evacuation and
                 internment of ALL Japanese-Americans. They were held without
                 warrant and without trial, and no charges were ever filed. There
                 were over 110,000 people in these camps. 70,000 were US
                 citizens. Race alone determined who would be interned. K
                 refused to leave his house, and was convicted. Court applied
                 strict scrutiny. Gov‘t argued that it was guarding against
                 espionage. J-As argued there was a less racial way to protect
                 nat‘l security: screening, curfews, and house arrest. Court
                 disagreed; upheld statute. Held Although racial antagonisms
                 never justify ―legal restrictions which curtail the civil rights of a
                 single racial group,‖ pressing public necessity may (especially in
                 a time of war)
                           a. Murphy dissent: Great deference due to military
                           authorities in time of war BUT essential that there be
                           limits to military discretion. Under strict scrutiny, this
                           order is both too broad and too narrow, and not
                           necessary to protect national security.
                           b. ADLER: You can‘t always trust the Supreme Court
                           to stand up for constitutional rights in time of emergency.
                           The Court will be deferential to the executive branch in
                           times of crisis.
                                    i. Low point of USSC
                                    ii. reminder of what NOT to do.
b. Laws Burdening Whites and Blacks Equally in Application
       i. Ct. originally upheld miscegenation laws on the basis that they burden
       both whites and minorities, thus were treated equally
       ii. Ct. later recognized that such racial classifications are impermissible
       under the EPC b/c they area based on assumptions of inferiority:
                 1. Loving v. Virginia 1967 (659): State had a statute making it
                 a crime for a white person to marry outside Caucasian race. The
                 state argued that the law was constitutional because it burdened
                 both whites and minorities. Court disagreed, stating ―we reject
                 the notion that mere equal application of a statute concerning
                 racial classifications is enough to remove the classifications from
                 the 14 Amendment‘s proscription of all invidious racial
                 discriminations. Court also recognized the statute attaches
                 different consequences for marrying a white person and
                 marrying someone of another race. Held ―There can be no
                 doubt that restricting the freedom to marry solely because of
                 racial classifications violates the central meaning of the Equal
                 Protection Clause.
                           a. State court relied on the bible as justification that
                           there is a compelling state interest at play.
                           b. Court recognized that the 14 Amendment was
                           protected to prevent this exact kind of law.
c. Laws Requiring Separation of the Races
       i. Civil Rights Cases of 1883 broadly held that 14 Amendment only
       applies to govt. action, not to private conduct, and that Congress could
       only regulate govt. actions.
       ii. Plessy v. Ferguson 1896 (663): Key case in which the USSC upheld
       laws requiring the segregation of the races. LA statute required
       separation of whites and blacks on trains. Petitioner was 7/8‘s White,

          Constitutional Law – ADLER / Spring 2008
took a seat in the White section, and was forcibly removed and put in jail
when he refused to move. Court stated it was not okay for races to
intermingle and that segregation of the schools flows from racial instinct.
Reasoned that the 14 amend only requires states to treat races equally
under the law, but not socially, and says nothing about desegregation.
Held Segregated trains and schools have the same services, which
indicate that they are equal; as long as the services are equal it doesn‘t
matter that they are separate.
         1. Harlan dissent: Segregation is not imposed on white people,
         but only on black people to exclude them. Thus, separate is not
         equal because one group feels inferior to the other. Ultimately,
         this law is impermissible because the Constitution is color-blind
         and doesn‘t know or tolerate classes among citizens.
         2. ADLER: Dissent introduces two conflicting ideas:
                  a. 14 Amendment is about ending subordination
                  b. 14 Amendment is about color-blindness
                  c. Interesting ramifications in debate over Aff. Action
iii. Segregation in Education:
         1. History
                  a. ―Separate but equal‖ expressly approved in education
                  b. Thurgood Marshall, Charles Hamilton, & NAACP
                  worked cautiously over a 20 years w/ eventual goal to
                  end discrimination in public schools. Attacked inequality
                  rather than separateness
                  c. Gaines v. Canada 1938 (666): Blacks not allowed
                  into State‘s law school, but paid for them to attend out-
                  of-state law schools. Ct. said can‘t do this; must provide
                  substantially equal opportunities, i.e. admit them to the
                  law school or set up a new black law school. MO set up
                  a new black school.
                  d. Sweatt v. Painter 1950 (666): Ct. ordered University
                  of TX law school to admit black student. There was a
                  separate black law school, but it was clearly not
                  substantially equal.
                  e. McLaurin v. Oklahoma State 1950 (666): Ct. said
                  once blacks admitted to a previously all-white school, the
                  university cannot force them to sit in segregated areas of
                  classrooms, libraries, and cafeterias.
         2. Brown v. Board of Education 1954 (667): Several children
         challenged denial of their admission to white schools, pursuant
         to laws permitting or requiring segregation. Court rejected
         ―separate but equal‖ and reasoned that States cannot require
         segregation in public schools based solely on race, even if there
         are equal separate facilities. Reasoned that since schools were
         in their infancy at the time of the passage of 14 amendment,
         intent of the framers is not super helpful. Finally, acknowledged
         that separate but equal creates feelings of inferiority in minority
         minds, decreases interest in education, and is damaging in the
         long-term. Held segregation of children in public schools solely
         on the basis of race, even though the physical facilities and other
         ―tangible‖ factors may be equal, deprive the children of the
         minority group of equal educational opportunities.
                  a. Problems/Criticisms
                           i. Brown uses social science studies to support
                           decision – should a court do that? What if

 Constitutional Law – ADLER / Spring 2008
                        studies show segregation helps education? Is
                        the Court being activist?
                        ii. Textualist Argument: 14 Amend does not
                        support this interpretation. Does the 14 protect
                        individuals or groups? Historically the 14 was
                        to protect a particular group; but on the other
                        hand, the language protects individuals.
                        iii. Brown chickens out on a remedy. Right to
                        desegregation recognized, but no remedy was
                        available. Ct said no immediate remedy would
                        be forthcoming.
                                 1. ADLER: Warren probably had to
                                 compromise w/ justices to get a
                                 unanimous opinion.         Avoided remedy
                                 issue to slow the process down a bit—
                                 get the public reaction before making
                                 any big changes.
                        iv.    Decision runs into big problems with
                        federalism (telling states what to do).
                        v. Hard to enforce
                        vi. Decision stresses desegregation in schools,
                        but says nothing of desegregation in general.
                        Does this holding apply outside this context?
                                 1. Post Brown, the court issued per
                                 curiam opinions in several other
                                 desegregation cases outside the
                                 education context.
                                 2. Today it is clearly established that
                                 laws separating the races are racial
                                 classifications that will be allowed only if
                                 strict scrutiny is met.
              b. Cooper 1958: Confirmed Brown as law of land. And
              recognized it binds all states and state governors.
              c. Swann 1971: Finally, Supreme Ct. put its foot down
              & says what schools needed to do to desegregate—says
              district courts can use bussing, gerrymandering school
              districts, and racial quotas to ensure desegregation.
     3. Johnson v. California (S105): California houses all
     incoming prisoners in double cells for observation before they
     are permanently placed in the prison. However, all ―test‖ cells
     are racially segregated, because prison officials fear that
     violence and conflict would result from mixing. The gov‘t argued
     that the practice did not constitute discrimination since all
     prisoners were treated equally, and celled only with their own
     race. Court disagreed and applied strict scrutiny to the case.
     Held because the CDC‘s policy is an express racial
     classification, we are immediately suspect.
     4. De Facto Segregation: The way the law has evolved, its
     okay if schools are racially segregated (by population, etc.)
              a. Can schools voluntarily do something to integrate
              schools? Such as busing? That‘s an issue that is
              currently being debated.
              b.     ADLER:         Should Brown apply to de facto
              segregation? Brown could be interpreted to stand for
              equal opportunity in education. It could broadly require

Constitutional Law – ADLER / Spring 2008
                                  schools to be equalized. However, the constitutional
                                  law since Brown went in another direction . . .
                         5. Take Away
                                  a. The Court is not going to apply strict scrutiny to
                                  racially isolated schools where segregation hasn‘t been
                                  legally required, and without a shoeing of discrim intent.
                                  b. Today we have very segregated schools, but the
                                  Court is unwilling to strictly.
                                             i.   Applies to situations where states fund
                                             schools through property taxes.
                                             ii. A school in a wealthy community that has
                                             high property taxes will be privileged compared
                                             to a school in a poor community where property
                                             taxes are low. That may have a huge impact on
                                             African American children, but because the
                                             statute doesn‘t purposefully say that it seeks to
                                             disadvantage African American children strict
                                             scrutiny is not applied. The state is allowed to
                                             promulgate any taxation scheme it desires.
4. Laws Neutral on their Face, Discriminatory in Administration / Impact:
      a. Court subjects racial classifications to the most rigid scrutiny BUT nobody ever
      puts racial classifications into statutes anymore.
               i. ADLER: Ironically, the only place where race is still used on the face
               of a statute is efforts at benign treatment – affirmative action, etc. Thus,
               there is often strict scrutiny applied to affirmative action.
      b. SO… To have a facially neutral law treated as containing a racial
      classification (and subject to SS) challenger must show not only a disparate
      impact, but also an intent to discriminate
               i. Washington v. Davis 1976 (671): EP challenge to DC police
               department qualifying test, claiming that 4 times more blacks than whites
               fail it. Petitioners claim that test isn‘t related to the position and has a
               discriminatory impact on Black people. Police argue that the Constitution
               does not prohibit gov‘t from seeking high verbal ability. Court agreed,
               and rejected the argument that test based on communicative ability was
               intended to discriminate. Thus, court refused SS and applied only
               rational basis, to find the test constitutional. Held test is neutral on its
               face and rationally may be said to serve a purpose that government is
               empowered to pursue (safety and welfare of its people); if a law is
               facially neutral regarding race, even if there is discriminatory impact,
               there must be proof of discriminatory purpose to get strict scrutiny.
                         1. Brennan/Marshall dissent: Petitioner should have been
                         required to prove that the police training exam either measured
                         job-related skills or predicted job performance.
                         2. ADLER: This case is an example of how the Court has made
                         it very difficult to get strict scrutiny on racial grounds unless the
                         classification is apparent from the face of the statute.
                                  a. Might not always be a bad thing: What if there are
                                  certain laws that benefit minority groups, i.e. a tax
                                  statute that is going to disparately affect different
                                  working classes? Good that such a law could only be
                                  challenged if discriminatory intent.
               ii. McKlesky v. Kemp 1987 (674): Petitioners present statistics that
               powerfully demonstrated racial inequality in the imposition of the death
               penalty. Study suggested that Ds charged with killing white victim were
               4.3 times as likely to receive death penalty than when they killed other
               black people. Although the court accepted that a discriminatory animus

                  Constitutional Law – ADLER / Spring 2008
       might play a part in some trials, Court required that this particular D show
       that the prosecutors in his case acted with animus. To challenge the
       law, the Court require D to show that the legislature passed the statute
       because of an anticipated racially discriminatory effect. Held Proof of
       discriminatory impact in the administration of the death penalty is
       insufficient, without proof of discriminatory animus to show an equal
       protection violation.
                 1. Notice: the burden is on the Π to prove the intent
                 2. ADLER: Overwhelming robust statistical data may show that
                 a statute has a racial purpose when nothing but discrimination
                 can explain the results. But, it‘s rare.
                 3. Brennan dissent: The two most important factors in the
                 outcome of the sentencing phase were the color of Ds skin and
                 that of his victim. When the statistical evidence is viewed in light
                 of GA‘s history of a race-conscious criminal justice system, it
                 indicates the legitimacy of Ds claim. This is especially true since
                 GA‘s scheme provides no guidelines for prosecutorial decisions
                 to    seek     death    penalty,     jury isn‘t    given    list  of
                 aggravating/mitigating factors.
       iii. Arguments for Requiring Purpose
                 1.     Equal Protection Clause is concerned with stopping
                 discriminatory acts, not in bringing about equal results
                 2. Concern about a slippery slope – many laws have disparate
                 impact on protected class
                 3. That‘s why we have laws to benefit minorities; counterbalance
       iv. Arguments Against Requiring Purpose:
                 1. Proving discriminatory intent is very difficult
                          a. Benign purposes can be articulated for most laws
                 2. Unconscious racism is the worst kind of racism
                 3. In a society w/ long history of discrim, there can be a
                 presumption that many laws were likely motivated by animus
                 4. EP should be about results, and not just actions.
c. How do you prove discriminatory purpose?
       i. Personnel Administrator of Massachusetts v. Feeney 1979 (686):
       Female petitioners challenged a MA law that gave preference in hiring
       for state jobs to veterans. At the time, 98 percent of veterans were male,
       and only 2 percent were female.               Court reasoned that proving
       discriminatory purpose requires more than showing the government took
       an action with knowledge that it would have discriminatory
       consequences; instead, D most show that the government desired to
       discriminate. Held There is no gender discrimination clam here because
       the law if facially gender-neutral and petitioners failed to give any proof
       that the state‘s purpose in adopting the law was to disadvantage women.
                 1. ―Purpose requires more than intent as volition, or intent as
                 awareness of consequences . . . [requires] that decision-maker
                 selected or reaffirmed particular course of action ―because of,‖
                 not merely ―in spite of,‖ its adverse effects upon a group.
       ii. Village of Arlington Heights v. Metropolitan Housing 1977 (688):
       Real estate developer denied rezoning request for low and moderate
       income housing. Fled suit, claiming decision was racially motivated in
       violation of EP and FHA. Court identified several factors to be
       considered when looking for discriminatory intent. Reasoned that the
       area had always been zoned for SFR and dominant residential use,
       therefore, petitioner failed to show discrim animus using test. Held While
       it is true that discriminatory purpose need only be A factor in the leg, and
       not the only factor, petitioner here failed to meet burden of proof.

          Constitutional Law – ADLER / Spring 2008
                        iii. Arlington Heights factors for discrim animus:
                                  1. Circumstantial and direct evidence of intent
                                            a. sometimes clear pattern of discrim intent emerges
                                  2. Historical background of the decision
                                            a. Did the law change in response to recent events?
                                                     i. Ex: University told to desegregate, so it
                                                     changes its admission policy to require a letter
                                                     of recommendation from an alumnus. This
                                                     effectively   prevented     African   Americans
                                                     admission because there were no African
                                                     American alumni.
                                            b. Sudden departures from normal procedures might
                                            afford evidence of improper purpose.
                                  3. Sequence of events leading up to challenged decision
                                  4. Legislative/administrative history
                        iv. If P proves discriminatory purpose is one factor, then the burden
                        shifts to the defendant to explain it away by showing:
                                  1.     The legislation would have passed regardless of the
                                  discriminatory purpose, i.e. discriminatory sentiment was not the
                                  but for cause of the legislation.
                                            a. If D does prove this, there is no causation b/w P‘s
                                            injury and the discriminatory purpose
                                            b. Hunter v. Underwood 1985 (689): Alabama law
                                            permanently denied the right to vote to anyone convicted
                                            of a crime involving ―moral turpitude.‖ Court decided that
                                            disenfranchising those convicted of misdemeanors is
                                            unconstitutional race discrim.         Held Once racial
                                            discrimination is shown to be a substantial or motivating
                                            factor behind enactment of the law, the burden shifts to
                                            the law‘s defenders to demonstrate that the law would
                                            have been enacted without this factor.
                                  2. OR D can prove it wasn‘t a motivating factor at all.
                                  3. ADLER: It is not hard for a defense lawyer to come up with
                                  reasons other than race, and if the D is able to present reasons
                                  other than race, then the D loses and the Court doesn‘t apply
                                  strict scrutiny.

E. Affirmative Action Statutes (technically still part of race section above)
        1. AA statutes raise an important issue: What is the proper level of scrutiny for the
        benign use of a race classification?
               a. Arguments against strict scrutiny:
                       i. The purpose of benign classifications is not to make one group inferior
                       but to give equal opportunity.
                       ii. To the extent society is trying to overcome a long history of
                       institutionalized racism, we should be more accepting of benign racial
                       statutes that attempt to provide equal opportunity.
                       iii. The Equal Protection Clause is the first affirmative action program to
                       benefit African Americans who were taken advantage of in the South.
                       [Historical Argument]
                       iv. Some justices talk about anti-subordination.
                       v. Using SS is outcome determinative b/c few programs have survived
                       this rigorous view.
                       vi. When group that controls the decision making process advantages
                       minorities and disadvantages itself, the reasons for being unusually
                       suspicious and thus requiring a stringent brand of review are lacking.
               b. Arguments for strict scrutiny:

                          Constitutional Law – ADLER / Spring 2008
                  i. By continuing to focus on differences between the races, we
                  perpetuate the idea of racial inferiority.
                  ii. All racial classifications stigmatize and breed racial hostility
                  iii. It may not always be obvious what helps and what hurts. Strict
                  scrutiny is used to discover whether the statute is indeed helpful.
                  Sometimes it is not obvious.
                  iv. The Equal Protection Clause says that no person can be denied
                  equal protection of the law. [Textual Argument]
                  v. Some justices talk about colorblindness.
                            1. Thomas would argue gov‘t sponsored racial discrimination
                            based on benign prejudice is just as noxious as discrimination
                            inspired by malicious prejudice
                            2. O‘Connor would argue that whenever one group is benefited
                            another group is hurt.
                  vi. All racial classifications stigmatize and breed racial hostility.
         c. Both sides feel they are being treated unfairly
2. RULE: The majority of the Court says that it will strictly scrutinize every racial
classification, whether it is considered benign or not.
         a. What are sufficiently compelling state interest to pass SS?
                  i. Desire to remedy past effects of intentional discrimination is a
                  compelling state interest.
                            1. However, has to be shown that the jurisdiction fought
                            2. This is why universities don‘t argue that their benign AA
                            statutes are in response to remedying past effects of intentional
                                     a. As a practical matter, they don‘t want to admit that
                                     they have been racist in the past.
                                     b. In the Michigan cases, law students filed amicus
                                     briefs stating that the university had been discriminatory
                                     in the past, and that AA is necessary
                  ii. Interest in diversity is also a compelling state interest
         b. What are sufficiently narrowly-tailored means? Is AA necessary?
                  i. Must explore race-neutral alternatives and conclude they don‘t‘ work
                            1. Ex: economic classifications
                  ii. Can‘t use race more than needed right now
                            1. Race cannot be used longer than needed in the future
                  iii. Can‘t unduly burden non-minorities
3. University Admissions:
         a. Grutter v. Bollinger 2003 (722): Univ. of Michigan Law School crafted
         admissions policy that sought to achieve student body diversity while complying
         with the Court‘s ruling in UC v. Bakke. The policy focused on academic ability,
         coupled with a flexible assessment of applicants‘ talents, experiences, and
         potential ―to contribute to the learning of those around them.‖ Importantly, the
         policy did not restrict types of diversity contributions eligible for ―substantial
         weight‖ in the admissions process, even if it did reaffirm a commitment to racial
         and ethnic diversity w/ special reference to inclusion of students from groups
         which have been historically discriminated against that otherwise may not be
         represented in the student body in meaningful #‘s. Grutter, a white woman, had
         3.8 GPA and 161 LSAT and was rejected by the law school. Court accepted the
         university‘s argument that the education of all students is enhanced with a
         diverse student body. Reasoned that the school seeks to enroll a ―critical mass‖
         of minority students, and not simply to assure within its student body some
         specified percentage of a particular group merely b/c of race or ethnic origin
         (which court recognized would be unconstitutional. Held Universities have a

                   Constitutional Law – ADLER / Spring 2008
compelling interest in creating a diverse student body; accordingly, they may use
race as one factor, among many, to benefit minorities and enhance diversity.
          i. ―Benefits of diversity are substantial‖
                    1. Promotes cross-racial understanding
                    2. Helps to break down racial stereotypes
          ii. What about means?
                    1. Court found school sufficiently considered workable race-
                    neutral alternatives, i.e. lottery system or reducing importance of
                    GPA/LSAT scores.
                    2. However, these policies would require dramatic sacrifice of
                    diversity or academic quality of all admitted students.
                    Also, all pertinent diverse qualities are considered under policy
          iii. Dissent: The court‘s deference to the university is not appropriate
          under strict scrutiny. Furthermore, diversity is not a sufficient interest to
          justify the use of racial classifications. There are other ways to ―better‖
          the education of law students aside from ensuring that the student body
          contains a ―critical mass‖ of underrepresented minorities.
b. Gratz v. Bollinger 2003 (740): University of Michigan undergrad admissions
process gave considerable weight to membership in an ―underrepresented racial
or ethnic minority group.‖ Court distinguished from Grutter. Reasoned that in
order to withstand strict scrutiny analysis, the University had to demonstrate that
their use of race in admissions is narrowly tailored to further compelling
governmental interests. However, the university policy of awarding 20 points on
a 150 point scale to members of underrepresented minority groups is not
narrowly tailored. Instead, awarding 20 points to each minority applicant makes
the factor of race decisive for virtually every minimally qualified under-
represented minority applicant (more than just a plus factor). Held the
admissions policy violates the EP clause because while diversity is a compelling
state interest, quotas or numerical quantification of benefits are
          i. Ginsburg dissent: Even if not narrowly tailored, the same standard
          of review (strict scrutiny) should not apply to racial classifications that
          oppress racial minorities and those that are aimed at creating racial
          equality. Racism is a systematic problem – world is not colorblind.
          ii. ADLER: The Court requires a flexible school plan rather than a rigid
          one that uses a quota or a gives a specified advantage based on
          diversity factors
                    1. Grutter allows individualized evaluation, but Gratz does not
          iii. Criticism: these rulings drive the discussion of race underground;
          similar to idea that as long as race is not put in the statute, it will not be
          subject to strict scrutiny.
c. Parents Involved in Community Schools v. Seattle School District
(S112): School voluntarily adopted AA program to avoid de facto segregation;
used race as predominant factor in measuring diversity. Court focused on
narrowly-tailored req, and determined that race was not the only way to achieve
diversity, especially since Seattle did not have history of forced segregation.
Instead, called for use of ―race conscious factors,‖ including: strategic site
selection of new schools, drawing attendance zones w/ recognition of
neighborhood demographics, allocation of resources for special programs,
targeting recruiting of students and faculty, and tracking performance and other
statistics by race. Held although diversity is a compelling interest, it must be
limited to the realm of higher education. Program here is not narrowly tailored
enough to satisfy SS; assignment based predominantly on race is not necessary,
and in fact is stigmatizing.
          i. ADLER: assigning students by zip code would likely pass SS test.

          Constitutional Law – ADLER / Spring 2008
                         ii. Roberts invoked Brown colorblind theory: ―the only way to stop
                         discrimination is to stop discrimination‖ and we can never take race into
                         account if this is to be true.
                                  1. Kennedy rejected this contention and wouldn‘t sign on
                         iii. Instead, Kennedy furthered anti-subordination theory: not willing to
                         assume that the Constitution ignores de facto segregation since the
                         Constitution is supposed to give equal opportunity to children through
                         some sort of racial balancing.
                 c. In application:
                         i. Can a college favor children of wealthy alumni or athletes?
                                  1. Strict scrutiny is not triggered b/c the law does not target race.
                                  2. The court will apply a rational basis test.
                                  3. In most cases the court will defer to the university, which will
                                  undoubtedly be able to characterize the law as serving some
                                  legitimate purpose.

F. Intermediate Scrutiny: Classifications based on Gender
        1. Introduction
                a. Long history of discrim against women, mostly laws that ―protect‖ women.
                          i. Women were barred from serving on juries, from owning property, got
                          the right to vote after black men, barred from licensed occupations,
                          couldn‘t work many jobs, received less pay, and so on.
                b. With gender, we are still worried about the legislature using characteristics that
                have nothing to with the goals of the legislation.
                          i. We are worried about irrational political process.
                c. However, concern that if SS was used for gender classifications it would make
                it much more difficult for the govt. to engage in affirmative action for women
                d. Legal History:
                      i. Reed v. Reed 1971 (756): All else being equal, men were chosen over
                      women to administer estates when someone died intestate. Court used
                      rational basis to strike a § involving gender classification for the first time.
                      Didn‘t say gender is suspect class.
                      ii. Frontiero v. Richardson 1973 (755): Statute provides that serviceman
                      can claim wife as dependent even if she is not dependent on him, but wife
                      cannot claim husband as dependent unless he actually is. Plurality used
                      strict scrutiny. Held unconstitutional.
        2. What level of scrutiny is appropriate?
                a. Gender equality is not implicit in the constitution, so gender is analogized to
                race in order to determine the level of scrutiny.
                b. Arguments that gender should be treated like race:
                          i. Long history of discrimination against women (no right to vote, inability
                          to K, hold property, etc.)
                          ii. Gender classifications are also based on stereotypes, not important
                          government interests.
                          iii. Purported biological differences are often just stereotypes.
                          iv. Gender is an immutable characteristic
                          v. Gender is immediately visible
                          vi. Women significantly underrepresented in the political process
                          viii. Gender is more like race, than like AGE
                                   1. There might be time when age is rationally related to goal.
                                   Gender, on other hand, is often used as arbitrary distinction
                                   2. A regulation based on age may only affect an age group,
                                   whereas a regulation based on gender groups a large segment
                                   of the population where there might be more differences among
                                   them that are not captured by the classification.
                c. Arguments that gender should be treated differently from race:

                           Constitutional Law – ADLER / Spring 2008
               i. Sometimes different treatment based on gender is necessary
               ii. Biological differences b/w men and women are not present b/w races
               iii. Discrim against women was motivated by paternalistic feelings, not
               because of ill will or hatred (oppression)
               iv. Women were not made slaves like the African Americans
               v. Women are a political majority who are not isolated from men and
               thus cannot be considered a discrete and insular minority
               vi. Women are not a powerless group
               vii. Historical argument: Framers of the 14 amendment only meant to
               outlaw racism, not gender inequality.
                         1. § 2 of 14 Amendment implies that the framers assumed that
                         the Amendment didn‘t apply to women by only referencing men.
               viii. Instead, gender is more like age, which triggers rational basis
3. Emergence of Intermediate Scrutiny as a compromise:
      a. Defined: Class must be substantially related to important gov‘t purpose
               i. Less deferential than rational basis.
               ii. Elevated scrutiny allows the Court to pick apart the statistical rationale
               given by the sate (unlike rational basis)
               iii. Ironic: AA for women will be treated with less scrutiny by the courts
               and allowed more frequently, than affirmative action for race even though
               it is conceded that affirmative action for race is needed.
      b. What is a sufficiently important government purpose?
               i. Biological differences b/w men and women
               ii. Remedy past discrimination (economic, employment, etc)
                         1. Big issue will be: is the classification remedying past discrim
                         or is it really just a stereotype?
                         2. Examples: School can create an all-girl magnet school; can
                         give AA to boys, since they tend to score lower.
               iii. Reliance on archaic stereotypes is not sufficient
                         1. Object of the statute is itself invalid if it is to exclude or
                         ―protect‖ members of one gender b/c they are presumed to suffer
                         from an inherent handicap or to be innately inferior.
                         2. Laws perpetuating legal, economic, and social inferiority of
                         women are NOT acceptable.
      c. What is substantially related?
               i. Gov‘t purpose must be the actual purpose
                         1. Court will not hypothesize objectives
                         2. Will consider only those objectives that are shown to have
                         actually motivated the legislature.
                         3. Different from rational basis!
               ii. Need not be the only possible way to achieve the goal
                         1. Different from strict scrutiny!
      d. Burden rests with the gov’t, and not with the challenger
               i. Must show ―exceedingly persuasive justification‖ for classification.
      e. Must be intended: gov‘t act that creates an unintended burden on one
      gender is not sufficient to invoke intermediate review (Feeney)
      f. Remedy for Violation:
               i. Must be shaped to place persons unconstitutionally denied an oppt‘y
               or advantage in ―the position they would have occupied in the absence of
      g. Craig v. Boren 1976 (758): OK statute prohibits the sale of 3.2% beer to
      men under 21 and to women under 18. Gov‘t argued that the statute‘s goal was
      traffic safety, since statistics suggest that guys drinking and driving pose a
      greater risk than girls drinking and driving. Court rejects this reasoning, finding
      that this goal is not substantially related to traffic safety (which it recognized as a
      legitimate state interest). Court reasoned that the statistical evidence offered did

                  Constitutional Law – ADLER / Spring 2008
      not prove that the DUI accidents were b/c of 3.2% beer, and that males can still
      get friends to buy the beer for them, and then drink it (which is not prohibited by
      statute). Held Gender-based differential constitutes a denial to males 18-20
      years of age of the equal protection laws under the 14 Am.
      a. Note: shows that statutes that burden men, rather than women, will also be
      subject to intermediate scrutiny.
      b. Rehnquist dissent: First objected to the Court‘s creation of a new level of
      scrutiny. Instead, he would apply rational basis, and give more deference to the
      legislature. Unlike race, there is no history of discrimination against men, so
      heightened scrutiny is dangerous. Here, since the law is not irrational, and not
      arbitrary, it should be upheld.
4. Gender Classifications Based on Stereotypes [generally void]:
      a. Mississippi University for Women v. Hogan 1982 (771): A male applicant
      was denied admission to an all female state-sponsored nursing school sought to
      challenge the school‘s exclusion of men. Gov‘t argues that the all women‘s
      college remedies past discrimination against women and constitutes educational
      affirmative action. Court rejects this argument, finding that MS has no reason to
      compensate for sexism in nursing, since most nurses are female. O‘Connor is
      also concerned that the state approach only furthers the stereotype that only
      women should be nurses. Held The burden is on the state to demonstrate that
      the actual goal is significant [or ―exceedingly persuasive‖ in the words of
      O’Connor], and that the legislation is substantially related to serving that
      significant state goal; Here, the state failed and the school is unconstitutional.
               i. Would be a different case if we were talking about medical school,
               where women have traditionally been excluded.
               ii. If wanted to admit Latinos, statute would have to survive strict
               scrutiny, so the state would have prove past discrim and narrow-tailoring.
               iii. Powell dissent: We should not apply heightened scrutiny when the
               classification advances a disadvantaged group, such as women.
      b. United States v. Virginia 1996 (761): A female applicant seeking admission
      to all-male public university filed a claim against the state challenging the
      school‘s policy against admitting women. When challenged, VA opened an all
      female ―equivalent‖ school, but it was not the same unique educational
      experience (and there were fewer degrees offered and a lesser educated
      faculty). State argued that single sex education provides diversity in educational
      approaches, but court said VA failed to prove that the purpose was substantial
      actual purpose. Court also rejected argument that women would change the
      uniqueness of the program to such an extent that no one will benefit. Court
      basically says bullshit – that‘s a stereotype, and both looked like insufficient post
      hoc realizations. Held school is a violation of EP; Inter Scrutiny is the correct
      standard, but the ―parties seeking to defend gov‘t action must demonstrate an
      ―exceedingly persuasive justification‖ for gender classifications which
      categorically exclude women from educational opportunities.
               i. Rehnquist concurrence: Agrees with IS, but think the court should
               abandon ―exceedingly persuasive justification‖ language.
               ii. Scalia dissent: Maj‘s standard is closer to strict scrutiny than any
               intermediate standard of review. Scalia also bitches about women not
               being able to keep up w/ the good ol‘ boys at VMI, and he appreciates
               the long-history of all-male military institutions.
               iii. ADLER: Sounds like SS, but Ginsberg says it‘s really IS. Maj.
               Distinguished gender from race, and admits there might be some
               situations where physical differences justify classification – just not here.
               iv. ADLER: Ginsburg seems to be drawing a dividing line between
               programs that perpetuate stereotypes and those that refute them. A
               women‘s college is an effort to overcome stereotype, whereas men‘s
               college perpetuate stereotypes.

                  Constitutional Law – ADLER / Spring 2008
        5. Classifications Benefiting Women b/c of Biological Difference [generally upheld]
               a. Nguyen v. INS 2001 (782): Under INS rules, foreign-born children
               automatically become citizens if their mother is a citizen. If it is their father who is
               a citizen, however, INS rules make it more difficult for the child to become a
               citizen. INS argued that a biological connection is more easily established b/w
               mother and child b/c of records and act of giving birth. Fathers, however, are
               further removed from the process and may not know the child is theirs.
               Therefore, biological reasons for favoring mother over father relationship. Court
               agrees. Held rule favoring mothers over fathers is constitutional because of the
               greater certainty as to the identity of the mother and the greater opportunity that
               mothers have in establishing a relationship with their children.
                        i. O’Connor dissent: Not all men are sailors. Many fathers have strong
                        connections with their children just as many mothers don‘t. Most fathers‘
                        biological link to their children is not in doubt. O‘C argues there must be
                        an ―exceedingly persuasive justification‖ for the gender classification, but
                        the maj. bases its holding on stereotypes. She is concerned with gender
                        stereotype of sexual proclivity of US soldiers on shore leave AND of
                        mothering/caretaking function of women.
                        ii. History: ―Sexual Proclivity of Sailors on Leave:‖ men go off, have
                        sex, and make children who they may not know of. Don‘t want bastard
                        children, w/o American moms, becoming citizens. Also want to protect
                        American fathers from unwanted paternity claims.
                        iii. ADLER: Kennedy uses the language of intermediate scrutiny, but
                        really applies more of a rational basis test.
                        iv. Note: Ironic that men are technically the disfavored gender group on
                        the face of the law; but, they arguably benefit from having the opportunity
                        to choose to give citizenship to their children born abroad.
               b. Practical application of differing approaches to biology:
                        i. High school has a boy‘s basketball team and girl‘s team. Girl goes to
                        court trying to get onto the boy‘s team. EP violation? [focus on females
                        as individuals]
                                 1. The principle would say no. They‘re worried about the girl
                                 getting hurt, locker room etiquette, boys who will refuse to play,
                                 and parents who will be upset. Also, If her goal is to become a
                                 better basketball player, her being on a boy‘s team will not
                                 advance that goal where she doesn‘t get any playing time. On
                                 the other hand, if she is a star on the girl‘s team she has a better
                                 chance of getting recruited.
                                 2. Dissent would argue that if the girl‘s team will not be able to
                                 afford her a similar opportunity because of fewer resources, then
                                 the Court should apply VMI and allow her to join. The argument
                                 in VMI that women wouldn‘t like an adversarial method is similar
                                 to the argument by the school that girls wouldn‘t want to play
                                 with rough boys.
                        ii. Suppose the school allows women to join the men‘s team. Can the
                        men now join the women‘s team? [focus on females as a group]
                                 1. There may be a tendency to say that gender classifications
                                 shouldn‘t be allowed. However, men are not the target of societal
                                 discrim, so justification may not survive.
                                 2. Also, if men were allowed to join the women‘s team, the team
                                 would disappear as men would take up all the player spots.

G. Scrutiny used for Other Classifications
       1. Aliens (discrimination against non-citizens; not nat‘l origin discrim)
               a. protected by EP since 14 Amend says ―no person‖ shall be discrim against
                       i. Clause des not refer to ―citizens,‖ which shows up in Priv / Imm Clause

                           Constitutional Law – ADLER / Spring 2008
                           iii. Exception: Alienage classifications based related to self-government
                           and the democratic process need only meet RB
                                    1. Ex: applying for gov‘t job that is closely tied in w/ politics,
                                    justice, or public policy; or running for governor
                  b. General Rule: Strict scrutiny
                  c. Also challenged by Preemption doctrine, since fed immigration laws wholly
                  occupy the field and preempt state laws trying to regulate immigration
           2. Non-marital Children (children whose parents were not married)
                  a. General Rule: Intermediate Scrutiny
                  b. Court recognized unfairness of punishing children for something their parents
                  did (or didn‘t do)
                           i. contrary to basic assumption that burdens should bear some
                           relationship to individual responsibility or wrongdoing.
                  c. Recognized a long history of discrim against illegitimate children
                           i. Not as bad as race or gender, though
                           ii. In part because illegitimacy is not worn as ―an obvious badge‖
                  d. Rule: laws that provide a benefit to all marital children, but no non-marital
                  children are ALWAYS unconstitutional
                  e. rule: laws conferring benefit to non-marital children evaluated case-by-case
           3. Age, Wealth, Disability, Sexual Orientation
                  a. Supreme Court has expressly rejected heightened scrutiny
                  b. This is so even though these classifications share much in common with race,
                  gender, nat‘l origin, etc.

    EXAM TIP: for the purposes of the exam, we need only consider a fundamental rights
    issues as it arises under the due process clause, and likewise treat a suspect class issue as it
    arises under the equal protection clause.

                       Analysis          Govt.’s    End         Govt.’s Means Used            Result
                                         Purpose/Goal           (Statute)
Fundamental Right      Strict Scrutiny   Compelling     State   Must be narrowly tailored     Statute is usually
                                         Interest within the    (tight fit); necessary i.e.   found       to   be
                                         police power of the    the least intrusive means     unconstitutional
                                         state                  by which the goal can be
                                                                achieved:      Cannot   be
                                                                OVER         or    UNDER
Non-Fundamental        Rational Basis    Legitimate Goal        Rational relationship to      Statute usually found
Right                                                           support the ends/means?       to be constitutional
                                                                Does not have to be a
                                                                tight fit.

    VIII. Fundamental Rights Under Due Process & Equal Protection
    Issue: What rights that are not specifically enumerated in the Constitution are going to be
    considered so fundamental that when these rights are at stake the Courts should not defer
    to the state or federal legislature?

    A. Introduction
            1. Court recognizes that some liberties are so important that they are deemed
            ―fundamental rights‖
            2. Generally the gov‘t cannot infringe upon these rights unless strict scrutiny is met
            3. Fall under either Due Process or Equal Protection:

                              Constitutional Law – ADLER / Spring 2008
        a. DP claims: whether the gov‘t interference is justified by a sufficient purpose
        (law denies a right to everyone)
                i. If law denies right to everyone  challenge under due process clause
        b. EP claims: whether gov‘t discrim as to who can exercise the right is justified
        by a sufficient purpose (law denies a right to some, while allowing it to others)
                i. if the law denies right to some, while allowing to others  challenge as
                offending equal protection
        c. Major difference is how the constitutional argument is phrased
4. Amend IX: ―The enumeration in the Constitution of certain rights, shall not be
construed to disparage others retained by the people.‖
        a. Not a source of rights itself, but used to provide textual justification for the
        Court to protect non-textual rights (i.e. right to privacy)
5. Procedural Due Process
        a. Existence of a right triggers 2 distinct burdens on the gov‘t
                i. Substantive: gov‘t must justify infringement by showing that its action
                is sufficiently related to an adequate justification
                ii. Procedural: requires gov‘t to provide notice and a hearing before
                terminating custody
        a. Is there a fundamental right?
                i. This is the BIG one.
                ii. Three general rules to find whether a right is fundamental:
                           1. How Broadly or Narrowly the issue is characterized makes
                           all the difference-
                                     a. Ex: is there a fundamental right to private sexual
                                     behavior between consenting adults vs. is there a
                                     fundamental right to homosexual sodomy?
                           2. Use text, framers’ intent, history, tradition, and policy.
                           Consider whether right encompasses values ―implicit in the
                           concept of ordered liberty‖ and the evolution of values.
                                     a. Originalists: fundamental rights limited to those
                                     liberties explicitly stated in the text or clearly intended by
                                     the framers
                                     b. Non-originalists: permissible for the Ct. to protect
                                     fundamental rights that are not enumerated in the
                                     Constitution or intended by its drafters
                                     c. Moderate originalists: judiciary should implement
                                     the framers‘ general intent, but not necessarily their
                                     specific views
                           3. There are cases (see below) that protect certain ―clusters‖
                           of fundamental rights. You have to use those cases in your
                           analysis to analogize or distinguish. Argue to the concurrences,
                           the justices ready to switch sides.
                           4. Whether the court is needed to ―restore the natural order
                           which has been upset by the legislature‖
        b. Is the Constitutional Right Infringed?
                i. When the exercise of a right prohibited , this is clearly infringement
                ii. But, when it is not a complete prohibition, when it is just a burdening
                of the right, when does it constitute and infringement?
                           1. Consider directness and substantiality of the interference.
                           2. The court has rarely discussed the issue of infringement.
                                     a. Look to abortion cases, post-Casey, for the most in-
                                     depth discussions of infringement (see below).
        c. Is there sufficient justification for the gov’t’s infringement of a right? Is
        the means sufficiently related to the purpose? [aka does law pass scrutiny]
                i. Fundamental rights trigger strict scrutiny

                   Constitutional Law – ADLER / Spring 2008
                         ii. Therefore, compelling interest necessary: Gov’t has burden of
                         persuading Ct. that a truly vital interest is served by the law in question
                                  1. Heavy burden on the state
                                  2. compelling interest = public health, safety and morals
                                  3. Narrowly tailored = spandex fit
                         iii. Non-Fundamental rights trigger only rational basis
                                  1. The Ct. may think the rule is dumb, but it will stay in effect of it
                                  as long as the State provides some sort of rational basis.
                                  2. Rationale: If the right is not fundamental, it should be left to
                                  the changing mores of society/ the political process to regulate

B. Economic SUBSTANTIVE Due Process
      1. Introduction
              a. Protection of economic liberties refers to protection of constitutional rights
              concerning the ability to enter into and enforce contracts, to pursue trade or
              professions, and to acquire, possess and convey property.
                      i. Today: FREEDOM OF K IS NOT A FUNDAMENTAL RIGHT.
              b. Basis in The Constitution: There are 3 ways to approach economic rights:
                      i. Art. 1, § 10: Contracts Clause
                                1. ―No state shall pass any Law impairing the Obligation of Ks.‖
                                2. Used during 19 century to limit ability of states to interfere w/
                                existing contractual relations.
                                3. Became superfluous w/ advent of Economic substantive DP
                      ii. Takings Clause
                                1. Applies to property (along with 5 amendment)
                      iii. Economic Substantive Due Process
                                1. The Lochner Court used the Due Process Clause of the 14
                                Amendment to invalidate government economic regulations that
                                interfered with freedom of contract, since the contracts clause
                                (although applicable to the states) applied only to existing
                                contracts. (Lochner was about future contracts or the right to
                                contract generally).
      2. Historical Background of Economic Substantive DP:
              a. Predominantly used from late 1800s to 1937
              b. Used to limit the govt.‘s ability both to impair existing Ks and regulate the
              content of future Ks (K‘s clause had been confined to the former & inapplicable to
              federal government)
              c. Used during Lochner Era to declare many state laws, such those addressing
              min. wage & hr., prohibiting unionizing, and general consumer protection laws,
              as violating the 14 by impermissibly interfering w/ freedom of K.
                      i. The case: Lochner v. New York 1905 (526): Lochner fined for
                      violating state labor law which prohibited employment in bakeries for
                      more than 60 hours per week or 10 hours per day. Lochner permitted an
                      employee to work more than 60 hours in one week. He argued that the
                      fine was a violation of his rights to work as many hours as he wishes
                      and to run his business as he wishes. State defends the statute b/c
                      (1) the statute was a valid labor law, and (2) the statute protected the
                      health and safety of workers. Court rejected these arguments, and found
                      the underlying reason for the statute was to equalize the bargaining
                      power between employers and employees (which is not within the police
                      powers of the state). Held the general right to make a contract is an
                      economic liberty interest protected by the 14 amendment.
                                1. Court used early strict scrutiny test:
                                         a. Is infringement based on a valid exercise of police
                                         power? (morals, health, safety, and welfare of the
                                         public. [compelling state interest]

                           Constitutional Law – ADLER / Spring 2008
                           b. Is the statute narrowly tailored to accomplish the
                           stated goal of the sovereign? It cannot be under or over
                  2. Court found state failed to demonstrate a compelling police
                  power interest in regulating right to K
                           a. Rejected the argument that the statute was for the
                           health and safety of bakers b/c the means used to
                           accomplish he safety goal were not direct enough, were
                           not narrowly tailored enough to justify infringing upon the
                           liberty to contract.
                           b. There were alternative means of protecting bakers
                           that were less restrictive to the freedom to K, i.e. more
                           frequent inspections, required bathrooms, breaks, etc.
                           c. The amount of hours a baker works does not affect
                           the ―welfare of the public.‖ Perhaps if there were a
                           more direct connection to the public health, the court
                           would have bought the argument. (ex. Exhausted bakers
                           correlates to rodent hairs.)
                  3. The right to contract is not absolute because the state retains
                  its police power, and there are times when the state interest
                  could outweigh freedom of contract.
                           a. The state can prevent Ks that involve immoral acts,
                           or involving less intelligent or incapacitated people.
                           b. Not the same thing… BUT… labor laws protecting
                           the amount of hours a woman can spend in a factory
                           were later passed during the Lochner era
                                      i. Women were viewed as the weaker sex in the
                                      ―work to survive‖ world.
                  4. Holmes dissent: argued that the court decided on its own
                  accord, without any justification or explanation, that the freedom
                  to contract was part of the ―liberty‖ protected by DP [isn’t that
                  always the case…a la Roe]. He claimed that the court was
                  injecting its subjective views regarding laissez fair economy.
                  From his dissent came the idea and the fear that courts should
                  not ―Lochnerize‖ – i.e. inject its own subjective views into the
                  concept of liberty.
                  5. Harlan dissent: even if you accept the idea that freedom to
                  K is part of liberty protected by the DP clause, there was a
                  compelling state interest in ensuring the health and safety of
                  bakers or the public to validate the law. Wants more deference
                  to legislative findings (w/ tie going to legislature)
                  6. ADLER: This decision has shaped the USSC b/c ever since,
                  Ct. has been careful and afraid of subjective beliefs dictating
                  decisions regarding fundamental rights under due process.
d. Era of laissez-faire economy and protecting business from govt. regulations
         i. This period was also a period of federalism.
         ii. Similar fed. laws would have been declared unconstitutional under
         Commerce Clause/ 10 during this period.
e. Lochner DOA. Post-1937 the ct. no longer protected freedom of K under the
liberty provision of the DP clause, nor did it impose limits on Congress‘ ability to
regulate the economy based on federalism or narrow definitions of fed. powers.
         i. The Depression created wide-spread perception that gov‘t economic
         regulations were essential; wages were low & ee‘s lacked bargain power
         ii. West Coast Hotel v. Parrish 1937 (541): WA state enacted a law
         that set the minimum wage for women. Parrish, a woman employed by
         the West Coast Hotel, brought suit to recover the difference between the

          Constitutional Law – ADLER / Spring 2008
              wages paid to her and the minimum wages set by the state. West Coast
              Hotel challenged the statute as violating the due process clause of the
              14 Amendment. Court rejected Lochner and reasoned that the
              Constitution does not include the right to K within its protection of
              ―liberty.‖ Instead, court reasoned that liberty in the Constitution means
              social organization and protects health, safety, morals, and welfare. Ct.
              applied the rational basis test and Held minimum wage laws are a
              reasonable and rational way (not arbitrary or capricious) for the
              legislature to respond to this public welfare problem.
                        1. Ct. recognized that legislature has wide discretion to decide
                        what is suitable protection of health and safety.
                        2. Ct. recognizes that the equalization of bargaining power is a
                        legitimate state goal.
              iii. U.S. v. Carolene Products 1938 (543): Congress passed the ‗Filled
              Milk Act‖ which prohibited the shipment in interstate commerce of
              skimmed milk compounded with any fat or oil other than milk. Carolene
              Products was indicted for violating the Act, and challenged it as
              unconstitutional. Court radically departed from Lochner and established
              that with legislation affecting commercial or economic transactions only,
              there is a presumption that the law is constitutional. Ct. accorded
              wide deference to legislature, Held Congress held hearings prior to
              passing the Filled Milk act, and had a rational basis for believing that
              the act was necessary for the protection of the general public.
                        1. Ct. says that any set of facts either known or which could
                        reasonably be assumed, whether known to the legislature or not,
                        may support the legislature‘s rational basis (i.e. justification
                        need not be on the record)
                        2.    Footnote 4: Justice Stone, who wrote MAJ opinion,
                        explained in a FN when and why the rational basis test can be
                        applied rather than a higher level of scrutiny.
                                 a. ADLER: This is a VERY important footnote because
                                 it sets out and articulates the structure and reasoning
                                 behind the due process and equal protection analysis‘
                                 under the 14 .
                                 b. Even if REJ SS here, FN expresses in dictum that a
                                 higher level of scrutiny may needed when legislation
                                 violates the Bill of Rights, when a law restricts the
                                 political process (i.e. vote), or when a law affects
                                 ―discrete and insular minorities‖
                        3. Complete reversal of Lochner
              iv. Example of extreme deference to legislature (and lobbyists!)
                        1. Williamson v. Lee Optical of Oklahoma 1955 (545): state
                        law prohibited any person from fitting or duplicating lenses
                        without a prescription from am ophthalmologist or optometrist.
                        Court reasoned that the reasons for a state law‘s passages do
                        NOT have to be a tight fit with the state‘s goal. It does not matter
                        if the law is wasteful or exacts some needless requirements.
                        Held As long as the legislature might have concluded that in
                        some instances it accomplishes the goal, hypothetical rational
                        basis is enough in commercial or economic regulation.
                                 a. ADLER: If you can think of ANY way this works, then
                                 it‘s probably okay, SO LONG AS ECONOMIC.
      a. Economic regulations (laws regulating business and employment practices)
      will be upheld when challenged under the DP Clause so long as they are
      rationally related to a legit. gov’t purpose.

                  Constitutional Law – ADLER / Spring 2008
                         i. Gov‘t purpose can be any goal not prohibited by the Constitution
                         ii. Asserted purpose need not be legislature‘s actual objective
                         iii. Law only needs to be a reasonable way of attaining the end—need
                         not be narrowly tailored to achieving the goal (rational basis).

C. Reproductive Autonomy
      1. Right to Procreate
              a. Gov‘t imposed, involuntary sterilization must meet strict scrutiny.
                        i. Buck v. Bell 1927 (847): Gov‘t mandated sterilization of ‗feeble
                        minded‖ woman. Holmes, the dissenting justice in Lochner (who
                        therefore believes the gov‘t should be more hands on, and wants to defer
                        to the leg whenever possible) disagrees that the right to procreate is
                        protected anywhere in the Constitution. Shocking decision justified using
                        eugenics – ―three generations of imbeciles is enough‖ Held right to
                        procreate not a constitutional right; therefore, restriction okay.
                                 1. Even if this is a compelling interest, which it is NOT, there are
                                 less restrictive ways to address it than irreversible sterilization.
                        ii. Implicitly Overruled by Skinner v. Oklahoma 1942 (849): Skinner
                        labeled a habitual criminal. OK had a statute that required sterilization
                        for anyone convicted of two or more felonies involving moral turpitude. S
                        objected, and ct. agreed that interest in preventing ―passing of the
                        criminal gee‖ did not outweigh constitutional right to procreate (especially
                        considering that embezzlement and tax fraud were listed as crimes
                        involving moral turpitude). Held the right to procreate is a fundamental
                        right that deserves special protection (a.k.a SS) under the Constitution.
                                 1. MAJ finds the fundamental right to procreate in the Equal
                                 Protection clause; He does not buy into the notion that
                                 criminals pass their bad genes onto their children; also, sees no
                                 difference between grand larceny and embezzlement.
                                 2. MAJ is not making criminals a suspect class, but two groups
                                 are being treated differently and have different protection of a
                                 fundamental right, therefore, SS
                                 3. BUT… Same analysis for Equal protection and Due
                                 Process analysis as they relate to fundamental rights.
      2. Right to Purchase and Use Contraceptives
              a. Griswold v. Connecticut 1965 (850): CT statute made giving advice on
              contraception for purposes of preventing pregnancy a criminal offence. Planned
              Parenthood official and doctor charged under the statute, but object that it is
              unconstitutional. Court is concerned about Lochner-izing, but reasons that the
              Bill of Rights radiates penumbras (shadows of shadows), or implicit guarantees
              that shadow explicit rights and give them substance. Based on 1/3/4/5 Amends,
              Ct finds such a penumbral right to privacy. Also relied on the 9 amendment,
              which states that there exist rights outside the Constitution. Here, the purported
              state interest is in discouraging extra-marital affairs, but that makes no sense
              since STD protection (condoms) are available widely to all married and
              unmarried people. The state interest is legitimate, but sweeps too broadly, needs
              to be narrower so as not to invade on marital privacy. Held The right to privacy
              in marital relations is fundamental and older than the bill of rights; it is sacred,
              and we do not want police in the bedroom looking for signs of contraceptives.
              Therefore, we apply SS, and the state law is unconstitutional.
                       i. Goldberg, Berger, Brennan concurrence: Use 9 Amendment to
                       support the idea that the privacy in marriage is a fundamental right. Look
                       to tradition to determine whether a principle is so rooted it can be ranked
                       as fundamental (i.e. whether a right is of such character that to violate it,
                       would violate fundamental principles of liberty and justice.) Applying this
                       test shows that privacy is a fundamental personal right.

                           Constitutional Law – ADLER / Spring 2008
        ii. Harlan concurrence: The DP clause stands on its own here—it is not
        dependent on the Bill of Rights and its radiations. Judicial restraint from
        injecting subjective views will come largely from respect for the
        separation of powers, history, tradition, basic values that underlie our
        society, and federalism.
        iii. White concurrence: Marital privacy is protected by liberty under DP.
        The state interest here makes no sense, it is too broad, and suspicious.
        iv. Black dissent: There is no right to privacy in the Constitution. That
        sucks, I like my privacy as much as the next guy, but there are no
        penumbras, nothing in the due process clause nor when combined w/ the
        9 Amendment that talks of a right to privacy. The Framers provided for
        change by creating a process of allowing additional amendments.
        v. Stewart dissent: Thinks the law is silly, but constitution is silent on
        right to privacy. Further, DP is only procedural. Connecticut residents
        should vote to repeal, the only way to get this law off the books.
b. Eisenstadt v. Baird 1972 (856): Baird convicted of a state statute which
provides that contraceptives can be distributed to single people for preventing
disease, but not for the purpose of contraception. Brennan wrote MAJ and
helped set up case for Roe. He built on Griswold, but characterized the privacy
right as one to reproductive autonomy (aka freedom from physical interference
with the body). Applying SS, Ct. rejected the state interest in discouraging pre-
marital sex through requiring unwanted pregnancy, especially since
contraceptive still available for disease prevention. Even though still unclear
about where privacy right comes form, Held ―If the right of privacy means
anything, it is the right of the individual, married or single, to be free from
unwarranted governmental intrusion into matters so fundamentally affecting a
person as the decision whether to bear or beget a child.‖
         i. Burger dissent: This is too much. The statute regulates distribution of
         contraception, not a ban on use (like Griswold). The majority opinion is
         personal predilection.
         ii. ADLER: This is a crucial restatement of the right at issue
         iii. Basically, if ban of contraceptives to married persons unlawful under
         Griswold, ban on distribution to unmarried persons also be unlawful.

          Constitutional Law – ADLER / Spring 2008
         Life Begins            Leave               Equal                Right to              Private
         @                      Abortion            Protection           Privacy Not           Moral
         Conception             Issue to            Issue                absolute              Choice
                                Legislature                              Roe and Casey

     Cautious approach: If      Roe says that     Justice             If the right is        No state
     status of a fetus is as    there is a        Ginsberg            not absolute,          involvement
     person, it would           fundamental       wrote a piece       how do we              whatsoever
     effect other rights        right to          before the          know when a
     and legislation: Stem      choose. Scalia    USSC, arguing       legislature can
     cell research; in vitro    would say that    that certain        regulate? Is
     fertilization. Mother’s    making it a       laws are            viability the
     health is not going to     constitutional    gender biased,      right point to
     be as compelling           right freezes     making the          measure
     here.                      the debate,       equal               from? What if
                                and makes the     protection          technology
                                court a           argument            advances and
                                ―super-           more                viability is
                                legislature‖      applicable.         very early on?

Solely ♀’s choice               Roe (SS)                 Casey (IS)                     RB    life @ conception

       Fight is in the gray area, between Roe and Casey

                3. Right to an Abortion
                       a. Introduction
                               i. Possible Political Positions:
                                       1. Life begins at conception:
                                                 a. No possibility of abortion, even w/ rape or incest
                                       2. The state may not interfere with the woman‘s right to choose
                                       3. Battle is in the middle
                                                 a. Problem with a woman who is about to go into labor
                                                 with a healthy unborn child and decides she wants to
                                                 terminate the pregnancy – need to cut it off somewhere.
                               ii. ALL in the phrasing:
                                       1. Effect of going to the narrowest wording of the scope? What
                                       if you have to use the narrowest possible language in the
                                       abortion cases? No longer framing it ―autonomy‖ etc.
                       b. Roe v. Wade 1973 (859): Roe, a single woman, wanted to get an abortion,
                       but TX law made it illegal unless necessary to save the life of the mother. Court
                       first went through the history of abortion and found that abortion before
                       ―quickening‖ (16-18 week) was not harshly penalized, if illegal at all. Court also
                       acknowledged that a right of personal privacy, or a guarantee of certain areas or
                       zones of privacy, exists under the Constitution. Ct. reasoned that right of privacy
                                              th     th
                       (whether based in 14 or 9 Am.) is broad enough to encompass a woman‘s

                                  Constitutional Law – ADLER / Spring 2008
decision whether or not to terminate her pregnancy, and that the state would
impose detriment on the pregnant woman by denying her choice. [and now for
the most criticized inferential jump…] Thus, the right to an abortion is
fundamental, even if not absolute. Court determined that SS is the correct
standard to apply to limitations on the availability of abortions. Under this
approach, Held the state’s interest in potential life (the fetus) only becomes
compelling at viability, when the baby is able to survive outside the womb (24-
28 weeks). In the first two trimesters, however, the state has NO overriding
interest that displaces the woman‘s right to choose.
         i. In the first trimester: essentially unregulated
                   1. Decision must be left to the woman and the medical judgment
                   of her attending physician.
                   2. The state has an interest in maintaining medical standards,
                   thus it can regulate that an abortion can only be performed by a
                   physician, in a certain facility, etc.
         ii. In the second trimester:
                   1.     The state‘s interest in maternal health is sufficiently
                   compelling to allow it to regulate abortion procedure in ways that
                   are narrowly tailored and reasonably related to this interest.
         iii. In the third trimester:
                   1. After viability, the state‘s compelling interest in potential
                   life allows it to prohibit abortion
                   2. However, must include an exception for abortions to save the
                   mother‘s life or health.
                             a. Whether there needs to be an explicit "health"
                             exception is still debated.
                             b. Pro-life advocates are critical that you can always find
                             a doctor to say that a women's health will be at risk (aka
                             Scalia: ―Roe stands for abortion on demand‖)
                   3. This is where to Roe statute gets kicked: The statute sweeps
                   too broadly b/s there is no distinction between trimesters and
                   only an exception for the mother‘s life (but not her health)
         iv. Rehnquist dissent: There is no fundamental right to privacy involved
         here. In fact, the fact that a majority of States have legislated restrictions
         on abortions is strong indication that the asserted right to abortion is not
         ―so rooted in the traditions and conscience of our people as to be ranked
         as fundamental.‖ This is judicial legislation. Believes this is not the
         same type of privacy as in the contraception cases, so seems to argue
         for a rational basis test. TX has a conceivable rational basis, so he says
         the Court should just stay out of it.
         v. Criticism:
                   1. What happens when technology makes viability earlier?
                   2. This is nowhere in the Constitution, it looks more like a
                   legislative scheme.
                   3. And, of course, abortion is now legal (sort of)
c. Webster v. Reproductive Health Services 1989 (866): On the eve of
Casey. Ct. upheld MO law that declared life began at time of conception.
Statute also prohibited use of govt. funds or facilities from performing or
encouraging or counseling a woman to have an abortion and allowed abortions
after 20 weeks only if a test was done to confirm the fetus was not viable. Ct.
upheld the law, but w/out a majority. 4 essentially held that Roe should be
overturned (White, Kennedy, Rehn. Scalia.) O‘Connor was the swing, but ruled
only on the specifics of the MO law. Looked like only 1 vote was needed to
overturn Roe. Rehnquist super happy when Casey came along b/c he thought
w/ Brennan and Marshall gone from the court he could get Thomas or Souter

          Constitutional Law – ADLER / Spring 2008
over to his side. However, Rehnquist didn’t want to overturn Roe, he just
wanted to apply RB.
d. Planned Parenthood v. Casey 1992 (867): Planned Parenthood facially
challenged Pennsylvania‘s abortion law. The statute required (1) 24 hour waiting
period by the woman seeking an abortion (2) parental notification; (3) husband
notification, unless he is abusive, not the father or raped her and (4) a public
report on all procedures to ensure compliance with the act. Court deviated from,
but did not overrule Roe, and articulated new test for abortion. Ct reasoned that
although it was met w/ some opposition, Roe was not unworkable. Also, many
have relied on the ruling allowing abortion and have made life
choices/formed intimate relationships based on the availability of abortion
[―Ability of women to participate equally in the economic and social life of the
Nation facilitated by their ability to control their reproductive lives.‖] Finally, there
was no evolution of legal principals since 1973 that left Roe on weakened
doctrinal footing.
          Privacy is not mentioned in the opinion at all (first departure from Roe),
but the opinion confirms that the constitutional protection of the woman‘s decision
to terminate her pregnancy derives from the Due Process Clause, which
promises a realm of personal liberty that the gov‘t not enter. Opinion states that
neither the Bill of Rights nor the specific practices of the States at the time
of adoption of the 14 Amendment marks the outer limits of the
substantive sphere of Due Process. Thus, the Ct. relies on the rights derived
from other cases (constellation of cases such as Griswold, Eisenstadt, Loving,
etc.) The right of a woman to choose is based on the right to personal
dignity and autonomy and decisional autonomy. ―The right to bear and beget
children‖ from Brennan‘s opinion. Young Harlan‘s ―fundamental rights implicit in
the concept of ordered liberty.‖ They seem to say there are certain rights that are
so important that they should be left out of the political realm (of which this is
one. Held [Joint opinion by O’Connor, Kennedy and Souter, in secret to
save abortion rights – somewhat] in essence: A state can regulate and place
restriction on abortion so long as those regulations do not impose un undue
burden on the woman‘s ability to make the abortion decision; when an undue
burden results, the regulations are unconstitutional.
          i. Form of Intermediate scrutiny
          ii. An undue burden exists, and therefore a provision of law is invalid, if
          its purpose or effect is to place a substantial obstacle in the path of
          a woman seeking an abortion before the fetus attains viability.
                   1. This is an unclearly defined test, much ambiguity—
                   application inconsistent
                   2. State may inform the woman‘s free choice but not hinder it
          iii. Change from Roe: The State has a profound interest in potential
          human life throughout the pregnancy. Therefore, the State may take
          measures to ensure the woman‘s choice is informed, and measures
          designed to advance this interest will not be invalidated as long as
          their purpose is to persuade the woman to choose childbirth over
          abortion and do not create an undue burden on the right.
          iv. Viability is still the dividing line as to when the state‘s compelling
          interest in potential life trumps the woman‘s right to choose (like in Roe).
                   1. Before viability, State‘s interests not strong enough to support
                   a prohibition of abortion or the imposition of a substantial
                   obstacle to the woman‘s effective right to the procedure.
          v. Blackmun dissent: Roe should be upheld, including the trimester
          scheme, and strict scrutiny should be used. A majority of the court has
          not held otherwise. Notifications, consents, information, reporting and all
          the rest of the statute should be struck under Strict Scrutiny.

          Constitutional Law – ADLER / Spring 2008
          vi. Scalia, Rehnquist, Thomas, White dissent: Abortion issues should
          be left to the legislature., but Roe should be overturned. Wrongly
          decided, and confusing.
d. Undue Burden Test Applied
          i. Requiring a 24-hour waiting period after the state gives information is
          NOT an undue burden.
                   1. Criticism: What about women who live in rural areas and
                   have to travel far to receive an abortion? They might have to
                   take days off of work, find a babysitter, etc.
                   2. Response: Still within the woman‘s control; encourages the
                   woman to be more thoughtful about the decision.
                   3. ADLER: So when does the burden become undue? When 5
                   justices think its going to be too much.
          ii. Parental consent provision NOT an undue burden
                   1. State may require than an unemancipated woman 18 obtain
                   parental consent, subject to a judicial bypass.
          iii. Spousal consent, however, IS an undue burden
                   1. Unlike above, no longer in woman‘s hands, and state may not
                   assign veto power to someone else.
          iv. States MAY refuse to give public funding (e.g. Medicaid) for abortions
          even though they give such funding for other types of operations.
                   1. May also prohibit public hospitals from performing abortions
          v. ADLER: Does Casey leave a fundamental right to an abortion? How
          can we square to Court‘s more deferential approach after Casey?
e. The next big one: Stenberg v. Carhart 2000 (879): Carhart, a Nebraska
physician who performed abortions, brought suit in district court seeking a
declaration that a Nebraska statute banning ―partial birth‖ abortions violates the
constitution. Court agreed, and found the statute imposes an undue burden
upon a woman’s right to a D&E abortion (not D & X!!), and thereby unduly
burdens the right to abortion itself. The language of the statute, describing the
prohibited D & X procedure is too broad b/c it could be easily interpreted to
include a D & E procedures as well. Future prosecutors or AG‘s may use the
statute to prosecute doctor‘s who perform D & E procedures, and those doctors
will fear possible prosecution. This threat could have a ―chilling effect‖ on doctors
who perform the D&E abortions. D&E procedures are the most common method
for performing pre-viability second trimester abortions, and thus the law and its
subsequent chilling effect result is an undue burden on the woman‘s right to
make an abortion decision.
          The statute is also unconstitutional b/c it lacks any exception for the
preservation of the health of the mother, it only has an exception for the
safety/life of the mother. An exception is also necessary b/c a D &X
procedure is sometimes safer then a D & E procedure. The ban of D &X
abortions (partial birth) applies to both previability and post-viability. If, under
Casey, post-viability abortions require a health and safety exception, then
certainly pre-viability regulation requires the same, as the state‘s interest in
protecting potential life is weaker in this stage. Thus, not having a health and
safety exception puts the woman‘s life/health at risk.
          Further, the law does not promote the state‘s interest ―in the potentiality
of human life,‖ since it simply proscribes a method of performing abortions and
does not save any fetus from destruction. Held Partial-Birth abortion statutes
that have the effect of placing a substantial obstacle in he bath of a woman
seeking an abortion are unconstitutional.
          i. O’Connor concurrence: Writes separately to state that the Nebraska
          statute is unconstitutional because it does not have a health exception
          and because the language sweeps too broadly (it cannot be interpreted
          to only include D&X.). But, outlawing D & X abortions, in and of

          Constitutional Law – ADLER / Spring 2008
         themselves, with a properly written statute (with health exception and
         prohibition of D & X by it terms rather than through a description) is
         constitutional (enter Gonzales v. Carhart)
         ii. Ginsburg/Stevens concurrence: Write separately to emphasize
         that the law does not save any fetus from destruction nor does it protect
         the lives or health of pregnant women. It targets merely a ―method of
         performing‖ abortion. Outlawing D & X abortions has nothing to do with
         being less cruel or saving children or any other bullshit, it‘s all about
         chipping away at the right of a woman to choose. If the only reason that
         a statute exists is to express Congress or the state legislature‘s hostility
         to certain protected rights, then it should constitute an undue burden.
         iii. Scalia dissent: Casey should be overruled (He compares Stenberg
         to Korematsu and Dred Scott. Uhmmmmm…okay.) Scalia focuses on
         brutality of the method, Casey as being unworkable in practice, and the
         problem w/ having 9 unelected officials making these policy
         determinations. States abortion should be left legislature.
         iv. Kennedy/Rehnquist dissent: Interesting b/c Kennedy co-wrote
         Casey but disagrees that the Oklahoma statute imposed an undue
         burden on a woman‘s right to choose. Says court misinterprets Casey,
         and ignores the will of the people in OK who abhor D & X abortions.
         Casey permits States to enact laws to promote the life of the unborn and
         to ensure respect for all human life and its potential. While advancing
         the important interests in sanctity of life, the law deprives no woman of a
         safe abortion. Ct. ignores that no studies support the idea that D&X is a
         safer procedure.
         v. Thomas, Rehnquist, Scalia dissent: overturn Roe and Casey. This
         is infanticide, and the state has a compelling interest to stop it.
         vi. ADLER: Here, we see a complete collapse of the joint opinion
         coalition. Intellectual honesty returns to the Supreme Court.
         vii. ADLER: What is significant about this case? First time that a
         majority of the court has accepted the undue burden test – before
         now, only three people, and other justices were at strict scrutiny,
         rationale basis, etc; now, we get this intermediate approach.
f. AND, finally… Gonzales v. Carhart 2007(S133): Law similar to the one at
issue in Stenberg passed three years later by conservative Congress. Billy
Clinton had twice vetoed Law. Several doctors challenged the statute as
unconstitutional, in many of the same ways at Stenberg. However, Ct. did not
follow O‘Connor‘s roadmap in her Stenberg concurrence, and instead approved
the constitutionality of the statute without a health exception for the
mother. Instead, Ct. is driven completely by rhetoric, and the desire to chip
away at the rights established Roe. As evidence of this, the Ct. starts to
establish interests for the unborn fetus – what better way than to start with the
most gruesome procedure and attack it. Way to build your coalition in the debate
over abortion (since even pro-choicers are hard-pressed to admit that this is a
good or welcome procedure).
         Court also relied on ―findings‖ in the preamble of the legislation that
suggest that this procedure is never required to protect the health of the mother.
Therefore, Kennedy, writing for the MAJ finds that we don’t need a health
exception since there are always other procedures that are safe, even if not
AS safe. What are the interests being recognized here? Gruesomeness.
Paternalism – women regretting their choice after the decision to have an
abortion. ―We don‘t have any data on this, but we feel like there are going to be
situations in which women will regret this decisions, especially if they know what
actually transpired during the procedure.‖ So basically, ―this is okay because we
are protecting women from choices we know they are going to regret later‖
(Adler-ism). Kennedy also claims to want to protect medical ethics, but, should

          Constitutional Law – ADLER / Spring 2008
                that outweigh the liberty and interest of the woman as recognized in earlier
                cases? NO! What develops from this is a lowed level of scrutiny than we saw in
                Stenberg – elevated consideration of state interest, and decreased consideration
                of woman‘s interest. Held Kennedy is not a doctor, but he thinks he is.
                Basically, women are fucked.
                        i. ADLER summary: Gonzales didn‘t overrule Stenberg; it just applied
                        the same undue burden test, and came to the opposite result. Less and
                        less protection for women, more and more protection for societal
                        interests and fetal rights.
                        ii. Statute upheld, as opposed to Stenberg, because:
                                 1. Definition of the procedure being banned more specific, and
                                 includes a scienter requirement
                                 2. BUT, still no health exception
                        iii. Supposed interests recognized by Kennedy‘s MAJ:
                                 1. Fetal life post-viability
                                 2. Prohibiting a gruesome procedure
                                 3. Protecting women from bad choices
                                 4. Medical ethics
                                 5. Societal interest in the sanctity of life

D. Medical Care Decisions
      1. The Right to Refuse Treatment
              a. Introduction:
                      i. Competent person has a constitutionally protected liberty interest
                      in refusing unwanted medical treatment (including lifesaving hydration
                      and nutrition)
                              1. State has strong countervailing interest in preserving life
                              2. Therefore, evolution of clear and convincing standard:
                                        a. In the case of a now-incompetent patient, the state‘s
                                        interest in preserving life entitles it to say that it won‘t
                                        allow the ―plug‖ to be ―pulled‖ unless there is clear and
                                        convincing evidence that the patient would have
                                        voluntarily declined the life-sustaining measure.
                                        b. ―Living wills‖ and ―health-care proxies‖: probably fulfill
                                        this requirement and states must honor
                      ii. BUT this but it is not absolute and can be regulated by the state.
                               1. EX: Ct. upheld a MA law that required vaccinations (i.e. can‘t
                               refuse them) b/c of the gov‘t compelling interest in stopping the
                               spread of communicable (and preventable) disease
                               2. EX: prisoners have the right to be free from involuntary
                               administration of anti-psychotic drugs b/c they have a significant
                               liberty interest, under 14 DPC, in avoiding the unwanted
                               administration of drugs. [Ct. focused on the forcible intrusion into
                               non-consenting person‘s body.] BUT ct. said interest was
                               protected by providing inmate w/ notice & a hearing medical
                               & prison personnel at which the inmate could challenge a
                               decision to administer the drugs.
                      iii. Three big issues here:
                               1. Termination of treatment (Cruzan)
                               2. Assisted Suicide (EXPRESSLY REJ in Glucksberg)
                               3. Medicating to deal with pain, knowing side effect is death
                                        a. Ct. has carved out this narrow exception – OK.
              b. Cruzan v. Director, Missouri Dept. of Health 190 (906): Cruzan was
              comatose after car accident, and remained so without any reasonable chance of
              recovery. Her parents requested that life support be terminated, when it became
              apparent that she had no chance of regaining her mental faculties. The medical

                           Constitutional Law – ADLER / Spring 2008
      personnel refused based on state law. The state law required clear and
      convincing evidence of the individual‘s consent prior to removing life support.
      Parents brought an action on behalf of Cruzan alleging that the law violated her
      right to die. The parents produced evidence of statements their daughter made
      to her housemate a year prior to the accident to the effect that she would not
      want to live as a vegetable. Court disagreed. First conceded that a competent
      person has a constitutionally protected right to refuse unwanted medical
      treatment can be inferred from prior precedent. (right stems from notions of
      bodily autonomy such as those encompassed in the CL tort claim of battery).
      However, reasoned that this right, like all rights is qualified, and the liberty
      interest must be balanced against any competing state interest (such as patient‘s
      choice and protection of human life). Held An incompetent person is not able to
      make a voluntary and informed choice to exercise a hypothetical right to refuse
      treatment; therefore, in certain circumstances, a surrogate will be allowed to
      make the call. HOWEVER, state can require the safeguard of clear and
      convincing evidence that this is what the individual would have wanted;
      therefore, statute doing just that is constitutional.
               i. O’Connor concurrence: Re-iterates that there is a right to refuse
               treatment, since forced food and water is a substantial interference with
               one‘s bodily integrity. By upholding the Missouri statute, the court is not
               saying that this is the only way to handle surrogates. She says there is
               no consensus how this sensitive and complicated issue should be
               resolved, but states that decline to consider any evidence other than
               explicit oral or written instructions may fail to honor a patient‘s intent.
                         1. This decision does not preclude a future determination
                         that the Constitution requires the States to implement the
                         decisions of a patient’s duly appointed surrogate.
               ii. Scalia concurrence: He sees this not as a right to refuse medical
               treatment, but as a right to die case. He says there is no fundamental
               right to suicide. Questions regarding how to regulate this should be left
               up to the state legislature (which is why he concurs)
               iii. Brennan Marshall, and Blackmun dissent: A clear and convincing
               standard amounts to a presumption against the termination of
               treatment. Since the right to refuse treatment is recognized as
               fundamental, the presumption should be in favor of the right. The
               state‘s general interest in preserving life, should not trump an individual‘s
               fundamental and particularized interest to in self-determination in her
               choice of medical treatment. The evidentiary standard creates an
               improperly biased procedural obstacle.
                         1. Also noted that the law makes it nearly impossible to meet the
                         heightened evidentiary standard.
               iv. The heightened evidentiary standard furthers state‘s interests b/c it
               ensures that there will be a judicial process, which is adversarial.
                         1. This is OK, b/c the state would rather err on the side that
                         preserves life, b/c this is the status quo. If you err and terminate
                         life, it is irreversible.
               v. ADLER: The clear and convincing evidence standard is very high
               and particular. If you tell someone you do not want to be on ventilator,
               but you are on a feeding machine, this is likely NOT clear and convincing
               evidence. Has to be very, very close to the situation you end up being in.
      c. Open Questions After Cruzan: the majority opinion states that there is a
      right to refuse treatment, and O‘Connor and the four dissenters expressly
      recognize this right. But, no one ever mentioned the correct standard to be
      applied – is it strict scrutiny?
2. Whether there is a right to Physician-Assisted Suicide

                  Constitutional Law – ADLER / Spring 2008
a. Washington v. Glucksberg 1997 (913): Washington physicians filed suit
seeking declaration that the state‘s assisted suicide ban was facially
unconstitutional. Court rejected their arguments. First rejected reliance on
Cruzan, which comes from a long line of CL reasoning. Court reasoned that the
right to commit suicide has NEVER been afforded similar legal protection, and
has generally been outlawed. Condemnation of suicide/assisted suicide are
consistent themes in country‘s philosophical, legal, & cultural heritage.
Therefore, court applied rational basis and found the ban constitutional. The
state has an interest in protecting the integrity of the medical profession and the
AMA has found physician assisted suicide incompatible with the doctor‘s role of
healer. The state also has an interest in protecting vulnerable groups of people
from abuse, coercion and undue influence. And as always, state has an interests
in the preservation of human life. Held the right to assisted suicide is not a
fundamental right protected under the due process clause; nor does it prohibit
states from making it a crime to assist another person in committing suicide.
         i. O’Connor concurrence: While the majority is right that there is no
         right to commit suicide, this decision should not preclude the question of
         whether a mentally competent person experiencing great suffering has a
         constitutional right to control the circumstances of his or her imminent
         death. (ie. Person should have a right to medication to ease pain, even if
         that medicine may hasten death.)
         ii. Stevens concurrence: The statute is not facially unconstitutional,
         but it might be unconstitutional as applied under some circumstances.
         There might be some cases where an interest to hasten death might be
         legitimate and constitutionally protected.
         iii. Breyer concurrence: thinks the MAJ mischaracterized the liberty
         interest at stake here. It is not the ―right to commit suicide w/ another‘s
         assistance‖ but rather the ―right to die w/ dignity.‖ That formulation would
         encompass a combination of the personal control over the manner of
         death, professional medical assistance, and the avoidance of
         unnecessary and severe physical suffering. The avoidance of severe
         physical pain would have to accompany any successful claim, b/c the
         laws do not force a person to undergo that kind of pain (ie. Laws do not
         prohibit doctors from providing patients drugs to control pain despite the
         risk that those drugs may themselves kill.)
b. NOTE: Although all agreed that the statute is constitutional, the concurrences
left open the question, whether there is a ―right to die with dignity/without
pain.‖ Also implied that state does not have an interest in prolonging suffering.
         i. Morphine drip different from assisted suicide:
                   1. Death is secondary effect of the pain medication; primary
                   interest is killing pain, which is doctor‘s obligation
c. Vacco v. Quill 1997 (918): New York statute forbidding physician assisted
suicide challenged under equal protections grounds. The plaintiffs argued the law
violated equal protection b/c it allowed terminally ill patients to die by refusing life
support but it did not allow them to die by receiving a lethal dose of medicine. Ct
disagreed and distinguished the two situations. There is no fundamental right
here, nor is there a suspect classification, thus a rational basis test is applied and
the statute has a strong presumption of validity. Equal protection does not grant
substantive rights, it only ensures that all people get the same protection and
application of the laws. The state must treat like cases alike. These are not like
cases. There is a distinction between refusing treatment and assisting suicide
that is important, widely recognized, and definitely rational, thus withstanding
review. The distinction is causation and intent, both legal principles. When a
person refuses medical treatment, the cause of his death is the underlying fatal
disease. When a patient ingests medication to die, the cause of death is the
overdose. Further, when a doctor discontinues treatment, the intent is not to kill,

          Constitutional Law – ADLER / Spring 2008
                but to respect the patient‘s wishes. Even with pain killing drugs, that may
                incidentally hasten death, the intent is to stop the pain, the side effect is death.
                But, with physician assisted suicide, the intent is death. Held No violation of EP.

E. Family Autonomy
      1. The Right to Marry
              a. Recognized as a fundamental right protected under the liberty of DP
              b. Strict Scrutiny applies
              c. First recognized: Loving v. Virginia 1967 (821): Loving, a white man, and
              Jeter, a black woman, were married in D.C. When they returned to Virginia, they
              were indicted for violating the state‘s ban on interracial marriage. Ct. reasoned
              that the right to marry is a fundamental right, necessary for our very existence
              and survival. Held statute that prevents marriages between persons based solely
              on the basis of racial classifications violates the EP & DP Clauses of the 14 Am.
                       i. Court calls marriage ―basic civil right of man‖
              d. Zablocki v. Redhail 1978 (822): WI law provides that any Wisconsin resident
              having minor children not in his custody, and which he is under an obligation to
              support, cannot marry unless he shows: (1) that he has been meeting his
              obligations; and (2) the children will not become wards of the state. Must prove
              this to a court and receive a court order to allow him to get married. P challenged
              law, arguing that the right to marry is a fundamental right, and that the state is
              infringing on that right by requiring permission by court order before he can get
              married. Claims violation of DP and EP. State argues the right to marry is not
              fund, and even if it is, the right of deadbeat dads to marry is not fundamental.
              Even still, court is only requiring permission, not prohibition. Court rejects all of
              this. Held the right to marry is a fundamental right, so the statutory provision that
              restricts it cannot be upheld unless it is supported by a compelling state interest
              and is closely tailored (tight fit = necessity) to effectuate those interests. Here,
              even assuming the state‘s interest in the welfare of children is compelling,
              preventing dead-beat dads from getting married does not guarantee that the
              state will collect child support from them. Therefore, the statute is not narrowly
              tailored and fails strict scrutiny.
                       i. This fundamental right is being denied to one class of citizens and not
                       to another, thus it is a violation of the equal protection clause.
                       ii. MOST IMPORTANT here is that the state has other means of
                       accomplishing its stated goals WITHOUT infringing on the right to marry
                       (wage garnishing, criminal proceedings, civil proceedings) so this is not a
                       TIGHT FIT- NOT NECESSARY.
                       iii. Stewart concurrence: This has nothing to do with equal protection.
                       Equal protection is for invidious discrimination. Here, we are dealing with
                       a substantive due process issue. Marriage has long been found to be a
                       fundamental right.
                       iv. Rehnquist dissent: does not think that the right to marry is
                       fundamental. Therefore, under wither EP or DP, the standard of review is
                       rational basis, and the statute would pass such scrutiny.
                       v. Factors for considering whether right is fundamental:
                                1. Text of Constitution
                                2. Values
                                3. Scope of the right [all in the phrasing]
                                          a. FN 23, pg. 832: Scalia suggests that the fundamental
                                          right in question should be framed in the most narrow
                                          manner possible.
                                          b. ADLER: You have to carefully describe the right
                                          you are talking about – this will especially impact the
                                          tradition argument.

                          Constitutional Law – ADLER / Spring 2008
                                          i. Is there a right to die with dignity as opposed
                                          to  easier to find tradition
                                          ii. Is there a right to go to garage and run the
                                          exhaust.  harder to find a tradition if worded
                                          the issue like this
                                  c. Court uses broad definitions when finding a violation
                                  of a fundamental right. When denying strict scrutiny
                                  (and therefore, refusing to find a fundamental right),
                                  court usually frames the right in question quite narrowly.
                          4. Tradition
                          5. Precedent
       e. Boddie v. Connecticut 1971 (826): preventing individuals from obtaining a
       divorce precludes them from exercising their right to marry someone else. Held
       therefore, violates DP.
       f. There must be a direct and substantial interference with the right in order
       to trigger heightened scrutiny:
                i. Califano v. Jobst 1977 (826): Ct. upheld constitutionality of a
                provision of the Social Security Act that terminated benefits for disabled
                children (who were covered as dependents of wage earners) at the time
                they got married. Held a general rule is not rendered invalid simply
                because some persons who might otherwise have married were deterred
                by the rule, or because some who did marry were burdened. Court here
                applied RB, SS was never triggered
                ii. Bowen v. Owens 1982 (827): Social Security Act limitation provided
                that if a person is widowed and remarried, then they continue to get their
                dead spouses payments. However, if the person is divorced, and
                remarried, payments cease. Again, court applied RB. Held it was
                rational for congress to think divorced widows are generally less
                dependent upon the resources of their former spouses than are widows
                and widowers.
2. Right to have custody over your children
       a. You have a right to retain custody of your children. Not absolute, of course.
       State has right to regulate, make sure parents are not neglectful, etc.
3. Right to keep extended family together
       a. There is a fundamental right under due process to keep a family
       together, including the extended family. Related by marriage blood, or
       adoption. (Moore v. City of Cleveland)
                i. Can‘t be separated by zoning ordinances, etc.
4. Right to raise children as you see fit (i.e. home-schooling)
       a. Meyer v. Nebraska 1923 (839): State statute prohibits the teaching to
       children below 8 grade any language other than English. The court broadly
       defined the term ―liberty‖ in the DP clause of the 14 amend. Held ―liberty
       denotes not merely freedom from bodily restraint, but also the right of the
       individual to K, to engage in any of the common occupations of life, to acquire
       useful knowledge, to mart, establish a home and bring up children, to worship
       God according to the dictates of his own conscience, and generally enjoy those
       privileges long recognized at common law as essential to the orderly pursuit of
       happiness by free men.‖
                i. Therefore, Court finds parent has a liberty interest to given child
                education and control their upbringing.
       b. Since Meyer, Court expressly held that certain aspects of family autonomy
       are fundamental rights and the gov‘t interference will be allowed only if SS met.
                i. Pierce v. Society of the Sisters of the Holy Names 1925 (840):
                Oregon law required children to attend public schools in the district
                where they live. Private school admin claimed law was unconstitutional
                under substantive due process. Court agreed, reasoning that the state

                  Constitutional Law – ADLER / Spring 2008
                       lacks the power to force children to accept education from public school
                       teachers only. Held ―The child is not the mere creature of the state.‖
                       Instead, the right (and duty) falls to his parents to make choices they
                       deem appropriate for their children.
                c. Right to Make Parenting Decision is NOT absolute!
                       i. Prince v. Massachusetts 1944 (841): Court upheld state labors laws
                       that prevented a 9-year-old Jehovah‘s witness child from working as
                       much as her parents wanted her to. Court reasoned that while there is a
                       private realm of family life that the state cannot enter, the family itself is
                       not beyond regulation in the public interest. Held the need to protect
                       children from being exploited and harmed (compelling state interest)
                       justifies upholding laws prohibiting child labor, even if the work was at the
                       direction of the parents and for religious purposes.
                d. Generally, court gives great deference to parents
                       i. Wisconsin v. Yoder 1972 (841): Court agreed that Amish parents
                       have a constitutional right to exempt their 14- and 15-year old children
                       from compulsory education. Court conceded that the state‘s interest in
                       universal education is compelling, but also Held that it did not outweigh
                       the parent‘s concern that further education would threaten their children‘s
                       religious beliefs.
                       ii. Parham J.R. 1979 (842): Court considered whether a state can
                       require heightened due process when a parent seeks to have child
                       committed. Court articulated an assumption that the parent is acting I
                       the best interest of the child. Held Just because SOME parents take
                       advantage, doesn‘t mean that we give the gov‘t the authority to
                       supercede its power of ALL parents; therefore, lesser requirement of DP
                       for children, than adults, is okay.
                e. ADLER: Note re: fundamental rights:
                       i. Fundamental rights are available only to the extent that citizens can
                       afford to pay for them. The law protects abortion rights but not for women
                       who can‘t afford them, since the state has no obligation to fund it. Some
                       argue that makes the right hollow for the population.

F. Education
       1. Supreme Court has refused to recognize a fundamental right to education:
              a. San Antonio v. Rodriguez 1973 (999): TX statutory scheme financed public
              school system with local property taxes. Drastic difference between rich and poor
              districts for amount spent per child, so resident of poor area brought substantive
              DP claim. He claimed right to an education was a fundamental right. Court
              rejected this argument, and instead treated the statute like any other tax or
              welfare legislation (subject to RB). Court reasoned it lacked specialized
              knowledge and did not want to interfere with tax governance. Held the state has
              an interest in creating local control over schools, and their scheme of achieving
              that interest, even if not the best possible way, is at least rational.
                        i. Court also rejected EP claim (wealth not a protected class)
                        ii. AND race discrim claim (since no discrim intent)
                        iii. Brennan dissent: The law is devoid of any rational basis and
                        therefore violates the EP. Education is inextricably linked to the right to
                        participate in the electoral process, and the rights to free speech and
                        association. As such, any classification affecting strict scrutiny should be
                        subject to strict judicial scrutiny. (nexus theory)
                        iv. Marshall dissent: The determination of which rights are fundamental
                        should be firmly rooted in text of Constitution. As the nexus between the
                        specific constitutional guarantee and he non-constitutional interest grows
                        closer, he non-constitutional right becomes more fundamental and the
                        degree of judicial scrutiny applied when the interest is infringed upon

                          Constitutional Law – ADLER / Spring 2008
                         must be adjusted accordingly. Statute directly affects child‘s ability to
                         exercise his or her fundamental rights.
                b. Total lack of public Education as a Fundamental Right: Rodriguez left open
                possibility that a total lack of education may be unconstitutional
                         i. Ct. said, ―There was no evidence here that the TX system failed to
                         provide each child w/ an opportunity to acquire the basic skills necessary
                         to enjoy the rights of speech and participation in the political process.‖
                         ii. Seems to imply that as long as a minimum level is met, bad or
                         substandard education is not a violation of fundamental rights. But
                         perhaps a total deprivation would violate a fundamental right.
                c. Kadramas v. Dickinson Public Schools 1988 (1005): State statute charged
                a fee for the use of school busses. Poor family challenged the law under the
                Equal Protection Clause. Court again Held poverty is not a suspect classification
                ad discrimination against the poor only has to meet rational basis review.
                d. Even if not fundamental, Court has recognized importance of education:
                         i. Plyler v. Doe 1982 (1005): Court struck down a TX statute that
                         denied free public education to the children of illegal aliens, even though
                         it refused to find that education was a fundamental right or that illegal
                         aliens constitute a quasi-suspect class. Ct. emphasized the great harms
                         too children if they are denied an education, and the unfairness of
                         penalizing children b/c of the choices made by their parents.

ADLER note: If you can‘t get a Fundamental right (such as Sexual activity) try to phrase it as an
EP violation (see dissents in Lawrence)

G. Sexual Orientation and Sexual Activity
      1. Introduction:
              a. OVERRULED: Bowers v. Hardwick 1986 (920): No sodomy law applied to
              both gay and straight couples. USSC Held right to privacy does not protect a
              right to engage in private consensual homosexual activity.
      2. Lawrence v. Texas 2002 (920): Police in TX received an anonymous tip of a
      disturbance at Ds apt. When they entered, they saw D and another man having sex.
      The men were convicted and fined $200 under state statute that prohibited ―deviate
      sexual intercourse,‖ defined as activity between two people of same sex. Court found the
      statute unconstitutional, reasoning that this case was clearly not just about preventing
      sex, but about preventing a lifestyle, and entering into a person‘s private bedroom. Held
      (1) laws prohibiting private consensual homosexual sex are unconstitutional; (2)
      reaffirmed a constitutional right to privacy; (3) recognized that sexual activity is a
      fundamental aspect of personhood and that it is entitled to constitutional protection; most
      importantly (4) recognized the rights of gays and lesbians to equal dignity and equal
      treatment under the constitution. [opinion begins with liberty, ends with freedom]
              a. Court did not articulate any special level of scrutiny for laws affecting LGBT
              b. However, overruling the state‘s interest in morality probably elevates the
              scrutiny beyond RB – yet to be seen how close to strict scrutiny we get.
              c. O’Connor concurrence: This should be decided under EP, not DP. That
              way, decision will have no impact on gay marriage, since the same rules will
              apply to both sexes – men can‘t marry men and women can‘t marry women.
              Would leave Bowers intact and apply RB with bite (since she finds the entire
              motivation of the statute is to harm LGBT, a politically unpopular group.
                       i. Kennedy, however, decides under FR b/c he wants to get at Bowers.
              d. Scalia dissent: Defines tradition narrowly, and finds there is a long tradition
              of states prohibiting homosexual sex. Scalia also finds that morality is a
              sufficient state interest to withstand RB. If not, then what about beastiality and
              bigamy… and most importantly to him, how do we distinguish from gay
              marriage? Criticizes the MAJ for trumpeting stare decisis in abortion cases and
              abandoning it here.

                          Constitutional Law – ADLER / Spring 2008
               e. ADLER: Court did not use EP, b/c the MAJ feared that would just make
               states go write neutral statutes that apply equally to both gay and straight people.
               These statutes would still affect the liberty interest used by the MAJ
               f. EXAM TIP: ―Here is how the issue was traditionally looked at, but after
               Lawrence, we might be looking at an elevated level of scrutiny.‖
        3. Lawrence is an ex. of how phrasing of the fundamental right can affect the outcome:
               a. Bowers: Does the constitution afford a fundamental right to homosexuals to
               engage in sodomy? Answer: NO!
               b. Kennedy rephrases: Should homosexuals be punished for consenting private
               acts, demonstrative of the caring for another human?

EXAM TIP: Most voting challenges come up through equal protection analysis.

H. Right to Vote
       1. Introduction:
               a. History
                       i. ―We the people,‖ originally only voters were white, property owning Ms
                       ii. ―The people‖ only voted for house of rep. who then elected the Senate
                       iii. 15 A: allegedly protects against racial discrimination in voting.
                       iv. 17 A: changed voting procedure: senators elected by popular vote.
                       v. 19 A: Women given right to vote (1920).
                       vi. 23 A: DC residents right to vote.
                       vii. 24 A: Abolished poll taxes in federal elections.
                       viii. 26 A: 18 yr olds given right to vote.
               b. Today the right to vote is a fundamental right.
                       i. Regarded as fundamental b/c it is essential to a democratic society.
                       ii. It is through voting that the people choose their govt. and hold it
                       iii. Voting is itself a form of expression, but it also is the way in which
                       people choose a govt. that will safeguard all of their liberties and
                       iv. Thus, it is clearly established that laws infringing the right to vote
                       must meet strict scrutiny.
               c. As defined today, the right to vote constitutes more than what is expressed in
               the Constitution.
                       i. Eg. Nothing in constitution says people have fundamental right to vote
                       for state legislators, BUT, if a state sets up the right to vote for state
                       legislature, under the 14 , everyone must be given the same right.
       2. Restrictions on the Ability to Vote:
               a. Poll Taxes
                       i. Harper v. Virginia State Board of Elections 1966 (944): Challenge
                       to VA law requiring $1.50 poll tax for voting. Court reasoned that the
                       state has an interest in setting qualifications for voters, but that wealth
                       (like race) has no bearing on fitness to vote. Held poll taxes are
                       unconstitutional in any election. Under EP, poor people cannot afford tax,
                       and could not vote, so poll taxes are discriminatory. Also voting =
                       fundamental right, so strict scrutiny is applied.
                                   1. Even under RB, this would fail, since money has zero to do
                                   with the ability to cast a vote.
       3. Dilution of the Right to Vote
               a. Defined: Giving one person‘s vote in a certain voting district less weight than
               another person in another district.
                       i. Before 1960s, bad malapportionment
                       ii. People had migrated from rural areas to cities, and there was
                       disparate proportion of reps. for voting districts.

                          Constitutional Law – ADLER / Spring 2008
                   1. Example: some districts w/ 50K pop had same number of
                   reps as districts w/ 10K. So, people in former dist have less
                   weight to their vote than people in the latter.
          iii. Originally Supreme Ct. said that challenges to malapportionment
          posed non-justiciable political question (until Baker v. Carr)
          iv. Later, however, ct. articulated one-person, one-vote rule.
b. Rule now: Legislature diluting a person‘s right to vote is infringement on a
fundamental right under EP, and therefore subject to strict scrutiny.
          i. Reynolds v. Sims 1964 (953): Population shifts in AL. State did not
          reapportion legislative representation for 60 years, which created a
          dilution problem. Only 25% of people resided in districts represented by
          a majority of the members of Senate and House of Reps. People brought
          an EP challenge. Court articulated one person, one vote: state
          representative must represent the same number of people, and there
          must be the same number of people in each district. Found this is a
          constitutional mandate for the fair and effective representation of all
          people. However, this rule does not apply to the fed. gov‘t (i.e. the
          Senate). Held the EP clause requires that all voters be awarded the
          opportunity for equal participation in the election of state legislatures; this
          requires a state’s good faith effort to construct districts in both houses
          of its legislature, resulting in as nearly of equal population as is
          practicable. [Higher std for states than fed govt.]
                   1. Government of law, and not of men
                   2. Government of the people by the people and for the people.
                   3. Harlan dissent: The 14 amend does not impose this
                   political tenet on the states, or authorize the court to do so; we
                   had it right before Baker v. Carr. These complaints should be
                   dismissed for failure to state a CoA since no constitutional right
c. Still ways to gerrymander districts in such a way causing dilution even though
the two districts possess the same number of people to representatives ratio.
          i. Draw the district in such a way it will dilute the vote for certain people.
d. The Road to Bush v. Gore [do we really need to relive it here?!?]
          i. Katherine Harris wouldn‘t let hand re-count continue past first deadline
          ii. FL Sup. Court found Harris abused discretion and ordered the
          recounting of ―undervotes‖ to continue
          iii. USSC issued stay blocking continuing recount, then decided no
          Constitutionally-acceptable recount could be completed in time
e. The reason I almost didn’t go to law school: Bush v. Gore 2000 (963):
Florida Supreme Court ordered a state-wide manual recount of certain punch-
card ballots. To the extent the intent of the voters were clear, they were to be
counted. Each dist. had to decide on its own how to determine voter‘s intent.
USSC found this recount procedure too arbitrary and became worried about
uniform standards for the recount. Made this a case about vote dilution and EP:
If you are going to recount some votes, you have to recount all the votes:
undervotes, overvotes, chads, etc. BUT, we‘re out of time. So the democrats
lose. Held when some votes count more than other votes, that‘s an EP problem,
and cannot withstand constitutional scrutiny.
          i. ADLER: USSC decided election. Should‘ve remanded to FLSC, with
          instructions to produce less arbitrary scheme that does not create EP
          problems. Let state SC and legis. deal w/ prob. It is a political process,
          better to let representative bodies and state procedures govern. If time
          was an issue, USSC could‘ve given FL deadline, @ which time their
          holding would govern. Another issue is that there are all sorts of different
          polling instruments used in different jurisdictions (eg. punch cards v.
          electronic touch screens.) Rate of error is different depending on what

          Constitutional Law – ADLER / Spring 2008
                        types of mechanisms are used. Therefore, this case not different from
                        any other election, and did not require extraordinary court involvement.
                        ii. Court relied on Reynolds
                                 1. Once granted, right to vote must apply equally to EVERYONE
                                 2. State may not later, thru arbitrary and disparate treatment,
                                 value one person‘s vote over another.
                                 3. USSC found this was just a case of arbitrary treatment
                                 4. States may create their own systems for implementing
                                 elections, but recounts must have MINIMAL PROCEDURAL
                                 SAFEGUARDS TO PROTECT EQUAL TREATMENT SO THAT
                                 FUNDAMENTAL FAIRNESS OF VOTES IS ASSURED.

I. Procedural Due Process
        1. Due Process Clause also used to impose procedures on gov‘t when it takes away a
        person‘s life, liberty, or property.
        2. Classic procedural due process issues concern what kind of notice and what form of
        hearing the gov‘t must provide when it takes a particular action
                a. In other words, whether there is sufficient justification for the gov’t action
        3. As distinguished from substantive DP:
                a. USSC has held that parents have a liberty interest in the custody of their kids
                           i. Therefore, procedural DP requires that the gov‘t provide notice and a
                           hearing, and there be clear and convincing evidence of a need to
                           terminate custody. [aka lack of adequate safeguards]
                           ii. B/C right to custody is a fundamental right, substantive DP requires
                           that the gov‘t prove that terminating custody is necessary to achieve a
                           compelling purpose. [violating a constitutional right]
        4. Breakdown:
                a. Has there been a deprivation?
                b. Of life, liberty, or property
                c. Without due process of the law?

IX. First Amendment – Freedom of Expression
A. Freedom of Speech
       1. Introduction
               a. ―Congress shall make no law abridging the freedom of speech‖
               b. Seems simple enough, but this protection is not absolute.
               c. Always balancing —does the speech have value that should be protected?
       2. History
               a. Very difficult to ascertain framers‘ intent other than that they had a desire to
               prohibit prior restraints, such as the govt. licensing scheme (in England no
               publication allowed w/out govt. granted license), and their rejection of the crime
               of seditious libel (criticizing govt. = used to be a crime)
               b. Consequently, USSC cases dealing w/ freedom of expression focus less on
               the framers’ intent than do cases involving other constitutional provisions.
       3. Justifications for protecting speech [theories behind the First Amendment]
               a. Self-Governance:
                        i. Our society based on free expression that provides a check on the
                                 1. Public officials are held accountable through criticisms that
                                 can pave the way for their replacement
                                 2. Through speech voters retain a ―veto power to be employed
                                 when the decisions of officials pass certain bounds‖
                        ii. Open discussion of candidates is essential for voter to make informed
                        selections when voting
                        iii. Through speech people can influence govt.‘s choice of policies

                          Constitutional Law – ADLER / Spring 2008
              iv. Although recognizing that political speech is at the core of the
              1 amend, Ct. has never held it as the only form of protected
       b. Discovering truth
              i. Free speech protects the marketplace of ideas.
              ii. Idea is that if we get all the ideas out there, the truth will prevail. Truth
              likely to emerge from clash of ideas
              iii. Criticism: wrong to assume that all ideas will enter the marketplace
              of ideas; & even if they do, some may drown out others b/c some have
              more resources to have their voices heard.
              iv. Criticism: truth may not trump over falsehood—people may be more
              swayed by emotion than reason.
              v. Criticism: Even if in long run truth prevails, it may be a long run &
              people will be seduced by false ideas (e.g. genocide)
              vi. But, even given this criticism, Gov‘t control over all information is
              even worse.
                        1. Govt. will censor to serve its own ends, i.e. silencing critics
       c. Promotion of Tolerance:
              i. Protecting unpopular or distasteful speech is itself an act of tolerance
              ii. Such tolerance serves as a model for all tolerance throughout society
              iii. Critics question why tolerance should be regarded as a basic
              value—especially why does society need to be tolerant of the intolerance
              of others.
       d. Advances Autonomy
              i. Freedom of Speech promotes self-expression; it is an essential aspect
              of personhood
                        1. Why we shout at protests, even though we know our words
                        will not REALLY change the outcome (say, of a war)
                        2. Instead, speech allows us to publicly define ourselves
              ii. Critics say that this theory sucks b/c it does not distinguish speech
              from any other human activity, so why is speech a fundamental right?
              iii. Also, critics say this view ignores the ways in which protecting
              freedom of speech for some can undermine the autonomy & self-
              fulfillment of others. (i.e. hate speech/porn demeans & injures others).
2. Free Speech Methodology
       a. Gov’t Infringements Upon Speech – Content-Based vs. Content-Neutral
              i. CONTENT NEUTRAL
                        1. Subject to intermediate scrutiny
                        2. Reg merely limits the time, place, or manner of the speech
                        3. Does not single out any subject matter or viewpoint
                                  a Does not preempt certain topics
                                  b. Does not allow praise, but forbid dissent
                        4. May address the by-products of the speech
                                  a. Renton v. Playtime Theatre 1986 (1071): Zoning
                                  ordinance prohibits adult theatres from being located in
                                  certain places. This only leaves 5% of the community
                                  available for adult entertainment businesses. Rehnquist
                                  says this is content-neutral b/c the ordinance does not
                                  ban adult theaters altogether, it merely specifies a place
                                  for them. While the ordinance treats adult theaters
                                  differently from other kinds of theaters, it does so not b/c
                                  it objects to their films’ content, but merely b/c of the
                                  ―secondary effects‖ of such theaters on the
                                  surrounding community–i.e. the crime, the sleaze, the
                                  noise that comes with adult theatres. B/C they labeled
                                  this content neutral, intermediate scrutiny applied. The

                   Constitutional Law – ADLER / Spring 2008
                   City‘s interest in preserving the quality of urban life
                   serves a substantial state purpose and the regulation
                   does not unreasonably limit alternative avenues of
                   communication. Held a zoning ordinance restricting
                   location for adult theaters is content-neutral b/c it
                   merely affects the ―time, place, and manner‖ of the
                   theaters. A facially content-based law will be deemed
                   content-neutral if motivated by a permissible content-
                   related purpose, like secondary effects.
                            i.   Brennan dissent / ADLER: Secondary
                            effects are part of the analysis, i.e. the
                            compelling state interest would be secondary
                            effects. You should not use this to determine
                            what type of analysis applies. Otherwise, you
                            can make anything content based look content
                            neutral. (eg. say you can‘t have a war protest b/c
                            of the garbage that is left behind.)
                            ii.    Chimerinsky: Sketchy because Court
                            defined content-neutrality not by the terms of the
                            law, but by legislature‘s predominant purpose
                   b. Boos v. Barry (1073): Gov‘t tried to regulate speech
                   outside embassies, but MAJ found that it had failed to
                   articulate secondary effects in language, even if those
                   effects actually existed.
                   c. City of Cincinnati v. Discovery Network 1993
                   (1073): Gov‘t tried to prohibit use of newsracks for
                   distribution of commercial handbills. Ct. recognized
                   regulation of litter a legit purpose, but also attacked reg
                   because ―whether any particular newsrack falls within
                   the ban is determined by the content of the pub. inside
                   the newsrack.
          1. Government cannot regulate speech based on its content
          2. Cannot regulate the ideas or information contained in the
          speech – this goes for view-point OR subject-matter
                   a. Ex: unconstitutional for the gov‘t to say that pro-
                   choice demonstrations are allowed in the park, but anti-
                   abortion demonstrations are not.
          3. Such regs are presumptively invalid and subject to SS
iii. Distinction between the two determines the level of scrutiny
          1. Turner Broadcasting v. FCC 1994 (1054): Cable TV
          Consumer Protection and Competition Act of 1992 (CTCPCA)
          requires cable systems to devote a portion of their chs to the
          transmission of local broadcast tv stations. Court observed that
          this regulates speech in two ways: (1) reduces the # of channels
          over which cable operators exercise unfettered control; and (2)
          renders it more difficult for cable programmers to compete for
          carriage on the limited channels remaining. Court distinguished
          between SS and IS: will apply the most exacting scrutiny to
          regs. that suppress, disadvantage, or impose differential burdens
          upon speech b/c of content; regs that are unrelated to the
          content of speech are subject to an intermediate scrutiny b/c in
          most cases, they pose a less substantial risk of excising
          certain ideas or viewpoints from the public dialogue. In
          order to decide which is which, court reasoned the principal
          inquiry is whether the gov‘t has adopted a reg. of speech b/c of

 Constitutional Law – ADLER / Spring 2008
                         agreement or disagreement w/ the message it conveys. Not
                         the case here. Held Content-neutral ―Must carry‖ rules, on their
                         face, impose burdens and confer bens. w/o reference to the
                         content of speech
               iv. ADLER examples:
                         1. No billboards in certain neighborhood = content neutral
                         2. No political billboards = content-based, since entire category
                         of billboards is prohibited
                         3. No republican billboards = viewpoint-based!
                                  a. Raises brighter flags because we don‘t want the gov‘t
                                  taking a particular side
b. CONTENT-NEUTRAL TPM restrictions:
      i. Ability of the gov‘t to regulate speech in a public forum in a manner that
      minimizes disruption of a public place while still protecting freedom of speech
               1. Must be justified without regard to the content of the regulated
               2. Must serve a significant gov’t interest
               3. Must leave open ample alternative channels for communication
               of information
      ii. TPM restrictions are ENTIRELY CONTEXTUAL:
               1. Hill v. Colorado 2000 (1351): Colorado reg makes unlawful to pass
               within 8 feet of someone without consent for purposes of protest,
               counseling or education if within 100 feet of health care facility. Court
               recognizes the gov‘t interest is regulating health and safety (within police
               powers). Find that it is a content-neutral reg since it does not regulate
               speech itself, and only restricts the TPM where it can occur.             Also
               applies universally to all protestors, regardless of their message. Also
               still allows protestors to educate in other manner (Although prohibits
               speakers from approaching unwilling listeners, it does not require a
               standing speaker to move away from anyone passing by). Because
               narrowly-tailored to meet intermediate scrutiny, court Held constitutional;
               this is a valid TPM regulation in a public forum: statute not adopted b/c of
               ―disagreement with the message it conveys, so intermediate scrutiny is
               applied, and the regulation survives.
                         a. Scalia dissent: The law is clearly content-based b/c it was
                         adopted with the general goal of stopping a particular message
                         and had the effect of discriminating against pro-life protestors at
                         abortion clinics.
                         b. Chimerinsky: The majority says that it is irrelevant if
                         message, so long as the law can be justified with other
                         permissible, content-neutral purposes. The dissent says that
                         when a law is adopted with the goal of restricting a specific
                         message, the law should be deemed content-based, even if
                         there are other justifications for the statute.
                                  i. ADLER: This legislation is not viewpoint based simply
                                  because it was enacted in response to issues being
                                  raised by a certain viewpoint.
                         c. The majority might have classed this what it was (content-
                         based) but upheld the statute anyway, justified by the compelling
                         need to protect women and health care workers.
                         d. ADLER: Scalia is right for once, this is not really content
                         neutral, it‘s about anti-abortionists, the statutes careful language
                         suggests its aim at them. The majority‘s justifications for
                         content-neutrality are insufficient.

                  Constitutional Law – ADLER / Spring 2008
               2. Kovacs v. Cooper 1949 (1356): Court upheld a restriction on the
               use of sound amplification devices, such as loud speakers on trucks.
               Did not prohibit ALL devices. Just a restriction on TPM.
               3. Grayed v. Rockford 1972 (1356): Court upheld a city ordinance that
               prohibited any person, while on public or private grounds adjacent to a
               school from disturbing the peace of the school. Again, court found this
               was a reasonable TPM restriction.
               4. Clark v. Community for Creative NV 1984 (1356): Ok for state to
               prevent homelessness protestors from sleeping in their tents overnight.
               5. Brown v. Louisiana 1966 (1356): Court reversed the conviction of
               AA‘s protesting a segregated library. Court as obviously swayed by the
               unobtrusiveness and importance of the protest.
               6. United States v. Grace 1983 (1357): Court declared unconstitutional
               a broad restriction of speech on the public sidewalks in front of USSC.
               Court found the total ban on particular speech was not necessary to
               preserve order and prevent disruption of proceedings.
       iii. Gov’t need not use the LEAST restrictive alternative, even though
       regulation must be narrowly tailored.
               1. Ward v. Rock Against Racism 1989 (1358): New York City required
               park performers to use sound amplifying equipment and sound
               technicians provided by the city for volume control. Gov‘t argued it was
               regulating noise to protect nearby neighbors, and that it had a substantial
               interest in preserving the peace of nearby Sheep‘s Meadow. Court
               accepted this argument and reasoned that the city ordinance does not
               care about the content of the park performance, just the level of noise.
               Performers challenged that there was a least restrictive manner to
               regulate, but court rejected this approach. Held TPM restrictions are
               deemed sufficiently ―narrowly tailored‖ as long as they are more
               effective than no regulation at all, even if they are not the least
               restrictive/intrusive method; BUT must not burden substantially more
               speech than necessary to achieve interests.
                          a. In other words, a limitation on manner is that the gov‘t may
                          not regulate expression in such a manner that a substantial
                          portion of the burden on speech does not advance its goals.
                          b. ADLER: Court probably gave too much deference to the leg,
                          but this is a good example (unlike Hill) of a TPM restriction.
                          c. Requirement that the guideline leave open ample alternative
                          channels of communication is easily met.
                                    i. Reg continues to permit expressive activity in the
                                    band shell, and has no effect on the quantity or content
                                    of that expression beyond regulating the amplification.
                          d. Marshall/Brennan/Stevens dissent: Majority abandons the
                          ―narrowly tailored‖ requirement; amounts to gov‘t control of
                          speech in advance of its dissemination (prior restraint).
3. Vagueness and Overbreadth
       a. Introduction:
               i. Facial challenges to laws that regulate speech.
               ii. Based on form, not substance.
               iii. If the facial challenge is successful then the law is invalid on its face,
               not just unconstitutional as applied. [So you do not even have to look at
               the speech involved.]
                          1. May have standing to challenge the constitutionality of the
                          reg. even if not directly impacted by the regulation, as long as
                          there is strong chance that the speech of others will be chilled
                          2. Means that both doctrines allow facial challenges to laws
                          even by those whose speech otherwise would be unprotected.

                  Constitutional Law – ADLER / Spring 2008
                          a. EX: Prohibition on ―obnoxious speech‖
                                    i. Statute kind of vague.
                                    ii. But what if a person‘s speech is particularly
                                    obnoxious? Can that person still challenge the
                                    statute as unconstitutional, even if we are
                                    certain that his speech would violate even a
                                    clear law on obnoxious speech? YES!
       iv. Note: Overbroad statutes are often vague, and vice-versa. They are
       not the same thing, but the two overlap.
                 1. Statute might be overbroad, but not vague:
                          a. Board of Airport Commissioners of LA v. Jews for
                          Jesus 1987 (1090): Regulation banned all ―First Amend
                          activities‖ at LAX. JFJ minister was stopped while
                          distributing free religious literature on a pedestrian
                          walkway in the Central Terminal Area of LAX. Court
                          found regulation unconstitutional on grounds that it
                          does not merely regulate expressive activity that might
                          create problems, such as congestion or the disruption of
                          activities of those who use LAX; instead, Held statute is
                          void because it expansively prohibits all ―First Amend
                          activities‖ and no gov‘t interest justifies such an absolute
                          prohibition of speech.
                 3. Statute might be vague, but not overbroad:
                          a. What if LAW tried to prohibit all speech that did NOT
                          violate the First Amendment?
                          b. It would therefore be constitutional (since it only
                          would prohibit speech that is subject to regulation) but
                          we would have no idea what that speech actually was
b. Vagueness
       i. Looks at the clarity of the regulation—the ability of a reasonable
       person to tell what speech is prohibited and which is permitted.
                 1. Test: Would a reasonable person know what behavior is
                 barred, not allowed, illegal or not condoned?
                 2. ―Would men of common intelligence have to guess at
                 statute‘s meaning?‖
       ii. Justification:
                 1. Fairness: it‘s not fair to prosecute someone under a law that
                 doesn‘t define what the illegal activity is. (need notice)
                 2. Discretion: selective prosecution and lack of consistent
                 application can lead to discrim, and equal protection violation.
                 3. Separation of Powers: legislators should define the law, not
                 those enforcing the law.
                 4. Concern that vague laws will have a chilling effect on
                 constitutionally protected speech.
       iii. Coates v. City of Cincinnati 1971 (1085): Challenge to ordinance
       that made 3 or more people assembling on the sidewalk and annoying
       people a criminal offense. Held Unconstitutional on its face b/c it is too
       vague and overbroad. What is annoying? Conduct that annoys some
       people does not annoy others. Do not know what the standard is—
       allows for selective prosecution. It‘s also overbroad b/c it authorizes
       criminal punishment for constitutionally protected conduct—violates right
       to free assembly.
       iv. Baggat v. Bullet 1964 (1086): Court struck down a loyalty oath that
       prevented a ―subversive‖ person from being employed by the state. Held
       the term ―subversive‖ is too ambiguous and therefore there is no

          Constitutional Law – ADLER / Spring 2008
                standard dictated by the statute; results in there being no notice to the
                people as to what was prohibited.
        c. Overbreadth [regarded by the court as ―strong medicine‖]
                i. Doctrinal limitations:
                         1. Statute must be substantially overbroad, and must restrict
                         significantly more speech than the Constitution allows to be
                                   a. Broadrick v. Oklahoma 1973 (1088): Court refused
                                   to strike a law that prevented city workers from
                                   participating in political activities. Although the court
                                   recognized the overbroad reach of the statute, Held
                                   statute is not substantially overbroad on its face;
                                   conceded, however, that particular applications of the
                                   law could be deemed unconstitutional in future.
                                   b. City Council v. Taxpayers of Vincent 1984 (1088):
                                   The mere fact that one can conceive of some
                                   impermissible applications of a statute is NOT sufficient
                                   to render it susceptible of an overbreadth challenge.
                         2. There must be a realistic danger that the statute will
                         significantly compromise recognized 1 Amend protections of
                         parties not before the Court.
                                   a. Must show that there are a number of situations in
                                   which the law could be applied to prohibit constitutionally
                                   protected speech.
                                   b. Houston v. Hill 1987 (1088): Court struck a law that
                                   made it unlawful to interrupt police officers in the
                                   performance of their duties. Court recognized the law
                                   will be violated by scores of people DAILY.
                                   c. COMPARE WITH: New York v. Ferber 1982 (1089):
                                   Court upheld a prohibition on child pornography. Held
                                   since the statute will only be applied in a tiny fraction of
                                   the cases within its reach, it is not substantially
                         3. Person to whom the law constitutionally applies can argue
                         that it would be unconstitutional as applied to others.
                                   a. Exception to general standing principle that requires
                                   people to assert only their own rights.
                         4. Does not apply in challenges to laws regulating commercial
                         speech (advertising).
                                   a. Not concerned about the chilling effect.
                         5. Court avoids invalidating laws by allowing courts to construe
                         statutes narrowly to avoid overbreadth.
                ii. EXAMPLE: Schad v. Borough of Mt. Ephraim 1981 (1087): City
                ordinance prohibited ALL live entertainment, including non-obscene nude
                dancing. Adult bookstore owners claimed that the imposition of criminal
                penalties under this ordinance violated their rights of free expression
                             st          th
                under the 1 and 14 Amends. Held the ordinance is unconstitutional
                b/c it prohibits a wide range of expression that has long been held to be
                within the protections of the Constitution.
                         1. Court noted appellants had standing, in part because they are
                         allowed to rely on the impact of the ordinance on the expressive
                         activities of others, as well as their own.
4. Prior Restraints
        a. Defined: an administrative system or judicial order that prevents speech
        from occurring

                   Constitutional Law – ADLER / Spring 2008
               i. EX: requirement of a license or permit before one may engage in
               expression or judicial order directing an individual not to engage in
               expression, on pain of contempt)
                        1. Requirements for a license:
                                 a. Important reason for licensing
                                         i. EX: parade permits have sufficiently important
                                         purposes for a city wanting to regulate activity
                                         and know hat‘s going on any given day)
                                 b. Clear Standards, leaving almost no gov‘t discretion
                                         i. Court is concerned that any discretion could
                                         be used for content-based censorship.
               ii. P.R. would also exist if the gov‘t seized every copy of newspaper
       b. Most serious and least tolerable infringement on 1 Am. Rights
               i. Dangerous b/c prevents the speech from ever taking place rather
               than punishing the speech after the fact.
               ii. Heavy presumption against constitutional validity
       c. Standard: any government action prohibiting speech or expression from
       occurring is presumed unconstitutional, and subject to SS.
               i. Suppose that the president decides that we are going to attack
               Canada, but it’s a surprise. If Canada finds out, it will cost us many
               lives. Phil decides to break the story to the NY Times. Prez goes to Ct.
               to enjoin the publishing of story… if successful, qualifies as a prior
               restraint. This type of restriction triggers strict scrutiny.
               ii. Even if the restriction is content-neutral, its still going to be
               strictly scrutinized… example, licensing for a parade. Really need to
               make sure we look at these cases carefully.
5. The Gov’t in Non-Typical Roles
       a. Gets tricky when gov’t must make content-based choices (when gov‘t is
       choosing to subsidize speech)
               i. NEA v. Finley 1998 (1074): NEA has provided over $3B grants to
               artists. The fed statute creating the NEA gives it substantial discretion in
               awarding funds; It is empowered to give money based on ―artistic and
               cultural significance, giving emphasis to American creativity and cultural
               diversity, professional excellence, and encouragement of ―public
               knowledge, education, understanding, and appreciation of the arts. Later
               amended to account for ―general standards of decency.‖ Respondents
               are performance artists who applied for NEA grants; advisory panel
               recommended approval of their projects; majority of the council
               recommended disapproval and respondents were denied funding. In
               upholding the statute, court reasoned that it does not REQUIRE these
               considerations, but merely permits the gov‘t this discretion. The court
               therefore rejected the vagueness challenge and Held when the gov‘t is
               acting as patron, rather than sovereign, the consequences of imprecision
               are not constitutionally severe; in other words, when the gov‘t is giving
               subsidies, imprecise criteria are permitted, even if they would not be
               permitted in a regulatory scheme. MAJ also rejected argument that this
               was impermissible viewpoint discrim. Court noted that choices must be
               made, but Held the statute‘s language does not engender the kind of
               directed viewpoint discrim that would prompt the court to invalidate the
               statute on its face. [b/c it is viewpoint-neutral for the NEA to consider
               ―decency and respect‖]
                        1. Souter dissent: Decency and respect proviso mandates
                        viewpoint-based decisions in the disbursement of governmental
                        subsidies; this is viewpoint discrimination in the exercise of
                        public authority over expressive activity, and unconstitutional.

                  Constitutional Law – ADLER / Spring 2008
                2. Carrot v. Stick: Gov‘s as benefactor can encourage speech,
                but gov‘t as enforcer/regulator cannot prohibit speech.
                3. Viewpoint based distinctions are still NOT OK
                         a. Gov‘t cannot abuse its discretion by penalizing
                         disfavored viewpoints
                4. ADLER: Content-based considerations in grant process are
                consequence of the nature of arts funding: NEA has limited
                resources and must reject the vast majority of grant applications
                it receives, including many that propose ―artistic excellence‖
       ii. Rumsfeld v. Fair 2006 (S178): Law schools began restricting the
       access of military recruiters to their students b/c of disagreement w/ the
       Gov‘t policy on homosexuals in the military. Congress passed Solomon
       Amendment: specifies that if any part of an institution of higher education
       denies military recruiters access equal to that provided other recruiters,
       the entire institution would lose certain fed. funds. Law schools sued,
       alleging Solomon Amendment violated First Amend. Ct. reasoned that
       the gov‘t should be given great deference when it comes to the military;
       also reasoned that Accommodating the military‘s message does not
       affect the law school‘s speech because the schools are not speaking
       when they host interviews and recruiting receptions- allowing recruiters
       on campus not inherently expressive. Held Solomon Amendment does
       not infringe on the law schools‘ 1 Amend speech b/c statute neither
       limits what law schools may say nor requires them to say anything—
       regulates conduct, not speech
b. Unconstitutional Conditions
       i. Gov‘t cannot condition a benefit on the requirement that a person
       forgo a constitutional right.
                1. FCC v. League of Women Voters of CA 1984 (1138): Fed
                statute prohibited any noncommercial educational broadcasting
                station from editorializing. Court found this was unconstitutional.
                Held gov‘t cannot condition funds on a requirement that the
                stations relinquish their right to editorialize.
       ii. Corollary: gov‘t may not deny a benefit to a person because he
       exercises a constitutional right.
                1. Speiser v. Randall 1958 (1138): WWII vets. refused to take
                loyalty oath and lost out on veterans‘ property-tax exemption.
                Held Denial of a tax exemption for engaging in certain speech
                will necessarily have the effect of coercing the claimants to
                refrain from the proscribed speech, in effect, penalizing them.
                Therefore, unconstitutional.
                         a. Here, the funding follows the person
       iii. Doctrine inconsistently applied, and other cases have allowed the
       gov‘t to condition a benefit on foregoing 1 amendment rights:
                1. Compare Regan v. Taxation with Representation 1983
                (1138): Ct. upheld a provision of the fed. tax law that conditioned
                tax exempt status on the requirement that the org. not participate
                in lobbying or partisan political activities.
                2. Rust v. Sullivan 1991 (1139): Federal law prohibited
                recipients of federal funds for family planning services from
                providing ―counseling concerning the use of abortion as a
                method of family planning.‖ Federal $ recipients could not refer
                woman to get an abortion. Court reasoned that the gov‘t can
                decide what activities it wants to subsidize. Held The gov‘t can
                selectively fund a program to encourage certain activities it
                believes to be in the public interest, without at the same time

          Constitutional Law – ADLER / Spring 2008
                 funding an alternate program that seeks to deal with the problem
                 in another way.
                          a. Blackmun dissent: Majority upholds viewpoint-
                          based suppression of speech solely b/c it is imposed on
                          those dependent upon the gov‘t for economic support.
                          Counseling and referral provisions of Title X constitute
                          content-based regulation of speech (grantees may
                          provide counseling and referrals on a wide range of
                          family planning issues EXCEPT abortion); Regs. are
                          clearly viewpoint-based: suppresses speech favorable to
                          abortion but compels antiabortion speech
                          b. MAJ‘s reasoning goes back to the notion that a
                          legislature‘s decision not to subsidize the exercise of a
                          fundamental right does not infringe that right.
                          c. ADLER: Basically, the court says Gov‘t can make a
                          value judgment favoring childbirth over abortion, and
                          implement judgment by the allocation of public funds.
                                    i. Here, the funding follows the clinic
c. Different Forums: raises question of which publicly owned property must be
made available for speech and under what circumstances?                          Also,
constitutionality of a reg depends on place and nature of the gov’t’s action.
        i. Public Forums
                 1. Gov‘t owned properties that the gov‘t is constitutionally
                 obligated to make available to speech
                          a. Places traditionally devoted to assembly and debate
                 2. EX: sidewalks and parks
                 3. See cases above! (ie. SS is default, and TPM restrictions
                 subject to IS)
        ii. Limited Public Forums
                 1. ―Limited‖ or ―designated‖ forum – a place that the gov‘t
                 voluntarily, affirmatively opens to speech
                 2. As long as the place is open to speech, all of the rules for
                 public forums apply
                 3. Ex: Gov‘t sponsored community theatre
        iii. Nonpublic Forums
                 1. Gov‘t properties that gov‘t can close to all speech activities
                          a. Not open traditionally
                          b. Not open through tolerance
                          c. Not open by consent
                 2. The gov‘t may prohibit or restrict speech in nonpublic forums
                 so long as the regulation is reasonable and viewpoint-neutral
                          a. If intended to suppress any viewpoint, subject to SS.
                                    i. EX: Military can preclude all demonstrations,
                                    but cannot be viewpoint-based
                 3. If content neutral – only rational basis applies
                          a. Perry Education Assoc. v. Perry Local Educators
                          1983 (1346): Collective bargaining agreement provided
                          that only one particular union could use the interschool
                          system and school mailboxes. A rival teacher union
                          challenged the exclusivity provision. It argued that by
                          opening up the school mail to one union, it made the
                          school mail a ―limited public forum‖ which could not be
                          closed to other unions. Court disagreed, and reasoned
                          that the gov‘t, like private owners, has the power to close
                          certain areas to speech. Court relied on tradition, noting
                          that the school mail system has only ever bee used to

          Constitutional Law – ADLER / Spring 2008
                                    communicate the school‘s mission to teachers, not the
                                    views of outsiders. Held CBA is constitutional b/c the
                                    school mail system is a non-public forum; thus the
                                    govt. may make neutral TPM restrictions or limit the
                                    place to its intended purpose, if the anti-speech
                                    restriction is reasonable and is not an effort by officials to
                                    suppress a speaker‘s views.
                             4. Other examples: military base, courtroom, jailhouse
                                    a. Not to be confused with private property
                                    b. Simply public property not used for speech
                     iv. What about private property?
                             1. NO RULES! No state action! No freedom of speech!
                                    a. UNLESS… state passes a law that states that the
                                    same rules apply on private property as on public
                                    property (like California)
                                    b. Also, BY STATUTE private schools must give same
                                    first amend rights as public schools.
       6. ―Unprotected‖ and ―Less Protected‖ Speech

NOTE: Morse v. Frederick: High school student suspended for displaying ―Bong Hits for Jesus‖
across the school from school during passing of Olympic torch. Event was school-sanctioned
and sponsored. Court reasoned this was a "school speech" case rather than a normal case of
speech on a public street. Also recognized that the First Amendment rights of students in school
are not as broad as those of adults in other settings. Finally, Ct. emphasized the government's
"important--indeed, perhaps compelling interest" in deterring drug use by students. Held school
officials did not violate the First Amendment by confiscating the pro-drug banner and suspending
the student responsible for it.
          Thomas concurrence: First Amendment does not exist in schools
          Alito & Kennedy concurrence: this holding extends no further than speech directed at
          student drug-use. It should not be interpreted to apply to social or political issues.

               a. Introduction
                       i. The court has identified some categories of speech that are so
                       worthless the govt. can prohibit and punish them:
                                1. Incitement of illegal activity
                                2. Fighting words
                                3. Obscenity
                       ii. Other categories of less protected speech where the govt. has more
                       latitude to regulate than usual under the 1 Amendment.
                                1. E.g. Commercial speech = intermediate scrutiny only
                                2. Sexually oriented speech (―low value‖ more susceptible to
                                govt. reg.)
                       iii. These are defined based on the subject matter of the speech & thus
                       represent an exception to the usual rule that content-based regulation
                       must meet strict scrutiny.
                       iv. Conventional view was that laws in these areas could be satisfied so
                       long as they met rational basis test.
                       v. Recently the ct. indicated that generally content-based distinctions
                       w/in categories of unprotected speech must meet strict scrutiny.
                       (See RAV—below)
                                1. e.g. govt. can prohibit fighting words, but can‘t prohibit fighting
                                words expressing hate of race, while not prohibiting words of
                                hate of political affiliation.
                       vi. Political speech/argument is the MOST protected speech.
                       Indecent speech is a little less protected, since it is of lesser value.

                         Constitutional Law – ADLER / Spring 2008
        Incitement, Fighting Words, Obscenity, Threats, etc. is the least
        protected speech (which you can actually ban if you want).

b. Incitement to Illegal Activity
        i. Speech that advocates criminal activity or overthrow of the Gov‘t
                  1. Once it is determined that the words are incitement, they are
                  not protected by the first amendment and may be regulated.
        ii. However, the strong presumption in favor of protecting speech is
        viewed as justifying safeguarding even advocacy of illegality unless
        there us a substantial likelihood of imminent harm
        iii. History of how to balance these competing interests:
                  1. Clear and present danger test
                          a. This was supposed to be a higher standard, but it
                          wasn‘t all it was cracked up to be b/c it was during WWI
                          b. Schenck v. United States 1919 (1153): Individuals
                          convicted for circulating a leaflet arguing that the draft
                          violated the 13 amendment as a form of involuntary
                          servitude. Did not expressly urge violation of the law,
                          but did advocate repealing the draft law. Even though no
                          evidence of anyone avoiding the draft as a result of this
                          leaflet, Court saw no other possible reason for its
                          distribution – of course it‘s incitement! Also focused on
                          the fact that US was in war at the time. Held The
                          question in every case is whether the words are used in
                          such circumstances and are of such a nature as to
                          create a clear and present danger that they will bring
                          about the substantive evils that Congress has a right to
                          prevent; here, without much discussion, that test is met.
                  2. Reasonableness Test
                          a. Whatever the gov‘t thought was reasonable
                          b.     Test gave huge deference to legislative and
                          executive branch.
                          c. One approach that has been expressly repudiated
                  3. Clear and present danger test reformed as a risk test
                          a. This was a balancing test. It had to be either imminent
                          (happening right now) or serious (grave consequences),
                          did not have to be both
                          b. BPL (Learned Hand Formula)
                  4. NOW: Court narrowly defines incitement to protect speech
                          a. Advocacy can be punished only if there is a
                          likelihood of imminent illegal conduct and the
                          speech is directed to causing imminent illegality.
                          b. Brandenburg v. Ohio: KKK member convicted under
                          Ohio syndicalism statute after calling for vengeance
                          against the gov‘t for abandoning white supremacy.
                          Court reasoned that abstract teaching for the need of
                          violence is not the same as preparing a group for violent
                          action. Instead, Constitutional statutes must draw a
                          distinction between punishable incitement to lawless
                          action and protected abstract advocacy. The OH statute
                          punishes mere advocacy and assembly for purpose of
                          advocacy. Held Unconstitutional. Introduced new test:
                                   i. Imminent harm
                                   ii. A likelihood of producing illegal action
                                   iii. Intent to cause imminent illegality
                          c. First test to require intent

          Constitutional Law – ADLER / Spring 2008
                           d. Post Brandenburg the Court protects more speech:
                                    i. Hess v. Indiana 1973 (1173): ―We‘ll take the
                                    fucking street later.‖ Court said that this speech
                                    was protected by the First Amendment. Held at
                                    worst, this amount to nothing more than
                                    advocacy of illegal activity at some indefinite
                                    future time – not imminent.
                                    ii.    NAACP v. Claiborne Hardware 1982
                                    (1173): NAACP leader said, ―If we catch any of
                                    you going in them racist stores, we‘re going to
                                    break your damn neck.‖ Court found this was
                                    protected speech under Brandenburg. Held
                                    mere advocacy of the use of force or violence
                                    does not remove speech from protection; this
                                    speech just happened to be emotionally
                                    charged, but still protected.
                                             1. Application of Brandenburg totally
                                             influenced by changing social goals –
                                             unsure how it will withstand test of time.
b. Fighting Words and the Problem of Racist Speech
       i. Words that lead to an immediate breach of the peace or words that will
       inflict injury.
       ii. Speech that is directed at another and likely to provoke a violent
       response is unprotected because the words do not spur debate or the
       exchange of ideas – there is no value to this speech.
                  1. Chaplinsky v New Hampshire 1942 (1174): A Jehovah‘s
                  Witness was passing out literature and denouncing all religions
                  as a ―racket.‖ City Marshal warned him crowd was getting
                  restless. A traffic cop later arrested him, and D told the City
                  Marshal that he was a ―god damned racketeer‖ and ―a damned
                  Fascist.‖ D charged w/ violating a NH statute that prohibited
                  provocative taunts. Court reasoned that free speech is not
                  absolute, and subject to the limitation that it NOT inflict injury or
                  tend to incite an immediate breach of the peace. Held
                  Fighting words are not protected speech and conviction for this
                  speech upheld
                           a. Court finds that statute is not too broad because of its
                           required specific intent;
                           b. also, highest state court narrowly construed the
                           statute only to mean fighting words – only apply to words
                           that are said face to face that are going to trigger a
                           physical response.
                           c. Because that‘s how interpreted by state, the Court is
                           less concerned with the broad language.
       iii. Note: Ct. has never again upheld a fighting words conviction, but has
       not expressly overruled Chaplinsky.
                  1. Instead it has used the following 3 techniques:
                           a. Narrowed the scope of the fighting words doctrine by
                           ruling that it applies only to speech directed at another
                           person that is likely to produce a violent response
                                    i. Street v. New York 1969 1176: OK to burn a
                                    flag and say, ―if they let what happen to X, we
                                    don‘t need a damned American flag.‖
                                    ii. Cohen v. California: Ok to wear ―fuck the
                                    draft‖ on jacket in courthouse. Not meant as a
                                    personal insult, therefore, okay.

          Constitutional Law – ADLER / Spring 2008
                   iii. Texas v. Johnson: flag burning okay in
                   general since not directed at any one person.
            b. Found laws prohibiting fighting words vague or
            overbroad, and therefore unconstitutional
                   i. Gooding v. Wilson 1972 (1177): D charged
                   w/violating GA § that prohibited use of
                   ―opprobrious words/abusive language tending to
                   cause breach of peace.‖ D used words ―You
                   SOB, I‘ll choke you to death.‖ and ―You SOB, if
                   you ever put your hands on me again, I‘ll cut you
                   all to pieces.‖ Rather than inquire into ―fighting
                   words,‖ Court found statute was vague and
                   unconstitutional. Held statute must be carefully
                   drawn or be authoritatively construed to punish
                   only unprotected speech and not be susceptible
                   of application to protected expression; Here,
                   opprobrious is broader category than ―fighting
                   words‖- statute not limited to words that
                   ―naturally tend to provoke violent resentment.‖
            c. Found that laws that prohibit some fighting words
            (such as statutes prohibiting hate speech) to be
            impermissible content-based restrictions on speech.
                   i. RAV v. City of St. Paul 1992 (1179): A teen
                   charged w/ burning a cross in a black neighbor‘s
                   yard. Challenged constitutionality of a § banning
                   cross/symbol burning which arouses anger in
                   others based on race/color/religion/gender, etc.
                   Court reasoned that even low value speech, like
                   fighting words, cannot be made vehicle for
                   content discrimination that is unrelated to their
                   proscribable harm (i.e. violence). So, while
                   fighting words may be proscribed on the basis of
                   their violent effects, they cannot be proscribed
                   based on the govt.‘s hostility or favoritism
                   towards their message. Held this statute is
                   unconstitutionally content based b/c it punishes
                   fighting words that insult or provoke violence on
                   the bases on race, creed, color, etc. but allows
                   fighting words based on other reasons. Also
                   Constitutes viewpoint discrimination b/c it would
                   allow those arguing in favor of racial tolerance to
                   use ―fighting words‖ but not allow racists to use
                   similar words. Would allow one side to use all
                   tactics, while restricting the other side.
                            1. Permissible to ban ―fighting words‖
                            as a class based on their effect, b/c
                            does not risk viewpoint discrimination.
                            2. Also OK to restrict speech when the
                            basis for content-discrim consists
                            entirely of the very reason the entire
                            class of speech is proscribable
                            3. Also okay to consider this when
                            punishing conduct: EX, if we want to
                            increase the penalty against hate crimes
                            as opposed to other kinds of crimes,
                            that‘s okay because we are punishing

Constitutional Law – ADLER / Spring 2008
                                           the assault, and using the words as
                                           evidence of that assault.
                2. Chimerinsky says that the cumulative impact of these
                decisions makes it unlikely that a fighting words law could
                survive.      If the law is narrow, then it will likely be an
                impermissible content-based restriction b/c it outlaws some
                fighting words, but not others, based on the content of speech. If
                the law is broad, then it would probably be invalidated on
                vagueness or overbreadth grounds.
                         a. Might still be able to get around this by focusing on
                         secondary effects.
                         b. Basically, can‘t define fighting words in a statute, you
                         can only focus on the effects of fighting word
        iv. Hostile Audience Speech:
                1. Saying something to an audience that causes grumbling,
                agitation; police step in and tell the speaker to stop because of
                hostile reaction.
                2. Used to be okay to arrest that person.
                3. During civil rights movement, change in thinking.
                4. Post-1960 shift: police should first make every possible effort
                to protect the speaker (and protect speech).
                5. Otherwise, hecklers would have a veto and could silence
                protest, and that‘s a dangerous thing in a free society.
c. Intimidating Speech
        i. Burden on those who seek to stop the speech to demonstrate intent:
                1. Virginia v. Black 2003 (1193): Respondents convicted under
                a VA statute that makes it a felony ―for any person . . . with the
                intent of intimidating any person or group . . ., to burn . . . a cross
                on the property of another, a highway or other public place.‖
                Law also specified that the burning shall be prima facie evidence
                of intent to intimidate a person or group.              Respondents
                challenged its constitutionality. Court reasoned that The 1
                Amendment permits VA to outlaw cross-burnings done w/ intent
                to intimidate b/c burning a cross is a particularly virulent form of
                intimidation. Also focused on cross burning‘s long & pernicious
                history as a signal of violence. Court found this fits under the
                exception in RAV that a particular type of content discrimination
                does not violate the 1 when the basis for it consists entirely of
                the very reason why that entire class of speech is
                proscribable (Scalia exception from RAV). The VA statute,
                unlike that in RAV, does not single out only that speech directed
                toward one of the disfavored topics (RAV was about cross-
                burning outlawed when directed at the victim‘s race, gender,
                whatever). Held Just like state may regulate only that obscenity
                that is the most obscene due to its prurient content, so too may
                the State choose to prohibit only those forms of intimidation
                that are most likely to inspire fear of bodily harm.
                         a.      However, one provision is unconstitutional b/c
                         imputing intent would make it too easy to prosecute
                         under the statute; Intent cannot be presumed from
                         burning cross
                         b. Scalia concurrence: Agrees that RAV applies.
                         Unlike MAJ, he thinks the prima facie evidence provision
                         is fine. The number of people who would be convicted
                         using the PFC provision, who burned a cross in public,
                         did not intend to intimidate, and who did not put on a

          Constitutional Law – ADLER / Spring 2008
                         defense, are not so substantial to render the provision
                         c. Thomas dissent: There is no expressive value to
                         cross-burning. The statute prohibits only conduct, not
                         expression. Therefore, constitutional.
                         d. Chimerinsky:
                                   i. Can the govt. ban all cross-burning? Only
                                   Thomas seems to say yes. Others on the court
                                   say no.
                                   ii. Can the govt. ban cross-burning w/ the intent
                                   to intimidate? MAJ says yes, so long as ―true
                                   threat,‖ even if actor does not plan to carry it out
                                   iii. What is sufficient to show such intent?
                                   Majority invalidates a statutory provision that
                                   allows the act of cross burning to be prima facie
                                   evidence of intent to intimidate
                         e. Basically, cross burning is protected speech and
                         cannot be completely outlawed, but the gov’t may
                         prohibit it when done in a manner that constitutes a
                         ―true threat‖
      ii. HYPO: Nazis want to march through town; want to carry swastikas in
      their parade, among other things. Issue: Can we pass a city ordinance
      that makes it illegal to carry a swastika?
               1. What‘s at stake?
                         a. Horror that‘s attached to the swastika. Most survivors
                         are older and this is going to bring back images of
                         concentration camps. Likely to incite violence. Could
                         lead to fear and intimidation of resurgence of hatred.
               2. What do the lawyers say?
                         a. Town doesn‘t want this demonstration – its too
                         painful. How can we argue this is unprotected speech
                         (so that we can punish anyone who wears a swastika)?
               3. What is the social value of the demonstration? What
               value does this speech have? Answer: this is political speech
               – so high value.
               4. Secondary Effects (Renton/RAV): We want to prevent
               traffic and litter; probably won‘t cut it.
               5. Fighting Words: There are going to be confrontations, and
               we want to prevent that. BUT, these actions are not directed at
               any particular people, and there is no particular altercation. Yet.
               What about the fact that these words are likely to cause
               emotional harm – (no case has yet to pick up on this reasoning;
               therefore, remains untested by the judiciary).
               6. Threat/Intimidation: Looks like the Black case. If speech is
               meant to intimidate and threaten, it doesn‘t get protection. How
               do you prove that speech is meant to intimidate?
               Should Hate Speech be protected?                 Hasn’t really been
               decided. What‘s the difficulty? Determining when the speech
               crosses the line.
               7. Incitement: Probably wouldn‘t fly.
d. Obscenity, Pornography, Child Pornography
      i. Obscenity and Child pornography unprotected by 1 amendment
               1. This is so b/c it is utterly without redeeming social importance
               2. Arguments for allowing total prohibition:
                         a. Community should be allowed to determine its moral

          Constitutional Law – ADLER / Spring 2008
                         b.    Generally causes antisocial behavior, including
                         violence against women.
                         c. Should be regarded as sex aid, not speech, therefore
                         doesn‘t implicate first amendment
               3. Arguments against allowing total prohibition:
                         a. Gov‘t should not be able to decide what‘s moral
                         b. question that porn causes antisocial behavior
                         c. Just because speech inspires a reaction doesn‘t
                         mean it is conduct that is unprotected by First
       ii. However, Court has struggled to define what qualifies as ―obscene‖
               1. Jacobelis v. Ohio: ―I know it when I see it‖
               2. Miller v. California 1973 (1208): Mail order bookseller
               challenged his obscenity conviction. He mailed unsolicited ads
               for pornographic books in violation of CA statute that makes it a
               crime to knowingly distribute obscene material. Court found the
               statute constitutional; formulated a test for obscenity that is
               still used today. The basic guidelines for the trier of fact must be:
                         a. Whether the avg. person applying contemporary
                         community standards would find that the work, taken
                         as a whole, appeals to the prurient interest (a.k.a. makes
                         people horny)
                                  i. Since there are communities all over the
                                  country that look at things differently, hard for
                                  national publications to figure out how the rest of
                                  the country will respond.
                                  ii. Prurient is a term of art which means a
                                  disgraceful lusting
                         b. Whether the work depicts or describes, in a patently
                         offensive way, sexual conduct specifically defined by
                         applicable state law; AND
                                  i. ―Patently offensive‖ has to be more than just
                                  nudity—needs to be ―hard core‖ sexual conduct
                                  ii. Law need not provide an exhaustive list—
                                  sufficient if it includes examples listed in Miller
                                  (patently       offensive    representations     or
                                  descriptions of ultimate sex acts, normal or
                                  perverted, actual or simulated; patently offensive
                                  representation or descriptions of masturbation,
                                  excretory functions, and lewd exhibition of the
                                  iii. There are some limits on what a state can
                                  claim is patently offensive
                                           1.      ―Carnal Knowledge‖ movie not
                                           patently offensive, b/c no footage of
                                           actor‘s genitals, lewd or otherwise
                                           2. Nudity alone is not enough.
                         c. Whether the work, taken as a whole, lacks serious
                         literary, artistic, political or scientific value.
                                  i. Look at national standards
e. Indecent Speech
       i. Profanity and indecent speech is generally protected.
               1. Strongest declaration of protection for profanity: Cohen v.
               California 1971 (1234): Cohen convicted of disturbing the peace
               for wearing a jacket that said ―Fuck the Draft‖ to a courtroom. He
               challenged his conviction was unconstitutional. Court agreed.

          Constitutional Law – ADLER / Spring 2008
        Court reasoned you can not forbid certain words without
        forbidding certain ideas in the process. Went through laundry
        list: (1) not obscene, (2) Not fighting words b/c not directed at
        anyone in particular, (3) not incitement b/c no intent to create
        violence. Also, banning words would make it too easy to ban
        unpopular views, and takes out of discourse words that are good
        at expressive emotion. Held the gov‘t may not prohibit or punish
        speech simply because others might find it offensive.
                  a. The presence of people to see the jacket did not say
                  the court: ―if you don’t like it, then turn away‖
                          i. Not a jurisprudential rule of any kind, but
                          keeps popping up places, since the court wants
                          to protect the viewer (or the listen) but not at the
                          expense of first amendment.
                  b. Ct. reasoned that when people go out into public
                  they assume the risk of hearing unwanted and
                  possibly offensive speech—people can restrict whatever
                  speech they want in the privacy of their own home.
                  c. ADLER: to censor words is to censor ideas, words
                  give power to a message. Wouldn‘t be the same if you
                  said ―make love to the draft‖ or ―fornicate the draft.‖ You
                  need to protect those words, especially when the
                  speech is political, as it is here.
                  d. If you wanted to ban it, you could always try to
                  describe it as conduct, rather than speech – and argue
                  that you should be allowed to ban stupid conduct
ii. Subject to exceptions where limits are allowed, notably over the
broadcast media and in schools.
        1. Court recently upheld prohibition of indecent speech
        over TV and radio:
                  a. FCC v. Pacifica Foundation 1978 (1237): George
                  Carlin skit was indecent, but not obscene. Station fined
                  by FCC, but challenged as unconstitutional. Court
                  recognized that the gov‘t could not possibly prohibit ALL
                  use of the seven worst words, but said that it could ban
                  them from being aired over broadcast media. This is so
                  b/c broadcast is uniquely pervasive and intrusive into the
                  home. Also held that warnings won‘t cut it, especially
                  since we are concerned about protecting children and
                  they might come into the broadcast in the middle and
                  miss the warnings.
                          i. Chimerinsky: Critical; should we also extend
                          this holding to papers delivered to the home?
                          ii. ADLER: this was a combination of the low
                          value of the speech and the nature of the
                          medium and the intrusiveness into the home.
                          Seems stupid in light of the Internet and cable
                          TV. Plus, they could have placed a lesser
                          restriction on this—time, place, manner. But
                          that’s not what the ct. held.
iii. Thus far, gov‘t has been very protective of the Internet as a medium
of communication & shown reluctance to uphold restrictions on content.
        1. Reno v. ACLU 1997 (1242): Court invalidated certain
        provisions of the Communications Decency Act of 1996, which
        made it a crime to transmit obscene or indecent material over the
        Internet in a manner likely to be accessible to a minor. Court

 Constitutional Law – ADLER / Spring 2008
                              stressed vagueness of the statute. Held gov‘t cannot restrict
                              content to adults so as to safeguard children; ultimately struck
                              down because of breadth.
                              2. Ashcroft v. ACLU 2004 (1245): Dealt with the Child Online
                              Protection Act, which imposed criminal penalties for the knowing
                              posting, for ―commercial purposes,‖ of internet content that is
                              ―harmful to minors.‖ Held statute is unconstitutional because it is
                              a content-based regulation of speech and the gov‘t has not met
                              its burden of proof that less restrictive alternatives are less
                              effective in meeting the statute‘s goals.
               f. Conduct that Communicates
                      i. Conduct that communicates is protected by the 1 amendment, but it
                      gets intermediate scrutiny.
                              1. Examples: Marches, picketing, armbands – Tinker (black
                              armband), peace signs, photographs
                      ii. When is conduct expressive or symbolic?
                              1. Spence v. Washington: Guy sewed a peace sign onto a flag
                              to protest the Kent State Massacre, and was arrested. When
                              conduct might operate as a surrogate for speech, test is:
                                        a. Intent to convey a message
                                        b. Substantial likelihood that the message would be
                                        understood by those receiving it
                              2. If it‘s not surrogate speech  rational basis (states can
                              regulate the hell out of it)
                              3. This is because if the court went too far and tried to protect
                              ALL conduct that communicates, then potentially EVERY action
                              could fit that bill – even murder – ―I am just expressing my rage‖

If conduct passes the test, then what? Ct. recognizes that this action, which communicates, is
characterized as speech. THEN we go to O‘Brien

                       iii. When can the government regulate conduct that communicates?
                               1. Finding that conduct communicates does not mean that it s
                               immune from government regulation.
                               2. US v. O’Brien 1968 (1316): O‘Brien burned draft card on the
                               courthouse steps. Violated an ordinance that made knowingly
                               defacing or altering draft card illegal. Held when ―speech‖ and
                               ―non-speech‖ elements are combined in the same course of
                               conduct, a sufficiently important governmental interest in
                               regulating the non-speech element can justify incidental limits on
                               Firth Amend freedoms. How do we know if we have a
                               sufficiently important goal?
                                        a. Must be within the Constitutional power of gov‘t
                                        b. Must further an important/substantial interest
                                        c. Gov‘t interest must be unrelated to the suppression of
                                        free speech (i.e. content-neutral)
                                        d. Incidental restrictions on 1 amend must be no
                                        greater than necessary to further the gov‘t interest.
                                        e.      ADLER:       Gov‘t argued its purpose was
                                        administrative, tells people how to find the local draft
                                        office, tells the gov‘t who is available to be drafted;
                                        assists military mobilization.     Ct. says these were
                                        considered important interests. Adler says: BS. Court
                                        did not scrutinize the actual purpose b/c in the original
                                        statute the alleged administrative purposes were already
                                        taken care of through other means (eg. if you lost card or

                         Constitutional Law – ADLER / Spring 2008
                                         it was destroyed, it was req. they replace it w/in a certain
                                         amount of time). But, they amended the statute anyway,
                                         probably to fuck with the hippies that burned the draft
                                         card. The court did not inquire into legislative intent.
                                                  i. B/C this is the only application of this test, it is
                                                  unclear whether legislative motive is still part of
                                                  it. Adler thinks it probably is.
                                         f. Remember: O‘Brien only controls when conduct is
                               3. What test applies if O’Brien concludes that it is a NON-
                               speech related restraint?              Some kind of intermediate
                               4. If test reveals that restriction was an attempt to restrict
                               speech, what then? Court applies strict scrutiny, since it
                               would then be protected speech.
                       iv. Flag Burning: PROTECTED!
                               1. Texas v. Johnson 1989 (1320): Protestor at republican
                               convention arrested under TX statute, convicted, and sentenced
                               to jail for 1 yr. for burning the American flag. Court first applied
                               Spence test and found that conduct clearly communicates.
                               Next, finds that O‘Brien test is not satisfied – leg. Intent behind
                               the statute is to preserve the flag as notional unity, and therefore
                               aims to suppress anti-American conduct. Also ruled out fighting
                               words – not directed at any specific individual. Court reluctant to
                               get into deciding which symbols warrant special status, as the
                               state argued the flag did. Held If law is trying to prevent anti-
                               American message, it is content-based & viewpoint based. So
                               statute subject to SS (―Most exacting scrutiny‖), instead of IS
                               under communicative conduct.
                                         a. Stevens dissent: Focused on the unique position of
                                         the flag as a symbol of national unity. Burning is no
                                         essential part of any exposition of ideas—people could
                                         burn in private or find some other way to express the
                                         same idea.
                                         b. Chemerinsky says:
                                                  i. It is precisely the strong emotional attachment
                                                  to the flag that makes its desecration such a
                                                  uniquely powerful form of expression
                                                  ii. Laws that prohibit flag burning are inherently
                                                  content-based: the govt. is trying to preserve the
                                                  flag as a symbol that communicates patriotism,
                                                  but not of protest or dissent. Such a content-
                                                  based restriction of speech only can be
                                                  justified if SS is met.
                                                  iii. No evidence that burning flag undermines its
                                                  ability to serve as a symbol of national unity. In
                                                  fact, the more flag burning is met by intense
                                                  reaction, the more the flag symbol is reinforced.

B. Freedom of Association
       1. Freedom of association is a fundamental right
       2. Freedom of association is not a specifically enumerated right in the Constitution
              a. BUT… Ct. has held that freedom to engage in assoc. for the advancement of
              beliefs and ideas is an inseparable aspect of the ―liberty‖ assured by the Due
              Process Clause of the 14 Amendment, which embraces freedom of speech.
       3. Why do we protect freedom of association?

                         Constitutional Law – ADLER / Spring 2008
                a. Facilitates other rights such as speech and assembly (association is integral
                to these rights).
                b. Groups have stronger voices and greater resources than individuals, making it
                easier to be heard by the people and the Gov. Helps minority rights be heard.
                c. The very existence of group support for an idea conveys a message.
        4. Freedom of association does not generally protect the right to discriminate
        5. EXCEPTIONS:
                a. ―Intimate association‖ – a small private gathering OR
                b. Where discrimination is integral to expressive activity.
                         i. Boy Scouts of America v. Dale 2000 (1412): Dale was lifelong scout
                         who became an assistant scoutmaster. While in college, he became
                         involved in Gay/Straight Alliance. A scout official saw him quoted in an
                         article and sent him a letter excluding him from further participation in
                         Scouts. Court first found that Boy Scots did not qualify for ―intimate
                         gathering‖ exception. Instead, they argues that they had an expressive
                         message that was antigay and that forcing them to include gays
                         undermined this communicative goal. Court reasoned that a group gets
                         to determine (1) their own ―expressive message‖ and (2) whether forced
                         association undermines this message. Held freedom of association
                         protects the right of the Boy Scouts to exclude gays, even in violation of
                         the state‘s antidiscrimination statute.
                                  1. Court found that failure to articulate message before
                                  litigation is not determinative that they have none.
                                  2.     Stevens dissent:        There is virtually nothing in the
                                  organization‘s literature communicating its message as antigay.
                                  Only reference is that boy scouts be ―morally straight‖ and that is
                                  far from determinative of their message.
                                  3.     First time the court has recognized that freedom of
                                  association protects right to discriminate
                                  4. ADLER: So this is liberty against equality. This is liberty to
                                  say no to someone vs. the interest in equality and non
                                  discrimination. How do we decide if one outweighs the other.
                                  The two most important const. interests directly at issue here.
                                  And LIBERTY wins here over equality.
                         ii. Rumsfeld v. Fair (183): ―Just as saying conduct is undertaken for
                         expressive purposes cannot make it symbolic speech, so too a speaker
                         cannot ―erect a shield‖ against laws requiring access ―simply by
                         asserting‖ that mere association ―would impair its message.‖
                                  1. Change from Dale!
                                  2. ADLER: Court reasons that the Solomon Amendment is not
                                  forcing a law school to accept a group (since recruiters come
                                  onto campus for a LIMITED purpose), and the military is not
                                  trying to be a part of the law school‘s expressive association.

X. First Amendment – Freedom of Religion
A. Introduction
        1. Constitutional Provisions Concerning religion (tension between them):
               a. ―Congress shall make no law respecting the establishment of religion
               [Establishment Clause] OR
               b. Prohibiting the free exercise thereof‖ [Free Exercise Clause]
               c. Applied to the states through its incorporation into the Due Process Clause of
               the 14 Amendment
               d. Both Clauses protect freedom of religious belief and actions.
               e. Many govt. actions would violate both.
                         i. Eg. state creates religion and compels participation
                         ii. Mandatory school prayers

                          Constitutional Law – ADLER / Spring 2008
                f. Problematic: Govt. actions to facilitate free exercise might be challenged as
                impermissible establishments and govt. efforts to refrain from establishment
                might be viewed as denying free exercise of religion.
                        i. Eg. if govt. pays for and provides ministers for armed svcs. It is
                        arguably establishing religion, but if he govt. Refuses to do so it is
                        arguably denying free exercise.
                g. Lemon test:
                        i. Gov‘t violates EC if:
                                 1. Primary purpose is to advance religion, OR
                                 2. The principal effect is to aid or inhibit religion, OR
                                 3. There is excessive gov’t entanglement with religion

B. Free Exercise Clause
       1. The govt. may not compel or punish religious beliefs; people may think and believe
       anything that they want.
       2. Components to free exercise clause:
               a. Freedom to believe (absolute)
               b. Freedom to act (may be subject to govt. regulation)
       3. Invoked when govt. requires conduct that a person‘s religion prohibits
       4. Invoked when peeps claim laws burden or make more difficult religious observances
       5. FACIALLY-NEUTRAL laws that discriminate: [Rational basis]
               a. Employment Division of Oregon v. Smith 1990 (1464): Native Americans
               challenged Oregon law prohibiting the use of peyote. Specifically, challenged
               state‘s determination that their use of peyote, which resulted in firing, prohibited
               the from claiming unemployment insurance. Court distinguished Smith from
               other FE cases since it did not involve a ―hybrid situation‖ with other
               constitutional rights. Thus, court rejected SS, and advised petitioners to look to
               the democratic process for help, and not to the courts. Held the right of free
               exercise does not relieve an individual of the obligation to comply with a valid and
               neutral law of general applicability on the ground that the law proscribes (or
               prescribes) conduct that his religion proscribes (or prescribes).
                        i. Court only required RATIONAL BASIS
                        ii. Criticism: Scalia says go to political process, but, what religions have
                        enough power in the political process? Only major religions will get
                        iii. O’Connor dissent: Up in arms about the use of the rational basis
                        test. Says it ought to be SS. Flipped over the fact that Scalia says the
                        political process will surely screw minor religions, but that‘s only
                        inevitable, too bad.
                        iv. ADLER: Scalia gives us little insight about what constitutes a
                        religion. He wants to avoid people coming into ct. to say that their
                        religion should allow them some sort of exemption from the law.
               a. Test that comes out of Smith:
                        i. Generally applicable, religion neutral laws that have the effect of
                        burdening a religious practice NEED NOT be justified by a compelling
                        ii. Ct. articulates 2 possible exceptions when strict scrutiny may apply:
                                  1. When another constitutional protection is burdened
                                           a. Yoder: invalidated compulsory school law as it
                                           applied to Amish parents who refused on religion
                                           grounds to send children to school; religion + right of
                                           parents to direct education of children;
                                           b. Murdock: invalidated a flat tax on solicitation as it
                                           applied to dissemination of religious ideas; religion +

                          Constitutional Law – ADLER / Spring 2008
                                         c. Cantwell: invalidated a license system for religious
                                         and charitable solicitations under which administrator
                                         had complete discretion to deny license to any cause he
                                         deemed non-religious; religion + freedom of press.
                               2. When the govt. has provided for individualized treatment
                               in an unemployment compensation scheme.
        6. FACIALLY DISCRIMINATORY LAWS [Strict Scrtiny]
               a. When a law that burdens the free exercise of religion fails to satisfy the
               requirements of neutrality and general applicability such that the court may infer
               animus in the enactment of the statute, then strict scrutiny applies
                       i. Church Lukumi Babalu Aya v. City of Hialeah 1993 (1478): City
                       counsel passed ordinance that prohibited the slaughter of animals
                       outside of slaughter houses, but made exception for everything
                       except ritualistic killings, which were associated w/ Santeria religion.
                       Gov‘t justified statute as necessary for public health, but Court it was way
                       underinclusive, and thus, targeted at a particular religious group. Court
                       also noted the statute used words like ―ritual and sacrifice‖ which gives
                       away its real purpose, targeting Santeria religion. Held ordinance seems
                       to be neutral on its face, but is actually intentionally discriminatory. NOT
                       a statue of general applicability, thus subject to SS
                               1, Since SS applies, statute is unconstitutional b/c there were
                               plenty of alternative means to regulate health and safety.

C. Establishment Clause: Limits what the gov‘t can do as speaker when speech is religious
       1. Three views on the relationship of the government to established religion:
              a. Strict Separation (Jefferson view—Ginsburg & Stevens are close to this):
                       i. Complete wall of separation between the state and religion, so the
                       state is not influenced by religion in any way.
                                 1. Criticism: Total wall is impossible: a refusal for the govt. to
                                 provide police, fire, or sanitation would threaten free exercise; or
                                 In God We Trust;‖ or ―God save this honorable Court‖
                       ii. The govt. should be, as much as possible, secular.
                       iii. Religion should be entirely w/in the private realm of society.
              b. Neutrality View (O‘Conner, Souter, Breyer):
                       i. Government must be neutral towards religion—cannot favor religion
                       over secularism OR favor one religion over another.
                       ii. This view has advanced a ―symbolic endorsement‖ test in
                       evaluating the neutrality of a govt.‘s actions.
                                 1. Under this test, govt. violates the Establishment clause if it
                                 symbolically endorses a particular religion or if it generally
                                 endorses either religion or secularism.
                                 2. Symbolic endorsement test:
                                          a.     O’Connor: Applied from the perspective of a
                                          hypothetical observer who is presumed to possess a
                                          certain level of info. that all citizens might not share.
                                          Reasonable observer must be deemed aware of the
                                          history and content of the community and forum in which
                                          the religious display appears (well-educated/well-
                                          b.     Stevens/Ginsburg: Symbolic endorsement if a
                                          reasonable person passing by would perceive gov‘t
                                          support for religion.
                                          c. Scalia: rejected using the test at all where the issue
                                          is private speech on gov‘t property.

                           Constitutional Law – ADLER / Spring 2008
                                     d. Critiques of test: ambiguity and indeterminancy-
                                     people perceive symbols in widely varying ways; too
                                     restrictive on gov‘t involvement with religion
         c. Accomodationist View (Rehnquist, Scalia, Thomas, Kennedy):
                  i. Ct. should interpret the E clause to recognize the importance of
                  religion in society and accommodate its presence in govt.
                  ii. Govt. only violates the E clause if it literally establishes a church or
                  coerces religious participation.
                  iii. What constitutes coercion?
                            1.      Kennedy: clergy-delivered prayers at public school
                            graduations inherently coercive b/c great pressure on students to
                            attend their graduation ceremonies and to not leave during the
                            prayers (indirect pressures).
                            2. Blackmun/Stevens/O‘Connor: E Clause can be violated w/o
                            coercion- not enough for gov‘t to refrain from compelling religious
                            practices, but must not engage in them either.
                            3. Souter/Stevens/O‘Connor: Coercion sufficient for finding
                            Clause violated, but not necessary b/c violations exist w/o
                            coercion if there is symbolic gov‘t endorsement of religion.
                            4.      Scalia/Rehnquist/White/Thomas: narrow definition of
                            coercion—coercion exists only if the law requires and punishes
                            the failure to engage in religious practices.
                  iv. Reflects the importance and prevalence of religion in American
                  society [nation not secular but pluralistic]
                  v. Emphasis on freedom of choice and diversity among religious opinion
                  vi. Critique: Does not account for subtle ways that gov‘t can show
                  favoritism to particular beliefs or convey a message of disapproval to
                  others, therefore does not adequately protect the religious liberty or
                  respect the religious diversity of a pluralistic community.
2. The govt. violates the EC if it discriminates among religious groups.
         a. Such discrimination will only be allowed if SS is met.
3. If no facial preference exists, ct. used Lemon test to determine if there‘s a violation.
         a. We haven‘t seen he Lemon test come out in a while, and now Ct. seems to
         be using symbolic endorsement test.
4. AS APPLIED: Allegheny v. ACLU 1989 (1491): About 2 different religious displays:
a nativity scene @ courthouse and Christmas /Hanukah display in front of gov‘t building.
         a. Stevens, Brennan and Marshall took a strict separation approach and argued
         that all of the symbols should be deemed unconstitutional as violating the
         Establishment Clause
                  i. Stevens: the ―establishment Clause should be construed to create a
                  strong presumption against the display of religious symbols on public
         b. Kennedy, Rehnquist, Scalia, and White took an accommodations approach
         and argued that all symbols should be allowed.
         c. Blackmun and O‘Connor used neutrality approach, and applied the symbolic
         endorsement test:
                  i. Found the menorah was constitutional because it was accompanied
                  by a Christmas tree and a secular expression about ―liberty‖
                  ii. Found the nativity scene was NOT constitutional
                            1. Alone on gov‘t property and likely to be perceived as a
                            symbolic endorsement of my homeboy JC.
                  iii. ―the combined holiday display had neither the purpose nor the effect
                  of endorsing religion, but the nativity display had such an effect.‖

                   Constitutional Law – ADLER / Spring 2008

A. Does the federal court have the power to hear the case?
      1. Congressional limits on Jx. (Jx. stripping)
      2. Justiciability
              a. Advisory Opinion?
              b. Standing?
              c. Mootness?
              d. Ripeness?
              e. Political question?

B. Assuming the Court has the power to decide the case, is there a constitutional source
of power for the federal legislation that is being challenged?
       1. Commerce Power (to regulate commerce among the states, with foreign nations, and
       with Indian Tribes)
                a. Regulating a private party?
                b. Commandeering executive or legislative branch of state gov‘t?
       2. Taxation Power
       3. Spending Power
       4. Other powers enumerated in Article 1, Section 8 of Constitution
                a. Power to declare war
                b. Power to raise and support the army, and to provide and maintain Navy
                c. Power to make rules for the land and naval forces
                d. Power to define offenses against the law of Nations
                e. Power to make rules concerning Captures on land and water
       5. 14 Amendment, Section 5
                           th                          th
       6. [Not tested]: 13 Amendment, section 2; 15 Amendment, section 2

C. Assuming that Congress has the power to pass a law, is there an applicable limit on
that power that would make this particular statute unconstitutional?
       1. Structural Limits – federalism / states‘ rights
               a. Tenth Amendment
                        i. e.g., as a limit on Congress acting within the Commerce Clause, if it
                        ―commanders‖ a state to implement a federal program
               b. [Not tested]: Eleventh Amendment
                        i. e.g., prohibiting certain suits against the state.
                        ii. Note: A valid congressional act "enforcing" a 14th amendment right
                        and explicitly allowing such a suit can trump the 11th amendment, but
                        Congress' ability to do that has been limited by the Court in recent years.
               c. Separation of Powers Issues?
                        i. Is Congress exceeding its constitutional role vis-à-vis the other
                        branches of the federal gov‘t?
       2. Limits on Congressional Power because of recognized protections of liberty/equality
               a. Freedom of Speech / Freedom of Association
               b. Free Exercise of Religion
               c. Establishment Clause
               d. Substantive Due Process
                        i. e.g., privacy
               e. Procedural Due Process
               f. Equal Protection


A. Does the federal court have the power to hear the case? (Same as above)
       1. Congressional limits on Jx. (Jx. stripping)
       2. Justiciability

                          Constitutional Law – ADLER / Spring 2008
                a.   Advisory Opinion?
                b.   Standing?
                c.   Mootness?
                d.   Ripeness?
                e.   Political question?

B. Is there an applicable Constitutional limit on the State's exercise of power?
        1. Supremacy Clause?
                a. Is the state act expressly/impliedly pre-empted by a valid federal act?

Federal Law is Supreme (Supremacy Clause): Article VI: ―The Constitution… is the supreme law
of the land.‖ So what? Why does it fall to the Supreme Court to review Constitutionality?

        2. If there is no competing valid federal law, then does the Constitution otherwise limit the
        state's power?
                  a. Commerce Clause (including ―dormant commerce clause‖)
                           i. If a state burdens interstate commerce its act may be found
                           unconstitutional even if Congress has been silent on the topic.
                                     1. Strict scrutiny for a state law that discriminates against out-of-
                                     staters (face, purpose, OR in effect)
                                     2. If the law affects ISC but does not discriminate, there is more
                                     deferential review and a presumption that the state goals
                                     outweigh the burden on ISC.
                  b. [Not tested]: Privileges and Immunities Clause
                           i. "The citizens of each state shall be entitled to all privileges and
                           immunities of Citizens of the several states.‖
                           ii. If a state discriminates against out-of-staters with regard to an
                           important interest, particularly employment (but not, e.g. higher fees for
                           fishing licenses), its act may be found unconstitutional even if there is no
                           conflict with a federal statute.
                           iii. If there is no discrimination, there is no claim here. Note the overlap
                           with the Dormant Commerce Clause.
                  c. [Not tested]: Additional limits in Article 1
                           i. State can‘t enter into treaty, coin money, etc.
                  d. Fourteenth Amendment – IMPORTANT!
                           i. Equal Protection
                           ii. Due Process
                  e. First Amendment
                           i. Incorporated through the due process clause of the 14 Amendment
                           as a due process right receiving protection from state laws.

*Notice that when analyzing the constitutionality of a federal statute, you must analyze the locus
of congressional power in the Constitution (e.g. commerce clause). When a state statute is
involved, the analysis is simpler; there is no need to find a source of legislative power in the
Constitution, because state powers are reserved to the states and not enumerated in the
Constitution. Therefore, assuming the case is justiciable, you may move directly to consideration
of limits on the power exercised by the state in the case before you. i.e., it's a two-step rather
than a three-step analysis.)

             A. State statute attack plan:
                    a. Should the federal court decide the case?
                              i. Look at same issues as federal statute: Congressional limits on
                                 jurisdiction of fed. courts & justiciability.
                    b. Is there an applicable constitutional limit on the State‘s exercise of

                            Constitutional Law – ADLER / Spring 2008
                             i. Supremacy Clause: Is the state act expressly or impliedly pre-
                                empted by a valid federal act?
                                     1. Express preemption
                                     2. Implied pre-emption
                                               a. Conflict pre-emption: actual conflict or conflict
                                                  of objectives of state and federal statutes.
                                               b. Field pre-emption: Congress intended to
                                                  occupy the entire regulatory field in the area of
                                                  law at issue.
                            ii. If no competing law, then does the Constitution otherwise limit
                                state power?
                                     1. Dormant Commerce Clause: Does the statute
                                        discriminate against out-of-staters? If so, apply strict
                                        scrutiny. If not, apply rational basis/balancing test:
                                               a. Legitimate state interest (NOT economic
                                                  interest of residents)
                                               b. Rationally related to that state interest
                                               c. Balancing test: state interest must outweigh the
                                                  burden to interstate commerce
                                     2. Art. IV, Privileges and Immunities Clause: If a state
                                        discriminates against out-of-staters with regard to an
                                        important interest (particularly employment), act may
                                        be found unconstitutional even if there is no conflict
                                        with a federal statute.
                           iii. Does 14 Amendment limit the state‘s ability to legislate under
                                the EP or DP clauses?
                           iv. Does the 1 Amendment limit the state‘s ability to legislate?


A. Does the federal court have the power to hear the case? (Same as above)
       1. Congressional limits on Jx. (Jx. stripping)
       2. Justiciability
               a. Advisory Opinion?
               b. Standing?
               c. Mootness?
               d. Ripeness?
              e. Political question?
B. Separation of Powers Issues

            A. Presidential Power attack plan:
                   a. Should the court decide the case?
                            i. Same issues as with federal laws
                   b. Separation of powers: Does the President retain certain inherent
                      powers, or have the power to act either under the terms of the
                      Constitution or pursuant to a valid congressional act? (e.g. domestic
                      executive orders, executive agreements with other countries)
                            i. Argue various views of Presidential power:
                                   1. President may only act if the power is granted by the
                                       Constitution or by a constitutional act of Congress;
                                       President has no inherent power but must rely only on
                                       the text of the Constitution and fed. statutes; Judicial

                        Constitutional Law – ADLER / Spring 2008
                                         review needed to determine Presidential powers.
                                         (Black view)
                                    2. President may have inherent power, but only if the
                                         President‘s act does not violate the structural notion of
                                         separation of powers. (Douglas view)
                                              a. Does the act usurp another branch‘s
                                                  responsibility or prevent it from doing its work?
                                                  Judicial review needed to determine.
                                              b. Example: Court required Nixon to hand over
                                                  tapes for judicial branch purpose of criminal
                                    3. Inherent powers not made explicit in the Constitution
                                         may exist depending on the level of congressional
                                         support or opposition. Court may often stay out of the
                                         matter on justiciability grounds—particularly if
                                         Congress has not done all that it could legislatively to
                                         oppose the President—leaving much to politics.
                                         (Jackson view)
                                    4. President has inherent power, limited only by
                                         constitutional provisions—doesn‘t need congressional
                                         support for actions. Congressional Act that interferes
                                         may represent an intrusion on the executive function in
                                         violation of separation of powers.
                  c.   Other constitutional limits on Presidential power: Even if the act is a
                       legitimate exercise of executive power, does it violate an individual‘s
                       liberty or equality interests (i.e. 1 Am.)

          o Whenever you look at an executive order a prez. Signs you want to
            think where is the source of authority. If someone challenges the
            power you go through the same steps
                 Justiciability – does the person have standing
                 Is it within the power of the prez
                 Is there some independent limit on what the prez. Is doing?


                       Constitutional Law – ADLER / Spring 2008

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