Con Law Individual Rights Outline -- Pepperdine Law -- Pushaw _5_

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Con Law Individual Rights Outline -- Pepperdine Law -- Pushaw _5_ Powered By Docstoc
					PART 1 --- HISTORICAL INTRODUCTION 1. Original Constitution – text limited to powers of gov‘t and relation to state (federalism). Dealt w/ the unique matter of the nation as a whole (i.e. war, treaties), NOT local matters, matters relating to the family or criminal law. a. Article 1 (Legislative) – make laws, congress, 18 enumerated power (i.e. tax and spend, interstate, commerce, etc.) b. Article II (Executive) – enforce and execute the laws, enumerated powers, cmndr n chief, pardon, appoint judiciary c. Article III (Judiciary) – interpret the laws, supreme court d. Article IV (Full Faith and Credit) – a state can‘t apply a law differently to state citizens and non-state citizens and the state must respect the ―judgements‖ of other states with respect to their citizens. Judicial created exception  things that violate public policy. e. Article V (Amendments) – 2/3 of Congress propose and ¾ of state legislatures ratify. f. Article VI (Supremacy Clause) – constitution is the ―supreme law of the land‖ and thus the highest form of law in the American legal system g. Individual Rights? – a few enumerated … habeas corpus, bills of attainder forbidden, prohibition of ex-post facto laws, right to jury trial i. Rationale for limited individual rights – enumerating natural rights creates problems, especially if one is left out. The first cngrs was also expected to introduce Bill of Rts. 2. Amendments a. 1st – freedom of expression and speech, b. 5th – DP; takings (feds) c. 13th – abolished slavery d. 14th – all persons, including former slaves, are citizens of the U.S. and their state – get DP and EP, interpreted as enforcing the Bill of Rights against the states e. 15th – can‘t deny any citizen the right to vote 3. Final Arbiter of the Constitution a. Historically – 3 branches share constitutional interpretation so that all 3 branches take an oath to uphold and abide by Constitution in making, applying and enforcing laws b. Modernly – SCOTUS is final and binding arbiter of the Constitution i. Rationale – judges are not elected and serve life terms and therefore thought more competent and unbiased in interpretation of the Const 1. HOWEVER, judicial branch should not determine public policy because they are not the elected voice of the public ii. Pushaw – SC generally more concerned w/ precedent that text of Constitution or Federalist Papers FREEDOM OF EXPRESSION AND STATE’S RIGHTS 1. Freedom of Expression Historically a. Thought to be a fundamental right, but the Const‘s text doesn‘t define scope b. Sedition Act of 1798 – court didn‘t overturn law making criticism of gov‘t seditious and criminal (bx Jefferson and Madison criticized Adams after he was elected). i. Virginia and Kentucky Resolutions – States took legislative action to find a 1st violation c. First Amendment – ―Congress shall make no law abridging freedom of speech or of the press‖ i. Textual Scope – true reach is unclear, but framers intended the core of the amendment to protect against Prior Restraints (censorship beforehand – afterwards?)

1. Text is not absolutist; Congress has made laws curtailing / making criminal certain forms of speech where there exists an important countervailing gov‘t interest  e.g. perjury, conspiracy, threats to president, inciting a riot. ii. Modern Court – very protective of free speech; give the 1st broad interpretation 1. NY Times v. Sullivan (1964) – actual malice is required before press reports about public officials / figures can be considered defamation or libel (immense 1st protection) a. Pushaw – transition from protecting to overprotecting d. 3 Main Rationales for Freedom of Expression i. Promote Representative Government 1. Bedrock of 1st is freedom of political speech—only way you can point out the weaknesses of your gov‘t ii. Advance Knowledge in the Pursuit of Truth – ―marketplace of ideas‖ is to be promoted. The clashing ideas, not matter how offensive, will lead to truth iii. Protect Individual Autonomy – each persons‘ self-respect depends largely on self-determ; one of the ways to do this it to be able to express yourself free of gov‘t restraints. e. Additional Topics i. Symbolic free speech ii. Does it matter where you exercise your free speech? – Court has come up with difficult balance tests that lead to inconsistent results in order to deal with the issue of location

THE MARSHALL COURT 1. Judicial Review a. Marbury v. Madison (1803) – Marbury commissioned under Adam‘s midnight appointments, but Secretary of State Marshall does not deliver commission to Marbury before leaving office. New Secretary of State Madison refuses to deliver the commission to Marbury. Marbury seeks writ of Mandamus in SC under jxd of Judiciary Act passed by Cngrs to compel Madison. i. Held  Constitution and laws passed in pursuance of it are the Supreme Law of the Land. The Judiciary Act of Congress conflicts w/ Art. III by expanding the original jxd of SC. Congress can‘t pass laws in contradiction of K. SC does not have jxd to hear case. 1. Significance – Judiciary has the power to determine whether Executive actions comply w/ law AND whether Congressional Acts comply w/ the Constitution. a. Source of Power: i. Supremacy Clause – Const is supreme law of the land ii. Article III – SC has pwr to decide all cases arising under Const b. Forms i. Vertical – court has the power to determine whether State law is constitutional 1. Historically limited to ―clear violation‖ of Const, 2. Modernly court has claimed ultimate interpretation power ii. Horizontal – court has the power to review acts of Congress and Executive 1. Pushaw – all 3 branches takes oaths and should have this power – Cngrs and Exec have weapons against SC (pass laws to correct – but when does law become so entrenched you can‘t pass laws to correct it?), but states do not have weapons against SC – SC more deferential to Cngrs/Exec than states.

c. Traditional Justifications i. Supervising Government Relations – btwn fed & state; btwn states; intra-govt ii. Preserving Fundamental Values – best equipped to be teachers iii. Protecting the Integrity of the Democratic Process – scrutinize legislation and protect three particular interests  Speech, voting rights, and minorities d. Modern Debate i. Counter Majoritarian Difficulty – Judical review is against the will of the majority because judges are not the elected representatives (congress, president) that make laws 2. Property Rights and Natural Law a. Fletcher v. Peck (1810) – Ga. Legislature is bribed to convey millions of acres of state land to private parties at a reduced rate. Parties then turn around and sell the land at a profit. New Ga legislature repeals the law allowing the conveyances. Peck sues Fletcher for guarantee of title. i. Held  Contracts Clause of the Constitution prohibits states from passing laws [unreasonably(now)] impairing the obligations of K. Leg has no pwr to repeal the prior legsl‘n because a full repeal violates the Constitution by impairing the vested K rights of bona fide purchasers who had no knowledge of the bribery (broad interpretation argued against by dissent – applied to both executed and executory K‘s). States cannot divest innocent purchasers of their Natural right to property. 1. Basis of Court’s Decision a. Natural Law – divinely inspired universal principles of justice derived from the laws of nature that cannot be denied to anyone. b. Old Contracts Clause – ―no state shall pass any law impairing the obligation of K‖ (SC applies CC equally to private parties and state parties under Fletcher) i. New Contracts Clause – ―no state shall pass any law [retroactively and unreasonably] impairing the obligations of K‖ c. Due Process – 14th amendment not enacted yet, so not part of reasoning, and 5th DP at the time only applied to fed gov‘t 3. American Indians and the American Political Community a. Removal Act (1830) – forceful removal of the Native Americans west of the Mississippi advocated by President Jackson. Native Americans treated as domestic dependent nations. i. Native Americans did not receive protection under the Constitution until become citizens until 1920 (i.e. did not enjoy any Constitutional rights like EP) b. Cherokee Nation v. Georgia (1831) – Georgia stripped the Nation of its rights and sought forceful removal. The Nation declared sovereignty and refused to move finally seeking redress in the federal courts. i. Held  CN does not have standing to bring suit in SC because it is a domestic dependent nation, not a foreign nation. Prob a political question ultimately dismissed on jxd grnds 1. Johnson‘s Concurrence  law and morality often intersect, but the court cannot make decisions based on morality. 4. Women’s Citizenship in the Antebellum Era a. CL Coverture – H and W are the same unit, but H has all the rights and women can‘t own prop b. Seneca Falls Convention (1848) – Women right a Declaration and list of grievances but can‘t effect change because they don‘t have the right to vote. c. EPC (1868) – ―no one shall be denied equal protection of the law‖ but held not to apply to women. Women had the unique status of ―people‖ and ―citizens‖ under Constitution, but denied equal rights (based lingering CL coverture above) d. 1920 – right to vote e. 14th Amendment (1968) – ―no state shall deny any person the equal protection of the law‖

f. 1970 – women afforded Rational Basis Scrutiny – gender discrimination is valid if there is a rational basis for the law g. Modern – women afforded Intermediate Scrutiny – gender discrimination needs to serve an important state interest AND the law needs to be substantively related to the achievement of that interest. THE TANEY COURT AND THE CIVIL WAR: 1835-1865 1. Introduction a. Two Cornerstones of the Taney Court: i. States‘ Rights – Taney was a Jacksonian politician opposed to secession ii. Community Interests – protected vested property rights, but willing to weigh vested rights against greater community interests 1. Charles River Bridge v. Warren Bridge – MA chartered by law CRB to build a bridge over the Charles river. CRB charges tolls to recoup investment. 30 yrs later, MA commissions another bridge by WB that would revert to the public and be toll free after investment was recouped by WB. CRB sues to enjoin const. a. Held  ambiguous franchise agmt w/ CRB does not expressly provide for exclusivity (vested property right). Ambiguous K‘ual property rights should be construed in favor of the public interest. i. Story Dissent  entire value of the franchise was its exclusivity, therefore a franchise agreement is implicitly exclusive (taking) ii. Significance – public interests can overcome property rights 1. essentially saying, the K Cl does not confer absolute rights 2. Privileges and Immunities (Art IV, §2) – ―the citizens of each state shall be entitled to all Privilege and Immunities of Citizens in the several States.‖ (i.e. state A citizen entitled to same treatment as state B citizen in state B) a. Scope – generally, applies ONLY to fundamental rights including: i. Security of person ii. Right to own and transfer property iii. Participate in court activities iv. Interstate Mobility 1. Crandall v. Nevada (1868) – NV imposed tax on everyone (even own citizens) leaving the state by commercial transportation a. Held  The P & I Cl. guarantees U.S. citizens a Constitutional rt to free travel btwn states. Can‘t tax citizens b/c they‘re not ―goods.‖ We are all ―citizens‖ of one nation under the spirit of the P and I clause. i. Concurrence  tax impedes interstate commerce b. Does not apply to some rights such as incorporation (privilege does not have to be extended to foreign corps) and exclusive resident rights (i.e. voting, communal property, in-state tuition, etc) 3. Slavery a. Introduction i. Framers weren‘t sure how to deal with slavery because it was a right to many southern states and morally evil to many northern states, but prohibition would make it difficult to perfect the Union. 1. Thus, you never see the word ―slavery‖ in the constitution, you see ―held in labor‖ to compromise. Thereafter there were other attempts to Compromise, as in the Missouri Compromise providing that for each state entering the union, there would be one slave state and one free state to maintain the balance (does not reach what to do with territories though)

b. Groves v. Slaughter (1841) (interstate slave trade) – MS constitution prohibited importing slaves for slave to maintain a monopoly. Constitution attacked as an impermissible restriction of interstate commerce. i. Held  MS Constitution is not self-executing. The law contained in the Constitution required Congressional implementation through legislation (court skirts the overriding interstate trade issue). Dissents approach Constitutional Q of whether slaves are prop. 1. McLean Dissent  Slaves are people and not items of commerce. Justifies states dealing with slaves as they see fit. 2. Taney Dissent  Constitution gives power to control slavery exclusively to states 3. Baldwin Dissent  States have the power to define property. Constitution allows states to recognize slaves as property, however, Congress can regulate transportation and sale of slaves across border under the CC. Ultimately though, Baldwin thinks MS has violated the P & I clause because slaves are property and therefore a fundamental right denied to out of state citizens. c. Prigg v. Penn (1842) (fugitive slaves) – Fugitive Slave Act authorized owners to seize a fugitive slave in another state and bring him before a federal judge to provide proof and certification that the slave was in fact the owner‘s property. Prigg captured a female slave and her children in PA to bring back MD. Prigg was denied certification, but forcibly recaptured the slave anyway. Prigg convicted under PA statute prohibiting self-help w/ fugitive slaves. i. Held  (Story) P & I clause guarantees citizens the fundamental right to own slaves as property against the meddling by other states that don‘t allow slavery and gives them the right to self-help (self-executing). Where the Const is silent as to who has the power to provide redress, because P & I clause is found in const, Cngrs has the power only. 1. Pushaw – disagrees because free states have no way of protecting their free black citizens. The decisions allows not redress where the wrong person is captured. d. Dred Scott v. Sandford (1857) (slaves as ―citizens‖ or ―persons‖) – MO citizen travels to free state of IL and back to MO with his slave Scott. IL has a law that states you are free if traveling through IL. Owner dies and Scott passes to Sanford. DS claims he is a citizen of MO and sues Sanford, an NY citizen under diversity jxdn, claiming that he is in fact free (case is about jxdn, but holding goes far far beyond that and invalidates MO Compromise). i. Held  Slaves and their decendants are not citizens w/in the meaning of Art III as to both the states and the U.S. (Taney analyzes 4 time periods to back opinion) 1. Pushaw – case was decided, then history looked at to back it and decision written to explain holding. Constitution unquestionably allowed slavery in states that chose to have it. Slaves are private property and owners have Const protection to property. However, Taney equates ―slave‖ with ―all black people‖ and states therefore infers that all black people are not citizens under Constitution, BUT black people are citizens under Constitution (see Curtis dissent). ii. Held  Congress lacked Art I power to ban slavery in the territories b/c MO settlers could now legislate for themselves, which divested Congress the power to legislate. iii. Held  Congress is violating the settler‘s DP rights as to their slaves 1. Curtis Dissent  ―We The People‖ was ratified by ―people‖ including some free blacks. Why would you ratify something that you were not included in? iv. Original Intent – Taney argues in Scott that the court has identified the ―original intent‖ of the Constitution and says public opinion cannot change such intent to give the Constitution a more liberal meaning w/o an amendment. e. Frederick Douglas / Lincoln Debates re: Judicial Supremacy i. Douglas – oath requires Pres and Cngrs to uphold SC holdings.. ii. Lincoln – decisions of the SC are not generally applicable to the Pres and Cngrs who also take an oath to follow the Constitution. The court‘s holding will in no way impair his later judgment if he must make a decision regarding the matter.

f. Interpretation Methods i. Originalist (like Taney argument) 1. Original meaning – what did the words mean then? 2. Original intent – what was the drafters‘ intent? 3. Original understanding – what did the ratifiers understand it to meant? ii. Living Document – interpret the constitution with respect to changing culture and society regardless of original intent. Most justices realistically are living constitutionalist because of the weight that precedent is given. iii. Pragmatic Approach – take everything into account and attempt to produce the best result possible. iv. Textualism – look purely at the meaning of the words 4. The President as Commander in Chief a. Article II – Vests in President power (1) to execute the laws (2) as commander in chief. b. Scope of CIC Power i. Ideologies 1. Civil Libertarian – judicial review may be exercised liberally to vindicate violated rights at all costs even against the President‘s actions as CIC 2. Middle Ground – P and Cngrs have vast war power & if they make a decision that affects the nation as a whole (e.g. declaring ware, deciding military strategy), the courts should not intervene, BUT if they make a decision that affects individual rights, the Court will hear that claim with deference. 3. Absolutist – P is CIC and soley responsible for protecting Americans and the Union. P has enormous discretion and Court should not second guess. The check is democratic, not political ii. General Factors that Determine Scope of CIC Power during wartime 1. Strength of President a. Weak  SC makes strong, controversial decisions b. Strong  SC defers to strong Presidents in a time of crisis 2. Magnitude of Military Crisis – some president have exercised their power as they saw fit and SC deferred b/c didn‘t want to second guess P during a wartime crisis. a. Lincoln: Civil War b. Wilson: WWI c. Roosevelt: WWII 3. Strength of SCOTUS 4. Constitutional Rights at Stake c. Lincoln as President i. Prize Cases – VA seceded and MD was about to, big problem if D.C. was cut off (magnitude). At this point, Lincoln views the South as insurrectionists and as such, a legitimate sovereign nation that may be declared war on. Cngrs not in session and he must act so he issues a proclamation blockading Confederate ports and authorizing seizure of ships. Congress retroactively ratified Lincoln‘s actions at a July 4th special session. Ship owners brought DP violations against him (rights at stake). 1. Held (5)  Cngrs has pwr to declare a national or foreign war, BUT the timing and implications of the crisis presented a situation in which Lincoln was ―not bound‖ from acting until ―Congress …. baptize[d]‖ the current situation ―with a name‖, HOWEVER, he cannot take further affirmative war measures w/o Congress‘ declaration (magnitude) a. SC defers to President‘s determination of what force is necessary to repress domestic insurrection in order to faithfully execute the law i. Court was weary of finding against him because he made it clear he would not be held back (strength of president / SCOTUS)

b. Dissent (4)  (civil lib) Lincoln‘s actions were either legal or illegal at the time that he acted. Before a response can exists on the level of war, Cngrs must so declare it. Ex post facto ratifct‘n of P‘s actions don‘t save them. 2. Historical Relevance of Prize Cases a. Wilson relies on precedent to set up military commissions b. Roosevelt relies on there precedent to set up military commissions, internment camps, and seize property to manufacture airplanes c. Bush tried to use similar power with Guantanamo detainees, but SC did not allow it saying that foreign combatants deserved same writ of Habeas that is denied to MD citizens by lincoln ii. Ex Parte Merryman (1861) – Lincoln suspends the writ of HC to prevent Maryland from rebelling and succeeding. Merriman is a Confederate sympathizer who is trying to convince Maryland to secede from the Union. Marriman is imprisoned w/o trial. Marriman files HC w/ SC anyways. 1. Held  Art I authorizes Congress to suspend the writ of habeas corpus only ―during invasion or rebellion when the public safety requires it.‖ Art I plainly confers the power to suspend HC exclusively to Congress. President‘s job is to execute the law, not create the law. a. Lincoln is ordered to release Merriman, but Linclon refuses arguing: i. That he did not violate the Const because it doesn‘t explicitly give the power to Congress even though it‘s found in Art I, and ii. if he did violate the Constitution, it was only one little, individual provision that he violated in order to preserve the whole. He had an emergency situation when Congress is not in session 1. Pushaw – Constitution requires waiting until Cngrs is in session to avoid President always taking action w/o Cngresn‘l consent and justifying action w/ ER argument iii. Emancipation Proclamation (1865) – Lincoln is not opposed to slavery, he is in fact opposed to expansion of slavery into the Western Territories. He recognized he does not have power under the Constitution to free the slaves. However, he believes the South cannot legally secede from the Union and he could do something about it. 1. Proclmt‘n issued under Art II war power to take ―those military actions necesr’y‖ a. Proclamation freed slaves in rebellious territories in the south as a tactical move that destroyed the economy and morale of the South and allowed freed slaves to come fight for the North. b. Curtis (ex-justice at the time) – flagrant Constitutional violation iv. Ex Parte Milligan (1866) – Milligan and other critics of the war arrested by U.S. military official in Indiana. They were charged with planning and uprising to seize Union weapons. The military elected to try the individuals before a military commission in Indiana. Appealed to SCOTUS. 1. Held  unanimously overturned decision but split 5-4 on rationale a. Majority – martial rule can never exists where the courts are open. There was never a war in Indiana. b. Minority – Cngrs has the power, not exercised here, to authorize military commissions in Indiana 2. Significance a. ―kick ‗em while they‘re down‖ mentality. During wartime, the strength of IR depends exclusively on the strength of the president vis-à-vis Congress and the Court

v. Summary Point  no constitutional right is absolute 1. Lincoln exercised more power than any other President in history. His strength and popularity allowed him to get away with it. a. The Civil War was a unique struggle and a true test of the Const – if the south had seceded, the logic of the succession would have no end and there would soon no longer be a United States FROM RECONSTRUCTION TO THE NEW DEAL: 1866-1934 1. The Reconstruction Constitution a. Historical Background – after the Civil war, Congress (dominated by Union representation) did not believe the Southern states will protect the right of their citizens. Congress passes a series of statutes and more permanently proposes three Amendments. i. 13th – directly overrules Dred Scott by abolishing involuntary servitude (slavery) ii. 14th – ―All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside‖ 1. drafted in broad terms purporting to protect civil rights (codify civil rights act of 1866) and clearly intended to protect the civil rights of newly freed slaves (now extended to women and possibly homosexuals). a. Eventually used to extend civil and political rights to blacks (Pushaw – does not include political rights). 2. Three separate clauses directed at the STATES: a. Privileges OR Immunities Clause – ―no State shall make or enforce any law abridging the P or I of citizens of the U.S.‖ i. Likely referencing fundamental rights again. ii. Slaughterhouse – Most IR cases based on DP and EP clause because of this line of cases. Still good law though. b. Due Process Clause – ―nor shall any State deprive any person of life, liberty, or property without due process of law‖ i. Original application to process of law, but modernly used to apply to substantive process of the law and in turn used to imply many rights not expressed by the Constitution. c. Equal Protection Clause – ―nor deny to any person within its jxdn the equal protection of the laws‖ th b. Early tests of the 14 Amendment i. Slaughterhouse Cases (1873) – LA law granted a state corporation the exclusive right to operate slaughterhouse facilities in New Orleans. The law prohibited all such other operations. Excluded butchers sought an injunction against the monopoly on 14th amendment violation grounds claiming they had a fund right to make a living/work. 1. Held  14th not expressly reserved to blacks, but intent was such. Litigants invoke all three clauses of the 14th: a. P or I Clause  SC breaks down 14th and seizes on linguistic differences w/ P or I clause and effectively guts it: i. 1st sentence of 14th: ―citizen‖ reverses Dred and states that citizens include all persons born or naturalized in the U.S. Distinguishes: 1. U.S. citizen: born or naturalized here 2. State citizen: requires residence in a state ii. 2nd sentence P or I: ―citizens of the U.S.‖ held to mean states can‘t abridge P or I of U.S. citizens secured under federal gov‘t (i.e. access to fed. courts, free speech), BUT can abridge the P or I of citizens in their capacities as state citizens.

1. Note: 4th P & I clause prevents states from denying fundamental rights to citizens of other states b. Due Process  DP clause is about process (i.e. right to be heard), not substantive rights to liberty and property. 2. Held  Police Power gives states valid authority to regulate activities affecting health, welfare and comfort of its citizens. a. Dissent  (Bradley) police power cannot be extended to infringe rights unless done in a reasonable manner. (majority believes this a political question as to whether the policy was wise) b. Dissent  the distinction between state/U.S. citizen is wrong. Abridging any citizen‘s P or I through the power of the state is unconstitutional. ii. Bradwell v. Illinois (1873) – woman applied to be a lawyer in IL and was denied admission solely b/c she was a woman. Claims EP violation under 14th Amendment. 1. Held  EP clause does not apply to women c. Equal Protection iii. Strauder v. West Virginia (1880) – West Virginia law precluded black men from serving in juries. Strauder, a black man, appealed a murder conviction by an all white male jury arguing that he had a right to a trial by a jury selected w/o discrimination by race or color (jury service a civil or political right? Gray area) 1. Held  violation of EP Clause because excluding black individuals from juries based on their race denied them the same civil rights as white males and the clear purpose of the EP clause is to ensure equal enjoyment of all civil rights under the law. Where ambiguity arises, construe the overreaching purpose of the 14th Amendment to eliminate discrimination. a. Court still uphold reasonable regulations (i.e. literacy tests, property regs; see Plessy), but there must exists a potential that black men can serve on juries (so states sidestep by requiring qualifications to be on a jury) iv. Plessy v. Ferguson (1896) – LA law requiring segregation of blacks and white on train cars challenged under EP clause. 1. Held  Social rights are not the Civil rights (distinguishes Strauder here) that the 14th is concerned with protecting. Separate but Equal Doctrine (rationalized by saying blacks aren‘t treated as inferior, they‘re treated equally, just separate) a. Separate but Equal  equal accommodations (physical and tangible) b. Legal Test for Social Regulations  reasonableness + good faith i. Accomplished by conforming to customs and usages of the states c. Police Power – said to be exercised reasonably here for public good d. Dissent  (Harlan) courts‘ decision is ridiculous because the law is obviously discriminatory and designed to keep blacks out of white cars in direct contravention of the EP clause‘s key distinction. Not a question of reasonableness, but a question of whether the state can pass the law in the first place. Beyond the power of the legislature. c. Civil Rights Cases & State Action Doctrine (1883 note: post-Strauder and pre-Plessy) i. §1 of the 14th confers the substantive PorI, DP, and EP rights. §5 gives Congress the right to enforce the Amendment through appropriate legislation. (§2 for 13th) 1. Civil Rights Act (1875) – gives everyone equal rights to public accommodations, public transportation, public amusement, etc. ii. Civil Rights Cases (1883) – does the 14th amendment confer to Congress the power to prohibit private discriminatory actions in places that are generally open to the public? 1. Held  (14th – narrow interpretation of cngrsnl power) (State Action Doctrine) Congress‘ powers under the 14th are corrective/remedial only – that is to say, the 14th does not authorize Congress to enable primary legislation because ―no state shall make any law . . .‖ requires a state to act before Cngrs can step in.

a. Congress cannot remedy private action – absent state regs to the contrary, individuals are free to discriminate against other indvdls in private accoms b. State-Licensed Accommodations – run by private individuals, not state action in discriminating. Congress thus has no power to enact the Civil Rights Act which reaches these accommodations. 2. Held  (13th) prohibits slavery, but race discrimination is not a ‗badge of slavery‘ a. Dissent  (Harlan) public accommodations affect public interest, not purely private interests 3. Modern Application of SAD – (good law still) must be a ‗widespread problem‘ (more than in one state) before Congress may act 4. The Protection of Economic Rights a. Historical Background – the impact of the industrial revolution brought a slew of labor laws including wage/hour laws, contracts and industry conditions. Courts started looking at old constitutional norms to see whether states had regulation powers over the new issues. DP is justification for SC intervention i. Due Process (1874 - 1890) – expanded over time to protect other groups than just blacks. 1. Procedural – judicial review of law ensures a right to notice and a hearing before an impartial decision maker before taking of life, liberty or property 2. Substantive – allows judicial review of substantive validity of all legislation to determine whether it reasonably protects life, liberty, and property a. Pushaw – as used in the Constitution, not intended to apply substantively to the law. This clause was about process. b. Early Economic Cases (from laissez-faire economics to gov‘t interference in markets) i. Munn v. Illinois – state law limits the rates charged by grain storage warehouses and RR 1. Held  private property can be regulated under state police power when it is affected with a ―public interest.‖ a. Sates can‘t use police power to take prop w/o just compensation or DP ii. Santa Clara County v. S. Pac. RR – Corps are recognized as persons w/in 14th iii. Minnesota Rate Cases – state statute grants RR Commission power to set rates w/o judicial review. 1. Held  Commission cannot set rates not subject to judicial review b/c deprives corps of property w/o DP. DP is a limit on state legislatures, and DP has a substantive component that allows judicial review of the reasonableness of laws. a. laws no longer presumed valid, BoP shifts to gov‘t to show reasonableness c. Lochner v. New York (1905) – NY law prohibited employing bakers for > 60 hrs/week. Lochner was convicted for violating the law, and challenged the conviction under the 14th DP clause. i. Held  ―liberty‖ w/in the context of the 14th amendment includes the freedom to contract (overruled by West). Requires states to prove RB for law. States can exercise their police powers to interfere with liberty and property rights so long as there is a legitimate need and such interference is rxble 1. Court imposes its own view of reasonableness and strikes down the law on the grounds that it is primarily a labor law (economic reg) not a health and safety goal and therefore not the proper subject matter of police powers (such regulation is reserved to Congress) (although evidence shows hours regulation was to protect the health of bakers) a. Court looks to the industry, the kind of employment, an employees 2. Dissent  (Harlan) state showed a real and substantial relationship btwn the law and goal of protecting health and safety of bakers. The law must be upheld if legislation unless there is a clear constitutional violation. a. Advocates a test looking at the relationship btwn the law & goal.

3. Dissent  (Holmes) the court‘s job is to enforce the law of the political legislative process absent a clear violation of a fundamental right, not impose its own economic theory. a. Economic theory questions are for the legislature to develop b. State legislation is presumably valid in democracy. d. Freedom of K & Involuntary Servitude i. Bailey v. Alabama – peonage laws of AL required compulsory service to repay debts. Employee was advanced his pay, but failed to repay the debt to his employer. Under AL law, such refusal was prima facie evidence of fraud and punishable criminally. 1. Held  peonage laws were a violation of the 13th amendment against involuntary servitude ii. U.S. v. Reynolds – surety would bail out black man and then require him to work off debt or risk jailtime. 1. Held  obvi involuntary servitude 5. WWI & First Amendment a. 1st Amendment – ―Congress shall make no law…abridging the freedom of speech, or…press‖ i. Wartime Balancing Test – returns to idea that there are NO absolute rights. Freedom of expression must be balanced against compelling gov‘t interests. 1. Debbs v. U.S. (1919) – Socialist imprisoned for making an anti-WWI speech in violation of a federal statute w/ the intention of discouraging people from serving in the military. Debbs claimed the statute under which he was arrested violated his freedom of expression under the 1st. a. Held  criminalizing discouraging military service ok under 1st accounting for the fact Debbs was an influential political leader and very likely to incite lawlessness 2. Abrams v. U.S. (1919) – A federal statute prohibited attempting to curtail wartime production. Communists gave leaflets discouraging workers from producing wartime materials. a. Held  conspiracy convictions upheld i. Dissent  (Holmes) no real danger because leaflets were silly and people were unlikely to be taken seriously. They were not actually curtailing war production, just trying to promote universal brotherhood of workers 3. Gitlow v. U.S. (1925) – NY law prohibited any material that advocates overthrowing the gov‘t. Communist Gitlow charged. a. Held  convictions upheld i. Dissent  (Holmes and Brandeis) no present danger and it would be better to allow public expression of these ideas rather than forcing them underground 4. Whitney v. CA (1925) – a. Held  Speech can only be dangerous if clear & present and so imminent that danger ―may befall before there is an opportunity for full discussion.‖ i. Clear & Present Danger Test – gov‘t cannot regulate freedom of expression unless: 1. (Proximity) There is a clear & present danger, and 2. (Degree) Language is intended to insight lawlessness (substantive evils that Congress has a right to prevent)

ii. Modern Brandenburg Rule (Imminent Lawlessness Action Test) – speech is not protected by 1st amendment if 1. Intended to incite imminent lawlessness, and 2. likely to cause violation of the law more quickly than an officer of the law can be reasonably summoned PART 2 --- CONSTITUTIONAL ADJUDICATIONS IN THE MODERN WORLD 1. The Evolution of the Bill of Rights and its “Incorporation” Against the States a. Historical Background – 1-8th Amendments are clearly applicable to the federal gov‘t. There is no explicit provision which would apply them to the states. However, in the early 20th century, a few things came to a headway: i. Decline of Judicial Intervention Against Economic Regulation – Though the SC has resisted for decades attempts by state gov‘t to regulate economic and social problems (e.g. Lochner), the stock market crashed and the Great Depression began—people appealed to the state gov‘t who responded with progressive economic regulation 1. The Court begins to give the Legislature (both Fed and State) broad deference in its lawmaking and needs to counterbalance this approach by creating individual rights. The arsenal that they chose to work with was the Bill of Rights, but there was no way to apply them against the states a. The New Deal Market shift led to: i. More judicial discretion and creativity 1. Note: court has always had some activism (e.g. Strauder, Plessy, Lochner), and judicial activism goes both ways (e.g. Bush v. Gore) ii. Justices becoming more concerned with minorities and IR ii. There was no Bill of Rights initially because the framers were worried of losing a right if it was not enumerated. 1. Heavy debate in the 1940‘s over whether the 14th through the term ―liberty‖ incorporates the fundamental freedoms enumerated in the Bill of Rights. a. Selective Incorporation – Ultimately, rights were incorp‘d on a case by case, provision by provision basis, rather than all at once. Through this process, virtually the entire Bill of Rights was incorporated in the 14th. i. Pushaw – PorI clause as first intended prob would allow enforcmnt of BoR against the state before gutted by Slauterhouse. Instead of overruling the case, the SC said that civil rights were incorporated through the DP clause. ii. Clauses NOT incorporated 1. 2nd (right to bear arms) 2. 3rd (protection against quartering troops) 3. 5th (right to grand jury) 4. 7th (right to a civil jury trial) iii. Test Note – Incorporation comes in when a state violates Process: 1. 14th prohibits states from depriving one of life, liberty, and pursuit of happiness w/o DP of law a. List fund rights and include the right that is the subject matter of the CoA.

ECONOMIC REG, FEDERALISM, AND SEPARATION OF POWER IN THE MODERN ERA 1. Decline of Judicial Intervention Against Economic Regulation b. Nebbia v. NY (1934) – NY established an agency to fix the min retail price of milk. Nebbia was convicted of selling milk below the retail price and challenged reg under 14th. i. Held  valid regulation under 14th because the milk business ―affects the public interest‖ and the states‘ means of regulating this pub interest were substantially related to the end of benefiting the public by keep milk prices low (preventing oversupply / price decline) 1. Significance – Court doesn‘t give Lochner deference and expands public interest category giving states the ability to create protective econ regs c. Blaisdell (MN Mortgage Moratorium)(1934) – MN passes a moratorium law at the height of the GD providing temp relief to homeowners by extending the time an owner could redeem foreclosed property. Loan company challenges the law a violation of K Cl. i. Held  Constitution is not an absolute prohibition, and the K clause is not meant to be applied in an emergency. States can impair the K clause if for a valid public emergency and for a reasonable (temporary) amount of time. 1. Significance a. Original Intent – Court is not bound in emergencies i. Pushaw – if you accept this test, you have to accept the Court‘s power to rewrite the Constitution in emergencies. It can be rewritten for good (Blaisdell) or bad (Korematsu) b. Police Powers Expanded – states can balance the freedom of K with legit gov‘t interests to serve public interest i. Pushaw – Const says states can‘t pass ―any‖ law, so clearly absolute prohibition. c. New K Clause – ―no state shall pass any law [unreasonably] impairing the obligations of K‖ d. West Coast Hotel v. Parrish (1937) – minimum wage law for women put in place. Challenged under 14th as violating freedom of K. i. Held  overruling Lochner (and following Holmes dissent), 14th amendment does not include the freedom to K. State economic regulation must be reasonable related to some legitimate state end. Only struck down if there is a clear violation of the Constitution. 1. Significance – shift in deference to state legislative process for econ reg. e. Carolene Products (1938) – Congress (co-equal branch) passes the Filled Milk Act banning inter-state shipment of milk combined w/ non-dairy fats. Congress made factual findings that such practice was dangerous and fraudulent in some cases. FMA was challenged. i. Held  Congress had a rational basis for enacting the law 1. Law comes out in FN 4  presumption of Constitutionality to economic regulation. Upheld if there is a ―rational basis‖ for the law. (Ct facially applies rational basis. Congress is not required to show findings, but will help ct review) a. HOWEVER, the Court will not be similarly passive about other types of legis‘n (i.e. social, moral, cultural laws). In other cases, the Court may be required to conduct a more searching review, such as when a law: i. interferes w/ IR‘s ii. restricts the political process to repeal undesireable leg iii. discriminates against a ―discrete or insular minority‖ f. Williamson v. Lee Optical (1955) – OK law requires a prescription before an individual can obtain eye glasses from an ophthalmologist. The alleged purpose of these laws is to protect the health of citizens through eye-care. Three provisions of the statute are challenged under the 14th. i. §2 – optician cannot refit lenses w/o prescription from optometrist

1. A law may be silly, but a State does not have to legislate w/ exact precision, the law need only make sense in some cases, even if irrational as applied in others. Essentially, the court will only overrule the legislation if irrational in most cases ii. §3 – prohibited advertisements for the sale of glasses & even eyeglass frames 1. Reasonably related to safety. Where does this arguably end? iii. §4 – retailers cannot rent out space to optical care providers. 1. Rationally related goal of removing commercialism from the field iv. Theme  hard to find a regulation that won‘t meet this minimum RB test. Not up to the legislature to prove the RB if the court can infer it and all inferences are in favor of the state economic regulation being valid. g. Modern Test – means of an economic regulation must be rationally related to the goal i. Goal must be some state police power i.e. public welfare, safety, or health ii. Substantive DP (Lochner) is not a means of invalidating state econ regulations iii. Modern K Clause usually fails, but court will step in when laws substantially impairs the obligations/remedies of K (only important K‘s or rights) h. 5th Takings Clause – ―nor shall private property be taken for public use, without just compensation‖ (applied to States through 14th) i. A Taking of private property occurs if: 1. the property is physically invaded, or 2. or, the Economic Value is virtually destroyed by the regulation a. As long as an economically viable use remains, it‘s fine, even if it is not the use the owner intended or drastically reduces the value of the property ii. Test  regulation must substantially advance legitimate states interests, AND not deprive an owner of substantial economic interest (presumption in favor of gov‘t, i.e. most prop owners lose) 1. What is public use/purpose/benefit? 2. What is just compensation? (great deference to regulation) iii. Rhenquist Court – attempted to restore private property rights, with one exception 1. Kelo v. New London (2004) – gov‘t sought to condemn property to then give to a private developer to build hotels and shops in an economically depressed area that used to be a wartime boom town. a. Held  Use of eminent domain for economic development does not violate the ―public use‖ clause of the 5th. i. Essentially holding says Gov‘t can condemn private prop for ―public use,‖ and delegate condemnation to a private co. for ―public benefit/purpose‖ 1. Court found that the econ project brought jobs, st and fed tax dollars, and revitalization to economically depres‘d area 2. Relaxation of Judicial Constraints on Congressional Power a. The Reconstruction Amendt‘s give Cngrs the power to enforce them with appropriate legislation i. Voting Rights Act of 1965 – Eliminates discriminatory practices in voting. The Supreme court upheld this Act and reasoning although voting was left to the state, the minimal power Congress had to enforce the 15th was enough (legislt‘n historically upheld by SC) b. Limitations on Congress’ Power to Enforce Reconstruction Amendments i. City of Boerne v. Flores (1997) – a local zoning authority denied a church a building permit under a zoning ordinance prohibiting modification of historic buildings. The church challenged the judgment under RFRA.

1. Free Exercise Historical Background a. Historic Test – (developed by SC & adhered to for yrs) if a gov‘t reg unduly burdens free exercise of religion, then gov‘t has to show: i. a compelling gov‘t interest, and ii. the regulation is the least restrictive means of achieving interest 1. Smith – exception if a general law of neutral applicability b. RFRA – Cngrs responds by overruling Smith w/ legislation reinstating previous strict scrutiny standard for all instances even if the burden results from a rule of general applicability. 2. Held RFRA exceeds Congress‘ enforcement powers under the 14th because the legislation is not remedial. Congress has the power to enforce rights under section 5, but not create new ones. Court has the power to interpret the Constitution & Congress‘ job is to enforce the precedent a. Voting Rights Act Distinguished – Voting Rights Act upheld because it was designed to combat laws specifically enacted for racial discrimination, whereas RFRA targets laws that do not have the purpose of relig discrim.. i. Moreover, RFRA is held not proportional to the end of preventing a violation of free exercise because there is not overwhelming evidence of religious discrm (as there was of voting discrim) 3. Significance – Congress must document ―widespread‖ violations that their remedial law is designed to remedy EQUAL PROTECTION 1. Brown and the Constitutional Struggle Over Desegregation a. Historical Understanding of EP Clause – ―no one shall be denied equal protection of the laws‖ i. No state could deny any person within its jurisdiction the equal protection of the laws 1. limit on government regulation—can‘t arbitrarily discriminate on classifications with some level of reasonableness (because virtually every law discriminates) ii. New EP standards were developed by the Warren and Burger Court‘s giving additional levels of Scrutiny beyond rational basis for ―suspect classifications‖ b. New EP Standard – 3 classifications (note: not rigid classifications) Presumptively Unconst: i. Suspect Class  race/ethnicity (immutable biological characteristics) 1. Strict Scrutiny – Gov‘t must show: a. Compelling interest, and b. Regulation narrowly tailored (least restrictive means) ii. Quasi-Suspect  gender 1. Intermediate Scrutiny – Gov‘t must show: a. Important gov‘t interest, and b. Means substantially related to objective (can be a little overbroad) iii. Ordinary  e.g. Lee Optical (gays get rational basis +) 1. Rational Basis – Gov‘t must show: a. Legitimate interest (valid reason), and b. The means are reasonably related to the end c. Pre-Brown Historical Background – discrimination still rampant after Civil War and WWI. WWII brings changes because of huge need for labor (blacks and women employed in industry and alongside others soldiers in battlefield). Ideological struggle in fighting Nazi Germany who suppresses Jewish citizens, while not treating our own black citizens equally. NAACP starts taking cases to court.

i. Brown v. Board of Education (1954) – Consolidation of several cases where State legislatures had segregated public schools (state action) on the basis of race. At the time, the law on the books was Plessy (public accommodations, not schools though) and states were in conformity with the law. Brown and other black students were denied admission to white schools and brought suit under the EP. Parties stipulated that the black and white schools were equal to test the precedent 1. Held  gov‘t sponsored segregation in public schools denies EP of the law and has the effect of creating a ―feeling of inferiority‖ (subjective) and inherent inequality (objective). a. Pushaw – malleable standards involving psychological effects are not the same as ―separate is unequal‖ b. Analysis – court looks to the 14th, but couldn‘t determine original intent of the framers with regard to public schools. Weak pub school system at the time of Const. Public education a civil right? Or political right? We know 14th is to protect civil rights. Plessy applied to college/graduate school context, but not public school system i. Note – brief and unanimous opinion of the SC 2. Issues of Interpretation – legislative history interpretation: a. Drafter’s Intent – uncertain w/ther 14th intend to apply to schools i. Scalia and Thomas b. Living Constitution – apply in context of current socio-economic situation and give tolerably principled practical results (why have a written Constitution) c. Middle Ground – only use framer‘s intent when really clear. ii. Bolling v. Sharpe (1954) (decided same day as Brown) – involving D.C. schools under the control of Congress. 1. Held  Brown does not apply b/c the 14th does not apply against Congress. 5th however does apply to Congress and the DP clause incorporates some concept of the EP clause (no precedent – had to create holding to avoid hypocrisy) d. Brown Aftermath – In Brown II the SC orders desegregation. Full implementation is to be solved by school authorities, responsibility of deciding remedies in individual cases falls to district judges (enforcement? Separation of powers issue). Court did not order flat out desegregation, , so many districts evaded the ruling for years. Many tried ―freedom of choice‖ plans, which provided no real choice of integration where a student would face massive discrimination. Threats of violence would not justify failure to integrate. Civil Rights Act of 1964 allowed AG to actively desegregate with federal funds and bus. Legislative and executive branches thus able to implement Brown, not just judges. Problem then became what the appropriate remedy for a violation was i. Greene v. New Kent (1968) – FoC plans do no adequately remedy segregation ii. Norwood v. Harrison (1973) – state cannot loan textbooks to aid private schools that engage in segregation iii. Swann v. Charlotte-Mecklenburg Board of Education (1971) – Court affirms broad equitable discretion of federal court judges in executing and administering desegregation iv. Missouri v. Jenkins (1995) – district court orders a MO school district to eliminate all vestiges of segregation – school district made massive capital improvements to urban Kansas City to attract white suburban students and integrate them with urban communities (magnet schools). The district then asked to have fed ct supervision ended, but was denied, and appealed to SC. District Court orders for salary increases and improvement of low test scores are the big debate topics at the SC level.

1. Held  appropriate test is whether the reduction in achievement of minority students has been remedied to the extent practicable (was there a good faith attempt to comply w/ the court‘s decree). Not whether the district has eliminated all vestiges of segregation. a. SC recognizes broad discretion of the district court, but imposed limits on fashioning remedy: i. Must relate to Const violation ii. Must be designed to restore victims to positions that they would have been in absent discrimination iii. Court must consider the interests of state/local authorities in managing schools b. Dissents  (Liberalies) attempt to uphold the broad discretion given to district court, finding orders reasonable under the circumstances. c. Concurrence  (Thomas) only intentional discrimination falls w/in EP. If the schools have neutral policies, there is no Constitutional violation. Racial imbalance alone cannot be seen as discrimination. 2. Significance – as long as school districts are found to have ―desegregated,‖ enforcement must be ceded from federal courts to local authorities. 2. The Antidiscrimination Principle a. Principles of Classification i. Race – SS – specifically discrimination against African Americans 1. history of mass discrimination a. e.g. Constitution, Black Codes, Jim Crow Laws b. specific purpose of the EP clause and 14th was to help blacks 2. social prejudice a. outright hostility (e.g. KKK) b. stereotypes 3. immutable characteristics a. not a characteristic over which the class has a choice ii. Ethnic Groups – SS – based same criteria above, court has extended SS to ethnic groups 1. However, affirmative action tends to favor three groups only; Native Americans, Hispanic Americans and African Americans not necessarily Jewish, Asian, Indian a. Note: Affirmative action is held out as legislation intended to help, not hurt. The counterargument is that the Constitution is color blind and gov‘t cannot discriminate against race ever. 2. Where to you draw the line on which ethnicities get SS protection?? iii. Gender – IS – based on the same criteria above 1. Many have argued SS should be afforded based on immutability, however, Women are not a minority group and history of discrimination is not as severe because not motivated by hatred or animous. iv. Sexual Orientation – RB – same arguments above are made for sexual orientation and perhaps the most contentious is immutability of sexual orientation. v. Mentally Retarded – RB – court states that most gov‘t programs support mentally disabled individuals and society will care for them as opposed to showing hostility or mistreatment as with other classes. 1. Cleburne – special permit denied to a group home for the mentally disabled gov‘t a. Held  gov‘t showed no rational basis for denying a building permit for a home for the mentally retarded. Group home does not harm the community or neighborhood

b. Korematsu v. U.S. (1944) – in 1942, FDR issued executive orders, later supplemented by congressional legislation, against Japanese Americans—first imposing a curfew, then relocating them from the West Coast to detention camps. Korematsu was a victim and sued under the 5th. i. Held  (Strict Scrutiny – national orgin) The gov‘t has shown a compelling, urgent nat‘l security interest (Japanese sympathizers), and that under the urgent circumstances, internment is the least restrictive means (national security outweighs individual liberties) 1. Concurrence  (Frankfurter) w/in gov‘t war pwrs and actions were a ―reasonably expedient military precaution‖ 2. Dissent  (Jackson) court should not be reviewing military decisions, but if it did, then it has a duty to strike down an order if violative of the Constitution (why no just claim a political non-justiciable question? Don‘t have to remedy) 3. Difficulties in deciding the case: a. Action of Congress – not state action, so the court was required to construe the 5th DP (less tenable – Bolling isn‘t even on the books yet) b. Not a Race Test – national origin, not race, so not as suspect at the time. Japanese in fact attacked the U.S. on our soil as opposed to germans/Italians (arguably more integrated in society). c. Plessy is the law on the books – you could separate people as long as treatment was equal d. Naitonal Security – gov‘t is much less reluctant to protect IR during times of crisis. ii. Judicial Review of Military Decisions During War: 1. Strength of President/Court – most important factor 2. Nature of Constitutional Violation – must be egregious 3. Nature of Emergency c. Washington v. Davis (1976) – D.C. Police has a written test applicants had to pass before employment. Several black applicants failed the test and were denied employment. They sued to invalidate on the grounds that the test was racially discriminatory. i. Held  a law that discriminates on it‘s face will be presumed unconstitutional and trigger strict scrutiny, BUT a law that merely has a disparate impact is not presumptively unconstitutional. 1. Discriminatory Intent – where a law is not facially discriminatory, the P has the burden of showing discriminatory intent [and evidence of disparate impact]. HOWEVER, Gov‘t need only show that the law is neutral and serves a legitimate government interest a. Private Sector – CRA prohibits employment discrimination in the private sector  only have to show disparate impact, not intent i. Employer may rebut with evidence that: 1. reasonable basis for employment practice, or/and 2. practice is essential (business necessity) ii. Griggs v. Duke Power (1971) – employer required a high school diploma to work in a certain area of the power plant. The court said the employer‘s intent is irrelevant, if present discriminatory impact reflects past racial discrimination, the req will not be upheld. High school diploma was not necessary to perform work. b. Public Sector – any race/gender/ethnic discrimination claim against the gov‘t requires a higher standard  P must prove both: i. Disparate impact on class, and ii. Gov‘t intended to discriminate (very difficult)

d. Preferential Treatment for Racial Minorities i. Affirmative Action 1. Regents v. Bakke – bared quota systems in college admissions BUT affirmed the constitutionality of affirmative action programs giving equal access to minorities. 2. Grutter v. Bollinger (2003) – UM law school had written policies giving preferential treatment for admissions to racial classifications: AA, Hispanics and Native Americans. The school conceded drawing racial classifications to increase diversity (interest – compelling interests are typically things like national security though). Each student is analyzed on an individual basis and Minority status is a plus factor, but considered in connection with a host of other factors. a. Held  (1) increas‘g diversity to achieve cross-culturl understnd‘g/ break stereotypces, etc is a compelling interest, (2) the written policy designed to achieve ―critical mass‖ is not a quota, and (3) race status is only one small factor among many others, thus it is the least restrictive means. i. Dissent  (O‘connor) burdens other groups, but not undue burden ii. Dissent  (Kennedy) critical mass IS a quota iii. Dissent  (Rhenquist) critical mass is not a good argument. AA are favored over other racial minorities such as Asians. iv. Dissent  (Thomas) critical mass is not defined or explained. Racial balancing is not a compelling interest. 3. Gratz v. Bollinger (2003) – UM undergrad has a written policy giving members of racial minority groups 20 points in the admissions process. a. Held  affording racial minority applicants a 20 point head start is not the least restrictive means. i. Dissent  (Rhenquist) both programs are unconstitutional ii. Dissent?  (Ginsberg) both programs are constitutional and the language of the constitution does not prohibit ―benign racial preferences‖ put in place to counteract the lingering effects of past legal discrimination. 4. Pushaw Reality – the facts in Gratz and Grutter are hardly different and the potential real differences btwn the cases are hardly substantial. As a matter of law, these both should have been either Constitutional or not. ii. Racial Discrimination in Voting 1. Historical Background – since the 1930‘s, the Court held the 15th forbade discrimination in voting. Voting Rights acts of 1965 prohibited poll taxes b/c south‘n states were using them to deny poor citizens (mainly AA) the right to vote a. Baker v. Carr (1962) – Baker was in a district where the population was as much as 10 times bigger than some rural districts, but had the same number of House reps. He claimed he was therefore not receive equal protection of the laws in comparison to citizens of other rural districts. i. Held  EP clause applies to political and civil rights. Reapportionment issues are justiciable questions 1. Virtually all states apportioned legislature had been based on geographical distinctions and not population. b. Reynolds v. Sims (1964) –. test for evaluating reapportionment claims. i. Held  ―One person, one vote‖ Principle. Districts must be roughly proportional in population

SEX EQUALITY 1. What Justifies Special Constitutional Scrutiny for Gender? a. Early Historical Background – For decades the 14th was not applied to women—states routinely denied woman jobs, the right to vote, and property rights on the grounds that the original intent of the 14th, despite its broad terminology, was to apply to freed black male slaves. States did not want to give up CL rights placing women under the care of their husbands. b. Statutes are often in place to allow women to sue on gender inequality grounds; however, if no statute is available, women must sue on constitutional grounds, so what scrutiny is afforded? c. Reed v. Reed (1971) – established at least a rational basis test for gender discrimination d. Frontiero v. Richardson (1973) – federal law allowed men to automatically claim their wives as dependents, thereby increasing their benefits, but military women were required to prove that their husbands were dependent to receive benefits; law presumes women are dependent on men. i. Held  (Plurality) not consensus on level of scrutiny. Split on SS, IS, RB e. Craig v. Boren (1976) – OK passed a statute prohibiting the sale of "nonintoxicating" 3.2 percent beer to males under the age of 21, but allowed females over the age of 18 to purchase it. i. Held  [ml/fml] gender discrim cases should be evaluated under Intermediate Scrutiny 1. Gov‘t must show: a. important gov‘t interest, b. law substantially related to achieving that interest 2. What does Intermediate Scrutiny Prohibit? a. Intentional Discrimination i. U.S. v. VMI (1996) – state school that denied admission to females. School set up an unequal separate female program (Rhenquist argues if it was it would pass Const muster). A female denied admittance to male program sued, alleging the admission of only men violated the EP clause of the 14th. (intentional discrim so IS) 1. Held  (Ginsburg) VMI has violated the EP clause by not offering same opportunities to women as they do to men. a. Intermediate Scrutiny + i. Gov‘t must have important gov‘t interst AND exceedingly persuasive justification for discrimination AND, 1. ―exceedingly persuasive justification‖ – gov‘t can‘t justify based on overbroad generalizations or stereotypes or after the fact ii. Means must be substantially related to end 2. VMI “important” interests a. Diversity of public institutions in VA – distinguished from Grutter, where the school asserted diversity within the school, not among the schools. Here VMI is saying it is important to have some all male schools (Ginsburg says this is not why VMI was founded, post hoc rationalization) b. VMI has a unique adversarial method that would be destroyed and have to be modified if women were admitted. (Ginsburg says that the school doesn‘t have to change its program, there may be at least some women who can meet the standards) c. Allowing women would destroy the education and prestige (Ginsburg says this rationalization would allow discrimination to persist forever) b. Unintentional Discrimination [through Gender-Salient policies] i. Personnel Admin. of Mass. v. Feeny (1979) – Feeny works in MA & applies for a better job. She is denied civil service job benefits, despite her outstanding performance, because she is not a veteran. She was denied admittance b/c she is a woman when she applied. Military is 98% men, thus the claim is that the veteran benefits are limited to men.

1. Held  Law is neutral on its face, therefore, the EP clause requires a showing of discriminatory intent, not simply disparate impact. The intent of the law is to help veterans, not discriminate against women, thus discrimination is a side effect. No evidence of subterfuge for true discrimination. a. Notes: ―male veterans‖ is clearly unconstitutional on its face, or similarly a law giving preference to NBA or NFL players where 100% are male. i. Counter-argument – the # of pro athletes compared to the number of men is minimal, so the law discriminates against 99.9% of men. IMPLIED FUNDAMENTAL RIGHTS 1. Antecedents a. Fundamental Rights are originally understood to be those rights which are expressly included in the Constitution (DP, freedom from unjust imprisonment, etc.). Historically, from Marbury, the SC could only strike down the law when conflicting with an express constitutional provision b. Today, the court has discretion to imply fundamental right that were originally rejected by the framers and the early court. Often the rights are based on the justices‘ subjective views of morality (i.e. right to privacy) which makes these ―fundamental‖ rights very skeptical i. Pushaw – justices are the worst people to decide morality issues for the country because they are removed from society and typically from elite backgrounds. Accept that the policy you look is not Constitutional. c. Now that the rights have been implied and precedent has been made, the court would have to overturn precedent to take the rights away, which is highly unlikely 2. Methods of Fundamental Rights Adjudication a. The DP Clause is found in both the 5th (applies to Feds) and 14th (applies to States) Amendments i. There are now two branches of DP Jurisprudence. 1. Procedural DP – (the ways in which laws may operate) right to a hearing in front of an impartial decision maker before deprivation of life, liberty, or property. 2. Substantive DP – (what laws may attempt to do or prohibit) cases involve rights that SCOTUS has determined are ―implicit in the concept of ordered liberty‖ and thus fundamental. These rights do not appear in the test of the Constitution (they could be protected other ways, like through legislative processes or state const.) a. Lochner which implied fundamental economic rights is overturned, however, substantive DP is used to imply non-economic fundamental rights. Carolene listed three types of substantive rights in footnote 4 (see above), but judicially created ―right to privacy‖ has allowed the court to imply moral, social and cultural right 3. The Abortion Dilemma a. Contraception Cases i. Griswold v. Connecticut (1965) – CT has a law aimed at discouraging illicit sexual conduct (ok, but to married couples??), banned the sale of contraceptives (and counseling to use the contraceptives). Physicians were convicted of violating the law and appealed. 1. Held  (Douglas) law unconst‘ly violates the right to privacy of married couples a. Court reasoned that the Bill of Rights has ―peripheral rights‖ that exist in the ―penumbras‖ of the BoR and states cannot interfere with them, including privacy; this right is tacked to specific Constitutional provisions: i. 1st – right to association ii. 4th – protection of the home iii. 5th – privilege against self-incrimination iv. 9th – right to retain rights not express in Constitution

b. The Const does not have an express provision guaranteeing right to privacy, BUT the preceding Const provisions imply that the home and marriage is a sacred institution and the gov‘t cannot interfere with this right absent compelling interest (strict scrutiny – fundamental status) i. Pushaw – believes court skirted SDP, by using Carolene holding which states the court could used heightened scrutiny when a law is contrary to specific Constitutional provisions. c. Concurrence  (Harlan / White) law should be struck down, but under 14th which grants ―ordered liberty‖ (substantive DP). i. Harlan‘s understanding redefines ―liberty‖ as a freedom from gov‘t interference into private matters. d. Concurrence  (Goldberg, Warren, Brennan) use the 14th and the 9th to imply a right not expressed in the Const. e. Dissent  (Stewart) silly, but not in violation of the Const because this right to privacy is not enumerated therein f. Dissent  (Black) silly, but not in violation of the Const or natural law 2. Modern Liberty Analysis – after Griswold, the court moves away from the ―penumbras‖ argument, and starts using ―liberty‖ from the 14th a. Does a protected liberty exists under the 14th? i. NO  lose ii. Yes  fundamental interest? 1. No  RB 2. Yes  Does the place undue burden on the fund lib right? a. No  lose b. Yes  SS (except w/ abortion, stop here) i. Compelling gov‘t interest? ii. Least restrictive means? ii. Eisenstadt v. Baird – extends Griswold right to contraception to unmarried individuals under the theory everyone has the fundamental right to have children or not b. Abortion Cases i. Roe v. Wade (1973) – TX law crimlz‘d abortions, except to protect the life of the mother. 1. Held  Women have a fundamental protected ―liberty interest‖ in abortion previability w/out undue interference from the State. a. Abortion is an intensely private, personal decision as to whether or not to bear a child and thus protected under the right to privacy. TX law unduly burdens the fundamental liberty right to privacy in abortion. i. Analogized to Griswold but reinterpreted to follow concurrence. 2. Held  State has a legitimate interest from the outset of pregnancy in protecting both the (1) health of the mother, and (2) the life of the fetus. 3. Held  State has the power to restrict abortions after fetal viability IF they include an exception for women‘s health a. Balancing Trimester Test (modernly unworkable and not applied – medical advances have altered the viability framework) i. 1st Trimester – woman‘s right trumps – protecting material health of the mother and baby are not yet compelling. States cannot regulate abortion, much less prohibit it. ii. 2nd Trimester – the interest of the mother‘s health becomes compelling – states can regulate, but not prohibit abortion iii. 3rd Trimester – interest in baby‘s life is now compelling b/c fetus is now viable

b. Dissent  (Rhenquist) i. liberty interest in abortion is not rooted in our history or tradition which has typically prohibited abortion 1. Blackmun‘s Response  14th amendment and other laws were passed when abortion was dangerous and now medical technology allows states to regulate abortion as a medical procedure. History and tradition can change ii. Medical procedures are generally left to the states 1. Education was too, so what about Brown 4. Roe’s Legacy – overturning Roe merely turns it over to the states, it does not make abortion illegal a. Court upholds Roe, but strikes down the reasoning (extremely rare) b. Upheld i. One Parent Consent for minors – as long as there is a procedure for judicial waiver of this req. ii. Reporting Requirement for Doctors c. Struck Down – undue burdens on fundamental right to abortion i. Informed Consent – having to read about the procedure before getting it performed ii. Consent of Spouse iii. Waiting Periods ii. Planned Parenthood v. Casey (1992) – court considers the abortion debate 1. Changes in the Court, many expect Roe to be overruled. Instead Kennedy writes a joint opinion for the court upholding the ―essential holding‖ of Roe a. 4 justices (Rhenquist, White, Scalia & Thomas) vote to overrule Roe b. 2 justices (Blackmun & Stevens) wanted to reaffirm Roe in full c. 3 justices (Kennedy, O‘Connor & Souter) preserve the ―essential holding‖ 2. Held  Women have a fundamental protected liberty interest in pre-viability abortion (discarded trimester framework). State can‘t impose an ―undue burden‖ on the right to abortion a. Law is a ―undue‖ burden if law has the purpose or effect of placing a substantial obstacle in the path of abortion i. Purpose – states can persuade people to vote one way or another, but if the law is coercive, it will be struck down ii. Effect – state law can‘t prevent women from choosing abortion over birth – it‘s ok if state makes it more difficult or expensive b. Pre-Viability / Post-Viability – women have the right to choose an abortion w/o ―undue interference‖ pre-viability, HOWEVER, postviability states can regulate & prohibit abortion iii. Stenberg v. Carhart (2000) – NE passed a law banning ―partial-birth abortions.‖ 1. Held  (Breyer) law unduly burdens women‘s fundamental protected liberty interest in pre-viability abortions because the law is not precise enough in scientifically defining the type of abortions that are prohibited (court wants NE to distinguish between DNX and DNE abortions), thus it might sweep in and ban pre-viability abortions (8 opinions come out of this case) a. Pushaw – SC should have remanded for the state court‘s interpretation c. EP Argument – the burdens of the laws fall only on women, however, most laws criminalize doctors who perform the procedures, not the patients themselves, so EP will not help male drs.

4. Sexual Orientation a. Lawrence v. Texas (2003) – TX law makes consensual homosexual sodomy a crime. i. Held  (Kennedy) private sexual relations w/in your own home is a protectable liberty interest, but homosexual sodomy is not expressly deemed a fundamental right. ii. Held  DP Rational Basis + (Carolene – ―insular minority‖?) – TX law does not further a legitimate state interest: 1. Court overrules Bowers v. Hardwick, upholding a nearly identical law. Fails to follow precedent directly on point 2. TX argues they are protecting their notion of liberty, but Kennedy looks to ntnl legal landscape and Europe which have done away with similar laws over time 3. Concurrence  (O‘Connor) Should be struck down under EPC because the law singles out homosexuals and treats them unfairly. a. Court is worried the states would re-write their laws and selectively enforce them against gays…. Still would be RB anyways. 4. Dissent  (Scalia) state has a right to legislate based on morality regardless of what other countries or states are doing. Much of criminal law is based on morality (i.e. prostitution). Warns against same-sex marriage. b. Romer v. Evans (1996) – cities in CO had extended certain protections in housing, employment etc. to encompass sexual orientation discrimination (not protected under fed). In response, the CO legislature amends the state constitution, prohibiting the state from recognizing and protecting individuals based on homosexual orientation. i. Held  EP Rational Basis + (Carolene – ―insular minority‖) – there exists not legitimate state interest where the regulation targets homosexuals and imposes a special disability on the class not imposed on any other group (not incidental discrimination). 1. Dissent  (Scalia) there may not be a compelling interest, but there is at least rational basis and the law should be upheld. Thinks law prohibits special treatment c. Unresolved Issues i. Gays in the Military – ―Don‘t ask, don‘t tell‖ Court tends to defer to the military, but a chase challenging this has never risen to the level of the SC. Lawrence and Romer could find this policy violates the Const. ii. Same Sex Marriage – Best ground will be EP because laws deny someone a benefit based on a class. If framed right, it could even be gender based & garner IS. iii. States can give you more rights, they just can‘t take fundamental ones away. CONSTITUTION IN THE MODERN WELFARE STATE 1. The Rise of the Modern Welfare State a. Modern Welfare state has destroyed constitutional structure. The framers embedded the principle of individual economic freedom and protection of vested rights in the Constitution which goes against the idea that the Gov‘t has the right to redistribute the wealth from the rich to the poor. b. Historical disasters such as the Civil War, Great Depression, WWI, WWII shifted the country towards greater federal government regulation and assistance culminating in the New Deal which proposed a flood of regulatory legislation. c. No Const right to welfare benefits or even a minimal level of comfort (no right to standard of living)—they HAVE held that gov‘t has the right to implement such programs (difficult to take away these programs benefits)

2. Procedural Due Process Protection of Entitlements a. Gov‘t cannot unilaterally deprive you of life, liberty, or property i. The essence of the DP clause is: 1. Notice, and 2. Opportunity for a Hearing in front of an impartial decision maker a. Right to administrative hearing for welfare benefits b. Opportunity for a Hearing i. Matthews v. Eldridge (1976) – 3 factor test to determine the hearing‘s nature and timing: 1. significance/importance of the property interest being affected a. benefits allowing someone to eat and live are extremely important 2. extent to which added procedural safeguards will reduce the risk of error 3. public interest in resolving the matter quickly and efficiently ii. Goldberg v. Kelly (1970) – welfare benefits are property, thus the gov‘t cannot terminate benefits w/o providing a hearing before termination (constitutionally DP protection before they are withdrawn) 1. Welfare is extremely important because it is someone‘s livelihood. iii. Loudermill – Gov‘t employees have a property right their job. Gov‘t employees must have notice, an explanation of termination, and a chance to respond. 3. Religion in the Modern Welfare State a. Free Exercise Clause – ―Congress shall make no law … or prohibiting the free exercise thereof‖ How should the modern welfare state treat religious peeps? i. Sherbert v. Verner (1963) – Court applies SS – if a regulation unduly burdens a religious belief, the gov‘t has the burden of proving a compelling interest and that the regulation is narrowly tailored to meet its end (overruled in Smith) ii. Wisconsin v. Yoder (1972) – WI law state everyone had to attend school until age 16. Amish individuals challenged this law b/c it placed an undue burden on them for their religious beliefs. 1. Held  law unduly burdened the religious beliefs of the Amish a. Court noted the Amish are hard-working, good people who educate their children at home (hard for ct not to be friendly to Amish, they go out of their way to point out the good nature of the culture… poor poor Amish) iii. Thomas v. Review Board (1981) – Jehovah‘s witness believer quits his job b/c it required the production of armaments, claiming that this violated his religious beliefs. IN then denies him unemployment benefits b/c he didn‘t have a ―good cause‖ to quit, but rather left because of ―personal reasons‖ 1. Held  (applying SS under Sherbert) State has an interest in preventing unemployment for personal reasons, but this is not compelling enough to override the fact the P won‘t be eligible for benefits because of his religious belief. iv. Oregon v. Smith (1990) – OR law criminalized possession and use of peyote. Native Americans challenge the statute as burdening their use of peyote for religious ceremonies. Gov‘t conceded the religious sincerity of the NA‘s, but upheld the law and withheld unemployment benefits b/c peyote was illegal. 1. Held  states can pass and enforce neutral laws of general applicability. Only face RB review, UNLESS P can show a law is directed at a religious practice a. Rationale – great religious diversity in America so we can‘t hold every law that might burden a religious right invalid unless the state can prove a compelling interest (overrules Sherbert)

b. Establishment Clause – ―Congress shall make no law respecting an establishment of religion.‖ Through the incorporation doctrine, the EC now applies equally to the states. Can Gov‘t give money to religious institutions generally? Or give money and aid private parochial schools? i. Pushaw – courts have made a mess of EC. Originally it was a jurisdictional clause, leaving the rights to establish religion to the states ii. Everson v. Board (1947) – incorporated the EC through the 14th. Created a ―wall of separation‖ btwn church and state (court followed this absolutist approach and originally struck down nearly everything) 1. Pushaw – ignores years of tradition and history which directly conflict w/ idea iii. Lemon v. Kurtzman (1971) – Lemon Test – the gov‘ts action must: 1. have a secular purpose, and 2. not have the primary effect of either advancing or inhibiting religion, and 3. not result in excessive ―gov‘t entanglement‖ w/ religion a. Note: factors are very difficult to apply; modern courts are more receptive to state efforts to aid religious schools iv. Committee for Public Education & Liberty v. Nyquist (1973) – Court strikes down 3 forms of public aid to private school, mostly composed of Catholic schools. Violative of 2nd prong of lemon test by advancing Catholic religion. 3 provisions were: 1. Improvement funds for repairs, and to maintain schools a. Possibly different if state limited funds to secular purposes, but did not 2. Tuition reimbursements for poor parents a. Violates EC if given directly to schools as a subsidy and semantics of labeling it a ―reimbursement‖ does not make a difference 3. Income tax deductions a. Financial benefit 4. Significance – Lemon creates arbitrary line drawing and inconsistent decisions v. Post Nyquist – move toward pure neutrality btwn religious and non-religious schools and Court has become receptive to religiously affiliated schools: 1. Mueller – allowed income tax deduction for sending children to religiously affiliated schools 2. Agostini – Court overrules previous cases and held that the state could aid special needs programs in private schools. 3. Private school vouchers upheld


				
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