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Constitutional Law Class Notes


									Constitutional Law

September 4, 2007

Federalist Paper No. 78, by Alexander Hamilton
The court is the least dangerous, but the most responsible.
3 categories of reasons why the Supreme Court has been argued to be the proper place for
this power.
     Institutional Reasons
          o Court is passive
          o Court sits as a detached body, they see the case develop in practice.
          o Contemplation of enduring values, not expedient
     Procedural Reasons
          o It is the duty of the court to resolve the dispute
          o Exercise the power to enforce the constitution
          o Do not decide a case on a constitutional basis if there is any other procedural
              way to decide
     Political Reasons
          o Structure of Governments – politicians don’t always play by the rules
          o Individual freedom at the forefront
          o Protect the minor players, the ones who can’t get into the game
          o Makes politics fair and outcomes are in accordance with the substantive
              values in the constitution.

   Cooper v. Aaron, required the SC to remind Arkansas that interpretations of the
   constitution applied to everyone.
   Dickerson v. United States, 2000 – Note 4 on page 28. Mere statute can not overrule a
   constitutional decision.
   Marbury v. Madison is evoked over and over.
   Supreme court is not made up of political novices. They know when they tread on thin
   ice with certain decisions. SC professes to adopt significant limitations to their
   jurisdiction. Ie. Subject matter jurisdiction, nature of the parties.
   Tiny percent of cases get taken up on Certcerari.
   Not only legal limits, but self imposed limits on their jurisdiction.
        Political Question
        Case or Controversy
        Standing
These are gateway issues to talking about the Constitution.

      Political Question Doctrine
          o Luther v. Borden – Rhode Island
          o Baker v. Carr
                   Equal Protection Clause in 14th Amendment
                   TN’s defense was that there is no jurisdiction of the federal court to
                     hear the case. P states that this case arises under the laws of the
                     federal government (constitution 14th Amendment) and there if federal
                    2nd argument raised by the defense is standing. Standing – parties
                     who have a personal stake in the outcome of the case. Only way our
                     justice system works is if the persons involved are interested parties.
                    3rd argument is the political question doctrine – the issue is
                     nonjusticiable – as a matter of judicial policy, the supreme court does
                     not hear cases that are political in nature. This is not mandated by any
                     law or constitution.
                          Separation of powers. Inherent in the power of the SC to
                             enforce the constitution, must be the power to keep the powers
                             of the government in their place.
                          The court is the branch that determines which branch makes
                             which determinations. Therefore the judicial branch must have
                             the will power to not usurp the executive or legislative branches.
                          Threshold issue – the relationship of the judiciary and the
                             coordinate branches of the federal government, and not the
                             federal judiciary’s relationship to the states, which gives rise to
                             the political question.
                                 o It doesn’t have anything to do with the relationship
                                     between the SC and the states, b/c its based on
                                     separation of powers among the 3 branches of the
                                     federal government. Is that what is at issue!!!!
                          Dissent from Justice Frankfurter

Nixon v. United States
   o Procedure used by the US Senate to hear Nixon’s impeachment was
   o When can a court intervene in an impeachment? Would a court be called on to
      determine what a ‘high crime and misdemeanor” is?
          o While the trial issues are for the senate, the substantive issues may be for the

INS v. Chadha
   o What is Chadha’s argument?
         o One-house veto is unconstitutional
         o The question is not whether congress exceeded its authority, the question is
            whether the procedure used enact the law. It was an unconstitutional
            procedure to have a one-house veto.
         o Checks and balances so that no part of the government wears a crown and
            that power is spread out between the branches.
                Interpreting statute, this is not a political question because it’s not who
                   gets to make the laws.

Clinton v. New York
     Line Item Veto power
          o May be efficient, but the constitution does not provide for it.
          o Protect the freedom and liberty of the people.
          o Separation of powers is designed to make it difficult to act, to make them
             think, compromise before a law is passed.
          o Structures of federalism and separation of powers are the guards of liberty.
      Buckley v. Valeo
      Bowsher v. Synar – Controller General
      Morrison v. Olson – Independent Counsel – out of the Watergate case
          o Procedure for appointment of an independent counsel is constitutional

Political question doctrine is one created by the SC and imposed upon itself.

September 11, 2007

Advisory Opinions – Supreme Court of the US does not have jurisdiction to issue advisory
opinions. Can only decided cases or controversies. Article III § 2.

Mootness – no case or controversy. The issue may become moot during the process of
litigation. If looking for injunctive relief after an issue becomes moot then court has no

Some issues may become moot but the court may still decide. Depending on the facts,
there is an very narrow exception to the doctrine of mootness.

Ripeness – situation is not ready for litigation

These 3 objections have nothing to do with standing per se. they have to do with issues.

These are all about Article III limitations. Not everybody – not everything limitations.

Standing, however, is all about the individual or person who is harmed.
Standing is important in criminal law. Evidence suppression for lack of probable cause may
only be extended to certain persons.

Rules of Standing
2 sets of rules about standing
            Constitutional Basis of Standing
                  o Requirement of personal injury or Injury in Fact
                  o That the action that allegedly occurred is fairly traceable to an act of
                     the Government
                          Constitutional law – relations between you and government
                  o Matter must be redressable by a court, must be able to give a remedy
                     (political question)
                 Prudential Rules of Standing 1– assuming the 1st 3 rules of standing are in
                  place a court can still opt out of a case
                     o Asserting rights of 3rd parties rather than your own
                     o Question raised is a general grievance of widespread concern
                     o Claim raised must be in a zone of interest that the constitution protects
                         and has allegedly been violated
                 Congress can not give Constitutional Basis Standing

Warth v. Seldin
Is the injury fairly traceable to the government? Claim is too speculative.

Lujan v. Defenders of Wildlife
Plaintiff must assert the constitutional basis of standing before congress can give prudential
standing. The court finds these plaintiffs do not have constitutional standing. Injury has to
be brought in the present sense. Tangible injury. Not speculative that they might want to
got see the animal.

Odd cases in standing
Under 1st amendment, rules of standing are broadened for fear of a ‘chilling effect’.
Allowed a greater latitude to bring a suit based in the 1st amendment.
Federal election com v. akin – generally a suit by taxpayers to make the federal election
commission to open books might be too general. But they had an interest as voters to
know who politicians got donations from
Puitan suit – gov’t contractors. Private party can sue
Vermont resources v. US
Flast v. Cohen – taxpayers

Diamler Chrysler Corp v. Cumo
      Hine v. Freedom from Religion
      Kowalski v. Tesmer, Michigan – ct adopted policy, policy limited court appointed
counsel to indigent persons.

Article III § 2 “with such exceptions and under such regulations that congress shall make”
Does this mean that - Could congress by statute eliminate federal court jurisdiction?
     Ex parte McCardle
     Congress can not take away what the constitution gives to the judiciary
             Felker v. Turpin pg. 80

September 18, 2007

U.S. Term Limits, Inc. v. Thornton
Fundamentals of the system. Do the states have some residual power to impose term
limits absent specific language not allowing it.

  Congress from time to time has wanted people to bring suits. So they have written in to certain statutes that certain
individuals have standing. Congress is able to give a person standing over the objections of the court that the person
would violate the PRUDENTIAL rules of standing.
Term limits struck down. Constitution doesn’t specifically say that the states don’t have a
power, but they didn’t have this power to begin with.
The federal government is created by the people, the states have the power to set up the
place and time of the elections.
Thomas’s dissent
       In all respects the states are represented in the federal government, and the people
are represented through those states and therefore the states power is much larger than
what is recognized by the opinion.
9th Amendment – rights retained by the people. Focuses on that individual.

Executive Power

History of the power of the presidency
    Executive branch is not expansively described in the constitution
    Executive power was at its pinnacle during the presidency of Lynden B. Johnson.
    Negro speech may have helped him become vice-president
    He got the 1964 Civil Rights Act passed. Radical for even our time.
Since 1900 the US has committed combat troops to actual fighting circumstances
around the world over 130 times without a declaration of war.

      Constitution places little limitations on the presidency.
      Article II
           o §1 Age, Natural born citizen
           o §2 Commander and Chief, state of the union address, contingent powers –
               make treaties and appoint persons.
           o One question that arises – should the powers contained therein, should a
               court liberally construe the powers or constrict the powers. What is the criteria
               for presidential power. What circumstances?
           o President is the expatiate force, can react quickly
           o Do we need to build in limits all along the way so that we don’t get into a
               situation where the president can overtake too much authority.
           o No test for presidential power boundaries.

Youngstown v. Sawyer
    President orders Secretary of Commerce to take over the steel companies on the
     verge of a strike.
        o There was no law that allowed the president to do this
    Justice Jackson concurrence is key
        o When you sit down to interpret any act of the president, you have to juxtapose
            that action against congress.
        o Whether federal power is exceeded
                Violated one of the protections reserved to individuals
        o Where there is no congressional action, there is a zone of twilight.
        o Only congress can prevent power from slipping through their fingers.

   1. Classic war powers
   2. foreign affairs outside war powers
   3. protect the institution of the executive.

What does Commander in Chief mean?

Ex parte Milligan
    Charged in a military court in Indiana
          o Sentenced to death
    Files with the SC a writ of hapeas corpus – directs a jailer to ‘bring the body’ as to
    Milligan’s argument – denied constitutional right to grand jury, being held in violation
      of constitutional rights.
    Whether the president had the power to order this citizen to stand trial in a military
          o By the protection of law, human rights are secured
          o The constitution give the federal government all the power it needs to survive,
               it needs no more.
          o Article I of the constitution can only be suspended in times of war and other
               extreme circumstances.

1945 SC Koramatzu v. US – Japanese internment camps

Ex Parte Quirin
Who can be tried in a military court or a regular civilian civil court
    There is a difference between a lawful and unlawful combatant.
    Unlawful combatants
          o Treated as prisoners of war
    Individuals who pass through enemy territory, the passing of the boundary and
      intending to commit terroristic acts can be tried as an enemy combatant in a military
    Consider Youngstown Sheet – president acted w/o congressional authorization.
      President must make a compelling argument that
    President has the power in the theater of war, but Youngstown is not in the theater
      of war.
          o Youngstown is related to the war effort, but not directly related. Doesn’t carry
              the same weight as when in the ‘theater of war’.
          o Its hard to put brakes on the executive power once it has been used.

Hamdi v. Rumsfeld
Plurality decision. There was congressional authorization for this. This is not an Article II
    Decide that the classification of enemy combatant here is appropriate
    Court talks about an issue not brought up in Milligan
          o What if person denies enemy combatant label – due process
      8 of the justices agree that the court can not defer to the president. 5 said due
       process requires notice and opportunity to be heard.

Hamden v. Rumsfeld
Follows up on Hamdi
     Bouied v. Bush – US District Court ruled statute unconstitutional
          o SC denied Cert. position was that captured people had not exhausted their
             administrative procedures. They said the matter was procedurally premature.

October 2, 2007

Commerce Clause
   Gibbons v. Ogden (1824)
       o Defines a limitation on the commerce clause in a circular fashion – not clear
                Says everything that is not interstate is intrastate commerce
   Problems occurred in the late 19th century – Trusts aka Monopoly’s
   Sherman Anti-Trust Act passed – criminal statute and civil statute
   US v. E.C. Knight Co. – Sugar Trust Case
       o Challenging the constitutionality of the Sherman Act
       o E.C. Knight argues that manufacturing is not commerce
       o The Supreme Court agrees that the disposition of goods is secondary to
           manufacture. Crisis of monopolies does not expand the authority of
       o At the same time, there are cases that uphold the Sherman Act, and the
           interstate commerce act. Houston E &W v. US
       o Champion v. Ames; dissent is interesting citing the 10th Amendment.
       o Hipolite Egg v. US
       o Hoke v. US – the Mann Act
       o Liquor, drugs, bad food, gambling and loose women
   Industrial Revolution occurred
       o Child labor
       o Hammer v. Dagenhart (1918)
                SC reversed the lower court and proclaimed act unconstitutional
                10th Amendment used again
   1935 New Deal legislation
       o National Industrial Recovery Act of 1933
       o Struck down in Schechter Poultry v. US
       o 10th amendment means that certain sovereignty must remain with the states
       o Court introduces the concept of ‘affect’
       o Create direct v. indirect affect
       o Congress says that regulation would promote the economy
       o Would make congressional power limitless to regulate everything
   NLRB v. Jones & Laughlin Steel Corp
       o National Labor Relations Act – gives workers a statutory right to join and form
           a union and provides procedures for an agency to oversee elections. If a
               group wins a majority in an election, they bargain on behalf of the worker with
               the management of the company.
           o Key to the heart is labor peace.
      US v. Darby
           o Fair Labor Standards Act – minimum wage, child labor, over-time
           o Can the court uphold this act and not overrule Hammer v. Dagenhart? Not
           o As long as the congress is not doing anything prohibited by the constitution,
               then they are within their power under the constitution.
      Wickard v. Filburn
           o Regulation of wheat produced
           o Aggregation principle – commercial activity affects interstate commerce
      Commerce clause litigation settled down after this decision
      Heart of Atlanta Motel v. US
           o 1964 Civil Rights Act was based upon Congress’s power to regulate congress
               (not in the 14th Amend. Like it actually is)
           o If motels will not rent to blacks, blacks won’t travel. Interstate commerce of
               human beings traveling will be affected. This commercial activity aggregated
               would affect the commerce of the country.
           o Start to formulate a test of the constitutionality of a statue under the
               commerce clause
                   Did congress have a rational basis to decide that the area regulated
                       affects interstate commerce?
                   Were the means that congress chose to regulate rationally related to
                       the ends
                   Did the means chosen violate the Bill of Rights?
      Hobbs Act – crime to affect interstate commerce by extortion, by the wrongful use of
       fear of the color of right.
      Depletion of Assets theory – by extorting business, the bad guys rendered them
       $150 less capable of buying the interstate goods they were buying. As long as you
       can show that the assets of a business entity were depleted and could not be used
       to continue purchasing goods from other states, then the interstate commerce
       clause applies.
      National League of Cities v. Usery – Rehnquist
           o Minimum wage regulation of state employees
           o Rehnquist says no. always an affirmative limit of congressional power
           o 10 Amendment comes up again to protect state sovereignty
           o He does not try to redefine commerce, just like the 1-8 amendments limit
               congress’s power, so does the 10th
           o Test for federal statute regulating
                   Regulates the states as states
                   Regulates them on matters indesputbily important to state
                   Compliance w/ federal law would directly impair states ability to ..
           o Case was overruled. Test was unworkable - Garcia

October 9, 2007
Is there any theoretical limit on the commerce clause?
Unlimited commerce clause and the supremacy clause would swallow up any limits on
federal power.
Structure in the federal government would supply the limits. Court would have little role to
play, politics would take care of it.
Isn’t really any outside limits on what congress can do under the commerce clause. Maybe
the day will come when the court has to step in and not just rely on the political system to
self correct.

United States v. Lopez
    Gun-Free School Zone Act
    Constitution of US creates a gov’t of enumerated powers. Few and defined. One of
      them is to regulate commerce.
    3 broad categories of commerce

   Is the law valid:
   1. was it properly enacted
   2. proper exercise of federal power under the commerce clause?
           a. Whether the area regulated constitutes commerce under the constitution
                     Congress can regulate the channels of interstate commerce – the
                       free flow of goods, train routes, goods passing in actual
                     Regulate the instrumentalities, things or persons in commerce, even
                       when they come from an intrastate activity. Airplanes and people
                       who fly in them.
                     Congress may regulate those acts having a substantial relation to
                       interstate commerce.
                         1. Rehnquist says we have become sloppy and lazy (pg. 155)
           b. Whether the means chosen are rationally related to the ends. 5th Amendment
           c. There may be some prohibited means (there are other sections of the
              constitution which tell you that even though the gov’t regulates an area, the
              particular regulation violates it)
                     Bill of Rights
                     10th Amendment
                     11th Amendment

      Who will decide what substantially effects interstate commerce? The US Supreme
       court will decide.
      Why – prior cases have upheld commercial activity where congress decided to
       regulate all aspects (wickard). This was commercial activity. But that aggregate
       principle applies only when the activity is commercial in nature. Is this law
       concerned with commercial activity?
       NO, this is criminal conduct with no commercial side to it.
      No jurisdictional element to determine on a case by case basis.
      Look at legislative history of this law. Back in the day of Garcia, or Marshall (let the
       ends be legitimate) – no problem
      There is a limit on what is enumerated otherwise the enumeration of powers is
      This decision limits the commerce clause power. Doesn’t define external limit.
       Redefines ‘commerce’.
      Justice Kenney – preserves individual liberty. What are the external limits to
       congressional power?
      Justice Thomas – if it were up to him, he would seriously challenge the 3 rd prong of
       commerce in its entirety.

Jones v. US
    Any building used in interstate commerce destroyed by some act of violence

United States v. Morrison
    A crime motivated by gender would give the victim a federal cause of action
    Is this an area within the commerce power? No the aggregate principle in
      inapplicable because this is not the kind of activity that the gov’t can aggregate for
      purposes of power under the commerce clause.
    Unconstitutional – didn’t fit inside the definition of commerce

Gonzales v. Raich
   Wickard is the controlling case. Instead of Wheat, its weed.
   Congress in this context had a rational basis.
   We can aggregate in this case.
   Justice Thomas dissents with Justice O’Conner – they don’t argue this redefines

New York v. United States
   Low level radio active waste.
   Is this law an area that properly regulates interstate commerce? Yes, it was actually
     a product that crossed state lines. This was substantially affecting interstate
   Congress may not commandeer the legislative processes of the states.

Printz v. United States
     Violation of reserve state sovereignty. State officials are the same as the state
       legislature in essence.
     Executive branch of gov’t executes the laws of the US. Is the sheriff part of the
       executive branch? No, is congress usurping the power of the executive branch.
     Whose power is expanded? Congressional legislative power is expanded if they can
       pass a law to have people enforce their laws.
     Rare case in which federalism and separation of powers are both violated.
     Violated 2 different section of the Constitution.
      Case emphasizes that this is not being done b/c its cute, what federalism protects is
       individual liberty, separation of powers protects individual liberty. They do not begin
       to usurp power.
      Arguments about the 10th amendment – bill of rights is not only line of protection.
       The overall protection would come from the limitations of government.

Reno v. Condon
   11th amendment

Chisholm v. Georgia
    Contains a citation to a political philosopher – Thomas Reed.
    11th Amendment – seems to only apply to states in suits by persons from another
    SC has interpreted it far more broadly than that

   3. was it properly enacted
   4. proper exercise of federal power under the commerce clause?
         a. Whether the area regulated constitutes commerce under the constitution
                    Congress can regulate the channels of interstate commerce – the
                      free flow of goods, train routes, goods passing in actual
                    Regulate the instrumentalities, things or persons in commerce, even
                      when they come from an intrastate activity. Airplanes and people
                      who fly in them.
                    Congress may regulate those acts having a substantial relation to
                      interstate commerce.
                        1. Rehnquist says we have become sloppy and lazy (pg. 155)
         b. Whether the means chosen are rationally related to the ends. 5th Amendment
         c. There may be some prohibited means (there are other sections of the
             constitution which tell you that even though the gov’t regulates an area, the
             particular regulation violates it)
                    Bill of Rights
                    10th Amendment
                    11th Amendment
                       11th Amendment prohibits a suit against a state (the state itself
                          and state agencies) by both citizens of another state and citizens
                          of their own state.
                              o It does not protect cities, municipalities or political
                                  subdivisions like schools.
                              o Where does the 11th apply?
                                      If state sued in federal court
                                      federal agency
                                      in a state court but where the P raises a cause of
                                         action based on a federal statute.
                              o Exceptions
                                      If statute that is being used to sue the state is a
                                       statute based on 14th amendment the suit may
                                             § 5 is a grant of power to congress to
                                                effectuate the 14th amendment. Amends
                                                Article 1 § 8 to give congress new power.
                                             14th amendment was the newer amendment.
                                                It allow congress to pass laws that would
                                                otherwise violate the 11th amendment
                                                because the 14th limits the application of the
                                      Where the federal gov’t itself sues the stae
                                      Where the suit is for injunctive relief against a state
                                       official, the 11th amendment doesn’t bar it.
                                      Where the state has waived sovereign immunity.
                                       Waiver must be express and will often happen in
                                       cases where the states have received federal
                                       money and on condition they agree to waive
                                       immunity under the federal program in which they
                                       receive the funds.
                                             The waiver of the 11th must be express –
                                                Kosworth v. Pa Dept. of Corrections

Writing assignment
Must be own work – don’t give or receive help from anybody
Memorandum of law
       Give us a courts findings of fact w/ several Plaintiffs –we represent them all
       Submit a memo that addresses the constitutional points noted
       2400 words. Times or ariel 12. 10 pages double spaced.
       10 pages to convince court your clients are right
       Pick arguments and go with them
       US district court judge, the judge already found the facts
       Take the facts and argue them from the constutional perspective of your clients
       Judge will give this a good careful reading.
       Easy to read, compelling. Cite cases correctly. Do additional research – ok.
       Material so far is sufficient to understand and use.
       Be creative and compelling and convince judge

October 16, 2007

11th Amendment matters
Protects the state and its agencies from suit. No immunity when the federal government
brings suit against the state.
Last area of limitation
14th Amendments scope when congress passes laws.
     Post civil war amendment.
     Gives to people the protection of life, limb and property.
     People can sue under 14 directly.
     § 5 – congress is authorized to pass laws that enable suits.
     If a VALID suit is brought under 14th amendment, than 11th amendment does not bar
       the suit.
     Only protects you against suit by the state.
     If the suit allows an action against a private party – then it doesn’t work.

Kimel v. Florida Board of Regents
    Age discrimination Act is not a law passed under the 14th Amendment
           Where is the hook in the constitution
           Gov’t doesn’t have general power, only power granted by const.

Tennessee v. Lane
    Americans with disabilities act.
    State defended on 11th amendment
    Found it was validly based on 14th amend. and commerce clause
    14 used to protect basic rights if state is infringing upon them.
    Fundamental constitutional right to access to the courts, that right is not expressed
     in constitution, but it is one of those that any rationally system would have to imply to
     be there.
    Proper 14th amend suit and not barred by 11th amend.

Federal Maritime Commission v. South Carolina Port Authority
    11th amend applies in federal regulatory agency as well.
    Thomas makes a comment about importance of 11th
    Concepts that seem abstract, are all rooted in a deeply held basis of regardless of
      laundry list of individual rights – we need something more to limit gov’t and to protect
      against a gov’t becoming a tyranny. Federalism. If gov’t fight each other they will
      limit the reach of each of them.
    Underlying theory of constitution is that individuals come first. Enlightenment theory.

Other Powers under the Constitution

Taxation and Spending
Art I § 8 – Gov’t has the power to tax. What are the limits?

Bailey v. Drexel Furniture Co. – Child Labor Tax Case
    Gov’t taxed goods produced by child labor
    Overruled in essence but never specifically
    Tax wasn’t really to raise money or revenue.
    Gov’t trying to regulate an area they could not under the commerce clause
      Kahriger – court said they will strike down a statute only if we find that penalty
       provisions that are extraneous to any need for revenue that congress has. If it is
       extraneous, then is there another area of the const. that does grant the power? If
       no, then statute will be struck down.

Spending Power
   May be more broad then the taxing power
   Social Security? Spending clause – provide for the general welfare.
   How far can it be stretched?
   The critical case is South Dakota v. Dole

South Dakota v. Dole
   States spending on highways
   Federal gov’t says highways will be greatly improved if the drinking age was raised
      to 21.
   If a state does not raise drinking age, then they will withhold 5% of the highway
   Commandeering is a specific limit on the commerce power – here not regulating, just
      spending money.
   Must first find a clause that allows the power
   Court is not as rigorous in insisting on a more narrow construction of the clause.
   1. is spending for general welfare?
   2. place conditions on the money
          o Want conditions to be clear.
   3. the court allows itself the ability to ask whether the conditions are so unrelated to
      the interests being funded that it is not a proper condition of the spending money.
   How close of a relationship does it have to be? Tight fit of means to ends or give the
      gov’t a wide berth as they do on the general welfare.
   4. neither the program itself nor the conditions can violate some other provision of
      the const. cannot induce the state to violate constitutional requirements.

Caslow v. Pa.
   Test from dole
   Provision was pertintent to federal program trying to be implemented, not requiring
      something from the states that was unconstitutional.

Spending clause is a broad power under the constitution.

Federal gov’t can tax and spend and regulate commerce, interstate commerce. States
have the powers of police powers. To legislate for the health, welfare, business activity,
etc. if regulation is in conflict w/ state, fed wins under commerce clause unless it is not
State law can be struck down even if not in conflict w/ a fed law under commerce clause b/c
state’s lack power to regulate interstate commerce.
Dormant Commerce Clause
    Commerce clause itself tell you that there are certain areas states cannot approach.
    Pull the states back.
    Even if congress has no law.
    History: states engage in brutal competition with each other. Economic
    SC has never adopted wait and see attitude.

Gibbons v. Ogden
    If the act is regulating interstate commerce then it is within the congressional prevue
      to regulate.

Cooley v. Board of Wardens
   Congress alone can regulate interstate commece, and you define interstate
      commerce in a broad an expansive way, this would leave the states little to do.
   States argue that there are purely local concerns that would not choke interstate
      commerce. Police powers give the right to legislate.
   Matters of local concern, where they are not to protect the goods and services, but
      the concern is safety, then legislation is legitimate.
   Could the federal government pass a law for federal license,

Disanto v. Pa
    Force people to travel locally.
    Unconstitutional

Buck v. Kuykendall
    State denying interstate travel
    Unconstitutional

Bradley v. Public Utilities Commission
    State argued there was a safety problem with the roads, not economic protectionism
    State made the case factually that the problem was safety
    Upheld

So much of these cases deal with a factual basis. After a certain point a factual basis – a
point at which justices condemn commerce clause analysis. Court then acting as a

Edwards v. California
   Lyrics to song aragon mill
   Knowingly brought an indigent person into the state was a crime
   State argues valid exercise of police power
   This was economic protectionism. They are trying to hoard their reseources.
   Quintessential purpose of the commerce clause.
   State cannot isolate itself from social problems of the nation.
      Commerce power is Intended, immediate and absolute.
      Large scale migration is a national problem.

Southern Pacific Co. v. Arizona
   Arizona passes a law prohibiting railroad trains of more than 14 passenger or 70
      freight cars.
   Is there a federal law that conflicts with this? No
   Railroad must attack the motive – protectionism is the motive – the evil that the
      commerce clause is meant to protect.
   Does the burden of interstate commerce supersede safety?
   Federalism. In actual operation and effect can encroach in an area that is reserved
      to the federal government courts have federal mandate to get back across the line.
   J. Black, dissenting.

4 part test developed from these cases

Cited from Pike v. Bruce Church, Inc.
Page 256
When challenging a state regulation under commerce clause and no federal law in conflict
that would trump it
       1.      is the law evenhanded as to interstate comm.
       2.      does it serve a legitimate state interest (economic protection is not a
       legitimate state interest)
       3.      does the burden placed on interstate comm. Exceed the importance of the
       local interest served (balancing)
       4.      is the test the least restrictive alternative – does the state have another way of
       achieving the interest w/o burdening interstate comm.

Sticky when state can make a case for the 1st 2 parts of the test.

October 23, 2007

Writing Assignment – should be done soon. Put in mailboxes in envelopes.

Also put out a sheet on 2nd floor to sign up to see him Saturday afternoon and Thursday of
next week.

      Advocates’ style is different than the courts style.
      Make allocation then use precedent to support argument. Does not ignore contrary
       precedent, it uses contrary precedent to strengthen the argument.
      Principle matters address for these clients. The individual assessed with $$, her
       argument is that congress does not have the power under the commerce clause.
       She is not a state and therefore the 10th amendment has no barring.
      Wickard, raich, then lopez and Morrison. Draw parallels between your case and
       lopez and Morrison.
      Behooves you to make sensible argument to distinguish those cases – Wickard and

   Dormant Commerce Clause
       Supreme Court today has delineated 2 reasons
            o Definition of commerce - Lopez said that the court must define what
              commerce means to restrain congress
            o 10th Amendment – says even though something congress has done is
              under the commerce clause power, when a state is commandeered, that
              is unconstitutional.
                   Allows the court to strike back what congress has done. Defined as
                      a matter of law.
       Does the court have the means to tell a state they have gone to far?
            o Dormant commerce clause analysis
                   Certain areas are given to congress by way of plenary jurisdiction
                      and power.
                   If the state encroaches on that area, they are encroaching on
                      congress’s constitutional power.
            o No clause in Constitution to guide the court
            o 4 part test
                   Is the regulation even handed
                   Does it serve a legitimate state interest
                   Does the burden on commerce exceed local interest.
                   Is the state using the most prescriptive alternative as a means to
                      the end.
            o What is the line?
                   Congress.
            o Majority view
                   To what extend should it get involved in making judgments that
                      scream of policy judgments.
                   Doesn’t this risk taking the courts in to the arena of structural

Philadelphia v. New Jersey
       Is the law even-handed as to interstate commerce? No this law is discriminatory
          to out of state garbage.
              o It is discriminatory on its face as to interstate commerce.
       Is there a legitimate state interest involved?
              o State says the law is for the health and safety of the residents.
              o Is health and safety the main motivation for the law or is it economic
       What is the balancing? Burden regulation places on interstate commerce v. the
          intensity of the local benefit.
              o Nature of the burden is a ban on interstate commerce in garbage. Burden
                  is a ban – big burden.
              o Local interest must be legitimate. What is the benefit of only banning out
                  of state garbage. In state garbage is still going into the landfill.
          Classic situation of no meaningful argument under the commerce clause that this
           should stand. Complete ban v. a health and safety benefit.

Maine v. Taylor
    Even though discriminatory on its face, the law is constitutional. Why?
          o It does serve a legitimate state interest? Yes, purely environmental.
          o The burden is small compared to the importance of the local interest. It is a
             virtual ban on baitfish.
          o No economic interest that is being protected in the state of maine.
          o Intensity of local interest – if you bring in the baitfish from other states, all the
             baitfish in the state will die.
          o Is there a less restrictive means? No.

Chemical Waste Management v. Hunt
   If you don’t have a baitfish argument then you need help, it looks like economic
     protectionism, then there is no local interest.
   Less discriminatory than a ban, but it is still discriminatory. Just a milder version of
     what new jersey did.

Oregon Waste Systems v. Dept. of Environ. Quality

West Lynn Creamery v. Healy
   A pure subsidy funded out of general revenue ordinarily imposes no burden on
      interstate commerce.

Camps Newfound/Owatonna v. Town of Harrison
   Property tax. Not an even-handed law.
   Maine’s interest is not health and safety. They are trying to extract services for
     maine residents. That is the reason why the law gets struck down.
   Economic protectionism of services for maine residents.
   Majority view is that Maine law is discriminatory on its face.
   Minority view is different. scalia and Thomas

Granholm v. Heald, 544 U.S. 460 (extra reading)

Dean Milk Co v. Madison
   Anytime you discriminate against interstate commerce, the law will fail.
   Even-handed means is it discriminatory on its face.
   The burden on interstate commerce v. the local interest
   Lest restrictive alternative – can you find an easier means to do this without
     burdening interstate commerce.
October 25, 2007

Pike is the most common case cited that applies the test for the dormant commerce clause.
State doing the discriminating or others in the state doing the discriminating.

C&A Carbone, Inc. v. Clarkstown
   Even-handed? No, discriminating against interstate commerce by not allowing the
     businesses inside the state to ship their garbage outside the state.
   All interstate commerce from garbage in this town is banned, therefore it is not even-
   Legitimate local interest?
         o What is the affect on interstate commerce v. the local interest.
                 Ban on interstate comm. v. intensity of local interest
   Lesser restrictive alternative? Inspectors. Then there is no affect of interstate
   Local interest in case is local economic interest – that is clearly economic
   Legislation is not protecting a class in the town, its protecting one guy! 2

Baldwin v. G.A.F. Seelig, Inc
    Evan handed? Banned any purchases from out of state unless you paid an extra
      $1. Not even-handed. Discriminates against out of state suppliers.
    Purpose was to keep local dairy farmers in business. If prices went to low, then they
      went out of business. State enacted to stop cut-throat competition.
    Is this a legitimate state interest? No, this is economic protectionism. What is the
      purpose of the statute? To protect local dairy farmers. No a legitimate state
      interest. Discriminated against out of state competetors.
    What if everyone has to sell milk at at least $1.
          o Is this even-handed? Yes. Applicable to everyone regardless of origin.
             Effect is the same, no discrimination.
          o What is the legitimate reason? Stabilize the price of milk in the state.
          o Evidence of the practical effect. Before the statute was passed, 2 dairy farms
             a month were going out of business, now dairy farms are not going out of
          o At the time, not much interstate commerce in milk. Effect on interstate comm.
             is not heavy, and the help to the local interest was high.

Henneford v. Silas Mason Co.
   Is it even-handed? Yes.
   What was Washington trying to do with this tax? Who are they trying to affect? In
     state consumers. In what way? Taxing them on buying goods instate and out of
   Washington says they are leveling the playing field.

    See United Haulers Ass. v. Onieda
      Court buys this argument and says there is no discrimination and no affect on
       interstate commerce. Actual impact was to level the playing field. Equalize tax
       structure between itself and other states.
      Seems like the same as case above, however.

Hunt v. Washington State Apple
   Is the law even-handed? Seems to be neutral on its face
   Justification for law? Fraudulently misleading consumers with quality seals.
   How does banning all other seals with out first determining that they are indeed
      fraudulent actually stand up to scrutiny? It doesn’t.

Hughes v. Oklahoma
   Even-handed? No. facial discrimination
   Why? Protect the minnow habitat. Reasonable? It’s a ban on taking minnows out
     of state. Ban on interstate commerce.
   What about minnow habitat? No practical effect if environmental protection is the
     real reason. Could easily harm the minnow’s habitat even without taking them out of
     state. Intensity of local interest.
   Less restrictive alternative? Yes.
   Whenever there is a facial discrimination the statute will be under the strictest

New England Power v. New Hampshire
   Privately owned power plant regulated by NH regulatory authorities.
   Economic protectionism – easy. Facially discriminatory act.

Minnesota v. Clover Leaf Creamery
    Is there federal law that would trump this? No
    Is it even-handed? Yes, applies to all milk sold in the state
    Justification? Environmental concerns
    What about evidence of large pulpwood industry in the state
    What is the burden placed on interstate commerce?
          o Checkerboard example from Pacific RR case
          o Burden is not a ban, free to ship into state.
    Is the state only trying to pump up their pulpwood industry?
          o How does it fit into this argument?
          o Is the alternative most effective on the environment or it is because the
             pulpwood industry would benefit.
    Court says burden on interstate is not that great b/c milk producers can make
      containers easily.

Bibb v. Navajo Freight Lines
    Even-handed? Yes.
    Industry in Ill. that would benefit? No
    Burden on interstate commerce?
      This one comes down to factual argument on burden interstate commerce. No
       evidence to the contrary that the safety was a major concern.

   Different cases, but all with the same analysis.

   November 6, 2007

   Commonwealth of Pennsylvania passes a law that all cars sold in Pennsylvania must be

          Is this even handed? Yes.
               o What is the judge supposed to look at to determine even-handed? Face
                   of statute. Is it discriminatory on its face?
          What is the state interest being served by the law.
               o Is there any economic protectionism here? No.
          What is the burden on interstate commerce?
               o Hold a hearing to offer testimony on burden on automobile industry, how
                   inability to sell gasoline cars will hurt the automobile industry, will curtail
                   the flow of interstate commerce.
               o State provides testimony that gasoline engines are harmful to
          What does the car manufacturer want the court to find?
               o Commerce concerns are more profound than environmental interests.
          What does Commonwealth want the court to find?
          Is this the least restrictive alternative?

Pennsylvania passes a law. Pennsylvania notes there are privately operated coal

      Is this even-handed? No.
           o Discriminatory on its face.
      What is justification?
           o Promote the sales of PA coal.
      Does the burden have to be a ban?
           o No, but it still doesn’t make the law even-handed.
      Balance the burden against so called benefit.

All beer sold in PA must be brewed in accordance with German brewing standards.
     Is this even-handed? Yes
     What is the legitimate state interest?
           o High quality product to be sold in the commonwealth
     What is the burden on interstate commerce? Ban?
           o What factual showing do you want to make here?
           o Case falls onto facts in this section.
          o Know what you are trying to prove. The burden on interstate commerce v.
             the legitimacy of that local interest.
      Less restrictive measure to achieve that local interest?

   PA passes law that all establishments in state that sell food has to buy their food from a
   wholesale outlet no greater than 10 miles from the location of their retail sales.

Construction company. In State of Wyoming. Needs cement. Find a plant in South
Dakota. For years goes up to South Dakota and they ship all cement needed. South
Dakota passes law that cement orders of South Dakota residents must be filled first.
Now cement plant is owned by the state of South Dakota.
Now the state wins. South Dakota gov’t owns the cement plant, now its ok. Participant in
commerce exception.
Even though the statute may be violated, if the state is acting as a participant in the market,
there is an exception to the Pike analysis and the statute is not violative.

Hughes v. Alexandria Scrap Corp.
   Court didn’t use the Pike test.
   State in this case is acting like a buyer of scrap cars.
   They can buy scrap cars from whoever they want
   They are not regulating what the scrap yards pay the people who bring the heep in.
   They are entering the market to buy scrap automobiles.

White v. Massachusetts Council of Construction Employers, Inc.
   City of Boston wins because they are a market participant. They weren’t regulating
      who businesses could employ, they made a law dictating who the city of Boston
      could employ.

South Central Timber Development Inc v. Wunnicke
   State became regulators after the sale.
   Is the profit motive being singled out
         o Does market participant mean ‘to make a buck’
         o Might be a way of giving the state some leeway.

November 13, 2007

Pa passes a law that all vehicles purchased must be hybrids. 2 months prior, the state
welcomed a new Toyota plant that makes nothing but mid-sized hybrid cars. PA passes a
law that all state police cars must be hybrid cars. Ford sues Pa for violation of the dormant
commerce clause.
    Is this law even handed? no
    Burden on interstate commerce - State argues that the law is in interest of
       environmental protection.
           o How big of an impact on environment will only hybrid police cars have?
           o Market participant exception
                    Motive for buying cars matter? No, state is participating in the market
                     place and therefore this falls into the exception to the dormant
                     commerce clause.
                    Can wear economic protectionism on your sleeve!

Pa concerned about obesity problem passes a statute that no commercial establishment
may serve a single serving meal in excess of 1200 calories. 2 entities that contest,
Fatheads and University of Pittsburgh cafeteria.
    Even-handed? Appears to be on face.
    What is state interest? Health and safety of citizens. Is there any other reason?
    What if client was Burger King – this is an interstate operation with standardized
      meals and it would be a huge burden to change only the meals in PA.
         o Does the burden exceed the benefit?
    Least restrictive alternative?
         o Could the safety and health of citizens be served by some other means?
         o Broadly, health is nice, but when you define an interest as health, the
             opposition has many other suggestions that would be less restrictive.
         o Make state interest narrower. The specific health issue is obesity is related to
             the consumption of meals that they may believe are more healthy than they
         o Do you have to summon all your evidence as to health benefits. U of Pitt is a
             state entity and is therefore a market participant.
         o With a non-state client you have to argue the benefits of health.

Person accepted to Pitt medical school. School will give him free tuition on condition that
he practice medicine within the commonwealth of Pennsylvania for 5 years after his
    Is this even-handed on its face? No. this is discriminatory on its face.
    What is legitimate state interest? Better state doctors. Hording doctors.
    This is a state school. As a market participant, can the state do this?
          o How does the market participation exception operate in this case.
                 Selling education. Normally what is the consideration given by a
                    student – tuition.
                 State is asking for a promise to practice in the state in stead of tuition.
          o No this is regulating downstream. – no true methodology in the case law
             about where the market participant ends and regulating in violation of
             dormant commerce clause begins again.
                 Analysis of state’s motive. Why is state putting this restriction? Is it
                    like a business motive, to build up the community?
                 Downstream regulation – is that really a private company would do as
                    a true profit/corporate business motive?
                 Here, the P would argue, the state has no true economic motive to
                    make this deal. What they are doing directly is trying to build up a
                    base of doctors in the state to serve a particular regulatory need.
                 See the state as a true corporate entity and look at the motive.
    Would a private entity really do something like this???
State owns several sports venues. State has regulation that in any lease for that facility
given to any professional sports franchise there must be a provision in that lease that the
organization must sell 30% of tickets over the counter to any sports event.
    Analysis from market participant view.
          o Attacking this:
                  What is the state’s interest in keeping some tickets for over the counter
                     sales? Probably to allow citizens to buy tickets at the venue. Is this a
                     normal consideration of a business?
          o Advertising is a legitimate business interest. By keeping tickets out that
              people can buy they are more likely to attend, which in turn makes the venue
              look better and other entertainment will want to come and rent the venue…

City owns a landfill. City says we are requiring all the private garbage haulers who pick up
in this area to dump at our dump.
     The court said that unlike the carbone v. clarkstown case. The state entity did the
        regulating directly and owned the landfill. There was no private entity that benefited
        at all. It was governmental regulation that was not a downstream regulation, it was
        market participation.

Layered on top of market participant dormant commerce clause is the priviledges and
immunities clause.

Over all way to knock down this regulation:
   Have the fed’s regulated this? If yes, and its constitutional, then trumped by
      supremacy clause.
          o Assume no federal regulation in conflict, or it’s unconstitutional
   Look to dormant commerce clause.
          o Pike test. Does it help you? If state can make argument of market participant
              exception. I
          o Assume they win on dormant clause and market participant
   Privileges and Immunities clause.
          o There are 2. We are NOT talking about the Privileges and Immunities clause
              in the 14th Amendment.
          o Article 4, Section 2
                   Citizens of each state shall have the same privileges and immunities
                     as citizens of the several states.
                   Not allow the states to so discriminate against citizens of other states
                     that a national market could not arise.

       To what does this apply: a state confers a benefit to some resident that it does not
       confer to a resident of another state.

       General Theory of Privilege and Immunity:
          What kind of benefit? Applies only to matters of fundamental national interest
            the restriction upon which would hinder the formation and development of a
            single union of the united state.
             What does it mean?
                o 2 cases illustrate this:
                        Elk license v. Law license
                o That is applies does not mean that the state looses, it just means you
                    go to the next step. If you make the determination that what is being
                    regulated is something that would hinder the formation and
                    development of a single union. That they may travel and pursue their

      Then look at 2 considerations
          o Facial discrimination
                  Sometimes it’s ok to have facial discriminatory. If the state can show
                          A substantial reason for the discrimination
                          That the means they chose are closely related to the ends.
                  Is not like the commerce clause – not as automatic.
          o Facial discrimination is permitted only if there is a substantial and legitimate
             justification and the means chosen closely relate to the ends sought.
                  Where is the close relationship between means to ends.

Line Dormant Commerce clause and Privileges and Immunities against each other.

Dormant commerce clause
    Covers anything not just these matters of fundamental national interest
         o Covers the guy taking minnows out of Oklahoma.
         o Covers the guy with the elk license
    Protects corporations as well as individuals
    Compare CC Test to P&I test, CC test is tougher. Facial discrimination is almost
     always death to the regulation.
    Allows people to attack the regulation even if they are residents of the same state in
     which the regulation is operating.

Privileges & Immunities
     Limited to national interest
     Does not have a market participant exception
     Corporations cannot invoke the P&I Clause
     Even if facially discriminatory, can argue nexus of means being substantially justified
        by the ends.
     The Plaintiff must be an out of state resident

      Down through time it has been a debate whether the P&I was a strictly personal right
       of individuals. Was this an individual constitutional right like that of free speech. If
       there was a violation and you were hurt by the violation, then the argument is that’s
       enough for the P&I. Supreme Court never bought into that argument. Look at this
       P&I as a broader structural protection that prohibits states from setting up this
       barrier to a national market. It is the people who are limited, who have a claim that
       the P&I clause protects.
      How does the p&I clause help client better than DCC.
         o DCC there is the market participant exception. No such exception in the P&I
         o (not a big deal) congress of us has power under CC to pass a law that would
            authorize the state to itself pass laws that would otherwise violate the CC.
            However, congress cannot authorize the state to violate the P&IC.

11th Amendment limits the ability of congress to authorize suits against a state. How does
P&I contrast with 11th Amendment?
        The 11th amendment only protects the state and its agencies. The 11 th amend does
not protect municipalities, school boards, counties. P&I clause and CC applies to every
entity of the state.

When you take a regulation through the CC, then DCC, still look at P&I. is this a case
where P&I applies, if yes, then is there a substantial reason for the discrimination and is
there substantial relation of the ends.

November 27, 2007

Review sessions December 4; 6-7:30 and Saturday.
Don’t necessarily have to go to both. Just to accommodate schedules.

Basic structure of mid-term:

Exam is 3 hrs in length.
    Open book exam – any inanimate object to assist you. Can not communicate with
      anyone else.
    Similar to most recent con law exam. Given a record, then placed in front of an
      appeals court and you will be asked questions by the court. Probably more
      questions in # than you would normally get in a 3 hr exam. Questions will be
      specific and need to answer them specifically.
    The court does not intend to give you any time to wax philosophically.
    Citing cases – YES. Particularly if case was important to answer then cite it.
    This exam is more difficult b/c it does not invite you to simply put down everything
      you know about an area.
    Make sure all of answer is substantive. Hear self at oral argument answering that

Pa passes a law that if 3 or more inches of snow or more in a 12 hr period, only PA
licensed drivers can drive on PA roads.

Privileges and Immunities Clause:
        Law confers some benefit that is denied to a person who is not a resident of the
       This regulation is not banning out of state drivers, safety of people.
       Anytime a law makes a distinction between instate and out of state residents, does
the P&I clause apply? No.
       When the P&I clause of Article 4 applies,
Focus on how P&I argument proceeds. No one’s profession is being denied, no formation
of union is being choked. Focus on first phase – whether or not the P&I clause applies at
all: only statement of when it applies. Applies to issues nation interest that would hinder
the practice of trade or skill. Recreational activies are not, practicing law, construction is
1.     focus on how, if at all, the P&I clause applies.
       This is fundamentally restrictive of travel of people interstate.
       This hinders the development of a nation b/c it restricts the travel of people.

Pa passes law that taxidermy of all animals killed in pa is done in pa. because concern for
possible liability for transporting diseases out of the state.
Person who lives out of state can come into pa and practice taxidermy in pa, as long as
they do it here.
P&I clause? State is conferring a benefit to residents that is being denied to non-residents.
Is this a fundamental national interest? Recreational? Hunting is recreational, but the
taxidermy is a skill, trade or business. Yes, this is a matter of business. Does p&I apply at
all? Is he being denied the right to do taxidermy in pa? no. are all pa taxidermist required
to do taxidermy in pa? yes. Is this a denial of a benefit that is offered to pa residents at all,
or is this guy asking for something over and above what pa taxidermists get? Where is the
denial of something provided to a pa resident? There isn’t.
This is only p&I clause. If your doing dormant commerce clause, then there might be an
To raise P&I clause as issue, must state what is being denied to an out of state resident,
what is provided to an instate resident.

Camden is the P&I Clause case:
Dorment commerce clause is not an issue for Camden because of the market participant
exception. But in this case the P&I clause is raised. Raised on behalf of construction
companies who employ people who are not residents of NJ.

Once you decide it applies, you get into substance of P&I clause applies:

In P&I, some facial discrimination against interstate commerce will be permitted. At least
facial discrimination will not always be the first fatal blow at it is in interstate commerce.
But in P&I clause case, if the thing applies, it applies because the resident and the non-
resident are being treated differently. Some facial discrimination is permissible under this
clause. But state has to show there is a substantial and legitimate justification and the
means they chose to achieve that justification is closely related to the ends.
United Building & Construction v. Camden

How do you go about articulating a substantial and justifiable reason for this facial
    What caused the problem?
    Is the fix proposed going to fix what caused the problem?

Was the problem non residents getting work that created the problem in Camden?
No. “source of the evil at which the statute is aimed” showing of a nexus between the out
of state people coming in and working here and going home, now show solution be limiting
that happening, NOW your talking about means and ends which have a tie.


Driving question again: make the factual tie in to the interest being protected. Don’t just
look at driver training. Show how allowing WV driver increases highway danger, if you
can’t then your solution doesn’t fit the alleged problem

In Camden, they spent money for public works programs. If we can get the people to live
and work here then the city will be revitalized. Justify the means to the ends.

Lundy v. New York
If you practice a trade in Ny and lived in Ct, you were taxed on that money differently than a
person who lived and worked in ny. Struck down as unconstitutional.

Hillside Dairy v. Lyons
Not substantive case on P&I. makes point that sometimes, on its face, a statute may not
differentiate between residents, but in practice it does. Held that a state law could violate
P&I defacto as well as dejuri. If in practice the statute discriminates against out of state

Within the scope of analysis of P&I: if client is attacking state law that is adverse to them, a
federal law will preempt the state law. Question is when does a federal statute preempt a
state law:

Pacific Gas and Electric v. Ca
Disposal of nuclear waste. Ca had power to issue certificates to build new nuclear power
plants. Ca put a moratorium on building of nuclear plants until federal gov’t came up with a
way to safely dispose of nuclear waste.
PGE said that Fed preempts this law and permits new building to occur. In this case the
court tells us there are 4 different circumstances in which a federal law may be held to
preempt a state law:
1.      certain federal law that explicitly preempt state law. They say right in the law, that
no state law conflicting with this is valid. – unusual.
      Court should be able to find by just looking at statute itself
2.      the federal law can supercede state law by a scheme of regulation so pervasive that
it allows a reasonable inference that it left no room for the state to supplement.
      Court should be able to find by looking at statute itself.
3.      Where the federal law addresses and area of such a dominant federal interest that
the court on its own, may assume that the federal gov’t wished to preclude the state.
      Causes the court to look beyond the federal statute itself. The court is looking more
        generally at federal power. More broadly.
      A dominant federal interest that we assume federal preclusion.
      Article 1 § 8. federal power as enumerated by constitution. Quintessential federal
      Those areas of federal power which should be segregated for federal power alone.
4.      where the object to be attained by the federal law clearly reveals a federal purpose
that conflicting state laws would frustrate.
         PA v. Nelson – court should look at is this an area the federal gov’t needs to
            occupy uniformly.
         Causes the court to look beyond the federal statute itself. The court is looking
            more generally at federal power. More specifically.
         Has to do with the goal of the federal government.
         Courts have not liberally construed this.
         Pacific Gas – regulation dealing with safety disposal. Ca is enforcing an
            economic interest. the California regulation was not a whole new set of
            regulations on safety. It was not allowing any more power plants to be built. The
            economic feasibility which is left to the state. There was no specific preemption.
            The argument that the federal regulation was so pervasive, yeah, if talking about
            safety regulations. Ca was talking about economic feasibility of commissioning
            new plants. Did this Ca moratorium preclude the fed. Interest? no, no dominant
            fed. Interest in economics, but in safety. Does this frustrate fed interest? no,
            again safety not economic.
         Spratza v. Mercury Marine. Negligence case. Marine found a federal statute
            that explicitly preempted state or local law or regulation cannot create a cause of
            action. SC found this statue did not preempt.. weren’t suing under state law or
            regulation. It’s common law. Therefore, federal statute doesn’t preempt
            common law.
         Preemption arguments as a rule: SC, exercising its instinct to protect the states,
            it is aware it governs the battle back and forth in federalism.
                 o Restraining the federal government
                        Defining commerce more narrowly than it once did. Looking at
                            what commerce means
                     Resurrected the 10th amendment, and said even if this is an area
                     they can regulate under commerce, there are certain ways of
                     regulating that would violate 10th amendment
                   Expanded the 11th amendment to authorize suits against the states
                   Given the states the market participant exception, and allowed the
                     states to do what they could never do if they were regulating a
                     private market.
                   Look at P&I, they allow for state differentiation. Tell you in Camden
                     case they are going to be deferential to the state to make
                   Preemption. don’t jump to assume that just because feds have
                     passed a law that brushes up against the same issue, does not
                     give preemption.
              o SC has consistently tried to keep integrity of the states.

Second half of course

January 15, 2008

Exam – wide distribution of grades – will be happy to meet w/ anybody to go over exam.
Wed or Thurs b/w 5 & 6 available to meet to go over exam or any prior topics.

Moving in to the Second Part of the Constitution

Understand the consuming fear of creating a gov’t that could invade into the most intimate
and private parts of the citizen’s lives. Worried about this in every aspect of the building of
the Constitution.

Did this through structural protections – federalism and separations of powers
Framers Create a gov’t that was internally conflicted to render it less capable of over
powering the people.

Article I of Pa Constitution are guarantees of rights – still mostly intact.

Fear of listing rights would lead to limiting of rights. If we didn’t list something, the gov’t
may assume they could fill that void.

Compromise of the BoR began in Massachusetts.
No intention of the framers that the BOR would apply to the states. No need, state const
had own BOR. Also more than a benign assumption that the states would not oppress the
citizens. Like the old south, became gone with the civil war. States could not be relied
upon to enforce citizens rights.
In post civil war era – 3 amendments, 13th, 14th, and 15th.
Now must begin to look to SC to enforce them
With little precedent and guidance, it falls to the SC as to how this set of amendments were
to be enforced.
These Amendments:

      13th – simple – no slavery, indentured servant – straightforward abolition of slavery.
       Speaks to everything in the US not just the Federal Gov. unique amendment b/c
       unlike everything else in const, this goes beyond that. It abolishes the private
       institution of ownership of another human being

      14th – does this take the existing BOR and make it applicable to the states, or is this
       a new right the court is to enforce?

          o Privileges and immunities
                 Buried into obscurity by the Slaughter-House cases
                 SC adopted a very narrow view of what this protects
                        Only insofar as those few rights you have b/c you are a citizen
                         of the US. Nothing to do w/ state citizenship, has to do w/ rights
                         as citizen of US.
                 Saenz v. Roe

          o Due process of law
               Does federal protections of due process of law apply in the states?

Selective Incorporation of BOR

Is the 5th Amendment right to a grand jury incorporated to apply to the states? No.
SC has never applied this right to the states. Why

Palko v. Connecticut
When is a principle fundamental? When it is rooted in the traditions and conscience of our
people. Circular! Why not – because it’s written in this document call the Const! But this is
the rationalization. Court puts this out as though it is the principle.

SC decides that double jeopardy is NOT incorporated in the 14th Amendment! Aprox. 32
yrs later the SC decided that it was rooted in the traditions and conscience of the people.
(Benton v. Maryland, 1969)

Adamson v. California
SC decides not to selectively incorporate self-incrimination as applicable to the states.

Justice Black – dissent in Adamson v. Cal is important. Scathing critic of ‘natural law’.
This problem is at the heart of substantive due process. Right to privacy is not in the
Const, we got them from the same mind-set that we can divine fundamental principles of
Duncan v. Louisiana
Is the Constitutional safeguard is fundamental. Selective incorporation.
Selective Incorporation doctrine leaves us w/ this mystical notion that when a court looks at
a right in the BOR, they are looking at something as a source of law that is philosophical
rather than textual. Draw upon traditions, histories, patterns of American practice. A
source that is shifting as any source of law could be. Source of frustration.
Now a done deal. Today, only 3 amendments the SC has authoritatively decided are NOT
incorporated. 2nd, 5th amnd grand jury, 7th right to jury trial in civil case. No explicit case
that the right to bail is incorporated, but some SC cases that seem to assume that –
possibly de facto.
2 of the clauses of BOR have not been subject to interpretation – excessive fines in the 8th
amend. 3rd amend about quartering soldiers.
Selective Incorporation as a doctrine is over, but legacy lives on. When we talk about
substantive due process this will be important. We will talk about an observation by Justice
Harlin – Poe v. Olman – the SC are not the final arbiter of our rights, it is the people of the
US and whatever the SC decides, eventually it will be corrected. SC will come around to
the consensus of the country – democracy will eventually correct a bad decision by this
What the SC is trying to do is tap into the basic fundamental consensus of the people of
this country, and how would that consensus be expressed.

Civil Rights Cases 1883
Access of African American to Inns, trains and theaters. How is this different from
Heartland Hotel (1963)? Not based on the 14th amendment, it was solely based on the
Commerce Clause. If arguing this from the perspective of the Rotella, argue that the law is
unconstitutional because this is not a state action. Does the 14th amendment reach
individual invasion of individual rights? The amendment states that ‘no state shall deny…”
the client is not the state, it is an individual. Private interaction between hotel and people.
14th amendment does not allow congress to pass laws that reach private conduct. State
action is the necessary component of any 14th amendment claim.
Understand that this judgment by this court in 1883 is still the law. Hence the reason why
1963 civil rights act hooked onto the commerce clause.
Is it constitutional under the 13th Amendment? 13th Amendment does NOT require a state
action, it applies to all actions. Struck down because of the narrow interpretation the court
gives to the concept of slavery and involuntary servitude.
1968 – Jones v. Alfred Mayor – 1866 civil rights law. The court said that on its face the law
applies to all sales of property. Court said this law was constitutional under the 13th
Amendment. To eliminate all racial barriers to equal protection under the law. 13 th is
interpreted to include the badges and incidents of slavery (discrimination).

14th Amendment – you have a client and the state is doing something to them they don’t
like. Do you need a law passed by the 14th amendment to get the state to stop? No, you
do not need a federal statute enacted under the 14 th Amendment. 14th standing alone is a
basis for suit against the state. Useful to provide things like attorneys fees. The right is
viable with out the statute.
13th Amendment – eradicates the barriers of race in the US. Does the 13th outlaw race
discrimination or the unique situation of the vestiges of slavery against African-Americans?
Not settled debate. Hasn’t gone to the SC. Discrimination on the basis of gender or race
(other than black). This is covered by a myriad of statues. If the com clause is ever
retracted enough to eliminate the constitutionality of these statutes, this may start to
become an issue again. Expand the 13th to cover what the com clause may (in the future)
may not.

Burton v. Wilmington Parking Authority
Restaurant would not serve blacks. Restaurant rented space from the Wilmington parking
authority. Is this state action?

Moose Lodge v. Irvis
State action argument? Private moose club, one exception – state liquor license. Argues
that liquor is pervasively regulated by the state. A monopoly run by the state, and a
licensee must conform to those policies. In almost all respects of this case, Irvis lost. No
state action. Goes to the involvement of the state and the actions of the enterprise. If the
state is involved in the discrimination itself. Why does this turn out differently and Burton?
In neither case did the state make the decision to discriminate. Merely regulating the
actions of regulating a private party do not make the state involved in the business. Clearly
in a business joint venture. Net result of that joint venture, is a symbiotic relationship –
intertwined. Also symbolic. What does this relationship convey to the public. The only
thing that identified the state’s regulation of the moose lodge is the liquor license which
does not convey the symbiotic relationship.
When a private club applied for the license, they had to send a copy of the bylaws. When
state issued the license, it was on the condition in part that the club enforce its bylaws. In
part, one of the state requirements was to enforce the bylaws. Bylaws said not to serve
blacks. Is it now a state action? Yes, telling local club you must enforce this bylaw and it is
now an affirmative state action.
Suppose a state builds a hockey arena. The state owns the facility and leases it to the
local hockey team. Hockey team makes decision not to hire any black hockey players and
announces this decision. Is this a symbiotic relationship?

January 22, 2008

Problem for discussion:

What is the constitutional argument the team can make here?
Between the state and the bowling league? The Turkey’s constitutional rights have not
been violated in any way. They have no standing

Brooke Lyne’s argument is that under the const. she has a right to claim equal protection
under the law. She has standing to raise a constitutional issue.
She may have other claims here also – 3rd party contract claims. If she wants to raise the
discrimination constitutional claim, how does she get herself into court with that?
As soon as she tries to intervene in the action, and raise constitutional issues? League
would say there is no state action. The ABL is a private party and the Turkeys are a private
party, therefore no state action.

At what juncture, can Brooke Lyne assert a state action? The city is involved in the action.
Would cite Burton case as support.

Why isn’t this Burton? Did the state acquiesce to the private discrimination? Did the state
have anything to do with the discrimination? No.

Does this mean Burton does not apply? Not necessarily. There does not appear to be a
symbolic ownership of the team by the city. The city rents the arena to other teams.

This must be distinguished from burton! The team does not convey the same meaning as
a diner inside a public parking facility.
If the state, in conjunction with other things, joint venture, combined with systematically not
doing anything about a consistent practice of their joint venturer’s discrimination, you get
closer to Burton.

In hypo, there is no history of this.

Another way P could jump into this as a state action:

At that point where the league has gotten a temp injunction; how does your client make a
claim now for state action?
League against the Turkeys –
Shelley v. Kraemer

Property hypo – hillary supporter excluding obama supporters from her property. Is this
Shelley? No, this is private property. IN Shelley v. Kraemer, what did the court have to
find? That this was a black person buying the property AND that the court had to enforce it
on the basis of racial discrimination. Outer most application of state action.

Problem is almost exactly like Shelley. The minute the court enforced the discrimination
against women, then it is Shelley.

Choosing of the arbitrator:

It doesn’t become discriminatory unless you can invoke the Bateson challenge that you
have a gender neutral reason for striking the women arbitrators. But this only applies to the
state. Rules of court authorize the striking of arbitrators. The court has authorized you to
strike these people. This power comes directly from the court. Plus, in striking these
people, who is left? The jury. Does the jury perform a public function? Yes, it renders a
judgment on which the court will act and enforce. In striking an arbitrator you are striking a
person who is an officer of the court and carries out a public function.
Edmunson v. Louisville concrete

Looks like Burton, where the state is authorizing. If there is an expression of the state’s
acquiescing or approving, this is a symbolic and symbiotic relationship which makes this a
state action.

Other ways to get to state action in this Problem:

Public Function Doctrine

Marsh v. Alabama – if the company is performing a function that is traditionally the
exclusive prerogative of the state to perform, that could be found to be state action.
Company towns become dinosaurs.

Unions want to organize the workers of the Gap. Where is the gap? In the Mall. Go into
the Mall to hand out literature. The mall arrested them for trespass. Is this the same as
Marsh v. Alabama?
Malls represented the old company town. They lost – Hudgens v. NLRB – court said we do
not have a situation in which the interests of private property have so subsued the public
sphere as to find this a public town. Still private property. Union organized had to find the
closest place to the mall that was public property.

The idea of a public function is of lesser and lesser importance in Con law, although it still
exists on paper.

Evans v. Newton (1966)
Town runs a segregated park. Transfer the segregated park to a private person. SC
rejected it. State remains deeply involved in the operation of the park, all they have done is
transfer title. Given history of park, there is a public function aspect that cannot be erased
by transfer of title.

What about utilities? Private utility company that has effectively a monopoly, are they a
public function? Is operating a utility traditionally the exclusive prerogative of the state?
No. it is only of recent vintage that public utility has been around. Jackson v. Metropolitan
Edison co.

Rendell Baker v. Cohen
Does the fact that the private school has contracts with the state make the school a state
actor? State did not dictate the firing. Just because state funded it, doesn’t make it a state

Are regulations enough? No, unless the regulation the school is enforcing is a state
regulation, and that regulation is the source of the discrimination then it is a state action.
What about the public function argument? Is this school performing a public function?
Traditionally education was all private.

Is this a symbiotic relationship? No. even though there is money going both ways, there is
not the Burton relationship.

Evans v. Abney
After Evans v. Newton. The land of the park is now given to the Senator’s heirs. Is that
state action?
Black held case was easily distinquished from Shelley. Here the effect of the Ga.
Eliminated the discrimination. The state wasn’t enforcing the discrimination, it was
eliminating the discrimination entirely.
Brennan’s dissent.

Window of opportunity that these cases can be state actions. Where state and private
citizens conspire to violate a person’s civil rights, then this is a state action.

Bloom v. Yaretsky
State action? The mere fact that the state heavily regulates doesn’t mean anything unless
the state regulates the decision to kick the residents out. Not on the state money, or the
nature of regulation, but IS THE STATE REGULATION RESPONSIBLE for the conduct
that was the discrimination.

Lugar v. Edmondson Oil
Ex Parte seizure of property. Court said this was state action. Although a private party
instituted the suit, they essentially ‘rented’ a state sheriff to seize the property upon filing of
complaint. Ex Parte nature of the procedure.

NCAA v. Tarkanian
Have to look and see what degree of public function the entity created by the association
actually exercises. Here the NCAA only had rules for its members and nothing else.

Brentwood Academy v. Tennessee Secondary School Athletic Assoc.
They created eligibility requirements that were much more pervasive than the NCAA did.
They were a state actor

DeShaney v. Winnebago County
Because of the state’s inaction in not intervening, this was state action which would leave
the state open to sue. State was guilty of inaction, not enough to allow suit to proceed.


If the state initiated the action, or caused it to occur, there is clearly state action

If there is a symbiotic relationship there is state action
There is the public function doctrine, but more rigourous than symbiotic relationship

Variety of cases where state seemingly approves, authorizes, or encourages the
discriminatory action. The state gave the power to stike the juror, the state allowed their
sheriff’s department to be rented,

Small part of the Moose lodge case, where part of the pa statute told the owner of the
license, you have to enforce your own bylaws as a condition of getting your license that
would render the state an enforcer of the discriminatory

The 14th Amendment has a clause that Congress may pass laws to effectuate the 14 th

§ 5 adds and authority to Congress

Congress had attempted to enact laws that would apply the 14th to private citizens and the
SC has disallowed this.

US v. Guest (pg 928)

Made an interesting side point: besides the 14th amendment rights, this victim was also
deprived of the right to travel interstate. The court said that right does not derive from the
14th amendment, it derives from the body of const itself. Indeed this is a right that existed
prior to the const. that right does not require state action. Therefore congress can pass a
law that would prohibit a person from traveling within your state.

Courts consistently held after this, that a murder of a person, even for racial reasons, is not
a violation of their 14th amendment rights. It is a state crime. Congress would respond by
passing a statute not passed on 14th amendment, it is based on the commerce clause.

Bray v. Alexandria Healthcare Clinic
Group brought action under various laws against right to life protestors. SC rejected this
b/c no state action. Protestors are private persons, not acting in conspiracy with state
actors b/c 14th amendment was the basis of the law.

Oregon v. Smith
Drug counselor was fired when his own drug test showed peyote. Applies for
unemployment compensation.
Court said, if the law is a neutral law of general application and there is no indication that
the law or its implementation was meant to specifically discriminate against a religious
practice, the law can be constitutional even if it does burden a certain religion.
Congress did not take kindly to this. Passed religious restoration act.
Whenever a state statute is involved you must apply Sherbert v. Verner
Is this constitutional?

City of Boerne v. Flores (pg 962)
Argue that congress’s power under § 5 of 14th Amendment
Problem was ‘what is congress doing’? are they passing laws to protect rights that are
guaranteed under 14th, or are they redefining what rights ARE guaranteed under 14th. They
were trying to usurp the power of the SC to define what that 14th amendment right would
§5 of 14th amendment, does not change the fundamental structure of the federal
government. SC retains the authority as final arbiter of the constitution.
Separation of powers becomes meaningless.

What becomes the benchmark as to when congress’s acts exceeds what the 14th amend
allows it to do? Pg 963
Congruence – Us v. Morrison – does it hit at a cognizable 14th amendment claim? No, it
lacks the state action requirement. Have to have focused in on conduct that would in fact
meet all the requirements of a 14th amendment claim.

Proportionality – remedy is in proportion to the violation or harm.

The problem is that congress hasn’t identified that there is a 14th amendment problem out
there. If there is no history of any sort of widespread violation, then the remedy is not
proportional to the problem.

This is a restrictive view of congressional power, the court is exercising a restrictive
supervisory role over this. The 14th gives a specific grant of authority, congress can’t
exceed that authority. Remedy must be proportionate to that violation.

Kimmel v. Florida
allowed state employees to sue under age discrimination act. Was this constitutional.
Employees wanted money damages against the state. Not a proper congressional

Age discrimination is not given nearly the same status under the equal protection clause as
racism. In looking at history, congress has not identified widespread age discrimination by
the state. Therefore statute lacks proportionality to any perceived violation.

Tennessee v. Lane
Is this a proper 14th amendment exercise?
Is this suit based merely on discrimination based on physical disability? What is the true
depreviation, the right to be heard? Clear due process violation. Proportionate? Yes.
Remedies the problem. It was a widespread problem. This is a proper 14th amendment

Board of Trustees of Alambama v. Garrett
No congruence or proportionality
Was the discrimination of the basis of her discrimination? No. it was based upon her
physical condition. Not a 14th amendment issue

Nevada Dept of HR v. Hibbs
Cognizable 14th Amendment claim?
What was the basis of discrimination? Gender
Did congress have evidence of sufficient widespread violation of this? Yes. Long and
extensive history on the basis of leave benefits on the basis of gender.
Is a proper 14th amendment case.
Directly focus on the underlying claim

US v. Georgia
Paraplegic prisoner.
Congruence – state action – yes. Cognizable 14th amendment claim? Yes.
Is there a 14th amendment violation afoot.

Has congress proportionally dealt with the problem?

January 29, 2008

Substantive Due Process


No state can deprive any person of life, liberty or property without Due process of Law

This does not mean, that you just take the first 8 amendments and just apply them against
the states. The passage of 14th breathed new life into the 9th Amendment. There were
other rights retained by the people that were not laid out in the 1st 8 Amendments.

Good history on the 9th Amend. The anti-federalists said there was no protection of
individual liberties under this const. Federalist won argument about a 9th amendment that
said first 8 are fundamental rights, but are not ALL the fundamental rights there are.

Now people are interested in what those rights are.

How to apply this clause?
Initial answer – this is all about procedure. States have almost unlimited power as long as
they don’t violate some fundamental right that you have. Law is fine as long as you get a
trial. No
Not just a procedural matter. This is a limited government. Specific limits in the body of the
Const. and the rights in the 1-9 amendments. Structural limits – ways the federal
government are not allowed to operate. Why would the state governments are unlimited?
Start to see there can be broad areas in which the states are limited in what they can do.
Dormant Commerce Clause. Now, under 14th, they are limited in violating people’s
constitutional rights, fundamental rights. These are not all of the first 8 amendments.
Court held that the 14th amendment did not mean 1-8 applied to the states. Court had to
deam each one fundamental and apply them to the states. (some of them, most of them).
9th amendment reserves rights to the people, these too limit the state’s government.
Is this all they are limited by? Is there generally a limit on the police power of the state?
This is essentially a common law idea – health, safety and welfare and morals of the
people. Doesn’t this imply there is a limit to police power? How should the court find out
what that limit is?

Government that acts arbitrarily and capriciously is not a limited government. It is a gov’t
that acts much like any tyrant in history has acted. This is the essence of tyranny. Can not
let a government act in this way. General structural limit on government that they can not
act as a tyrant would act.

There is a notion of what are these fundamental rights and how do we find them? Last 75
years of jurisprudence has been the search for these fundamental rights.

Look to see if 1-8 amendments have been violated. Look to see if some other right has
been violated. The states are the ones infringing on this fundamental right. Where the 9th
amendment can add to this list of fundamental rights.

What do I use to figure out those 9th amendment other rights?
What do I use to figure out the fundamental rights selectively incorporated?

Ca has rule that says if a child is born during a marriage, that child is presumed to be the
offspring of the 2 people who are married. Don’t care if you can prove it is your child from
an extra-marital affair. Is this a fundamental constitutional right? If he does not, and the
state law says he has no right to visitation and custody to this child, and the state has made
a rational, non-arbitrary, non-capricious law pursuant to its police power. If the state simply
has to show it was rational, it will always win. But if he has a fundamental right, then the
calculus changes.

The courts have said these rights are fundamental but not absolute. If there is an
infringement, if state can prove they had a compelling interest AND their statute represents
the list restrictive alternative (narrow) to reach that compelling interest, then state will win.
State has burden to prove compelling state interest and narrow legislation.
Most of the time state losses.

If it’s not a fundamental right, argue there is no legitimate state interest, out side state
police powers, even if in it, it is so arbitrary and capricious that it should be unconstitutional.
This is a tough one, state will usually win. Burden on plaintiff that you are outside police
power and irrational.

Have to come up with some rational to make the 9th Amendment mean something – this is
the problem of Substantive Due Process. Nobody has yet come up with a unified theory
that explains it all and gives the next case a template to figure it out.
Calder v. Bull; Page 487
2 opinions in this case that crystallized the approaches that justices take into the
interpretation of the law in general.
Point is, don’t get bogged down in the particulars, understand that at the bottom line, we do
not give gov’t unlimited power, you can flagrantly abuse the authority the people have given
you. Court should never think that the consent of the government is the consent of the
people to give the gov’t unlimited power.
Forget natural justice. The justices have no authority to do so. For a judge to import
principles of natural justice, you can only slide in personal justifications as law. Justices do
not have the power to make law, only the legislature. Did the people give the gov’t the
power to pass this law? That is the frame. Is it within their purview? The court is
incompetent to judge the natural justice of these things.

When the court began to realize it had to interpret the 14th Amendment, they had no issues
of imperative personal liberty. Applied in economic regulation because of the Industrial

Does the state have the power to pass legislation to help workers during the industrial

Mugler v. Kansas
“to look at the substance of things” “if a purported exercise of the police powers has no real
or substantial relation to those objects, or is a palpable invasion of rights secured by the
fundamental law, it is the duty of the courts to so adjudge.”
2 different aspects to what he says. 2 ways to strike these laws down:
1.      if it was NOT within the police powers
2.      if what you did violated some fundamental right
Can strike it down under either question. All governments are limited. SC finds your action
is outside your authority, it doesn’t matter if you have violated some fundamental right
2 separate ways in which SC will analyze state police power.

Liberty of Contract.

Lochner v. NY
Early 1900’s, lawyer in NY. You represent a bakery. NY passes law prohibiting you from
making your employees to work more than 10 hrs a day, 60 hrs per week.
1st argue it is not in the state’s power
2nd argue it violated a fundamental right.

2nd Argument first. Any right in the Const? Nothing expressly.
Now off the pegs. Find non-contextual right.
Right to Contract – liberty to contract. Where does this come from? Is it fundamental?
Liberty, what does it mean? Liberty is given a broad birth, in the context of helping out the
Court could have simply said, as in Allgeyer this law infringes on the liberty of the baker to
contract. But they went on.
Court is already anticipating the criticisms. Who is the judge to say this is unnecessary?
Venture off base – analyse whether or not this exercise is in concert w/ police power or
does it exceed it.
Welfare of the public – does this have anything to do with safe bread? No.
Are bakers a class of people that the public has to give protection to? No.
What is the public interest in protecting bakers?
Court keeps quoting those things a legislature should be concerned with.
Determined that the law was not truly necessary.

Holmes dissent:
Holmes says, this majority opinion is not law, it is simply an economic theory. It is an
attempt by this court to make as law the principles of laissez faire economics. Rooted in
concept of economic rights. The court has no power to imbibe an opinion on economics as
a law. Constitution is not intended to embody a particular economic theory.
Top of page 497: means: people of legislature thought this was important to their welfare.
Democracy passes this law. SC is striking down dominant opinion. Shouldn’t do that
unless a rational and fair man would admit that the statute proposed would infringe
fundamental principles, etc.

Is Holmes getting to behind all this there is a consensus that exists between the people of
the country. It is the product of a democracy that gave us the constitution which is a
democratic document.

Muller v. Oregon
Was it that the legislature was right to do this, or that it was within their power to do this?

Coppage v. Kansas

Adkins v. Childrens Hospital
Court was more strident with the notion of liberty of contract.
how do wages relate to freedom of contract? All this does is compel an arbitrary payment.
State was arguing this has to do with health. Court says this has to do with the payment of
the wages, not with health. The value of the services.
What about the argument Muller v. Oregon? 19th Amendment – women got to vote, don’t
need protection anymore. No further justification.

Nebbia v. NY
Ct said NO right is absolute. No gov’t can exist if people can use property to the detriment
of their fellows. Gov’t has no power to regulate that. Public right to regulate for the general
welfare, health, safety and morals of the public.
SC moves in a different direction. Much like evolution of commerce clause, as long as
rational relation, defer to the congressional power.
If the laws passes seem to have a rational relation and the laws not be arbitrary or
discriminatory, that is all that due process demands.
West Coast Hotel v. Parrish
Court overruled Atkins. Freedom of contract goes away. The constitution does not speak
of freedom of contract.
Still have to make sure a legislature is within its proper const bounds. But as long as we
are satisfied that there is in here a reasonable relation to the proper subject matter, as long
as the statute continues to be non-arbitrary and capricious, we will uphold it.
Test of whether or not the legislature has exceeded its police power. Not test for
fundamental right.

If the statute on its face, threatens to impinge upon a fundamental const right, you have a
different presumption afoot. Should not presume it constitutional. Burden shifts to gov’t,
must show a compelling interest and the least restrictive alternative. Is there a fundamental
right afoot?

Courts in early period struggling with their role in interpreting this due process clause. First
round, court took proactive stance. 14th due process was meant to put clamps on state’s to
force them to account for their authority - A narrowly defined group of police powers. Ct
trying to find boundaries of police power. When is it proper to legislate.
But in same moment, reading 14th saying it protects liberty and property w/o definition.
Where do we fill in the meaning of liberty? Does it mean just what is in the 1st 8
amendments or something more?
Then court ran into a problem. In striking down this legislation, it was going against a
consensus of what it was necessary to allow state’s to do. It appears that the ends are
reasonable, and that the means choses do not violate any fundamental right.
CT comes full circle. Looked it under commerce, and substantive due process. In Parrish,
the court said states are not completely free, and we will back off some restrictions.
Ct did turn attention to 2nd aspect of Harlan’s analysis.
Deciding what the fundamental constitutional rights are. Whole new direction for the SC.

Next time: make sure you find, Poe v. Ullman – Harlan’s concurring opinion.

February 5, 2008

      Greg v. Georgia
          o Definition of cruel and unusual does not have any textual meaning other than
             barbarous and torturous.
          o Broad interpretive plain. Fundamental standards that underly the eighth
          o Contemporary consensus section: Furman struck down ALL death penalty
             statutes b/c they were applied arbitrarily and capricious. 35 states passed
             new statutes to put it back in.
                  It matters b/c the court is looking at what they perceive to be the
                    consensus of the people. The court does not want to impose a view
                    rather reflect a view.
          o These arguments contradict each other. There is an inconsistency in most of
            this case as there is in most due process juridprudence.
          o Caveat: they have interpreted the 8th amendment in this way. They have not
            otherwise done what they did in this case. They have not done this analysis
            in other substantive due process cases.


Meyer v. Nebraska
   Crime to teach German to children in schools.
   Talk about teaching and acquiring knowledge as a fundamental right.

Pierce v. Society of Sisters

There were cases before the classic line of privacy cases. Many of these cases had been
forgotten. One surfaced in 1942:

Skinner v. Oklahoma
    3rd felony conviction, besides going to jail, you would be sterilized.
    This applied to a variety offenses, but not any white collar offenses.
    SC strikes down this law primarily on equal protection grounds, but talk about
      marriage and procreation being fundamental to the very existence of people.
    Definite language regarding privacy.

Griswold v. Connecticut
    State of Connecticut, 1965: any person who uses any drug, medicinal article, etc. to
      prevent conception will be imprisoned. Criminal offense to use birth control.
    Question: if you are going to argue on behalf of Griswold, what is the overall
      structure of your argument.
          o Go after this under due process argument
                  State statute infringes upon a fundamental right and there was no
                    compelling state interest in this case.
                         Fund. Rt. X degree of infringement = state compelling interest X
                           least restrictive alternative
                         If you want to infringe on const. right you must have a
                           compelling state interest and statute is drawn narrowly for the
                           least restrictive argument.
                  Then argue there is no legitimate state interest – this is a fallback
                  What legitimate interest could state argue? Health, morality, etc. of the
                    people of the state.
                         Means to the end? Means only rationally related to the ends.
    Justice Douglas
          o Looks at what IS protected
                  Nicely laid out in 1st 8 amendments
                 Is the SC supposed to literally interpret only the language in those 8
                  amendments? Ie: Speech only to mean the spoken word. The right of
                  free speech to be meaningful, must also protect the written word, the
                  distribution, the publishing, etc.
                       Ie: right not to self incrimination – right to your private actions,
                          thoughts, etc., right not to quarter soldiers in your house – to
                          protect citizens privacy
                       Penumbra – the gradual emanations of light that play off into the
                          darkness. That is what these amendments do. Each
                          amendment has an penumbra, and area of inferred rights
                          around them.
                       How do we know what is in that penumbra – zone of privacy
                       One source of these inferred rights, Privacy combined with the
                          dignity of man, idea of fundamental underlying of the sanctity of
                       The law is overly broad, so overly so that it invades the
                          protected zone of privacy. It has gone so far off the bulls-eye
                          that it strayed into a fundamental right.
          o Goldberg Concurring
                Traditions and collective conscious of our people.
                Again this circular argument.
          o Harlan’s concurring
                Implicit in the concept of ordered liberty.
                Doesn’t buy penumbra argument
                Approach is different
                       All provisions of const are general in many ways and can
                          always be spinned in a certain way
                       You have to look at the teachings of history
                       Basic recognition of the values that underlie our society – John
                          Rowls ideas of society.
                             o Current trends may differ, but the fundamentals should
                                   stay the same. All the structures of gov’t to exist to limit
                                   gov’t to not allow gov’t to run wild.
                             o He is looking at something different than the other
                                   judges, not just traditions, but deeper than that.

Poe v. Ullman
   Harlan’s dissent from Certiori of this case
          o In the ultimate end, the people are going to decide whether we were right or
          o Over the course of time, they are either going to accept that we got it right
             (basis consensus), if the SC adheres to that, the decisions will stand, if they
             don’t the decisions will not stand.
                 Commerce clause jurisprudence changes over time
                 Death penalty resurfacing after Furman
                 Does not mean that SC is puppet of people
                    Does mean that people do have incite into those fundamental, bedrock
                   Brown v. Board of Ed., it became the consensus view over time
          o Fundamental democratic consensus that formed this government
      Black dissent
          o Privacy? No where in the Constitution does it speak about privacy
          o This court is not competent to do what the Griswold majority said they can do.
          o He doesn’t know what fundamental rights are. All he knows is what is in the
      This is a huge argument that continues today.
          o Can you let the judges go this far off the page of the Constitution?

       The people who wrote the constitution, wrote it during the enlightenment: up until
the enlightenment, power came from god to kings. The enlightenment said that power
comes from people and reason. Enlightenment stands for the idea the reason is the key to
John Locke – Gov’t by consent of gov’t; gov’t by rule of law; gov’t for the pursuit of the
common good.
Reason is a process, not a static outcome. Society in which the individual is the most
important entity.

**Core consensus of what the constitution represents**

Eisenstadt v. Baird
    Court held this to violate principles of privacy
    Minimal meaning of right to privacy

Roe v. Wade
   Justice Blackmun
         o Fundamental right, right of privacy from Griswold, Poe, infringed, no
            compelling state interest. follow argument right down through the equation.
         o Argument in Eisenstadt – right of an individual to decide, makes it even more
            of an individual private act.
         o Right of privacy extends to a womens right to terminate a pregnancy.
   Can’t avoid figuring this out in terms of the basic rubric of due process analysis.
   Fundamental right
         o Right is being infringed
   Is this an absolute right? Meaning the state can never infringe upon it. No, the state
      can have a compelling interest
   State’s Compelling interest
         o Protection of life – at some point the state has a clear compelling interest to
            protect the life of that child
         o Is this the least restrictive alternative? Probably, if you are protecting a ‘child’
         o But is this a child? There is the interest in protecting potential life.
          o Is this a person? Blackmun looks at all the times the word ‘person’ is used in
            the constitution and the context. Constitution was not trying to define the
            word person.
          o Texas argues they are a sovereign state and can decide for themselves when
            life begins.
                  How do you argue that they can not make that determination?
                  Blackmun picks the point of viability.
                  Looks at philosophical views, huge divergence of opinions when life
                  He looks at prevailing medical knowledge combined with the laws
                    treatment of an unborn child and says that based upon this, that this is
                    a point of consensus that everyone would agree the fetus deserves the
                    protection of the law.

If you’re going to loose fundamental right argument; do you have a compelling interest
argument, that does not stray into a purely religious argument.

      Traditions and societal consensus – if looking at all the states, you would see a
       consensus as most states had a law like this.
      What if state said they have an interest in protecting the basics of its political system
       which is based upon a construction for which reason is its fundamental core value.
       And reasoning being the essential component, the state has compelling interest in
       protecting the process of reasoning. This is really saying reasoning is life.
      Protecting a political process may get you past the door.

Spawned other litigation, minors, fathers rights. Couple of cases refined.

States do not have to provide abortions, can not unduly restrict the choice of the individual.
Does not carry a constitutional entitlement to have choice funded by the state.

Planned Parenthood v. Casey
    Pa statutes
    O’Conner Opinion
         o A woman has a right to choice an abortion before viability and the right to
            obtain it w/o undue influence by the state
         o State has the power to restrict abortion after fetal viability except when life of
            mother is in jeopardy
         o State has a legitimate interest in protecting the health of a woman and
            protecting the life of a fetus that may become a child.
         o Discusses some of the particular factual context in which these decisions
            have to be made.
         o Undue burden test – state can try to dissuade, but if they place an undue
            burden on her right to choose, then it is unconstitutional.
                Informed consent – risks, probably gestational age, and to express to
                   her a preference the state has that she not have an abortion.
                Substantial obstacle in women obtaining an abortion.
                           Married women must notify her husband – Ct agrees this is an
                            undue burden. This part struck down
                 Minor consent and the bypass – minor must have consent of her
                    parents or a court order that either she is mature enough to give
                    consent, or she is not mature but it is in her best interest. Court says
                    this is not an undue burden.
                 Undue burden is only in the notification of the spouse.
           o Idea of reasoned judgment, is no more rigorous than other formulations of
             fundamental rights.
           o Undue burden test applies only to abortion cases. Other cases of
             fundamental rights the compelling interest test is used.
           o Scalia argues only the bulls eye test – legitimate interest and rationally related
             means to end.

Ayokte v. Planned Parenthood – not a classic abortion case – more procedural. Parts of
statute unconstitutional can be excised from the statute.

Undue Burden – got started in Griswold’s bedroom – whether or not state could criminalize
the use of contraception by married couples.

Casey defines the particulars of that right in the context of a state interest. is that all that
privacy means? Are there other venues that you could argue there exists the right of

1967 SC struck down a law that made it illegal for an African-American to marry a

Loving v. Virginia
    Privacy upheld
    Fundamental right to marry – Skinner v. Oklahoma

At some point, this right to bear and begate children was embraced by litigants who said we
are gay and wish to engage in private sexual contact, and we assert a right to privacy.

February 19, 2008

Review session tomorrow; make up class on April 29. Revised syllabus on twen. Also

Fundamental Right X Degree of Infringement = Compelling State Interest X Least
Restrictive Alternative

Non Fundamental Right X Degree of Infringement (has to do with standing) = Legitimate
Government Interest X means being rationally related to the ends (Rational related test)

Under 1st Amendment this becomes a clear and present danger.
Time, place and manner of speech – message is not the issue – degree of infringement is
less because content is immaterial.

If you are being prosecuted for selling porn, the entire test focuses on fundamental
right/non-fundamental right. Porn is not protected speech at all. Functional equivalent of
selling heroin. Libel is also not protected speech.

This test manifests in different forms through out the 14th Amendment.

Family Relationships


Zablocki v. Redhail
Fundamental right? Right to marry. Why a fund. Right? Loving v. Virginia.
    Court looks at the assertion of the right to marry. It is akin to the right to procreate.
    The court finds a fundamental interest. really no means to ends.

Moore v. East Cleveland
   Is there a fundamental right?
          o Concept of tradition plays into this – nuclear family is not the long held
            tradition. Families would live together with many generations.
   Of traditions, which ones are relevant.

Troxel v. Granville
    Grandparents petition for visitation. No proof that mother is ‘unfit’.
    Is there a right of privacy that extends to grandparents? Talking about a cognizable
       interest at law.
    Mother’s interests are clearly covered by privacy.
    If the state interest is the best interests of the child, then the means to the ends do
       not fit! The mother is a fit mother, but does that state interest overcome the interest
       of the fit parent.
    The state interest is not a compelling interest

Michael H v. Gerald D
    Child born in wedlock is presumed to be the child of both spouses.
    Biological child
    Father’s fundamental interest – his own child, his right to bear and beget children.
    State interest? this can not be a best interests of the child statute b/c it makes no
      distinction on fit or not fit father. He is denied categorically his rights to his child.
    Is the father’s fundamental right to privacy the main issue?
          o He has committed the offense of adultery. Traditionally no fundamental right
              to engage in adultery.
          o This case turns on whether this is a fundamental right
    State interest is to keep the unity of the family.
       Scalia goes to tradition. But there is tradition in upholding the rights of the parents.
        But there is also a tradition about adultery. Scalia says you must find the most
        specific tradition that applies.
       This case presents the conundrum – all the different sources you can draw upon.


Bowers v. Hardwick
   Finds no fundamental right to engage in homosexual conduct
   Justice White refuses to extend the right of privacy any further.
   This has nothing to do with procreation, so the line of privacy cases from Griswold,
     Loving, Skinner do not apply.
   Blackmun dissents – right to be left alone – not the right to engage in homosexual

Lawrence v. Texas
    Overturns Bowers v. Hardwick
    This statute is directly against homosexual conduct, unlike the Ga statute which did
      not differentiate between couples of opposite sex or the same sex.
    Looked again at Bowers.
    Recast the issue as pure privacy
    Looks at the history that Bowers looked at.
         o Misread history – not prohibitive of homosexual conduct, but conduct that did
              not result in procreation. Prosecutions did not occur except in circumstances
              where the true underlying offense was pedophilia. These laws were really
              focused on these issues.
    Shift focus of tradition generally to the stage of tradition that supports his argument
      about tradition. Tradition in the last 50 years.
         o Growing tradition
                  Reliance upon other cultures
                  Talks about the last 50 years, seems to be talking about the shift in the
                     democratic consensus. If you look at what has been done in the
                     country, the attitudes reflected in legislation or the practice of what has
                     occurred, that his where the court can get a glimpse into the
                     consensus of the country. Relies upon his conception of democratic
                          Different reflection of tradition – rejects looking at years and
                             years of tradition

Can you reconcile these 2 cases? Not really. Uses 2 completely different rationale
Lawrence reflects that the sources for finding these fundamental rights seem to be as
various as the rights themselves.

Cruzan v. Director
    There is a protected liberty interest in refusing medical treatment. A competent
      person has this right

Washington v. Glucksberg
   Fundamental right to assist another in suicide.
   Court looks again at traditions
   Court does not find a fundamental right and there is a compelling state interest in
     protecting its citizens. Protect vulnerable group of people.
   Patient may have the right, but assistant can not ‘borrow’ this fundamental right.

This is the end of our discussion of substantive due process. Look at the formulas as a
process of argument. In some cases, the state may not dispute the fundamental right, but
the state interest is overriding. In other cases, the right is not so clear, then the argument is
at the front end of the formula – the fundamental right.

Procedural Due Process
    No clear easy way to determine procedural vs. substantive.
    2 questions
          o Do you have a life liberty or property interest? if you do
          o What process are you due before the state can take that from you.
    Often times dovetails into the substance
    1st thing is to ask: is there life, liberty or property being denied?
          o Life is easy
          o Liberty and property. When is it that you have a liberty or property interest?

Goldberg v. Kelly
    Welfare – public assistance
         o Relative importance does not enter in to the discussion if this is a cognizable
             property interest.
         o Expectation, justifiable reliance – taken away w/o a hearing
         o The nature of your relationship in receiving the welfare is the interest

Board of Regents v. Roth
   Entitled to notice and an opportunity to defend
   Is there a property interest? Contract is over, did he have an expectation to extend
      the contract? No, they did not convey to him any expectation that the contract would
      be extended

Perry v. Sindermann
    Was able to show that all of the practices and operations of the college created a
       defacto tenured system.
    Proved that what the college did was create a justifiable expectation in him that his
       contract would be extended.
    A justifiable property interest did arise.
Town of Castle Rock v. Gonzales (print this case)
   Did she have a property interest? Did she have a property interest in the court order
      to protect her?
   Did she have a property interest in the police enforcing the law against murder?
          o Does she have an entitlement to the protection of the police?
   The expectation that the welfare recipient has is different – there is a mutuality.
      Expectation is close to being a contractual one. Look at contract concepts.
      Reliance, bilateral. The relationship between the criminal law and us is not of the
      nature of the university and the professor, or the welfare office and recipient.
   She did not have a property interest. entitlements are created by existing rules or
      understandings that stem from an independent source such as state law.
   If it is a contractual right, it is a property right
   She has the same generalized interest as everyone else – it does not create an
      entitlement or property that she has a procedural due process claim under.

Cleveland Board of Education v. Laudermill

Paul v.Davis
Antkowiak’s con law professor was council on this case.
    Claimed liberty interest that was denied.
    State law has not created or altered a status here. Tort law may protect this, but
       there is no property interest that is congnizable.


Are some cases out of the 3rd Circuit
       Hill v. Kutztown – guy gets fired by boro of Kutztown and sues them. Claims a
property interest in his job and argues a deprivation of liberty interest in his reputation.
Stigma plus test – where an employer creates and disseminates a false and defamatory
impression about an employee in connection with their firing that deprives that employee of
a protected liberty interest. he has the right to have you give him the opportunity to clear
up the terms and conditions of his firing.

Wilkinson v. Austin – super max prisons
Jones v. Flowers – how much notice must the state give to someone whose property is
going to be foreclosed.

What process is due?
      Is controlled by Matthews v. Eldridge is the case on what process is due.
      Look at giving the guy the chance to explain
Takings Clause Podcast
    Interesting origin – in the 5th Amendment
    Private property shall not be taken for public use without just cause.
    Requires that just compensation be paid for land
    Constitutional issues arise
          o Where gov’t is not just taking property, but is in fact just regulating what you
             do with that property. In effect, property has been taken.
          o More recently, a question of what is a public use? Can gov’t take property
             from one citizen and give it to another citizen?
    Taking: An issue that has confounded the court. When does a regulation become a
          o Holmes in Pennsylvania Coal
          o Brennen
    Courts have not been about to come up with a systematic rendering of this area, but
      have given a categorization.
    Lingle v. Chevron – 2005.
          o Court identifies 4 different areas or cases where a taking has occurred due to
             regulation. – not the classic situation of taking land. More difficult.
                  Where gov’t requires owner to suffer a permanent physical invasion of
                    their property. Is a taking and entitled to just compensation
                  Lucas v. South Carolina Coastal – deprive the owner of all
                    economically beneficial use of the property. A taking may be found.
                  Penn Central: When does regulation become a taking? Look at
                    economic impact on claimant.
                         The extent to which it interferes with distinct investment backed
                            expectations and the character of the Gov’t action. In this area,
                            the concept of expectation is important.
                         What does an owner of land justifiably expect they can do with
                            their land when they get it?
                         What did the property owner have legitimately that was taken by
                            the regulation?
                  Special application of the doctrine of unconstitutional conditions. Land
                    Use Exaction.
                         If condition of getting a permit, the city required an easement…
    Tahoe Sierra – 2002
          o 32 month ban on development in this area.
          o Was that a per se taking under the Lucas case?
                  Court said no. the lucas case was a perminant deprevation of property.
                  Here there was a temporary taking and should apply Penn Central
    Kelo v. city of New London Ct – 2005
          o Clearly a taking
          o Argument that is was a taking for something other than public use.
          o Revitalization of downtown area. Trying to earmark properties for certain
             individuals to move in, take over, redevelop the whole downtown area.
          o Whether such an urban redevelopment is a public use taking.
          o SC said that it could. Designed to benefit community as a whole, not just
               certain individuals.
          o This case was very controversial.
          o Constitutionally the rule is broad
      Phillip Morris v. Williams – 2007
          o Wrongful death suit.
          o Punitive damages
          o PM argued that punitive damages where awarded based on just on P’s
               injuries, but all those who were injured by cigarettes.
          o Punishing PM for injuries to those who were not part of the case was
               essentially a taking because PM could not defend from them.

Contracts Clause
   Article 1 § 10 says no state may pass any law that impairs the obligations of
   It is there because many of the people to attended the constitutional congress were
   One can construe the concept of contract very broadly.
   Most famous contracts clause case is the Dartmouth College
   The court was fairly clear that the contracts clause meant that while the
   Debtor relief type laws were passed and sustained.
   1934 Law passed to ease up on foreclosures. It modified the deal that the
      homeowners had with the lenders.
          o Court said contracts clause does not create an absolute prohibitions on all
             legislations regarding contracts.
          o Regulating those private relationships continues to have public concerns that
             a state can regulate without violating the contracts clause.
   US Trust v. New Jersey
          o NJ passed a law that cancelled its own obligations under a contract with NY.
          o SC said while state interference with a private contract is challenged under
             the contracts clause.
   Allied Structural Steel v. Spannaus
          o SC said the law nullified the express terms of the companies contracts.
   Energy Reserves v. Kansas Power
          o Three Step inquiry
                  Whether the state law has, in fact, operated as a substantial
                     impairment of a contractual relationship
                  The state, in justification, must have a significant and legitimate public
                     purpose behind the regulation. (such as the remedying of a broad and
                     general social or economic problem)
                  Whether the adjustment of the rights and responsibilities of contracting
                     parties is based upon reasonable conditions and is of a character
                     appropriate to the public purpose justifying the legislations adoption.
March 4, 2008

Inherit the Wind – fictional version of the Scopes Trial, William Jennings Bryant was the
prosecutor. Case was set up by all parties concerned. Clarence Darrow for the Defense.

1st Amendment’s 3 parts
1. Speech – expression and exchange of ideas
2. Press – the large scale dissemination of speech, plus a pool of ideas. The press right
gives us the opportunity to draw upon the collective knowledge and stupidity of mankind
and sort it out.
3. Assembly – group speech. Many individuals to be heard as one.

Sometime called the First Freedoms
Why are they considered so important? There is importance to the society as a whole and
the individual.
From a societal point of view – what does it give us?
    It helps cultural growth. This is considered one of the key factors as to why we need
       free speech.
    Democratic process – it can’t work without free speech. It builds consensus and
       protects minorities rights. Traditionally this is what the courts have identified as the
       functional reason for free speech.
From an individual point of view
    Express ideas
    Express emotion
    Agreement – independent legal significance
    Incite
    Fighting words – independent classification of words
    Threats as an imposition of fear
    Defamation
    Pornography/obscenity

Within the context of analyzing a free speech issues – the suggestion as to organization of
    4 part template
          o Identify the activity that your client is engaged in, in a way that brings it under
             the protection of the 1st amendment. (some kind of Expression)
          o Identify the legitimate government interest in regulating the area. All cases
             under the 1st Amendment, the gov’t has some reason why they regulate it.
          o Doctrine of overbreadth and vagueness – look at statutes or rule applied to
             your client. Look at it on its face and ask if this statute is vague or overbroad.
             If it passes then several catagories
                    Speech on basis of content
                    Time, place, manner
                    Symbolic speech.
Capturing the Issue:
   Vagueness and Overbreadth

   Overbroad and vague statues serve as a ‘chilling’ effect on speech. The law allows you
   to challenge that law on its face.
   If you are prosecuted under that law, even if what you did could properly be criminalized
   by a properly drawn law, you can have the law adjudicated as overbroad or vague and
   be overturned.
   No due process notice under a vague law.
       Who is actually going to determine what it means in practice? The Executive
   branch. Who makes the laws? Legislative Branch. Separation of powers issue.
   Vague law – it could also be selectively enforced, not because of selectiveness in the
   law, but selectiveness in the enforcement.
   A law like this can be prosecuted on its face.

   Overbroad Law
   All nudity outside of the home is criminal. Is this vague? No, it is overbroad.

   The law says you can not burn a cross on your own property.
   How can you make this statute over broad? You can not burn cross to intimidate
   another person. No mens rea in this law. This is the problem in many of these case
   where the statute is overbroad.
       Threats are not protected speech. When you give a mens rea element, you narrow
the law.

What if law is not vague and overbroad? Is it constitutional on its face. Then see if it is
constitutional as applied. Can still argue that law as applied is unconstitutional as to that
particular person.

Then look at time, place and manner.

Chiplosky v. New Hampshire
    If you limit what can be prosecuted under the statute, it is constitutional.

Statute: it is a crime if any person uses outrageous, shameful or abusive language tending
Where is the mens rea?

Ashcroft v. Free Speech Coalition
    Was the law constitutional? No. Overbroad.
    Government can’t suppress lawful speech to suppress unlawful speech.
    If it is virtual porn, it can still be prosecuted if it is subjected to the same test that has
      always been applied to pornography. If it fits that, then you can prosecute.
    This case says you can’t put the real child porn and the virtual child porn together in
      the same law.
    PA’s state law does not make a distinction.
1969, people are planning a civil rights march in Birmingham, AL. City ordinance says you
must have a permit to have a parade. Chief of police has power to issue permit, but has
the power to refuse to issue if, the parade would go against the values, moral, heath and
welfare of the town.
Vague? Yes, it is completely up to the chief. It is as broad as possible. He could deny
everybody. Court strikes it down.

Forsight County Ga v. Nationalist Union
Permit issuer could charge a fee in their discretion in their own criteria

City of Lakewood v. Cleveland
Up to the mayor to decide which of the news racks would be allowed. Unbridled discretion
to the public official.

Brockett v. Spokane Arcades
    Washington obscenity law
    Key point in overbreadth – a statute will not be struck down unless it is
      SUBSTANTIALLY overbroad.

City of Houston v. Hill
     Is the statute overbroad? Yes, it criminalizes activity or speech which the state can
        not criminalize.

City of Chicago v. Morales
     4 elements of the crime of loitering
     Is it vague? Is it overbroad?
     Is it overbroad? Court says it is not overbroad, that is not regulating protected 1st
        amendment rights.
     Where is the mens rea in this statute? There is only actus reas.
     How is a person to know how to conform their conduct. Loitering itself has no mens
        rea element.
     It goes down on vagueness not overbroad

Commonwealth v. Asamoa 809 A2d 943
   This statute is vague, but is it also overbroad? I reached conduct that could not
    constitutionally be reached – a state of being.

Coates v. Cincinnati
   Vagueness and overbreadth intertwined
March 11, 2008

Prior Restraint

Lovell v. Griffin
    City Ordinance that all distribution of information must first be approved by city
    Is there a compelling gov’t interest
    Is the statute overbroad? The city manager has complete discretion to apply this
       ordinance, there are no guidelines that the city manager has to adhere to.
    Vague? Gives no meaningful notice to persons wanting to distribute literature as to
       what will and will not be approved.
    Are there certain kinds of literature that the gov’t can prohibit? Yes
    1st instance – would attack this ordinance as overbroad and vague. But then go to
       secondary question
           o What kind of statute could the city pass?
           o Argue besides regulating time, place and manner, can city regulate content of
                a message? In some instances yes, they can.
           o Regulations where government is seeking to regulate based on content that
                fit areas of speech that are not protected by 1st Amend. Words of agreement
                for conspiracy, incitement.
           o What is the line between speech and incitement? Clear and present danger

Clear and Present Danger Test – Justice Holmes
    History of this doctrine. Court never changes language, but does change its
       understanding of it.
          o Brandenberg case – tells us that there has to be 2 elements present to
              constitute a valid clear and present danger statute
                    Speech must be directed at either producing or inciting imminent
                     lawless action.
                          2 ways in this can occur
                                o Speaker intends to rally a likeminded group of people into
                                    lawless action.
                                o Where the speaker intends to provoke an immediate and
                                    violent reply. DO NOT READ THIS AS INTEND TO
                                    PISS PEOPLE OFF.
                    Speech must be given in a context in which the unlawful result is likely
                     to occur.
    Prior Restraint - we know what you intend to say and we want to stop you even
       before you say it. We will punish you if you say it, but we want to shut you up before
       you say it.
          o If culture is going to grow, we assume that things are going to be said. Some
              of them can be punished after the fact. Hopefully some will be dismissed by
              additional discord.
        o A circumstance in which the gov’t bears the heaviest burden it can bear in
           any case.
        o In Lovell v. Griffen, is this a prior restraint? Statute as written invites prior
           restraint. It allows a gov’t official to stop a publication before it is expressed if
           the content of the message is a basis for the denial of the permit.
   Near v. Minnesota
   NY Times v. US
        o Background was that the NYT came into possession of a document that was
           an internal memorandum of the Pentagon, not meant for public view.
        o Case was argued by Alexander Bickle on behalf of NYT.
        o What kind of showing of what might be sufficient uphold an injunction against
           publications such as this?
        o Question becomes, how far do you go with this? If a newspaper found out
           that the US military had great intelligence about an important matter would
           you put it on the news?
        o Showing a compelling interest in a clear and present danger.
   Scheneck v. Unites States
        o Question is: can the gov’t criminalize Scheneck for passing out his flyer?
        o What is it that creates a clear and present danger?
        o Why is handing out this flyer different than publishing it in a newspaper?
                He was handing out the flyers at the drafting places.
        o The gov’t has a compelling interest to create a standing army, this guy is
           obstructing the draft.
        o The clear and present danger test says you need to look at both CONTEXT
           and CONTENT. Look at the message and the context in which it is uttered.
        o Are they in a context and of such a nature that there is a clear and present
           danger that the words will create a harm.
        o Holmes makes comments in this case about time of war. But in Frohwerk
           Holmes says that the 1st Amendment does not take a vacation in time of war.
        o Content and Context
                Look at seriousness of the harm and if it is a legitimate state interest?
                How close is the ‘boom’ circumstance to being brought about
                How likely is it that the speech will make that happen
                The printed page is almost immune from clear and present danger
                  analysis. By itself, without context, is nearly impossible to incite people
                  to go burn something down. Whereas the same words in a speech in
                  front of an excited crowd may produce a clear and present danger.
        o In free speech, you don’t have to wait for the moment the explosion happens
           to stop the speech.
   Abrams v. United States
        o Majority starts softening the language of the clear and present danger test
           and Holmes begins to dissent.
                The intent of people is not enough to create a clear and present
   Gitlow v. New York
        o Bad tendency case
          o In this case, the defense requested that limitations be put on this statute to
             find this guy guilty.
          o The jury was not limited in its consideration.
          o Note how these case evolved from the period of 1919 – 1930’s. Russian
             revolution had occurred and the fear that communism would spread to the
             US. Also the ‘radical’ labor movement.
      Witney v. California
          o Ct said as long as the state is regulating speech that intending to incite crime,
             the law is constitutional.
          o Have to punish this because it brings about the feared outcome or harm.
      Second Round of these cases came about in the 1950’s. Time of McCarthy-ism.
      Dennis v. United States
          o Court essentially says that if it is an agreement to do a criminal act some time
             in the future, the gov’t can prosecute that crime now. If the agreement is a
             firm agreement that this thing will happen definitively, then they can prosecute
          o Does the gravity of the evil, discounted by its probability, justify the invasion
             on free speech to necessarily avoid the danger.
          o Hugo Black starts the pendulum swinging back
      Brandenburg v. Ohio
          o Klu Klux Klan rally
          o When could the state act to punish people for offensive language only
          o Clear and present danger test starts to come back to where Holmes thought it
             should be.
          o More modern test set out in Brandenburg
          o The speech must be directed at producing this lawless action.
          o Can criminalize inciteful speech and meant to provoke immediate and violent
          o The 2nd part of the test is where it is likely to produce such action. Content
             and Context. When is it likely to produce such action? Fighting words
          o The state has the right to prevent violent assaultive behavior, even if against
             the inciter.
          o This is not an easy test for the gov’t.

Fighting Words
    Cantwell v. Connecticut
          o The statute was so broadly worded that it could have properly punished
             fighting words, but would also incompass saying things that others don’t like.
    Chaplinsky v. New Hampshire
          o Ct upholds statute under the fighting words exceptions.
          o Wording of the statute – old statute and the supreme court of the state
             interpreted it more narrowly written, so as applied, it was upheld.
          o Since this case, it has not been used again to uphold a conviction.
    Terminiello v. Chicago
          o Standard of speech under statute was unconstitutional
          o We can not have laws that regulates things that people don’t want to hear
      Cohen v. California
          o This statute was extremely broad
          o No intent to incite violent response. No evidence of his use of the garment to
             threaten any outcome the gov’t would have a right to protect.
          o Ct said it was not just applicable in the courthouse, but throughout the state.
          o Vague fear of possible disturbance is not enough to be a crime.
          o Further suggestion in the case that we are talking about ultimate vulgar word.
                  Freedom of expression is a powerful meaning
                  The constitution protects both the emotive function of speech and its
                    cognitive function
      Brandenburg formulation
          o Incitement of likeminded people, the instigation of a fight by conduct and
             words that in the context evidence the speakers desire to bring that conduct
          o The old cases that talk about conspiracy are still good law in the sense that if
             a group of people get together to conspire to blow up a building, just because
             they don’t have date, does not mean you can not yet prosecute.
                  Conspiracy is a specific intent crime. Overt act is merely a
                    demonstration of their intent.
          o In clear and present danger type speech, Brandenburg takes it back to
             Holmes true intent with the test.

Statutes that require permits or licensing
    Whenever a statute is content sensitive, it is probably vague and overbroad
    To be constitutional it has to fit Brandenburg
    The proper response of the gov’t in a permit or zoneing issue they must show they
       have no interest in the content of the message, only the time, place and manner in
       which it was said. b/c while one has the right of free speech, you do not have the
       right to do so with a bull horn at 3 am.

Time, Place and Manner
    Essential Test of proper TPM regulation:
          o 4 part test
                 Is the regulation even-handed as to content? Regulation must be
                    content neutral
                 Is that regulation narrowly tailored to serve legitimate and significant
                    gov’t interests?
                 If it is narrowly tailored, it will leave open alternative channels of
                 Is the regulation reasonable in terms of the amount of speech which is
                         Suppose that study says noise pollution is a big problem, so
                            regulations are passed that require mufflers on all sorts of
                            industrial equip., further, on any public trans you are required to
                            speak softly.
                               o Is that content neutral? Yes.
                                  o State interest – possibly
                                  o Alternative channels – yes
                                  o Does it suppress too much speech?
        Heffron v. Society of Krishnas
            o Content neutral? Yes. Are they being singled out? no
            o Narrowly tailored state interest? maintain the efficiency of the fair.
            o Alternative channels? Booth. But, Krishnas say this doesn’t work for them
            o Legislation goes through
        Ward v. Rock against Racism
            o Noise statute

Twist in TPM jurisprudence
    Public forum – one of those places where free speech is most liberally invited. Also
       sidewalks. Public property does not equate to a public forum.
          o Just because something is occurring on public land does not automatically
             mean the thing is a public forum. Their interests is not what it is in other
          o Whether it is a public forum or not will effect the TPM test.

March 18, 2008

Current working definition of TMP restriction on speech

1.       Content Neutral
2.       Narrowly tailored to serve legitimate and significant gov’t interest
         a.     reasonable?
3.       Alternative Channels of communication

This test comes to the court by way of deciding this is the proper test for the particular case
before it. Only rare circumstances the gov’t will admit that it is their intent to suppress the
content of the speech. If the content is being regulated, then the clear and present danger
test is applied.

TPM Manifests in a variety of circumstances
Gov’t will be saying that its permit process is a valid TPM restriction and nothing more than
1.     Is it content neutral?
    What this means in permit cases is does this regulation allow the permit issue take
       cognizance of the content of the rally? Fee based on opposition to the parade?
       Then content of the speech is able to be regulated. This allows the permit issuer to
       take into consideration the content.
2.     Regulation must be narrowly tailored to serve a legitimate and significant interest
    Regulation cant be vague. Do the things a sensible regulation would do.
     a. Reasonableness – suppose a city had a regulation that said you can’t ever have a
        parade. Is this content neutral? Yes. Are there alternative channels? Yes. Is it
        narrowly tailored so serve a legitimate gov’t interest? NO, it is too broad, it is a
        complete ban on parades.
           o When you talk about narrowly tailored, it means specific, it means narrow in
              the sense that it provides guidelines and not overly broad (not overbreadth).
              It’s not constitutionally over broad, the problem it is suppresses so much
              speech. It shuts off one entire avenue of speech.
           o Grossly undercut the goals of society generally.
           o A ban like this falls disproportionately on the ‘fringe’ individuals. They don’t
              have the means to rent a large venue for their message. Otherwise their
              message may not get out. A ban of this nature falls disproportionately on the
              outside of the mainstream. But it is these groups in particular that we need to
              have heard. Critical to our political system.

3.      Permit regulations usually always leave other challenges

Companion cases of Saia and Kovacs

Saia v. New York
Kovacks v.Cooper

In both cases the state will argue this is a TPM restriction.
Is this a valid restriction?
Is it content neutral?       Yes
Narrowly tailored?           Yes
Alternative Channels?        Yes

Under this test, it passes. But what other objection?
Vague – no much leeway to determine what is loud and raucous noises.
Is it invalid on its face?
For this statute to be enforced constitutionally there would have to be some interpretation of
raucous (usually state supreme court). This may fit TPM, so argue this statute is vague.

It this content neutral?   No, it builds in a broad category and says its up to the chief of
police to make the decision – too much discretion.
Fails TPM test and gets struck down.

Statute says: no individual may gather in the company of 3 or more other persons within
25 feet of the entrance of the county jail.
Group protesting death penalty has a rally on a public sidewalk w/in 10 feet of county jail.
Is this a valid TPM restriction?
1.      content neutral?      Yes
2.     narrowly tailored and significant gov’t interest? Could be a significant gov’t interest
to keep the entrance to the jail clear for safe transport of criminals housed in the jail.
Security concern as to the inmates. Gov’t’s interest is a security interest.
3.     Alternative channels?        Yes, anywhere but 25 feet in front of the jail.

(this is aderly v. fl)
Hugo Black upholds the statute. Against attack that it was overly broad and prevents too

Public forum doctrine
The significant and legitimate gov’t interest may change based upon the place where the
statute is being applied. But may not be the same in each one.
Still requires content neutrality
But focuses on legitimate gov’t interest in a public place

Lehman v. Shaker Heights
    Public bus is not a traditional public forum.
    Even though it is state property the state has the right to restrict it to its proper uses.
    Alternative channels, but b/c the fact that this was a non-public forum the state has
     an interest to remove that one category of speech.

Public sidewalk is the quintessential public forum. The public interest must be much more
significant and the statute must be more narrowly tailored. A city does not have to allow
every publication to have a rack on the sidewalk, but must narrowly tailor the regulation to
keep the gov’t interest in mind.

Metromedia v. San Diego
   Content neutral? Yes
   Legitimate interest? Aesthetics
   Narrowly tailored to serve? No. this is a complete ban on all outdoor advertising.
         o Is it reasonable? Categorically suppressed a mode of speech. A huge
             volume and becomes an unreasonable suppression of speech.
   Alternative channels?          Yes
   Gets struck down for suppressing too much speech.
   Where gov’t has a particular interest in regulating a particular situation in a non-
      public forum then it is constitutiona.

US v. Grace
   Content neutral?      Yes
   Legitimate gov’t interest? Security, disruption of court proceedings.
   Narrowly tailored to fit interest? it eliminates an entire mode of speech.
         o Is it focused on times when court is in session? No.
         o This regulation sweeps so broadly and suppresses so much that it is not
            narrowly tailored and unnecessarily suppresses too much speech.
   This is on a public sidewalk
      When the demonstration is inside the gov’t building, there can be much more

Watchtower v. Stratton
   Neutral? Yes
   Legitimate interest? litter and people obstructed and impeded while walking down
   Narrowly tailored? NO. it is a categorical ban on leafleting.

City Council v. Vincent

Frisbee v. Schultz - 1988
     Unlawful for any person to picket outside a private property
     Protection of the privacy of the home was a sufficient gov’t interest. even though the
      statute was not narrowly tailored, it was as narrow as it could be and still be
     What the sidewalk is in front of may make a difference.

Regulation: it is unlawful for any person w/in 100 feet of a health care facility’s entrance
knowingly to approach within 8 feet of another person w/o that person’s consent to pass a
leaflet or to display a sign to or engage in oral protest, education or counseling.

Hill v. Colorado
     Content neutral?       Yes.
     Gov’t interest?        Privacy of individual going into health care facility
     Narrowly tailored? Yes
     It is overly broad? No. it covers all possible areas that would affect privacy going
        into a health care facility
     What area could be considered vague? The oral protest, education or counseling?
        Regulation gets upheld.

Students do not loose the protection of the constitution of the US when they walk into a
Schools are bound by the 4th Amendment. But do not need a warrant for searches.
Reasonable of searches in schools can occur w/o a warrant if they are for the purpose of
enforcing school policy.

Board of Ed. v. Pico
   Books in library
   SC remands. Motive of the school board for removing these books is material.

Bethel School District v. Fraiser
    Antkowiak’s favorite con law case
    Sexually descriptive speech
    Is it the content of his speech? No it’s the MANNER.
      Can a public high school punish a kid for standing up in front of an assembly and
       say fuck? Yes. It is not appropriate discourse in a school.
      Is this speech content?
      Propriety of this kind of speech in the context of school.
      This was not a ban on the message of his speech, it was the school’s right to restrict
       a student’s use to use disruptive language at a school assembly.

Writing assignment


March 25, 2008

Transition from time, place, manner speech to Quasi/Hybrid speech. They share a
common core b/c the law looks at what is said and asks immediately why is it that the gov’t
is trying to extract some penalty for these words having been said, written, shouted, etc.

The common thread is that supposedly that the gov’t real concern is not the content of the
ideas, as soon as it evolves from that and the gov’t can convince the court that punishment
is not from the thoughts, but b/c you expressed those ideas in a vulgar, selatious or wrong
time, this is the reason why you were punished.

Context and content are never far removed from each other.

In the Bethel Park case, the court determines that Matthew Frasier was not punished for
the content of his speech. Had he given the same speech at a different place or time there
would have been no valid state interest in trying to punish him. But b/c of the time and
place of school, the school could punish him.

Most recent – Bong hits for jesus case. Case is a layover of Frazier. Same basic principle.
In a public rally, the police couldn’t arrest you. In a school context, where the school has a
policy against the advocacy of drug use, this the court says is a permissible neutral state
objective in the context of the school.

FCC V. Pacifica Foundation
   Out of the school context
   George Carlin – 7 words you can’t say on television. Radio station played it and
     FCC fined them.
   Must look at the context of the words spoken. Not spoken in a place where adults
     know the nature of the George Carlin bit.
   Broadcasting is in a unique situation b/c their message is not confined to people who
     want to hear that message. Almost a nuisance type of case.
   Led the court to say that in other context you couldn’t make this problem out, but on
     the public radio you could.
Public Employee Speech

City of San Diego v. Roe
     Police officer and porn star.
     Ct upheld the firing.
     Assuming his actions were protected speaking activities, the employer still had a
        significant interest in not having an officer that was a porn star
     Context
     Legitimate public reasons, this kind of other conduct can not be tolerated.

Garcetti v. Ceballos
   Have to ask 1st – did the employee speak as a citizen on a matter of public concern?
      Or did he represent himself as speaking on behalf of the office? Anything that is
      contrary to the policies of the office.
   Whether the gov’t employer has an adequate justification of treating the employee
      differently than others not employed. The restriction must be imposed on speech
      that has the potential to impact the operation of the office.
   Ensure that in speaking out, the actions of the employees are making it difficult of
      the employer to operate.
   Collateral question. Did this guys comments make it difficult for us to operate
      efficiently and effectively.

Hybrid or Symbolic Speech

Tinker v. Des Moines Independent Community School
    School argument – this is similar to Frazer (not yet decided when this case was)
    So showing that the armband would incite violent response.
    The burden is on the school to show that merely wearing an armband would more
       certainly incite violence.
    Content based regulation

United States v. O’Brien
    Burning the draft card
    Content neutral law had an incidental infringement on 1st Amendment right.
    Test for hybrid speech – pg 1205
          o Is this materially different than time, place, manner test?
    You are punishing something that is an action. This was an act of destruction not
      protected by the 1st amendment at all.

Street v. New York
    First flag burning case
    Statute makes it a crime to publically mutilate the American flag
    This is significantly overbroad – punishes speech alone even making fun of the flag.
    What is the purpose of this statute? What is the legitimate gov’t interest?
      After they articulate the interest, look to the statute.
      Statute does not talk of incitement, no proof that flag burning alone is incitement.

Texas v. Johnson
    Gov’t’s interest in promoting respect and veneration of the country.
    Not just destruction of item, to desecrate is to seriously mistreat enough to offend
    Is the phrase ‘seriously offend’ vague? On its face, a problem is it’s potential
    Preventing the breach of the peace – court does an overbreadth analysis. You can
      have a situation where igniting a flag could meet the test of an incitement statute.
      To assume this will happen in all contexts, this would involve a massive suppression
      of speech. Contrary to the entire idea of the 1st amendment.
    State interest of promoting nationhood and national unity. Is that a legitimate gov’t
      interest to promote?
          o Gov’t is saying that they are not suppressing his right to oppose the war.
             They are promoting everyone’s belief in the country.
          o When you promote the idea that the gov’t assert to be orthodox, you are
             exactly suppressing the contrary idea the individual is expressing.
    Government trying to dictate what is the accepted view. This is not a legitimate gov’t
      interest at all. Don’t’ even use the o’brien test at all.
    NO neutral governmental interest to promote. All about is suppression of negative
    State was trying to assert that the flag was different.
    Key point – look at the position of the gov’t lawyer – how do they convince the court
      that there is really a non-speech issue they are trying to reach.
          o To invoke the o’brien test they have got to identify this non-speech thing they
             are trying to regulate.

Nude Dancing

Barnes v. Glen Theatere
    Plurality upholds statute
    Using an o’brien type of analysis to uphold it.
    Incidental toll of the dancers wearing a g-string

City of Erie v. Pap’s AM
     PA Supreme Court had struck down the law based on their interpretation of the 1 st
        Amendment. They apply o’brien, but find the state’s interest not significant enough.
     Case to to US Supreme Ct. based on whether the pA Supreme court got the
        interpretation right. They did not
     This ordinance did not target nudity in erotic dancing, but public nudity
     State argument was the secondary effects argument. Negative secondary effects
        associated with nude dancing, violence, public intoxication, prostitution, etc.
     This expressive conduct is not solely to be expressive
      SC overtures PA supreme court.
      O’brien test is satisfied.

Commercial Speech

Easy: False or fraudulent speech is not protected. Promotion of illegal activity is also not
protected speech.

What constitutes commercial speech?
You do not forfeit your 1st amendment right to free speech just because speech is
economic. Even if economic motives underlie the speech, does not mean it is not
protected. It forms a part of the fabric of speech. It is still important to society and

Central Hudson Gas v. Public Service Comm’n
   4 part test:
         o Is the speech protected? Must concern lawful activity and not be misleading
         o Is the gov’t interest substantial?
         o Does the regulation directly advance the gov’t interest
         o Or is it more extensive than necessary to achieve this?
   This should be familiar to you.
   Not more extensive does not mean least restrictive alternative
   This is not a clear and present danger test
   State can ban ads that promote illegal activity, drugs, prostitute
   Also can ban an ad by a company who advertises for employees only white.
   Ads that promote legal activity can not categorically be banned.
   Abortion activities were legal, state can not ban advertisments
   Puerto Rico case – limit advertising for gambling to only those outside of Puerto rico.
   Better case – tobacco – Laurelar v. Massachusetts

44 Liquormart v. Rhode Island

Last 1st Amendment topic

Hate Speech
    This is not a separate area of jurisprudence.
    Same tests applied, just subject matter
    R.A.V. v. St. Paul
         o Cross is burned on African-american’s front yard
         o Lower court tried this case under ‘fighting words’ doctrine
         o SC struck it down.
         o If they would have narrowed the statute to only a symbol with intent to
            threaten, but as it was it was content sensitive
         o Punished a particular message on the basis of race, gender, religion, etc.
         o This punished all conduct the same, sensitive to all content of speech.
         o Looked at the message the individual was conveying, not the intent
      Virginia v. Black
           o Cross burning case
           o Cross burning is prima facie intent to intimidate- this part was struck down
           o Actions of burning the cross must be shown to have meant to intimidate or
           o When the view being expressed become the means of the punishment, then
              that is unconstitutional. If the message is the issue then unconstitutional.

April 1, 2008

Remaining topics in speech on pod cast next week. Will go over the hate speech cases


Why is it there are religion clauses in the Constitution at all? There are many references to
god in many of the preceding documents. Specifically the Christian god.
Madison in particular, was a deist. Thomas Jefferson was not particularly religious. This is
the language of the enlightenment. Natural and unalienable rights. Much of enlightenment
thought was a rejection of the idea that truth was revealed by some higher source.

First Amendment prohibits the government infringement in the free exercise of religion.
What about the Establishment Clause? What does it do over and above the free exercise
clause? Is it redundant? We espouse a limited government. Gov’t exists by the consent of
the governed. That in itself is a limit on government. If government begins to see itself as
a religious entity and as implementing not the consent of the governed, but the word of god,
what does that do to government? NO reason or logic is needed, nor would limits be
applicable. It becomes the definition of tyranny. Monarchs ruled by divine right. The
power of god is infinite. The establishment clause reminds the government they are not

The philosophical aspect of the enlightenment is imported into our government.

Conflict when government and religion bump up against each other.

Madison argued that an establishment of religion hurts both gov’t and religion.

Free Exercise Clause

Much of the free exercise clause analysis is a layover of the first amendment free speech
analysis. In one respect, the free exercise clause emphasizes something about due
process analysis generally.

Differentiate religion cases from speech cases.
        Does it even qualify as a religion argument?
United States v. Seeger
       As long as you hold a belief in a way an orthodox belief in god.
       Factual consideration of sincere belief. United States v. Ballard
       The test is as follows:
             o After question of religious belief
             o Is the gov’t law a neutral law of general application
             o If it is, the test is like the time, place and manner test of free speech
                      Evenhanded as to content
                      Significant gov’t interest
                      That the law is narrowly tailored to serve.
             o If not a neutral law
                      Is this the least restrictive alternative
                      Gov’t compelling interest
                      Must assess the degree of infringment

Cantwell v. Connecticut
      Goes after the Catholics for going door to door to solicit

West Virginia Board of Ed. v. Barnett
       Jehovah’s Witnesses would not pledge the flag.
       State law mandatory flag pledge
       1943 case – represents something larger than its outcome.
              o The US is in WWII. Passions were running high
       Written by Jackson who took a leave of absence from US supreme court to serve
          as a prosecutor for the US in the trials at Nuremburg.
       He is still able to find that the gov’t can not make a kid say the pledge of

Wisconsin v. Yoder
    Amish school case
    It seems neutral, but apply that neutral law to these people, you fundamentally make
     these people at odds with their religious precept.
    It is an inherent part of their religious practice to have their kids outside the public
     school after a certain age.
    The gov’t interests are promoting an educated society, making sure all citizens have
     basic skills to get on in life, etc.
    No dispute as to legitimate gov’t interest. but Amish children are still educated,
     model citizens and without the problems you seek to eradicate in the state interest.
    Court carved out an exception to the statute.
    Statute was proper and neutral on its face, but as applied in this circumstance, the
     court said the deprivation of the religious practice was so severe by this neutral law,
     that the gov’t justifications weren’t substantial enough.
    Introduces the idea that in religious cases, degree of deprivation is important and
     needs to be discussed openly.
United States v. Lee
    Degree of infringement was not nearly as significant as was the case in Yoder.
    The gov’t interest is the fiscal soundness of the social security system.
    Government wins this case. Same argument as in Wisconsin v. Yoder.
    Difference? Actual impact of the law on the Amish and the faith. Also, the
      compelling state interest

Bob Jones University v. United States
   College does not allow races to mix in the college based upon religious beliefs.
      College enforces racial separation in its college.
   IRS code states that institutions like this can not receive the benefits of a charitable
   Every dollar is therefore income, and college has to file a tax return and pay taxes.
      When a donation is made, but it can not be written off on their taxes for doing so.
   Is this a neutral law? Yes. Are they being discriminated against based on their
      religious beliefs? Yes. No doubt as to the sincerity of their belief.
   Is this a compelling interest? yes.
   What about least restrictive alternative? Is there a compelling argument that the
      gov’t could have gone further validly.

Sherbert v. Verner
   7th Day Adventist who refused to work on Saturday and was fired. Turned down for
      unemployment compensation.
   Is this a neutral law of general application? Yes. But of specific application – too
      much discretion.
   Rule was applied to Amish neutrally. But in this case, the state has to make specific
      and qualitative judgment as to whether her religious practices were ‘good cause’.
   There is an infringement on the practice of religion.
   What is the state’s interest? unemployment compensation
   This is not really a neutral law of general application, this is a neutral law of specific
      application with discretion to the state to apply.

Hobbie v. Florida
   Follow up to Sherbert
   Same feature – the without good cause type

Oregon v. Smith
    Same basis standard, but use ‘misconduct’
    Is this the same thing? They are suffering the denial of a benefit and forced to give
     up an activity in furtherance of a religious belief. What is the distinction? The drug
     use is a criminal violation.
    Does that make it a neutral law of general application?
    Procedural issue – before they decided the case, they remanded to the Oregon
     supreme court and asked them if there was an exemption for possession of peyote
     for sacramental purposes.
      Is the Oregon application of its unemployment law have the same effect as in
       Sherbert? The law in Oregon that is neutral are criminal law. There is little discretion
       as there was in Sherbert.
      Under our unemployment comp law, we define misconduct to be a criminal violation.
      This becomes a time, place and manner type test. Don’t have to find a compelling
       state interest
      Judged under a standard that is more akin to
      Legitimate gov’t interest, narrowly tailored.
      This case spawned the Religious Restoration Act

Gonzales v. O Centro
   City of Borne case only cited once. The Act did not try to rewrite the constitutional
     standard. As to federal statutes, the RFRA in effect, amends every fed. Statute in
     the book, and as a matter of statute, when you are applying this statute use the
     Sherbert test. Congressional intent that its federal statutes be scrutinized by the
     Sherbert test.

Lukumi v. Hialeah
    Santeria case
    Is this a neutral law? Not even close. Specifically identified a religious practice
    Is there a compelling interest? can’t really use animal cruelty, because you lose on
     the least restrictive alternative.

Goldman v. Weinberger
    Is this a neutral law? Yes

April 8, 2008

Podcasts on Libel, obscenity, compelled speech will be posted later today or tomorrow.
Review session tmr at 5. email him before hand.
Will be happy to talk individually about writing assignments. Next week sometime.
Grades were:
21.5% were A or B+ 20% B

2 Cases in Religion which are bridge cases. They bridge free exercise and establishment

The EC has its own little quirks and irreconcilable confusions. B/c the SC has not settled
on a set way on how to analyze the EC. The opinion may be result oriented. Come down
to a circumstance where there are 3 distinct tests that have been uses.

Coercion test – where gov’t action in public education has coercive effect on stutdents.
Lemon test – Lemon v. Kurtzman – 3 parts. A statute would pass if it had a clear secular
purpose, if its primary effect was neither to advance or reject or religion, and did not cause
excessive entanglement in its administration.
Newer Lemon test - Clear secular purpose and then ask if its primary effect involved; gov’t
indoctrinations, defining the recipients of some benefit by religion or creating excessive
Endorsement test – some sort of religion display on gov’t property. Whether that display
represent a violation of the establishment clause. Whether the effect on a reasonable
observer would feel the gov’t is advancing religion. Most forgiving test.

University of Pittsburgh adopts a policy that any registered student group or organization
can use university facilities for its gatherings need only register to do so in a reasonable
amt of time and reasonable purpose you can use the rooms. Then group of Muslim
students want to use facility for religious services. University says no. why?
P’s say you made a content based law. Specifically pointed to religious nature to decline
use of facility.

Witmer v. Vincent
    Compelling interest of the university is not to violation the constitution of the US
     establishment clause.
    Least restrictive alternative? Yes, not barring all student gatherings, only religious
    Are they violating the establishment clause? 3 tests. Which one more applicable?
     Probably the lemon test. If they are not violating the lemon test, they would have to
     have a clearly secular purpose to allow any religious group to use the facilities.
     What would that secular purpose be?
          o Essence of Liberal college education is to expose you to diverse aspects of
             the human knowledge.
    There was no defense in the establishment clause here.

   Locke v. Davey
       Using state scholarship money to pursue a degree in devotional theology.
       Davey arguing the same thing as Witmer
       On the issue of his choice to use the scholarship for religious studies
       Davey arguing this violates his free exercise rights.
             o Is this a neutral law of general application?
                      It does not distinguish between religions
                      But you can use this $$ to study anything except devotional religion
                      Not really neutral
             o If not neutral, shouldn’t this be presumptively unconstitutional? Should be,
                  but the SC looks at the Lukumi case and pulls back from it.
       This is between the free exercise and anti-establishment clause.
       Why is this not a neutral law? Court distinguishes this from Lukumi as a ‘far
         milder kind’ of discrimination. Not a serious infringement on free exercise.
       It does matter how deep the cut is by the gov’t action. It does matter how serious
         in infringement is on the free speech right. Explicit in this case.
       The state’s action here does not strike that deep.
          This is not a departure from the protections of religious exercise. It is an overt
           acknowledgement that the SC asks the question ‘how seriously is the

Witmer and Locke are the bridge cases

Establishment Clause

This clause seeks to limit gov’t generally by not allowing gov’t to act as though it were a

Lemon test
1. The statute has a clear secular purpose;
2. Its primary effect was neither to advance nor inhibit religion; and
3. It did not cause excessive entanglement between church and state in its administration

The first part of this test is being stretched. A secular purpose for a faith-based idea.
This is what you have with the lemon test on the surface.
But we have a series of coercion test cases

School Prayer: Coercion
Engel v. Vitale
    School district wrote a prayer
    What is the secular purpose? NONE

Abington School Dist v. Schempp
    SC strikes down
    What is the secular purpose?

Lee v. Weisman
    Graduation ceremony tradition to have a member of the clergy to present an
    Graduation ceremony was not mandatory
    Can the state structure into a graduation ceremony a speaker like this?
          o What is the secular purpose?
    There are subtle yet coercive effect of this situation. Effect on the students is

Santa Fe School Dist. v. Doe
   Structured prayer w/in the school system

Creation/Evolution Curriculum
Edwards v. Aguillard
    Secular purpose? Academic freedom
    What was the legislatures true motive and intention which is an unusual inquiry for
       the court to go into.
      If academic freedom is what was really the objective of the law is? Then the law has
       the opposite effect of limiting academic freedom. This secular purpose doesn’t

Classic Lemon Test cases are usually in the aid to schools or educational purposes.

Larken v. Grendel’s Den
    Does this pass the traditional lemon test?
    Entanglement is the issue. Handing over gov’t power to the church. They can veto
      the zoning of the area around them.

Funding Cases
The lemon test was used most often.
Sociological question: why would any state provide any monies for any private school?
Many reasons. A private school usually educate per student cheaper than a public school.

Everson v. Board of Education
    To what degree does the state really have to become involved in the sectarian
      school for it to be excessive entanglement

Mueller v. Allen
   Deduction on state income tax return for child’s private school education expenses.
   Secular purpose is the Financial savings for the state
   Is there a religious agenda? This is for all private education, not just religious
   Tax deduction works on books except those books for religious purpose.
   But then you have an excessive entanglement problem.
   Some how the state has to ensure that you don’t get a tax deduction for purchasing
      a religious book. This is not excessive entanglement
   Who is asking for tax deduction? The parents of the students. The parent makes
      the claim. The school has little to do with the law.
   Entanglement is not excessive here.

Tilton v. Richardson
     There are fundamental differences in parochial grade school and college.
     Primary effect in a grade school is to indoctrinate religion. At a college level, it does
        not occur to the same degree.
     Upheld as constitutional.

Lemon v. Kurtzman
   Money was paid to the schools to supplement the salaries of the teachers.
   Direct funds into the schools to pay for their teachers to have salary supplements.
   Strikes this down as unconstitutional.
   This is a level of advancement of religion by directly paying these people.
   Example of a case where the payments were excessively tangled with religion.
Agostini v. Felton
    Refines the Lemon Test
    Does this advance religion? Entanglement?
    Court starts to change the lemon test – not a 3 part test
    Ask 2 questions
           o Does the statute have a clear secular purpose?
           o Does the statute have a primary effect which is one of the following things:
                   Does it result in governmental indoctrination
                   Does it define its recipients in terms of religious practices
                   Doest it create excessive entanglement
    Is this really the same test? Is the Lemon test the same thing as it once was?
    The concept of something that could advance or prohibit can be interpreted broadly.
    This test supplants advance and inhibit with indoctrination, defining by religious
      affiliation and entanglement.
    This test allows a lot more governmental programs than the old test did.
    This case does not suggest they are watering down the lemon test at all.

Zobrest v. Catalina Foothills School Dist.
    This may have been more of a problem under the Lemon test.

April 15, 2008

Confirm 2 review sessions before final exam

Sunday May 4 noon - review
Monday May 5 at 6 – simply answer questions

Application of various tests under the Establishment Clause
Lock v. Davey the state of Washington was dealing with grants going to people going to
study theology.
If student took a voucher to a private Christian college for tuition to become a minister.
Witters v. Washington
Did the state of Washington violate the establishment clause when they allowed him to do
Apply the Lemon test?
What is the secular purpose? Giving disabled people the opportunity to learn a skill,
profession, etc. and allow them to go to school and help them not become wards of the
If this is a sufficient secular purpose, the other side will come back and use the ‘old’ lemon
test. Advancing religion. Or reconstituted the lemon test, this is entanglement of the gov’t
by giving him gov’t money to go to school to be a minister.
What ever version of the lemon test you use, all of those imply governmental action. It is
the government that is advancing religion or defining recipients on the basis of religion.
Except there is a structural buffer here which is all we are doing is giving a qualified
individual a grant. All we care is that he uses it at a qualified intuition of learning. The
choice is his how to use the grant. Because of that, the state action is cut off. No state
action that directly caused the money to go to the church. All of the other aspects of the
lemon test are resolved, because all of them predispose the necessity of state action.

This case was seen as an opportunity for the voucher system for education.
Is it the same secular purpose argument as it was in Winters? NO. In Winters it was for
handicapped people so that they would not be on the government dole their entire life. In
this case, it applies to all school children. Are all the children in the state going to end up
on welfare?
The issue in the Davey case carved out that you couldn’t use the grant under free exercise.
This is different

March v. Chambers
   Prayer in Legislature. First case since Lemon that ct. did not apply the three prong
      test. Ct. looked to specific features of challenged practice in light of long history.
      Simply a tolerable acknowledgment of beliefs widely held among the people of this
      county. Court cites to other examples of “public prayer.”
   if you look at the factors of the Lemon Test, this would probably not pass. But what
   De minimus. The law does not concern itself with trifles.
   This and Lynch v. Donnelly, to pretty much say, Lemon test is ok, but we’re not
      going to use it all the time
   Problem is that the court does not tell us when they will or will not use the Lemon

Allegheny Co. v. ACLU
     Cheche was held to violate the establishment clause.

Van Orden v. Perry
   10 Commandments monument
   2005 the court tries to pull it together
   Lemon test not going to be used in passive monuments
   Use monuments nature and nation’s history
   Truly relied upon monuments nature.

McCreary Co. Kentucky v. ACLU
   2 Kentucky counties post large versions of the Ten Commandments in their
   Resolution to expand the display
   Is it an establishment clause violation TODAY. What difference does it make that
     the monument in TX was put up 40 years ago, than in KY when it was put up 6 mos.
   Is this evidence of the state’s present day endorsement of that religious doctrine?
   The notion that the monument is presenting the notion that the state is today
     promoting a certain religion is less.
Mistrovich – goes over all the different tests available under the Establishment clause

If you simply said, use lemon, but ask yourself, before you apply all the ideas of whether or
not it inhibits, ask how much of an infringement is this? Look at like in other due process

Equal Protection

Look at it in terms of the structure of argument that an advocate would make.

Strict scrutiny
Intensified rational basis or intermediate scruitiny
Rational Basis

If you are challenging a statute under Equal Protection, you do no want to be in Rational
basis. This is the softest place for the gov’t to land. Try and get the case into strict scrutiny
or the intermediate scrutiny.

Argue on 2 axis – Fundamental right and suspect class

Classification by race is suspect class
Gender is intermediate class

In equal protection you must look at both axis to raise the levels of scrutiny

If Strict scrutiny
Compelling state interest

Law presumed unconstitutional – gov’t bears the burden of proving the constitutionality

Rational basis test
Legistimate state interest w/ means rationally related to the ends
Law is presumed constitutional and the challenger has the burden of proving it is not

More than legitimate interest, less than compelling – substantial state interest w/ a
substantial relation to the means
No presumption as to constitutionality

4 Factors of a subject class
1.     is the group a discrete and insular group?
               Is it identifiable? A group of people based on something other than their ability
to perform a relevant test.
2.       the group requires protection, they are disadvantaged.
3.       historical. Has the group been the victim of purposefull misconduct?
4.       The group is distinguished by a characteristic of birth

Courts have said to compare groups to racial classifications. Race is the paradigm of all 4

1.    are they a discreet group? Yes
They meet the test, but are not granted strict scrutiny.

The importance of the classifications are very real. The point of the early cases are to
show how brutal the rational basis test can be to an aggrieved party.

Railway Express Agency v. New York

IN economic regulations, the degree of deference is extremely high

Suspect Classification: Race Discrimination

        Race has always been an issue in this country.
              o Even the framers of the Constitution wanted to address it in the Con.
              o They knew they couldn’t get the Con passed with it in there
           th
         13 Amendment did not actually end slavery. States were imaginative in creating
         laws to keep it going
        Dredd Scott decision. Much of the opinion considers the slaves subordinate and
         inferior class of citizens who are not protected by the Con.
        Loving v. Virginia (1967). Interracial marriage case. They were given a 1 year
         suspended sentence on the condition they were to leave the state of Virginia for 25
         years. 16 states had laws like this.
              o States argued this as constitutional
                      Said this wasn’t racial discrimination, because both the white and black
                        person were equally punished.
        Palmore v. Sidoti. White woman remarries a black person. Gives custody of the
         child to the father.
        Plessy v. Ferguson (1896). Louisiana law separated the races. Separate but equal.
         The court applied the rational basis test.
              o State interest – preserving traditions (!!!)
        Sweep v. Paine – court declined to strike down separate but equal. But did find the
         black law school was not equal.

Brown v. Board of Education
    Thurgood Marshall was the attorney for the plaintiffs in this case. He was a brilliant
    They picked out the right cases, and right plaintiffs and set up the case. Marshall
      took this case to the supreme court
    People were nervous. A case about segregation in public schools.
    Warren was just appointed.
    This is a short opinion.
Brown v. Board of Education II
    This was the remedy opinion. The court wanted them to de-segregate soon.
    Started empowering the lower federal courts to get this done

The following de-segregation cases, the courts found:
We will not enforce a quota system. Look to the reasons why a single race school has
come about and what is in place to preserve it?

Millican v. Bradley 1974
     Drawing of boundaries so that there is racial discrimination, the federal district court
       and draw new boundaries
     This happened in Woodland Hills. School districts were set up in a discriminatory
       manner. Dissolved them all and created new ones.
     Hardly a circumstance in which only the south was targeted.

Supreme Court considered cases after this:
What the constitution prohibits is purposeful discrimination by the state

Washington v. Davis
It is not enough to show prima facia case that more black persons failed test than white
persons. Show some indication that the test was chosen for some racial discriminatory
If you show a dramatically disparate result, all that gets you to the point where you can say
ask them why they use this test.
Sets up the structure of these cases. P must show prima facia case of disparate treatment
and shift burden to other side to prove otherwise.

On its face there is some difference is not enough. It is when there is a large impact then
the prima facia case is made out.

Any form of discrimination have to show that the procedures in place are there for an evil
reason. Acquiescence of an old system may be held as discriminatory today.

Circumstantial evidence of intent to discriminate to make the case of discriminatory intent
for their prima facia showing.

April 22, 2008

Washington v. Davis
   Structurally sets up some of the important issues in a equal protection case
   Overall rule is that if the categorization is on the basis of race than strict scrutiny
   Issue in Davis is whether strict scrutiny should apply at all
      Get to strict scrutiny that the discrimination must be a purposeful one
      Must prove purposeful discrimination
           o Not necessarily negatively
      City said this was a neutral test and did not intent to use test to discriminate
      Key question – how was it intended to operate?
           o Exam it by the face of statute
                    Make distinctions on basis of race
           o Totally neutral law that was applied in a totally discriminatory way – a neutral
               law applied unequally.
      How go about trying to prove purposeful discrimination
           o Intent (when direct evidence is not available)
           o Circumstantial evidence – the intent can be inferred from a set of
                    Ie: criminal law, PA hold true to an inference that in order to prove that
                      a D in a homicide case killed both with malice and specific intent, the
                      jury can infer those by use of lethal weapon to a vital part of the body.
                    Short hand way of jury finding 2 very important factors
                    In race or EP – you can use the results of the supposed neutral law to
                      support claim of intentional discrimination.
                    If results are disparate can make claim the test is used to filter out
                      people on an impermissible level
           o Burden on plaintiff to show that discrimination was impermissible.
      In this case P never met their burden that discrimination was impermissible
      A law or official governmental practice must have a "discriminatory purpose," not
       merely a disproportionate effect on one race, in order to constitute "invidious
       discrimination" under the Fifth Amendment Due Process Clause or the Fourteenth
       Amendment Equal Protection Clause.

Intentional discriminatory practices in voter registration were intentionally being upheld.

Regents of Univ. of California v. Bakke
   White student brought case under EP clause for school that reserved 16 spots per
     year for minority students.
   Historically the EP clause was to protect black citizens.
         o Does the EP protect Bakke, a white male?
   Can the EP be invoked by a white guy?
   The classification is openly based on race. The Univ. sets aside spots based on
   EP is not a backward looking clause. It looks at the present. Today, as you make
     discriminatory choices, there are certain criteria that are disfavored, but if you use
     them you need an excellent reason. Compelling interest and only use it to the
     limited extent to achieve that end. This is the meaning of the EP clause.
   When you use race today, you better bring a strong justification.
   In this case race was the criteria.
   What was college’s reason? To help rectify the wrongs of the past. Increase the
     number of minority doctors.
          o What is the problem with that analysis?
                In the past there was overt discrimination
                In the present, the system operates to affirmatively and purposely
                    perpetuate that prior discrimination. Today there are policies in
                    practice that perpetuate, we need to root out those policies.
          o Like in Rodgers – the prior discrimination is perpetuated. Can’t use present
            discrimination to prevent prior discrimination that is not occurring at the time.
          o Next argument that the doctors would go and serve in under-developed areas
            and provide medical aid – this argument itself is racist!
          o Ethnic diversity – this is a compelling interest of the university. This is part of
            the liberal education process

Grutter v. Bollinger
    U of M law school in their attempt to enroll a critical mass of minority student to
       create a broadly diverse student body
    The effort of the school here was to do exactly what Bakke said could be done as
       part of a compelling interest
    Ever since, public institutions have attempted to model their admissions around what
       Bakke set out.
    This is a raced based decision in part
    Is there an adherence to the idea that their process of admission is the least
       restrictive alternative?
           o Must do this as consistence with your objective
           o Is diversity an end? No. it’s a means. To what end do you put diversity.
               Why do we care about diversity. It enhances the educational environment.
           o Try to take a broad spectrum of factors, race being one of them

Gratz v. Bollinger
    Also U of M undergraduate.
    Had some point system for applications
    If you fit within one of the ethnic minority categories, you got so many points right off
       the bat.
    This is a stand alone factor that arbitrarily added 20% to the persons admission
    State must narrow its criteria so that the effects of this are not as acute.

Parents v. the Seattle School District 2007 USLEXIS
    Bakke type case
    Used race as a tie breaker.
    Clear issue of purposeful use of race as a criteria – have to argue compelling
      interest, least restrictive alternative
    When schools argued diversity, the court pointed out that the least restrictive
      alternative argument failed. Race was not just considered as part of a broader effort
      to expose differences, it was rather determinative standing alone.
    Reaffirms Bakke and Michigan cases.
      Race did not meet the compelling interest, it wasn’t related to their legitimate ends
       and their use of it become a fresh new violation.

Wygant v. Jackson Board of Ed.
   Had to layoff
   Instead of laying off by seniority, they made the determination based on race.

The Set asides
    Set aside a portion of a project to be done by a minority company
    If the criteria being used is racial, why doesn’t the EP clause step in?

Richmond v. J.A. Croson Co.
    City does this minority set aside
    Argued the city was properly doing so. Race was clearly a criteria
    If Race is a criteria, then you must show that you are enforcing a compelling interest
     and doing it in the lease restrictive means
    How do they justify this? Remedy prior discrimination in the construction industry.
         o City could not show there was state sponsored discrimination it was trying to
    the entirety of the effort fails because this is not the least restrictive alternative
    must be a current and ongoing discrimination for this remedy to be valid

Johnson v. California
    perpetutation of the separate but equal argument
    however at the end of the case, they remanded for further hearing
    lower courts had erroneously held that EP wouldn’t apply at all.
    Needed hearings on compelling interest and least restrictive alternative
    This was not a written policy.


Reed v. Reed
   Male child preferred as administrator of the estate
         o 1971 this held unconstitutional
   Didn’t identify that gender was a ‘suspect’ class
   Talked about fair and substantial relation to the law

Frontiero v. Richardson
    With this gender argument, the argument had to be made under a standard 4
       considerations of a suspect class
    Race established that criteria, it works regardless of which race is being
       discriminated against
           o Test to establish suspect class is almost always backward looking
    Once you establish the suspect class, today in making decisions the gov’t can’t use
       it as a consideration
      But here the argument had to be made that women was a suspect class
      Women in the military - had a duel standard for increased benefits.
      Court goes through all the criteria of a suspect class and says it fits
      The court however, only had 7 members and 4 announced this view, and 3 agreed
       but did not find that women where a suspect class.
          o When 2 were added, they formed a plurality.
          o No majority opinion that women are a suspect class
      Where men argue discrimination, they can not raise the suspect class (unlike race in
      How do we treat it? Intermediate scrutiny

Craig v. Boren
    Intermediate Scrutiny – important governmental objectives must be substantially
       related to achievement of those objectives
    Mere statistical showing may not be enough, but under rational basis it may be.

A state where only women could receive alimony
    What justification?
    A state’s attempt to arbitrarily allocate gender roles, it is an impermissible.
    Unconstitutional

Mississippi University for Women v. Hogan
    Only reason state could come up with was prior discrimination
    Unless you identify a current burden that state action is placing on people
   that this remedy alleviates. All you are doing is committing yet another violation.

US v. Virginia
   VMI case
   University’s criteria is gender and admit that it is.
   Important state interest? Over all purpose is to train and educate military officers.
          o Producing high level military officers
   The means? To admit men only
   How do you relate means to ends?
          o The means and ends are related
          o No proof of this
   VMI arued a lot of generalizations
   It was a failure of proof to make out the second part of the test. It is an important
      end, the they did not prove the means to the ends
   Scalia brings up the traditions argument in his dissent.
          o Antkowiak hates this.

Michael M. v. Superior Court
    Statutory rape clause
    Whole case turned upon the government interest
    What was the government interest?
          o If gov’t said corruption of minors or immorality result would be different.
      Concern was to prevent teen-age pregnancy.
      Becomes an age issue when the bright line is drawn between 17 and 18. This
       switches gears and brings it into the rational relation test

Courts have not accepted pregnancy as the equivalent of gender discrimination
       Classification is not gender
Women not drafted for military service – upheld. Not strict scrutiny – intermediate level and
gov’t argued that since men only sent into combat is it sufficiently related to goals

Fathered child out of wedlock and mother chose to put child up for adoption, father had no
say so in this under a particular state law.
Argument is that it is a gender based discrimination b/c the women parent has a say so, the
male parent does not.
Argue it on intermediate level
Is there another way to argue if represented the father? Fundamental right to bear and
beget child – other axis of EP. Denied a fundamental right to raise a child.
       Court primarily looked at a gender case and struck it down as unconstitutional.

Have a situation where it is gender – its not a slam dunk. Find the other axis of
fundamental right involved you have a better argument and chance of winning.

April 29, 2008

Last Class!!!

Review session Sunday at Noon!

Monday evening review session in Lounge for additional questions

Final is not cumulative, same format. 8 questions.
Cite cases.

Question: when you look at a classification of a group, you look at the 4 accepted criteria.
Yet Bocki, a white male, gets the benefit of a suspect class. This is a function of the
underlying purposes of the Equal Protection Clause in a bizarre way is not there to protect
any one specific group per se. it is a direction to gov’t on how gov’t should carry out its
lawful business. EP says that you will have to make distinctions between people, you can
not use certain criteria to make that differentiation unless you show a compelling reason to
do so.
Has anyone been discriminated against on the basis of gender in a way that would fit that
that criteria. When the criteria is used wrongly, then that criteria becomes a suspect or
semi-suspect class under EP. For this reason, whites, Asians, blacks are treated the same
under EP.
Consideration: what about persons who are legal aliens in this country? Differentiate this
from those who are here illegally. Their classification is different. How should gov’t
classify? Can citizenship be a criteria?
Can you see a basis for making a discrimination on the basis of citizenship? Are there
grounds that a gov’t could argue is a proper one?
Basis of this has been parced out by the Court
       Hombock v. Norwick

Principle is this: Political theory rich reason: a political community/society can in certain
respects, define its members and leave for its members certain obligations to perform that
are unique and exclusive to its citizens. In that group of citizens, we have certain
obligations to the body politic, to the body of the state. Those obligations are generally
known when we are called upon to exercise discretion in the carrying out of policy. For an
on behalf of this political system, the political system may insist we are members of it.

But, what about a lawyer? Do not exercise discretion the same way a juror does. It should
be analyzed with strict scrutiny
Grade school teachers? Yes, they have discretion in teaching the principles of the body
Welfare? No, can not deny welfare to resident aliens. Has nothing to do with participating
in the system
Police officers? Yes, they exercise discretion for the entity politic.
Notary Public? No, they don’t’ need to be a citizen. It is not discretionary within the
exercise of any public policy.
Probation Officer? Yes. Court said the distinction is the rare circumstance in the question
of alienage that actually 2 different tests apply, based on the basis of discrimination
        1. if the individual is being discriminated against in a position of discretionary
authority w/in the political community can do w/ only rational basis test met.
        2. Where the state is involved in the distribution of economic goods (welfare, certain
employment and jobs) and the discrimination is on basis of alienage then strict scrutiny.
Draws this distinction because they look at the odd circumstance of the discretion of the
political community

Illegitimate Children

A state has a workers compensation law: if the worker is killed on the job, they’re
legitimate children receive full benefits. If they also have illegitimate children, and those
children are in fact dependant on the workers income, those children would be denied
benefits on the basis of illegitimacy. If the father had recognized, adopted, or made them
officially part of the family, they would take equally with the legitimate children. Otherwise,
they get nothing.
Discrimination on the basis of legitimacy. Suspect class? Yes, they have no control over
this – characteristic of birth. Nothing to do with ability to perform. Distinct group? No. this
has some, but not all the distinctions. They are not a suspect classification, but they are in
the intermediate classification w/ gender.
Apply intermediate scrutiny to this case:
What is the state interest? prevention of fraud?
How does this law serve that interest? means to ends?

Social Security Act system – same deal. Benefits only go to legitimate children at their
death, and to all illegitimate children who can prove financial dependency. Still distinction
between legitimacy.
This passes intermediate scrutiny because means to ends is better.

What if you applied strict scrutiny?
Compelling state interest? far more difficult for government to argue. Interest of the state
is prevention of fraud and that SS goes to the people it should. Court upholds it.

Intestate succession is also an issue on this.

Lally v. Lally
NY state said an illegitimate child must provide proof during the life of the father, in court in
order to inherit.
State interest? prevent fraudulent claim on inheritance.
Difference is the nature of the issue of proof. Workers Comp and SS, the issue was
dependency. Before DNA there was no way to prove paternity after death.
What if the state added that the parents at some point had to get married. This changes
the discrimination to solely on the basis of legitimacy. How does this serve the end at all?
The court struck that down. (not the Lally case)

Child Support

Statute of limitations on filing for child support.
Legitimate state interest? Keeping the cases flowing through the courts.
Is this kind of case the same as a civil suit for tort or contracts? No.
Series of 3 cases. Clark v. Jeter (Pa) 6 year statute. Court struck them all down. States
interest is legitimate, however, these kinds of cases do no clog up the system in the same
way. That which has to be determined is simple – paternity, then set the amount. This is a
group of people who have a greater protection than civil litigants generally entitled to a
heighten scrutiny. State did not draw its ends to means closer. All 3 cases went the same

State trooper reaches age of 50. Old people suspect class? No. Age is treated as a
nonsuspect class – rational basis test applies.
The state was afforded the discretion to say age 50 was enough. No reason needed to be
given. Rationally based to have fit police officers

Claiborne v. Claiborne Living Center
Group home permit denied. Is classification of mental disability suspect? Can you
discretely identify them? Not really. It does not lend itself to discrete boundaries. Court
says there is no suspect class here. Considered on a rational basis test.
Client wants to live in group home in a community but denied a zoning permit because
group home residents are those with mental disabilities. What other types of group homes
could have a home there? Then state’s interest of a quiet community is not valid. This is
selective ordinance with no rational basis to the ends of a quiet community.

In some scenario’s rational basis is not the worst place to be.

Physical Disability

No ramps to courthouse. Physical disability is not a suspect class. Rational basis?
Intermediate basis? No. this is a fundamental right to access to court house. We are in
strict scrutiny! Is this a BOR right? Not exactly. Penumbral right? Yea

Romer v. Evans
Gay client in Colorado. Some of the cities in Colorado discriminate against gays. They will
not rent to people who are gay. Ordinances that you can not discriminate on the basis of
sexual orientation. Pass a state constitutional amendment that prohibits a city from passing
a gay rights ordinance.
Argument: Strict scrutiny. Suspect class? Argue that gays need protection from the
political process. The amendment at issue!!! What about discrete and insular group.
ALWAYS COMPARE TO RACE!!! Minimally you want intermediate scrutiny. Parallel it
with gender or illegitimate children. Court has NEVER held that sexual preference that is
worth the merit of any classification above rational basis.
Fundament right? Place to live? Court has never held that there is a fundamental right to
housing. Creative argument that this infringes on the right to travel.
Devolves to Rational basis analysis. What is the state’s legitimate interest/reason for
passing amendment? Amendment singled out gays and said in this respect you can not
petition local government for these laws.
End: To keep gays out of their cities and communities.
Court said this law was completely irrational. Does not even pass rational basis.

Scalia’s dissent: absolutely horrible.

You have a client that moves from Ohio to Pennsylvania. Job falls through and goes to
state welfare office. One year residence requirement. Interest – prevention of fraud.
Under Equal protection. Suspect class? Are the poor a suspect class? Generally born
rich or poor. Not a lot of poor people in congress. Historical discrimination. Yes. But how
do you define poor? Courts have never found poor to be a suspect class.
Fundamental right? Right to travel. Shapiro v. Thompson. This clearly limits travel out of
state. State needs to show a compelling interest. in rational basis test the state would win.

State has a welfare standard that pays out incrementally as you have more children.
Proportionately smaller as your family grows. State’s argument is budgetary. There is no
fundamental right to food and shelter. State does not provide funds for abortion. You can
have as many children as you want, but is it the state’s obligation to pay you more and
more money to do so?
Dandridge v. Williams NO fundamental right, no suspect class. This is socioeconomic
legislation. State’s interest is legitimate and there is a rational basis.

San Antonio v. Rodriguez
Enormous disparity school district spent on schools. Lawsuit arguing funds should be
equalized. It violates the EP rights of the students in the poorer school districts. No
fundamental right, rational basis test. Keep the money generated by school districts locally.
Huge point that state made was that no child was denied an education by this.

Texas public schools. There are a lot of illegal aliens attending public schools in Texas.
Passes a law that withholds from public schools, funds for the education of illegal aliens.
Local schools are authorized to deny enrollment to them. Strict scrutiny – distribution of
government benefits. No suspect class – voluntarily assumed status. But this is not true of
the children. They didn’t really have a choice. Flat out denial of benefits. Court did not
apply strict, they applied intermediate scrutiny. Classic illustration of graph. Kind of like
illegitimate children. Confluence puts it in the intermediate range. Can’t just look at
classification and then denial. Successfully argue that interest of the state should be tested
in the intermediate grounds.

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