Con Law ; Individual Rights Outline

CONSTITUTIONAL LAW – INDIVIDUAL RIGHTS Why does God matter? 1. Fear of Him, that is, morality, is the key to society, not law. 2. Contemplation of Him provides a support for the human condition. 3. A common Creator means equality among men. 4. Security of our rights hinges upon their source in an eternal God. If we deny God’s godhood, that status will devolve to the next highest competitor – usually the state. What was the meaning of “religious freedom” in pre-constitutional times? Maryland Toleration Act of 1649 – It basically says you can worship God any way you want, but you cannot deny that He exists. The former is a question of personal belief, the latter is a question of public morality and, ultimately, good government. Constitution of Pennsylvania – More vague and “progressive.” Refers only to the “Great Governor of the Universe” and requires an oath of belief in one god and in the divine inspiration of the Old and New Testaments. NOTE the Constitution continues this vagueness, but expands it to “religion” WITH THE ASSUMPTION that this referred to various sects of the Christian (protestant?) religion. Because this was unstated, the words of the Constitution are subject to reinterpretation as the other religions grow bold and litigate their place in the social order. Madison’s first draft of the First Amendment was: “The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.” - The reaction of the floor of the Congress shows that it was understood to be a guarantee that those who wanted to pursue religious belief could do so without restriction or compulsion by the state. Thus, it can be construed as saying nothing at all as to the rights of those who do not desire to pursue their religious rights. - Madison thought that the prohibition of national religion meant that “Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience.” Thus, he did not intend that a state could not establish a religion (as, in fact, they had), only that atheism would not get any special treatment at the federal level. - NOTE that only the advent of judicial incorporation gave courts the power to apply the Bill of Rights to the states. - Why “respecting the establishment of religion?” They were to indicate that Congress lacked total authority with respect to establishments of religion – THAT WAS THOUGHT TO BE A STATE POWER. Summary of ADT 1. Successful democracy depends upon the moral formation of the people 2. Multiple sects in America, but they all believe in the same God 3. Religion provides the “habits of restraint” necessary to keep the law small and organized 4. Faith is inherent to man, sometimes called hope 5. Religion is strengthened by its separation from the state because it is then immune from the state’s failings and partisans; religion draws directly on the universal nature of the human person 6. Because religion is separate from the state, it can bind its people when the government/leaders fail 7. American unbelievers hid their disbelief because they recognized that religious belief was necessary; and religious difference did not occasion hostility, but thoughtful contemplation. NOTE that ADT’s understanding of the separation of church and state is to keep church free from the rise and fall of various political factions. This makes religion free to be true and independent and thus the strong pillar that unites a society regardless of its political arrangements. - This has a profound effect on the question of “faith-based organizations.” Does this creates too much of a material reliance by religion upon a particular political group. Bradfield v. Roberts Rule: EC does not preclude evenhanded funding of medical services. If one recipient is religious, this does not implicate the EC. Zorach v. Clauson Rule: The EC only prohibits the government from favoring one religion over another or forcing one to practice a particular religion. Contending Views of the Establishment Clause 3 Main Views 1. Government cannot coerce individual religious (sectarian) participation/support, but can support religion in general. [Rehnquist, Scalia, Thomas – “Formal Neutrality”] 2. Number 1 AND government cannot support (in purpose, effect, or entanglement) religion in general. [“No Coercion”?] 3. Number 1 AND government cannot do anything that might be perceived by a reasonably informed observer as an endorsement of religion in general. [O’Connor – “No Endorsement”] - A reasonable, objective observer is one who is reasonably familiar with the local context in which the support takes place. Does this person think government is endorsing religion? 4. Number 1, 2, possibly 3 AND government cannot benefit religion even in evenhanded governmental programs because this “supports” religion. [Souter, Stevens, Ginsburg, Breyer – “Exclusionary View”] - Note that there is an implicit assumption that the government is obligated to created a secular society. NOTE that the SC is not quite consistent because Zorach (1952) says we are a religious people while Everson (1949) says government can never support religion in general. Everson v. Board of Education (EC – “Exclusionary View”) Rule: FA requires that state be neutral between religion and non-religion. It does not require the state to be the adversary of religion. Subsidies for transport of all students, including religious students, shows neutrality and thus fulfills the FA. Lee v. Weisman (EC – “No Coercion View”) Rule: Government may not exert psychological pressure to participate even in a generic prayer exercise because this is an “establishment” of religion. Capitol Square Review and Advisory Board v. Pinette (“No Endorsement View”) Rule: Religious expression cannot violate the EC where it (1) is purely private and (2) occurs in a traditional or designated public forum, publicly announced and open to all on equal terms. Rosenburger v. Rector (“Nonpreferentialism or Equal Protection View”) Rule: Free speech clause requires that government entities not scrutinize and edit religious views from their forums – whether to secure conformity with the EC or otherwise. The EC requires only that government be neutral toward religion. A public benefit – money or forum – can go to religion if it is incidental to a neutrally applied program. Significance of the case is that even in regard to money, there is no EC violation if government is neutral in its dissemination. IN SHORT, laws cannot discriminate against or for religion. Beyond this, public money benefiting religion is allowed. - NOTE the language “generally available program,” which Thomas goes back to over and over. Summary of 3 EC Interpretation Contenders 1. No coercion view. Can’t coerce someone to worship, convert, etc. (support religion?) 2. No endorsement view. Can’t allow government activity to be perceived by a reasonable observer as being an endorsement of religion. 3. Thomas’ “nonpreferentialism” view. If the government provides formally neutral programs, unequal favoritism of religion in practice is OK. 4. Exclusionary view. Affirmative duty to provide secular public order – in addition to abstaining from any religious view. Neutrality = secularity. Public Funding & Religious Discrimination Lemon v. Kurtzman Rule: A statute does not violate the EC if: 1. Secular legislative purpose 2. Primary effect that neither inhibits nor advances religion 3. Does not foster an excessive government entanglement with religion. Mitchell v. Helms Rule: Broadly available, neutrally disseminated government aid does not offend the EC even if it directly benefits religious groups. Zelman v. Simmons-Harris Rule: Broadly available, neutrally disseminated government aid does not offend the EC even if it directly and disproportionately benefits religious groups as long as the benefit comes as the result of private choice. School vouchers are like paychecks. School Prayer Engel v. Vitale Rule: State composed prayers for school use are a violation of the EC. - NOTE that the pledge doesn’t fit this because it’s not a prayer … it merely describes who we are and acknowledges that there is a God. Schempp Rule: Public teachers reading 10 verses from the Bible every morning violates the EC. Wallace v. Jaffree Rule: Where legislature modifies statute to explicitly allow religious content, this is impermissible governmental favor of religious expression. Alabama statute allowed for “time of voluntary meditation or prayer” in public school, which modified the preceding statute allowing only for “time of voluntary meditation.” Santa Fe v. Doe Rule: School government actors that have allowed religious viewpoints in the past cannot escape the EC merely by giving the decision to express religious viewpoints to the students. This “neutrally based” decision was subject to the underlying coercion of the environment. NOTE that both Wallace and Santa Fe were facially neutral statutes, BUT the Court went back to the factual history (legislative or otherwise) to find that the facial neutrality was a mask on religiously motivated efforts to allow religion in the governmental sphere of school activities. Facial challenges require that no set of circumstances exist in which the statute is valid – a standard which is clearly not met by the SC’s logic. It looked past the face to the reason for the statute. THIS IS A VARIANT OF THE PSYCHOLOGICAL COERCION TEST. Free Exercise – Distinguishing Belief from Practice - These cases don’t arise from denial of benefits or unequal treatment. Rather they are neutral, generally applicable law with no exception for religious practice. Reynolds v. United States Rule: Congress can enact no law regulating religious opinion, but may regulate religious actions that violate social duties or are subversive of good order. Wisconsin v. Yoder Rule: Congress cannot enact even neutral laws if they regulate religious conduct that is not subversive of good order. [In short, the Amish can violate laws that keep them from being as “holy” as they would be otherwise, whereas the Mormons may not violate laws that keep them from being as “debased” as they would otherwise be.] SO Yoder proposed a balancing test. On one side is the centrality of religious belief (not core in Reynolds, but core in Yoder). On the other side is the compelling governmental interest in stopping the practice. Neither judgment is predictable and requires the Court to be theologians, either how central the belief is or how compelling the interest is. The Court has tried to distance itself from this test. NOTE: Constitutional “accommodation” of religion usually means exempting religions from neutrally applicable law. Unconstitutional “establishment” usually means crafting laws that favor religion. Free Exercise – What Questions Can the Courts Ask? United States v. Ballard Rule: First Amendment prohibits judicial inquiry into the truth or falsity of religious doctrine BUT it can inquire into whether the belief was sincerely held. NOTE: The SC has held in Thomas v. Review Bd. Of the Ind. Employment Sec. Div. that sincerity does not require anyone else to share the same beliefs. United States v. Seeger Rule: A religious belief is one “that is sincere and meaningfully occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God.” NOTE: Seeger is held to mean any type of world view as long as it is sincerely held. *NOTE THE IMPACT OF THE COURTS EC AND FA CLAUSES: THE EFFECT OF THE COURT’S RULINGS IN FE AND EC CASES IS TO PRIVILEGE THE SECULAR WORLDVIEW – IT GETS ALL THE BENEFITS ON THE FE SIDE AND NONE OF THE BURDENS ON THE EC SIDE.* NOTE: The Department of Justice’s proposed definition of “religion” is: “a system of beliefs, whether personally or institutionally held, prompted by the acceptance of transcendent realities or acknowledging extratemporal actions.” Now we look at cases that embody the words “Congress shall make no law prohibiting the free exercise of religion.” Braunfeld v. Brown Rule: Laws that do not directly make a religious practice unlawful, but regulates secular activity in such a way as to make religious exercise more expensive, are constitutional. Sherbert v. Verner Rule: Laws that do not directly make a religious practice unlawful, but regulates secular activity in such a way as to make religious exercise more expensive, are constitutional IF the government has a compelling governmental interest. NOTE: If government creates a statutory burden, it can create exemptions from that burden for religious persons – that’s neutrality. BUT Everson says the government can show no favoritism between religion and no religion. NOTE: Prohibition has slipped into the meaning of “unduly burdensome.” Free Exercise – No Exemption From Generally Applicable Laws Employment Division v. Smith Rule: Neutral laws of general applicability that incidentally burden the free exercise of religion do not violate the Free Exercise Clause. Rule: Only cases that involve hybrid constitutional rights (free exercise/parental rights, et al) may give rise to a religious exemption. Rule: Legislatures may, but are not required, to grant exemptions, and they need only justify their laws with a “rational basis” test. NOTE: That Smith was applied in Lukumi, where the generally applicable law against animal sacrifice was not neutral because it was enacted specifically to prohibit the practice of Santeria in the particular town of Hialeah. City of Boerne v. Flores Rule: Congressional action under § 5 must be used to enact remedies “congruent and proportional” to the Court’s explicated understanding of constitutional rights. NOTE: There is also an act called RLUIPA. It has the bizarre scope of creating additional space for free exercise as to land use law and institutionalized persons. The key difference between RLUIPA and RFRA is the source of authority: Congress conditioned its adoption of the preSmith rule on its spending power. Remember, Congress has virtually unlimited authority to put conditions upon federal dollars. Protecting Vested Contract Rights The Protection of Contract Against State Impairment (Art. I, § 10) The Founder’s perspective was that the law against state impairment of Ks was integral because without it there was no security for transactions in an economic society because they were constantly in peril from a changeable state congress. In short, freedom from state impairment of contracts ensured an ordered and stable society. This is an express limitation against the states for 2 reasons: o States are issuing money, which is fast becoming useless. o States were getting in the practice of forgiving personal debts by legislation. NOTE that Congress didn’t pass laws against the specific practices, but against all such practices that “impair the obligation of contract.” o This is tied to the “rule of law” spoken of by Locke because it ensures that the law will remain reliable in the face of changing rulers and judges. - - - o Similar laws were past like the ban on ex post facto laws, the prohibition on bills of attainder (laws passed by the legislature regulating an individual’s conduct), etc. NOTE Story’s definition of contract: Giving over the control of your will/actions in some particular aspect – i.e., giving a car dealer the right to mandate your working to pay off the debt you have incurred to him. Sturges v. Crowninshield Rule: A retrospective extinguishment of previously vested contract and property rights is a violation of Art. I, § 10. These cases are all about the balance between private right v. public need. o We will be dealing with two aspects of economic rights:  Contracts  Property o The way the public sector infringes into the private rights represented are by redefining “property.” It is not an absolute right, but a bundle out of which the government snatches the sticks it needs. o In the contractual realm, the public sector doesn’t say that you didn’t have a contract. Instead it focuses on the question of whether there was an adequate public need. o THEREFORE simply realize that although economic rights are just as fundamental as civil rights, the former are nearly always treated as second citizens to the latter.  This usually manifests itself in the level of review given these rights – Carolene Products’ footnote 4.  Civil rights are given strict scrutiny.  Economic rights are given a rational basis level of review. The presumption of validity is in favor of the regulation. The contract clause is in the constitution, and it has an effect on the level of review the Court applies. Ordinary economic legislation is subject to rational basis, but the invocation of the contract clause is supposed to trigger a heightened level of review – the dreaded intermediate review. o Thus, the question in these cases always revolves around what sort of public need the government can muster to justify its intrusion onto the constitutional right to unimpeded contract. Fletcher v. Peck o Rule: Once a state has entered into a contract with a private individual, it may not impair the obligations of that contract by legislation. o Rule: Property rights are often merely the fruit of a completed contract. o Rule: The contracts clause includes public contracts as well as private contracts. o Georgia sold land to Gunn by legislative act at well below the market price. Gunn sold to Peck. Peck sold to Fletcher. Georgia legislature then tries by legislative act to set aside the sale because it perpetrated a fraud on the state of Georgia. - - Fletcher sues Peck (not Georgia because of the 11 th amendment) as a subsequent purchaser for value without notice. o But this is property, not a contract. But Marshall says that the property right is nothing more than the fruit of an executed contract, as happened here. Fletcher was enjoying the fruit of his contract, one of the provisions of which is that the state of Georgia won’t go back on its word. o But this is a public contract, not the private contracts contemplated by the contracts clause. But the Court simply says that the text doesn’t distinguish and neither will it.  NOTE that expansion of the contract clause to public contracts throws the private interests into direct conflict with the public needs. Marshall would have extended this to include prospective, as well as retrospective, laws. This would have prohibited the states from prospectively regulating for the public health, safety, and welfare if such regulations at any point conflicted with individual contract rights. SO if the prohibition on laws infringing on contract rights is absolute and prospective, it necessarily infringes upon the reserved police power of every state. Stone v. Mississippi o Rule: States may invoke their reserved police power to protect the health, safety, and welfare of its citizens to make laws infringing upon the right of contract. o Mississippi passed a law allowing lotteries and then passed a law prohibiting them. Court held this was OK because the latter was an exercise of the reserved police power. Home Building & Loan Ass’n v. Blaisdell o Rule: See 5 point criteria below. o This case takes place in the Depression. MN tries to give relief to its residents. It passed a law allowing an extension of the redemption period on foreclosed mortgages if the mortgagee pays the foreclosing party the reasonable rental value of the property. The mortgage value continues. The borrower continues to pay toward the mortgage. This law was not an impairment of contract. Why? 5 criteria were met:  1. An emergency existed that presented a proper occasion for the exercise of the reserved police power.  2. The law was aimed at a broad societal interest (not intended to create a narrow redistribution of wealth).  3. The law provided a remedy proportionate to the emergency presented.  4. The law provided a temporary remedy (a suspension, not reversal, of the existing contract).  5. The underlying core of the contract remains (it is not a severe or substantial impairment) OR the law dealt with remedy, not obligation. - - - - - - - o NOTE Sutherland thought this was not like Mississippi, where the state put a whole area of contracting off limits as intertwined with vice. Rather the state was meddling with existing, legitimate, non-vicious, contracts. The contracts clause did NOT become a dead letter, though. o For example, in W.B. Worthen, the Court held invalid a law that attempted to put the proceeds of life insurance policies beyond the reach of creditors. Allied Structural Steel Company v. Spannaus o Rule: A law that substantially burdens contractual obligations of a narrow class is violative of the contract clause. [More generally, the law failed all 5 Blaisdell criteria.] o Company had a pre-existing pension plan that only provided benefits if the company was still in business, the employee served 15 years, the employee reached 65, etc. MN passed a law requiring full vesting of pensions after working 10 years triggered by a company going out of business/leaving the state. o The Court thought this was “rent seeking” in which a faction manipulates the legislature to alter contracts it wished it hadn’t made. Energy Reserves Group and other such cases add an additional factor to the Mississippi ruling: If it occurs in a heavily regulated area, governmental intervention into the contracts in that area may be expected. General Motors v. Romein: Where parties expressly incorporate existing public law into their contracts, does that mean the legislature thereafter may not repeal that law? o Rule: Only laws that affect the “validity, construction, and enforcement” of the underlying employment contract. The Court hasn’t repealed the contracts clause, but it doesn’t get a lot of work. There is no contract clause that expressly applied to the federal government, but the Court has held that retroactive interference with contract by the feds is an impingement of contract. Takings Clause William Bradford thought private property was necessary to get people to work, and that the philosophers had no idea what they were talking about when they espoused communal property. Locke: o The body is the original property right. Thus, labor applied to things make them yours. You can only labor on what you need or can enjoy, thus the wealth is spread according to need, not avarice. Introduction of money changes that. Now property can be horded and its benefits compiled in the form of cash. This is inherent in the agreed-upon arrangement of a cash-based society. o Gov’t is instituted first to protect our property. A stable system under which to acquire and hoard is essential to economic progress. The stable system is composed of three parts:  Stable law known to all  Impartial judges who interpret the law neutrally according to general agreement  Governmental power to back up judges’ neutral interpretation of the law - - - - - o Did the Framers understand Locke to claim an absolute right to the self? I.e., does man own himself? Framers may have thought so, or allowed that view to be disseminated, but Locke himself clearly thought men had a divine mandate to use his body in certain ways only. NOTE: The constitution doesn’t require that anyone do anything with themselves. It does, however, forbid the government from interfering with individual lives without good reason or, in takings cases, without providing just compensation. All the following cases have a party that says: “The government can’t have my property without paying me fair compensation.” Pennsylvania Coal Co. v. Mahon Rule: Regulation of property based upon special interest legislation with no broadbased benefit probably constitutes a taking. Rule: Regulation that results in the “complete devaluation” of property is a taking. Rule: A true public benefit regulation should bestow some sort of benefit in exchange for the property rights it has restricted – i.e. zoning laws. P sold land to M as to surface rights, while retaining the rights to coal and the right to mine it. Penn legislature passed statute saying coal companies can’t mine property to which they do not own the surface rights where there are private structures on the surface (to protect against caving in). P contended the statute deprived it of its property rights without just compensation  a taking. M said the statute merely regulated the use of P’s property rights for the legitimate local government purpose of public safety  no taking. SC says property may be regulated for the public benefit to a certain extent, but if it goes too far, it’s a taking. Two major factors in the analysis: o Regulation was based upon special interest legislation w/ no broad-based benefit o Regulation cannot go “too far”  “complete devaluation” is “too far”  Here, P was kept from mining at all  P should get some kind of benefit for giving up part of his property right  i.e., zoning: everyone has to do it, and everyone benefits. Penn. Central v. New York o This case provides the generic takings analysis o Rule: Whether the regulation of property rights is a taking turns on a 3-part analysis:  Economic Viability: Is the P still using the property for its primary purpose and making a reasonable return? If so, no taking.  Investment-Backed Expectation: Did the P invest in the property with the intention of exploiting the use now forbidden? If not, no taking.  Character of Government Action: Did the government actually intrude physically upon the land? If not, probably not a taking. Nollan & Dolan o Rule: If a property use for which a permit is applied for creates a problem, government may impose a duty to remedy that problem by ceding land use without effecting a taking IF there’s a nexus between means and end. o These cases are the exceptions to the Penn Central rule because they involve “permit conditions.” The Reinvigorated Takings Clause Lukas v. South Carolina Coastal Council Rule: Where a regulation destroys virtually all economic value of a property, it is a taking unless the government can prove it is exercising its police power to abate common law nuisance. If government regulation exceeds that which common law nuisance precedent would justify, it is a taking. Common law nuisance: “A substantial and unreasonable interference with the general use and enjoyment of property.” Kennedy writes separately in concurrence to give states more latitude by hinging a determination of taking on the owner’s investment expectations, rather than merely on whether the state can prove common law nuisance. I.e., the state can look beyond nuisance law to prove that it was unreasonable for the investor to think he could put the property to the use he desired  news stories every week relating that the state was about to regulate to keep houses from going up on the barrier island. The significance of this case for takings doctrine is that it got the Court to understand that to have a coherent doctrine, it needed to have a clear definition of “property.” Somehow, it had to keep states from legislating property rights out of existence the day before the litigant shows up in court. The SC looked to nuisance law to provide a neutral definition of what property is: If your use doesn’t show up in the nuisance common law, it is a legal use of property. NOTE that nuisance law is dynamic. Thus, property definitions shift according to state. Issue: How do you know when “all value” has been taken? I.e., what’s the denominator? Is it the regulated parcel or the whole parcel? Landowners want the regulated parcel approach because regulated over regulated equals 100% and you win. Supreme Court Takings Theories o Categorical Tests  Penn Central - Physical invasion is a per se taking  Lukas – Where “substantially all value” has been removed, there is virtually a per se taking o Balancing Tests  Penn Coal - If regulation goes “too far” without reciprocal “broad-based” benefit, it is likely to be a taking.  Penn Central - The above test morphs into an ad hoc balancing test that considers:  The economic viability of the property – primary purpose/rx return  The investment expectations of the owners – intent for denied use  The character of the government regulation – physical invasion o Modified Balancing Tests  Specialized theory: Conditional grant of permits  Nollan/Dolan - Regulation is not a taking IF: o there is a nexus between the means of regulation and the identified end of regulation AND o a nexus between the means of regulation and the landowner’s desired use (causality). First English Evangelical Lutheran Church v. County of Los Angeles Rule: Upon invalidation of regulation, government must: 1. Repeal the regulation AND pay just compensation for the period that the regulation was in effect OR 2. Keep the regulation and pay just compensation for the full value of the property. Tahoe Sierra Reservation Counsel v. Tahoe Regional Planning Commission Rule: A total moratorium on development is NOT a categorical taking and is not subject to the Lukas standard. NOTE: This is different than First English b/c here people know in advance that the regulation is going to end  there it only ended because the government decided it would. NOTE: There is reasonable room for such moratoria  no development until the roads are in place, schools open, etc. Palazollo v. Rhode Island Rule: Regulation passed prior to landowner purchase is not dispositive – landowner knowledge of the regulation prior to purchase is only one factor the Court will consider in analyzing economic viability, investment expectations, and the character of governmental regulation. Here, a landowner bought a wetland after it was declared such by RI law. RI argued that his investment expectations included the limitations of a wetland and thus there was no taking  he was not being deprived of any use he reasonably thought he had. SC disagreed. SC believes that no matter when the regulation was passed – before or after ownership – there must be some utility to it. Land’s value can’t be wholly the product of what legislators say it is. O’Connor in majority says timing of the regulation is a factor in how the Court understands the investment backed expectations, but it is not dispositive. For example, if it’s regulated as a wetland, but all kinds of people are getting variances to build anyway, the Court still needs to inquire what the exact expectations of the investor are. NOTE: O’Connor has now taken away an absolute rule in favor of landowners and an absolute rule in favor of the government  consistent with her position as the swing voter. She appeared in Palazollo to be reading Nollan/Dolan “nexus” requirements into the Penn tests. Procedural Due Process The Civil Rights Cases Rule: Section 5 of the 14th is remedial. Congress may not regulate an area without proving that it is acting pursuant to a violation of the 14 th. It may not merely prescribe action. Shelley v. Kraemer Rule: Private contractual racial discrimination is constitutional per se but is unconstitutional when it is enforced by state courts. (This holding is mostly limited to the factual scenario of racial discrimination). What does the Court mean by “state action?” o Traditional government function delegated to a private party  Jury selection by a private attorney (Edmonson v. Leesville Concrete)  Private town that provides all government services (Marsh v. Alabama) o Judiciary is a state actor when enforcing an unconstitutional private bargain (Shelley v. Kraemer) because it implicates the government in an unconstitutional act – most race-based discrimination o Private regulatory body is a state actor if it is inextricably entwined with government by being composed primarily of state actors (Brentwood Academy v. Tennessee)  In short, the NCAA in Tarkanian is not a state actor because it is made up of all kinds of public and private institutions across the nation, but in Brentwood the regulatory body was composed primarily of state-school member institutions. o NOTE that state issuance of a license to an organization engaged in unconstitutional action is NOT state action Edmonson v. Leesville Concrete Co., Inc. Rule: A private attorney in the context of race-based jury selection is a state actor because1. He acts in “reliance on governmental assistance and benefits” by relying on judge’s word to officially exclude dismissed jurors 2. He is performing a “traditional government function” of excluding jurors 3. His deprivation of due process rights to excluded jurors is “aggravated in a unique way by the incidents of governmental authority” because it takes place in a courtroom. Rule: In jury selection context, a D has standing to raise the injuries of excluded jurors because he meets the 3 third-party standing elements: 1. Excluded juror has concrete injury of deprivation of due process, 2. D has close interests with excluded jurors, 3. Excluded jurors face obstacle to bringing their own claims. DIRECTION: These cases all involve fleshing out the meaning of “no state shall deprive of due process.” “State” cases revolved around when a private person can be a state actor. Now we move on to what “deprivation of due process” means. DeShaney v. Winnebago County Department of Social Services Rule: “Deprivation” of rights requires an affirmative act on the part of government actors – not merely knowledge of harm or even negligence. What Constitutes “Life, Liberty, & Property” & the Due Process Due Them? - NOTE ANALYSIS CONSTRUCT: Constitution requires that “No state shall deprive any person of life, liberty, or property without due process of law.” o So now we’ve dealt with when private persons are state actors o We’ve seen that deprivation requires positive action o Today, we deal with what constitutes “life, etc.” and what due process looks like. Board of Regents v. Roth Rule: LIBERTY “denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized … as essential to the orderly pursuit of happiness by free men.” NOTE the Court’s description of PROPERTY: “To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it” as determined by “existing rules or understandings that stem from independent sources such as state law.” - The Court defers on all matters of property to state law – here, as in Lukas, where Scalia located the proper understanding of “takings” within the realm of state nuisance law. So why didn’t P here have a property interest in continued employment? Because his expectation was unilateral. His property right was a matter of state contract law, which provided for exactly one year. Why didn’t P have a liberty interest? Because his liberty interest is in being employed, but not necessarily at the state school. He has the liberty of going elsewhere. NOTE the dissent thinks the shame of not being renewed keeps him from getting employed elsewhere. NOTE: Due process arises only when the subject is the application of an already enacted law to a particular person or group. This does not apply to legislative activity. The remedy there is to “throw the rascals out.” NOTE: “Doctrine of unconstitutional conditions” states that a government benefit may not be withheld as a penalty for exercising constitutionally protected rights. Does this apply to speech only? Goldberg v. Kelly Rule: Government may not deprive an individual of welfare benefits without adequate notice and a preliminary hearing that includes the opportunity for a hearing, which is composed of personal appearance to advocate and confront witnesses & presence of counsel. - Opportunity for personal appearance to advocate and confront witnesses. - Opportunity for presence of counsel Matthews v. Eldridge Rule: Balancing test for what due process is due - First, the private interest that will be affected by the official action; Second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; - Third, the Government’s (or “public’s”) interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail. o i.e., is this carrying out the public’s expectation as to the care of the disabled. The property interest here is Social Security Disability Benefits. The Court finds the interest of the individual secondary because if he is thrown off the SSD roles, he can always go get on the welfare roles. It is also preserved by the paper record of objective medical personnel. He doesn’t need to appear and the government need not have his appearance to make a fair judgment. Other Requirements of Due Process - Notice - reasonably calculated under all the circumstances to apprise the party of the proceeding. - Hearing - must be at a meaningful time and in a meaningful manner. - Evidentiary standards – must be heightened where fundamental rights are implicated - Access to counsel - Impartial factfinder - Right to appeal (usually limited to the criminal context) - Effectiveness of the remedy Substance Added to Procedure – A Due Process Limit on Punitive Damages? Pacific Mutual Life Insurance Co. v. Haslip Rule: Punitive damages are constitutional procedurally if: 1. The jury has been sufficiently well-instructed as to their limits 2. There is some judicial review to ensure the reasonableness of the amount. QUERY: What happened to Matthews? It gave us a procedural template to analyze due process. Where did it go? O’Connor brings it up in her dissent. Private interest is huge  there’s lots of money at stake. The risk that the procedure will be unfair is huge  lots of people hate big companies. The governmental interest in avoiding the corrective procedures would be minimal  it has no substantial interest in ensuring random jury verdicts and simply needs to instruct the juries in advance that they must be fair. BMW v. Gore Rule: The substantive limit for grossly excessive punitive damages is a 3-part test: 1. Reprehensibility of D’s conduct, 2. Ratio of punitive to compensatory damages, 3. comparison of relevant criminal or regulatory sanctions. State Farm v. Campbell Rule: Modification of the BMW v. Gore factors – - 1. Extraterritorial conduct may not be used to prove reprehensibility UNLESS it has a nexus with the conduct at issue 2. Single digit multipliers of compensatory damages are not necessarily grossly excessive. In fact, double, treble, or quadruple damages are about as far as you can go without raising SC eyebrows. Free Speech – Freedom from Prior Restraint & The Concept of the Public Forum Prior Restraint – “Any administrative requirement (e.g., a license or permit) or judicial order directed at suppressing speech before it is undertaken.” o Founding conception of limitation on speech that needed the most corrective was the prior permitting or licensing of speech by the Crown. BUT punishment for speech after the fact was presumed to be legitimate (i.e., common law seditious libel). Public Fora Divisions o Traditional Public Forum o Designated Public Forum o Non-public Forum - New York Times Co. v. United States Rule: Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity. Rule: The only time you have any hope of a prior restraint is when you can show immediate or imminent harm. Gravity of harm is insufficient, BUT this aspect may be in flux in light of September 11 th. Can New York Times be reconciled with Hill? No, because abortion breeds its own jurisprudence. Hill v. Colorado Rule: A content-neutral time/place/manner restriction has an intermediate level of review – it must be narrowly tailored to meet a significant governmental interest - it doesn’t have to be the most reasonable or least restrictive, it simply can’t totally foreclose a method of communication. International Society for Krishna Consciousness, Inc. v. Lee Rule: 3 Categories of Speech Fora – - Public Forum: Places like streets, sidewalks, and parks, that have traditionally been open to public discourse and debate. This is not an open category. If we haven’t done it for 200 years, we don’t consider it traditional. o Only content-based regulations that are narrowly tailored to meet a compelling governmental interest are allowable in public fora.  The only example of this is signs within 500 feet of polling places. o If the regulation is content-neutral, intermediate scrutiny applies. o What does content neutral mean? You have to be neutral about subject matter (general category) and viewpoint (subcategory). - Designated Public Forum: Places where the government opens public property for a general or specific purpose. o The same rules apply to a DPF as a public forum. - Non-Public Forum: Places that are public property but is not open to speech activity either by history or designation  lobby of post office, offices of secretary of state, etc. o Content-neutral regulations are allowed. o Government can also regulate on the basis of content or subject matter BUT not viewpoint.  i.e. Gettysburg site theater  only open to films about Gettysburg BUT can’t exclude films that hold the battle was stupid and wrongly won. Rule: Solicitation receives less protection than distribution of literature. Free Speech – No Content/Viewpoint Discrimination Rosenberger v. Rector Rule: Government cannot regulate a viewpoint in any forum. Rule: In a limited public forum, the government may regulate content IF its regulation is reasonably related to preserving it purposes in opening the forum BUT it cannot regulate viewpoints at all. NOTE: Government can state a point of view when speaking itself or hiring another to speak. This is different than when it opens a forum for others to speak. NOTE: Regan, in which Congress gave veteran’s groups tax exempt status even though they engaged in lobbying activities, the Court upheld the statute because the government was making distinctions based upon a speaker, not the viewpoint of that speaker. Is a public university constitutionally obliged to remain neutral in political debates? Rust v. Sullivan says that government takes sides all the time. The distinction is that government is speaking here. It is when the government regulates a speech forum that it must remain neutral. Universities usually don’t speak on one side because they would likely lose the 501(c)(3) status.  Board of Regents of the University of Wisconsin v. Southworth Rule: Students may be forced to pay activity fees so long as they are used for activities determined in a “viewpoint neutral” manner. Student activities fees are mandatory at Wisconsin. They are kept separate and utilized 80% in a “nonallocable” manner to health services, intramurals, etc. The allocable portion was distributed in three ways, two of which were viewpoint-neutral. The last method was by referendum. This disturbed the Court and it remanded to determine if a referendum could be viewpoint neutral. It, of course, did not. NOTE: Can a student opt out like a bar association or labor union member when dues are used for partisan activity? In those cases, the Court held that no one could be compelled to fund speech UNLESS it was germane to the reason for association in the first place. In this case, the Court thought there was no way to parse “germaneness” of activities to an educational enterprise. Free Speech – Qualified Interests Libel New York Times v. Sullivan Rule: A public figure may only recover for libel if he can prove actual malice by clear and convincing evidence – D’s knowledge of falsehood or reckless disregard of whether it was false or not. - Prior to the 1970s, commercial speech could be banned as long as the government had a rational basis. Commercial Speech Central Hudson Gas v. Public Service Commission of New York Rule: Four-part Test for When Commercial Speech is Protected 1. Is the transaction proposed either unlawful or misleading? 2. Is a substantial state interest achieved in the regulation? 3. Is a substantial state interest directly advanced by the regulation? 4. Is the regulation more extensive than necessary to serve that interest? NOTE: This rule allows the government to regulate truthful commercial speech if the speech tends to advocate harmful, but legal, activities. NOTE: This is intermediate review AND it is content-related  commercial speech is a different animal than non-commercial speech. - What is commercial speech? o The Court has only attempted to define once as: 1. advertisement, 2. referring to a particular product, 3. where speaker is economically motivated. Bolger. Conduct as Speech? United States v. O’Brien Rule: Conduct may be speech if – 1. The actor has the intent to convey a message by the action; 2. The message has a likelihood of having that message understood. Rule: Government may regulate expressive conduct if – 1. It is within the constitutional power of the government 2. It furthers an important or substantial governmental interest 3. Its interest is unrelated to suppression of expression 4. The incidental restriction is no greater than essential to the furtherance of the governmental interest. Alt. Rule: Government may regulate expressive conduct if – 1. Its purpose is other than suppression of speech; and 2. The impact is no greater than necessary to achieve the government’s purpose (i.e., if it meets intermediate scrutiny). Rule: Here, but not always, the SC says constitutional statutes will not be struck down even if the legislators intended an unconstitutional result. Texas v. Johnson Rule: Statute cannot ban flag-burning as long as it has as its purpose the suppression of speech associated with the act. NOTE: This statute fell in part because it allowed burning the flag with dignity. Low Value Speech – Adult Entertainment and Expressions of Hate Barnes v. Glen Theatre Rule: Nude dancing may be proscribed under the O’Brien standard if the statute at issue is not intended to regulate expression. OR Rule: Nude dancing may be proscribed by statute if there is a valid governmental purpose in legislation which regulates communicative acts in the interests of some other non-speech related goal; that legislation will not infringe the FA if it is narrowly tailored to accomplish its goal and minimally restricts the speech protected by the FA. NOTE: Renton allows communities to zone adult uses in a content-neutral manner into the same area or disperse them throughout a town so that their secondary effects (rape, prostitution, etc.) do not overwhelm the town. NOTE: Pap’s AM plurality does not require that a community conduct its own studies to ensure that the secondary effects will actually happen in its area. NOTE: Both of these comments seem to imply that the SC is just being less demanding because of the low value of the “speech” involved. NOTE: Schad v. Mt. Ephraim involved a town that banned all adult uses. The SC struck it down. This seems to imply that a town cannot do away with adult uses, perhaps even when the town is so small that the secondary effects cannot effectively be banished to the periphery. NOTE: The third point of the O’Brien test appears to be simply that mere morality is a sufficient governmental interest to burden speech. Did this go away in Lawrence? Kmiec says the conduct in the latter was in private and thus the scrutiny is higher. The justification of morality remains, but in a public setting only. Further areas of speech: o Obscenity – 3 Part Miller Test says material is obscene if:  An average person would find that the material taken as a whole would appeal to the prurient interest (this is a community standard) - Describes or depicts sexual conduct as defined by state law in an patently offensive way (this is also a community standard)  Lacks serious literary, artistic, political, or scientific value (this is a national, reasonable person standard). o Pornography  Ashcroft v. Free Speech Coalition – Kennedy struck down limitations on virtual child pornography. He noted that Ferber thought child porn was without protection, but primarily because of the damage done to children in its production. Congress tried to extend Ferber by banning virtual child porn because it does the same damage in allowing pedophiles to seduce children and in stimulating the same. Other prohibitions on laws concerning speech (and beyond). o Vagueness – A law is void for vagueness if it cannot be understood by a person of ordinary intelligence.  Chicago v. Morales – Chicago was overrun by gang violence and passed law that allowed police to disburse any group of people that were loitering without any discernible purpose. SC struck it down on both grounds, but mostly vagueness. Police had almost total discretion in determining when someone was loitering without purpose and people had no idea what constituted disbursing, etc. Did they have to go around the corner and resume their congregation? Do they merely have to separate by a few feet? Too vague. o Overbreadth – A law is void for overbreadth if it regulates substantially more speech than is allowed.  Usually is associated only with FA challenges. It also loosens the SC’s doctrine of standing. Here, anyone who is personally affected may bring an overbreadth claim on behalf of all others.  Schad v. Mt Ephraim – Statute prohibited any live entertainment with the intention of prohibiting nude dancing. SC struck it down because it included all kinds of protected communication – operas, etc.  Wisconsin v. Mitchell Rule: Government may use a D’s speech to enhance his sentence for an underlying crime. Government Speech Rust v. Sullivan Rule: When the government is funding speech to disseminate its own message, it may discriminate amongst speech as long as it has a rational basis for doing so. ALA Rule: Government may restrict access to pornography on computers through the exercise of its spending clause powers. Missed Class. Get notes… Speech in the Public Workplace or Private Club Waters v. Churchill Rule: In the public employee context, speech will be protected IF – 1. It is on a matter of public concern and 2. The employee’s interest in expressing herself on the matter is not outweighed by any injury the speech could cause to the interest of the State as an employer, in promoting the efficiency of the public services it performs through its employees. Rule: As a procedural requirement, the government must prove that its factfinding as to the nature of the employee’s speech and its determination of disruption is reasonable. Nurse in public hospital criticized her superior to another nurse. Superior discovered this criticism and later dismissed the nurse. Government does not have a free hand to discipline employee speech of which it disapproves. Related line of cases where government is patron: o Elrod v. Burns: Plurality of SC found that party affiliation was improperly used to select employees who were in non-policy making positions. o Rutan: Disavowed policymaking issue, but held that party affiliation must be necessary for carrying out the government position’s purpose. This applies to transfers, reinstatements, etc. Another case extends this to contracting cases if contractor can show he was denied because he failed to fund the local political party, etc. Scalia thinks there is nothing wrong with the government hiring people for their political positions … after all, he was. Parallel line of cases dealing with the school context: o Waters: Government has more control over what views to allow in the school by teachers or students – more akin to the workplace than patronage. - Bartnicki v. Vopper Rule: Statutes that punish illegally intercepted publication of speech of matters of public concern are unconstitutional because the concerns in favor of free exchange outweigh the right to privacy of the violated party. Republican Party of Minnesota v. White Rule: The “announce rule” was unconstitutional as applied to a candidate for a judgeship because Minnesota chose to elect their judges and can’t frustrate that purpose by gagging judicial candidates when it comes to matters of public concern. The following cases are merely iterations of the doctrines already laid down … Roberts v. United States Jaycees Rule: Two types of freedom of association – 1. To enter into and maintain certain intimate human relationships must be secured against undue intrusion of the state; 2. FA freedoms require a concomitant right to associate with likeminded individuals. Rule: Freedom of association therefore plainly presupposes a freedom not to associate. Rule: Infringements on the right to association may be justified by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms. Rule: Categories of people may only be excluded from an organization if their inclusion will impede the ability of the organization to engage in protected activities or to disseminate its preferred views. NOTE that this organization is only before the SC because the Jaycees was thought to be a “public accommodation.” Originally, that was thought to be only a restaurant, bar, or hotel. It is interpreted expansively to include the Jaycees and the Boy Scouts. Thus, there is a conflict between state laws regulating “public accommodations” and the federal law of the FA. Boy Scouts of America v. Dale Rule: Because the BSA asserted that it taught the immorality of the homosexual lifestyle, the SC held that forcing them to allow homosexuals would be inimical to the expression of their message EVEN THOUGH – 1. the BSA wasn’t organized precisely for the purpose of declaiming homosexuality; 2. the BSA put questions of sexuality beyond the discretion of its leaders; 3. the members of the BSA weren’t uniform in their disapproval of homosexuality. Rule: BSA can be distinguished from Jaycees on one or more of 3 grounds – 1. It was tightly, rather than loosely, organized. 2. It involved a distinct, rather than indistinct, message. 3. It involved sexual orientation, which is not suspect like gender is. Article IV Privileges & Immunities - This is a comity clause to ensure the uniformity of certain economic liberties across the nation. Corfield v. Coryell Rule: “Privileges and immunities” does NOT mean all rights exclusive to citizens of a particular state. Rule: “Privileges and immunities” means only those that are “fundamental.” Rule: Fundamental privileges and immunities include – - protection by the government - the enjoyment of life and liberty - the right to acquire and possess property of every kind - to pursue and obtain happiness and safety all subject to such restraints as the government may justly prescribe for the good of the whole. Concerns oyster raking by noncitizens. SC holds that this does not concern a livelihood and thus can be regulated by the state against noncitizens. This case matters because it is an attempt to define what “privileges and immunities” are. Supreme Court of New Hampshire v. Piper Rule: The practice of law is a privilege under the P & I clause. Rule: Impingements upon privileges and immunities are allowable where: - there is a substantial reason for the difference in treatment the discrimination practiced against nonresidents bears a substantial relationship to the State’s objective. Rule: The practice of law by nonresidents may not be impinged by a state because the substantial interests it has in limiting the practice to residents is not substantially related to barring all nonresidents from the practice of law. Piper lives near NH, but not in it. She passes the NH bar. She has a job in NH. She has a mortgage and a child. She wants to stay in Vermont and get license in NH through a dispensation. NH denied her that dispensation. SC concedes that the right to practice law is such a privilege that is protected under Art. IV, § 2. Rehnquist’s dissent: Legal practice is not a business like the rest. It varies by state and is bound up in the state’s judiciary and this provides the rationale for allowing the state to discriminate against those who do not even live there. Other P & I issues … Rule: P&I’s extend only to economic livelihood and fundamental constitutional rights. Elk hunting is not done for economic livelihood and thus can be regulated according to citizenship. Fishing for livelihood cannot. There can be a substantive overlap between P&I and the Dormant Commerce Clause, BUT o Focus of the DCC is to avoid burdens on interstate commerce whereas focus of the P&I is to preclude states from discriminating against citizens of other states in favor of its own o Corporations may sue under the DCC, but not under the P&I (because they’re not citizens for its purpose) o There are several exceptions to the DCC that don’t carry over to the P&I analysis:  Congress may expressly remove a DCC violation by legislation  State or local government acting as a market participant forecloses the application of the DCC - - The previous discussion related to the Art. IV § 2 P&I clause apart from the 14 th amendment. The Slaughterhouse Cases Rule: 14th amendment only requires that states give the same rights to noncitizens as it gives to citizens. It does NOT establish any federal baseline of rights that NO state can deny, even on equal terms.  Thus, 14th means the same thing as Art. IV P&I clause. NOTE: We’re dealing with unenumerated rights. Where do they come from? In Slaughterhouse, the SC denied the possibility that they could be found in the P&I clause. But the dissenters in the Slaughterhouse case win, for a while, under the “substantive economic liberties” protected by the 14 th amendment. Before we deal with those cases, we’re going to look at Saenz because it deals with the “resurrection” of the substantive due process – entombed since the 1930s. Saenz v. Roe Rule: 14th amendment P&I clause (as interpreted narrowly under Slaughterhouse for the proposition that states cannot discriminate among its citizens) protects “fundamental rights,” which includes the right to travel. Thus, when someone travels to a new state, denying them generally available benefits when they get there is an unconstitutional impingement on a fundamental right. NOTE that this rule doesn’t apply to discrimination in tuition rates because there is doubt as to the bona fides of such “citizenship seekers.” In such cases, the state may establish limiting rules  student tuition, divorce, voting, etc. Substantive Economic Due Process Loan Association v. Topeka Rule: A tax violates substantive economic due process if it is levied for support of nonpublic purposes. City passed statute taxing the public for the subsidy of private businesses in town. SC struck it down as violative of the substantive economic due process right. Why? Because taxes may only be used for public purposes and subsidizing private businesses is in no real way done for the public good. NOTE, in Munn, the SC held that only areas that are “affected with the public interest” may be regulated by statute. Mugler put forth substantive due process with teeth. Government can regulate, but it must really show that there is a substantial relationship between its regulation and the health, safety, and welfare of its citizens. Lochner v. New York Rule: Regulations must be ordered to an appropriate and legitimate end (the health/safety/welfare of the citizenry) and the regulation must have a direct relation to that end. This case is the zenith of the economic due process right. NY says bakers can NOT contract to work more than 60 hours a week. SC says this obviously interferes with the right of contract. This is only allowable if there is a legitimate reason for the regulation and the statute is substantially related to that reason. SC says the only reason would be the health of the bakers. Here, there was little to no evidence that 60 hours was a magic number. Thus, this exceeded the public welfare power of the state because, while the end was legitimate, the regulation was not directly related to it. NOTE that Lochner shows the judge as superlegislature. Whereas most rules allow the legislature to pursue whatever goal it wants as long as the means it adopts has a nexus to that goal, Lochner says some goals are simply off limits to the legislature AND when that goal is OK by the judiciary, the means must ALSO be within a nexus to that goal. Nebbia v. New York Rule: Government may regulate any economic subject UNLESS it does so in an arbitrary or discriminatory fashion. Regulation mandated the minimum price for milk. Nebbia sold milk for less. SC says that, while past precedent said the end and the means had to be right, in truth any regulation of economic activity is allowable unless it is arbitrary or discriminatory. This case stands for the proposition that the legislature may choose any end it cares to pursue and the Court will be highly deferential in its scrutiny of the means the legislature chooses to pursue that goal. United States v. Carolene Products Co. Rule: ANY regulation of economic activity is constitutional UNLESS facts asserted or implied show that there is NO rational basis for the regulation. Congress passed regulation banning the interstate transport of filled milk. It made very clear that it did so because filled milk was unhealthful – which it wasn’t. SC said Congress’ assertion was enough – anything Congress does is presumed to be constitutional, to be found otherwise only if the facts known or generally assumed prove that the regulation rested upon NO rational basis. FN 4 says only regulations that impinge upon the ENUMERATED rights in the constitution are subject to a heightened level of scrutiny. A couple of exceptions: regulations that restrict the political process (because the Ct assumes that “bad legislation” is capable of being overturned by the legislature, not the Ct) and regulations that target a “suspect class” (i.e., race, gender, etc.). - NOTE: FN 4 IS THE TEMPLATE FOR MODERN CONSTITUTIONAL ANALYSIS. It says that suspect classes and fundamental rights are worthy of heightened review. ALL OTHER regulations come with a presumption of constitutionality. Equal Protection – The Rational Basis Standard Hypo: Public high school adopts policy that any student who becomes an unwed mother during her tenure is subject to expulsion. Appears to distinguish between unmarried and married women, unmarried men and unmarried women, aborting and nonaborting women. Also to be considered is the standard of review – which hinges upon the distinction. Also, there are substantive due process considerations – is there a rational end for the expulsion “remedy?” Also, there are procedural due process considerations – notice, hearing, representation, etc. – after determining what fundamental right the expulsion impinged upon. - NOTE that deciding the case on procedural due process/equal protection is more deferential to the legislature because they don’t question the right of the legislature to regulate, only the manner in which the regulation takes place. - NOTE: Substantive due process says that the legislature simply cannot legislate to that end. - NOTE: The concept of equal protection implies 3 considerations – o A class of persons  Usually they have been segregated for the purpose of bestowing increased regulation/decreased benefit.  Rule: The essence of an equal protection violation is dissimilar treatment of similarly situated people under the law.  This raises the question “similarly situated with regard to what?” Usually, in relation to the government’s legitimate objective. NOTE that the government’s proffered objective must survive substantive due process review.  BUT here we are concerned with not only what the government’s trying to do, but what legal distinctions it makes among individuals in pursuit of that objective. o The level of judicial scrutiny appropriate to the class at issue (deferential/intermediate/strict)  Rule: Gender discrimination invites intermediate review (heightened, but not the highest scrutiny).  Footnote 4 of Carolene Products provides clues to the classifications requiring “searching judicial review”  Rule: Fundamental rights (those derived from/guaranteed by the Bill of Rights) invite strict scrutiny.  Rule: Suspect classifications of individuals (as derived from history, tradition, constitutional text) invite strict scrutiny.  Rule: Statutes that tend seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities invite strict scrutiny.  Rule: Deferential review requires that the Court pass the statute if the Court can come up with ANY conceivable rational basis EVEN IF that basis is nowhere to be found in the record or out of it. o An assessment of whether the government’s explanation for the classification meets the applicable level of scrutiny. Bush v. Gore Rule: This case is decided on basic, rational basis equal protection review. The recount mechanisms implemented for the manual recount did not satisfy the minimum requirement for non-arbitrary treatment of voters necessary to secure the right to vote. Equal protection argument here is that similarly situated voters in different counties were having their ballots evaluated without any direction from the state court as to what standards applied. This case is decided on basic, rational basis equal protection review. The recount mechanisms implemented for the manual recount did not satisfy the minimum requirement for non-arbitrary treatment of voters necessary to secure the right to vote. If you’re gonna count votes, you have to know what you’re counting. - This case was controversial because it applied rational basis – which is highly deferential – to overturn a law. It was saying there was no conceivable rational basis to the Florida Supreme Court’s interpretation of the Florida Election Code (debatable) mandating standardless manual recounts.  Nordlinger v. Hahn Rule: Nonsuspect classifications need only be justified by any conceivable rational basis. Rule: Standard of review for equal protection challenge is especially deferential in the context of classifications made by complex tax laws. The massive increase in property values in Cal caused a concomitant increase in property taxes, which was putting huge burdens on taxpayers. Prop 13 was passed to cap tax rates at 2% for current householders. The rate was reassessed to current property values when the property was (1) sold (2) constructed upon. P brought suit claiming she was paying huge amounts more in property taxes than a similarly situated property owner down the street. Court found no suspect classification, requiring only any conceivable rational basis. Two rational bases here: 1) Neighborhood continuity because lower tax rates will probably keep existing homeowners from moving, 2) New buyers do not have the same reliance interests in existing tax rates as old owners have. Thus, no equal protection violation. Slavery and the Myth of “Separate but Equal” These cases are history more than anything else. Scott v. Sandford Rule: Black people were not citizens because the Constitution never contemplated them as persons, only property. Rule: The Missouri Compromise was unconstitutional because it allowed for an unconstitutional taking of “property” when slaves were freed in the territories. Plessy v. Ferguson Rule: Separation of the races is into equal facilities is acceptable because the law mandates legal equality, not social equality. School Desegregation Brown v. Board of Education Rule: Separate educational facilities are inherently unequal – not because Plessy was legally wrong, but because it was based on the flawed premise that separation did not adversely effect the races. Remedy was to stop legal discrimination AND eliminate the vestiges of past discrimination. - Bolling v. Sharp imputed the 14th to the federal gov’t. Bork thought this was unoriginalist. NOTE: After decision, what is the remedy? The remedy is remand to district courts to use their judicial equitable authority to implement the holding in Brown with “all deliberate speed.” This was a curious formulation. Plaintiffs wanted the discrimination to stop NOW. That could happen if the remedy was merely to remove the legal framework. But the remedy was actually to stop the discrimination and eliminate the vestiges of institutional discrimination  return to the world as it would exist if you hadn’t discriminated. NOTE: Legal posture is that if there is racial imbalance, there is a presumption that the imbalance was due to de jure segregation. D had to prove either that the imbalance wasn’t due to segregation or that it had taken all necessary steps to remedy the imbalance. NOTE: Why wasn’t merely removing the segregative rules enough? Because the goal was to create a “unitary system” with regard to student ratios, teacher ratios, access to extracurricular activities, etc. Freeman v. Pitts Rule: A history of good-faith compliance is evidence that any current racial imbalance is not the product of a new de jure violation of desegregation. Rule: Equal protection reaches only those racial imbalances shown to be intentionally caused by the State. At issue here is whether court must maintain control over an entire district until there is NO discrimination, or may it relinquish control incrementally over those areas that were no longer suffering from discrimination. District court simply created a neighborhood school system and closed the black schools. But blacks and whites didn’t live next to each other, which meant that the races didn’t mingle because they were going to schools in their respective areas. This looks like continued discrimination, so the appellate court denied the district’s effort to get out from under court control. Proving EP Violations – Intent or Impact? Remedial steps taken after Brown were done to remedy de jure (that is, by law), not de facto (that is, in fact) discrimination. School district cases were about de jure segregation – thus the remedy was to “undo” the dual system and to eliminate the vestiges of that past discrimination. Why do we care about de jure? o Because state action hinges on state intent  law demonstrates intent o Because state action may cause disparate impact without intending to and thus massive amounts of policies go out the window as violations of equal protection for reasons entirely without state intention to discriminate EP is an individual right, SO o Government intent focuses on the individual claim o Government impact focuses on the group claim BUT group aspects worm their way into consideration in claim and remedy  particularly in Grutter NOTE that statutory violations (i.e., the Civil Rights Act of 1964) are predicated upon “disparate impact,” (the quantified assertion of which shifted burden to business to show a “business necessity” for maintaining the requirement) a heightened standard above that required by the EP of the Constitution. o NOTE further that legislature apparently was interested in individual right, not the group remedy BUT courts immediately went the other way. NOTE: How does Congress pass a statute incorporating an impact standard when the constitutional standard is an “intent” standard? Congress relied upon the Commerce Clause, not § 5 of the 14 th amendment. Can it do that to circumvent the “intent” limits implemented in the 14th? Why should Congress be given broad power under the commerce clause to create a disparate impact standard when it can’t use the same power to subtract from sovereign immunity? Maybe because the commerce power is especially appropriate to an “economic question” (i.e. employment, housing, et al). Plus, the 14 th was passed specifically to give the Congress power to mitigate past disparate impacts. - - - o While Commerce Clause simply “raises” the intent standard to an impact standard, this impinges upon the rights of City of Arlington et al, which had no intent to discriminate, but is now required to change its practices. Washington v. Davis Rule: Intentional state action is required for proving EP violation. Rule: Disparate impact is only some evidence of EP violation, UNLESS the evidence shows a clear pattern of disparate impact, unexplainable on grounds other than race. Village of Arlington Heights v. Metropolitan Housing Development Corp. Rule: Proof of discriminatory purpose is required to prove a violation of EP. Rule: Discriminatory purpose is shown by inquiry into 3 areas – 1. Disparate Impact of the State Action 2. Historical Background of the State Action 3. Legislative/Administrative History of the State Action. Rule: Once race as a motivating factor has been shown, burden shifts to state to provide a race-neutral rationale for the action. (Is this a “harmless error” standard?). If it is provided and the plaintiff has nothing further, he loses. NOTE: In practicality, race as a motivating factor sinks the state. Alexander v. Sandoval Rule: 03.24.04 City of Richmond v. J.A. Croson Co. Rule: Congress is uniquely qualified, under the 14 th amendment, to identify and redress the effects of society-wide discrimination – under an unknown standard of review. Rule: State/local government may only use racial classifications if they are narrowly tailored to serve a compelling governmental interest that seeks to remedy actual prior discrimination by the government or the government’s partners. Rule: The strict scrutiny standard of review due racially based classifications under the EP Clause is not dependent on the race of those burdened or benefited by a particular classification. Metro Broadcasting Rule: Federal race-based actions are assumed benign – even if not remedial in nature – and thus subject to only intermediate scrutiny. OVERRULED by Adarand. Adarand Constructors, Inc. v. Pena Rule: All racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny. Adarand was low bidder on a federal subcontract. He didn’t get it because the prime contractor gave it to a minority contractor to get a statutory bonus. He asserted EP violation. SC overrules Metro Broadcasting. 3 Factors in an EP Analysis: 1. Skepticism - any racial classification will receive strict scrutiny. 2. Continuity - EP means the same thing whether the racial classifications burden or benefit 3. Congruence – the standard will be the same for state/local and federal governments. But are there any other compelling governmental interests besides remedial actions? Yes. Under Gratz/Grutter, diversity CAN be a compelling governmental interest that satisfies strict scrutiny. States do not HAVE to consider race in admissions  California (Prop. 209) has chosen to use non-race factors – top 10% of all high schools, etc. Grutter v. Bollinger Rule: EP is still an individual right. Rule: All racial classifications, whether they burden or benefit, are subject to strict scrutiny and must be narrowly tailored to meet a compelling governmental interest. Rule: The context in which race is sought to be used matters. - The educational context is unique in valuing diversity  thus the holding here cannot be transferred to Croson or Adarand. Rule: Outright racial balancing is patently unconstitutional. Rule: Pursuit of race neutral means to meet strict scrutiny is also context determinative  it is unnecessary in the elite educational context. Rule: Student body diversity is a compelling state interest that can justify the use of race in university admissions. Rule: Race is only one element in a range of factors a university properly may consider in attaining the goal of diversity. - NOTE: Title VI of the Equal Rights Act applies this analysis to private schools that take federal money. BUT 42 USC § 1981, that absolutely prohibits use of race in contracts, could potentially apply to private universities  which would turn the world on its head by allowing public universities more latitude in using race than private universities. - NOTE: Why does diversity matter? It increases cross-racial understanding. It equips leaders to work in a multicultural milieu. It was also asserted to increase educational value (contra scientific studies). It breaks down stereotypes (but, of course, using race as a proxy assumes stereotypical experiences – the Court defers to Michigan on the assumption that race is not determinative, but merely likely to indicate particular viewpoints). - NOTE: The Court admonished admissions counselors that they not “insulate” minorities from competition by creating set-asides exclusively for minorities. - NOTE: O’Connor assumes that use of race will only be necessary for a limited time – a disposition from the EP doctrine that there is no race before the law. - NOTE: If the LSAT is known by the Michigan Law School to produce disparate results on its minority applicants, is its continued use of the LSAT “intentional” discrimination? Why doesn’t it merely throw out the LSAT? Why is Michigan allowed to protect its “elite” status by choosing to further diversity in ways that keep the very discriminatory mechanism in place? Is “elite” status a compelling governmental interest? - NOTE: This opinion hinges upon the good faith of the administrators and the applicants. - NOTE: Race-specific scholarships? As a non-eligible applicant, I have a right to not be disqualified from government benefits based upon my race. That scholarship says: “This government benefit is not for you because you are not of the right race.” Equal Protection & Voting Districts Kmiec overview of cases in this area: - The use of race in the drawing of voting district lines is permissible but in some circumstances it must pass strict scrutiny. o When?  When the district is of “bizarre” shape.  High “bizarreness” threshold  Shaw involved a two-car wide district  When it is alleged and shown to predominate all other factors.  Other factors are: having voting districts overlap political subdivision boundaries, political congregations (keeping political majorities), compactness. - How does use of race pass strict scrutiny? o All we know is what doesn’t satisfy a compelling governmental interest  Mere compliance with the Dept. of Justice and its demands in the context of § 5 preclearance is NOT ipso facto a compelling governmental interest  Why? Because it may either not be in compliance with the statute or may be unconstitutional.  NOTE: § 2 prohibits “vote dilution,” which is determined by impact, not intent. This directly contravenes Washington v. Davis which requires EP violations to be contingent upon governmental intent.  O’Connor in concurrence has said that compliance with § 2 “might” satisfy strict scrutiny. Miller v. Johnson Rule: A state may not separate its citizens into different voting districts on the basis of race. Rule: Race may not be the state’s dominant and controlling rationale in drawing its district lines. Rule: Race may not be the predominant factor motivating the legislature’s decision to place a significant number of voters within or without a particular district. Rule: The legislature may not subordinate traditional race-neutral districting principles (including, but not limited to compactness, contiguity, respect for political subdivisions, or communities defined by actual shared interests) to racial considerations. Rule: Compliance with federal antidiscrimination laws cannot justify race-based districting where the challenged district was not reasonably necessary under a constitutional reading. NOTE: The majority says the injury to the plaintiffs here is a “representational” injury. How? Because if a district is structured to get a certain color representative, that person will serve only the constituents of the same color. This goes both ways. The dissent believes the statute is necessary because of its belief that white representatives were not representing colored constituents well. Gregory v. Ashcroft Rule: It’s OK for legislatures to create “black influence” voter districts, but not “black result” voter districts. Equal Protection & Apportionment Reynolds v. Sims Rule: The EP Clause requires both houses of a state legislature to be apportioned on a population basis  “one person, one vote.” Equal Protection & Gender Principal case is VMI, but Minor and Anthony are predicates. In both the predicates, the question is whether women have the right to vote (prior to the 19th amendment). Minor asks 2 questions: o Are women citizens of the United States? o If so, does that citizenship include the right to vote? Minor Court concludes that women are citizens under the constitution. There are lots of cases in which jurisdiction, which hinges upon citizenship, was founded upon a women’s citizenship. Plus, all children born in the US were presumed to be citizens … women were once children … so, yeah, they’re citizens. Minor Court then asks whether all citizens are necessarily voters. Court holds that they are not because the P&I’s at the time of the constitution did not include the right of suffrage. Lots of states ratified the constitution without allowing any women to vote. Only exception is NJ that briefly allowed voting to all inhabitants. Even the 14 th amendment does not answer the question … if the 15 th amendment was required to secure the black race the vote, it stands to reason that the 14th obviously didn’t secure it. NOTE these cases arose under the P&I clause, not the EP clause. Why? Because the EP in the Slaughterhouse cases had been confined to the slave races and secured no more than what states already granted to their citizens. SO Minor concludes that women are citizens without the right to vote. Anthony arose when Susan B. Anthony broke the law by voting for a representative of Congress. Bradwell held that a woman’s right to practice law would arise under state law and thus the national rights secured by the constitution. - - - - Questions to ponder in view of the gender cases: When is it appropriate to draw lines on the basis of gender? The core question is whether the government’s line-drawing is justifiable under the “heightened scrutiny” standard. Equal Protection & Gender United States v. Virginia Rule: “Intermediate” scrutiny required for gender discrimination requires an “exceedingly persuasive” justification. Rule: “Exceedingly persuasive” justification requires Rule: Age, wealth, and disability are not suspect classes because they are not immutable. Rule: Illegitimacy is subject to intermediate scrutiny. Rule: Alienage is subject to all 3 standards of scrutiny depending who’s doing the discrimination. Federal gov’t, by virtue of its exclusive power to regulate immigration, needs only a rational basis. Not so for state/local. Further, discrimination in teaching/voting, etc. is subject to rational basis because of their connection to citizenship. Equal Protection & Sexual Orientation Bowers v. Hardwick Rule: There is no constitutional right to homosexual sodomy even in the privacy of one’s own home. Romer v. Evans Rule: Majority moral disapproval is NOT a rational basis. Rule: A government has no rational basis for limiting access of homosexuals to the political process by requiring that any change of law they desire cannot come at local level but must come about through a constitutional amendment. Am. 2 was passed to reverse the special treatment given sexual orientation by requiring that it not be designated as a protected class. Lawrence v. Texas Rule: The fundamental SDP right to privacy encompasses the right of two individuals to sodomize each other in the privacy of their own home, in part because this activity does not extend into the public sphere and thus is properly beyond the scope of government regulation – like the right of marital contraception. NOTE: The right does NOT extend to: 1. minors, 2. coercion, 3. public conduct, 4. prostitution, 5. forced governmental recognition of the relationship. NOTE: Keep EP and substantive due process separate in your mind and in your analysis. NOTE: We are now beyond EP. What is to be included in “liberty?” The following cases include the right of parents to bring up their children as they desire (foreign languages in public school, public/private school, association with relatives). These rights do not derive from EP. From whence do they come? Kmiec would say natural law. The question in each case is: Is there a substantive liberty right that keeps the majority from enacting certain laws? If so, where does that right come from? Is it any different from Kennedy’s answer that it is the right to define the meaning of the universe? If so, how? NOTE: Rights are stated in the Constitution as limitations upon governmental powers. Again, substantive due process showed up in economic liberties in the 1920s. But the Court ran from it later because it’s simply wrong for judges to second guess the legislature when it comes to “policy choices” involving working hours. Economic due process was substantively overruled. But the following two cases from the same era were left standing. Why can they be maintained when their supporting rationale has been overruled? Perhaps parental liberties are more prevalent in the history of common law than the right to work. Perhaps “fundamental liberties” are sexier and draw the Court into the grey zone where judges overrule policy decisions because of their implications on individuals. Perhaps the 9 th amendment points the way to unenumerated rights that are nonetheless fundamental. NOTE that the 10 th amendment is in tension with this in some ways  all unenumerated “powers” are reserved to the states. Thus, the 9th , which originally applied against the FEDERAL government only before judicial incorporation, appears to be a counterbalance to the STATES’ powers BUT the SC has only recognized this in a concurring opinion in Griswold v. Connecticut where the state law against contraceptives. NOTE: Judicial incorporation of the Bill of Rights against the states is similar to finding unenumerated rights in the “substantive” due process clause of the 14 th amendment. Natural Law & Parental Rights One way to discover fundamental rights is to recognize that they have been historically important. o The SC discovered the meaning of “property” in the history of common law. Meyer v. Nebraska Rule: Pierce v. Society of Sisters Rule: Troxel v. Granville Rule: There is a fundamental parental right to rear one’s children. Rule: While “strict scrutiny” is the correct standard for a fundamental right, the SC has never so held in this context. Rule: There is a constitutional presumption that fit parents act in the best interests of their children. UNDERSTAND: To the key question of how to define a fundamental right, Kmiec appears to say that a law is not sufficient; neither is the whim of the judiciary. But eliminating these things, the 9th amendment is stripped of all meaning save as a rule of construction. What saves it is an appeal to the common law. The common law ties the judiciary to the people, but not the majority of the people as they now exist – with their whims and notions – but the collected wisdom of the democracy of the dead. Query: How do you know when the court should intervene? Loving v. Virgina Rule: The baseline in state action is removing race as a consideration in lawmaking. Rule: Freedom to marry is a fundamental personal right essential to the orderly pursuit of happiness by free men. NOTE: This means that laws that get in the way of marriage will be struck down  Boddie - fees for divorce impair right to new marriage struck down; Zablocki - denial of remarriage until up to date on child support from last marriage struck down. Rule: Constitutional right to marriage implicates a right to divorce. State statute forbidding interracial marriage does not slide by the EP clause by imposing penalties equally on both races. Skinner v. Oklahoma Rule: Procedural due process requires hearing putting forth evidence of a compelling state interest (i.e., only way to neutralize genetic sex offender). Rule: EQUAL PROTECTION RULE - Where a fundamental right is at issue, government distinctions among individuals with respect to that right are ALL suspect  asset requirements for voting; money to pay for counsel in criminal cases, et al. NOTE this case was decided on procedural due process grounds to avoid creating another substantive due process right. NOTE it was also decided on EP grounds because larcenists were castrated but embezzlers were not. SC says that’s irrational. NOTE the distinction between procedural and substantive due process. Fundamental rights may be removed IF procedural due process is followed. But when substantive due process yields a “fundamental right,” this is subject to strict scrutiny merely by virtue of Carolene Products. NOTE that fundamental rights are NOT beyond government reach IF a statute is narrowly tailored to serve a compelling governmental interest. Family Living Arrangements Moore v. City of East Cleveland Rule: Appropriate limits on substantive due process come from careful respect for the teachings of history and solid recognition of the basic values that underlie out society. Rule: The right of families to live together is fundamental and cannot be cut off at the parent/child relationship. Extended families enjoy a long history of social/legal approval. Michael H. v. Gerald D. Rule: Unmarried fathers have a much lesser interest in association rights with their children BUT unmarried parents do have a constitutionally-protected interest where they have demonstrated “a full commitment to the responsibilities of parenthood by coming forward to participate in the rearing of their child.” Rule: Married parents’ custodial rights can be determined only upon a showing of clear and convincing evidence. Rule: Inquiries into history and tradition to support substantive due process rights are to be done at their most specific level of abstraction. Scalia goes to common law tradition that presumption of legitimacy was necessary to policy aversion to declaring children bastards AND the right of the family to remain free of challenges to children’s legitimacy. The appropriate way to determine if history or tradition protects something is to look to the most specific level at which a relevant tradition protecting/denying protection to the asserted right may be identified. Claims of Autonomy – Contraception Griswold v. Connecticut Rule: Government may not regulate the intimate details of the marital relationship because it intrudes too heavily on the constitutional right to privacy. - This is the first case, with direct linkage to Roe, that find a right to prevent a child. Eisenstadt v. Baird Rule: Whatever the rights of the individual to access to contraceptives may be, the rights must be the same for the unmarried and the married alike. Claims of Autonomy – Abortion Roe v. Wade Rule: The 14th amendment liberty is broad enough to encompass the woman’s right to terminate her pregnancy. - The state has 2 interests: o Maternal health o The potential for human life - The Court didn’t talk about illicit sex, medical profession, sanctity of life, etc. Rule: 3 Trimester Analysis - 1st Trimester: No specialized regulation of abortion is permissible. Gov’t can only regulate it as it would any medical procedure  licensed doctors, etc. - 2nd Trimester: Gov’t can regulate, but only if they implicate maternal health. - 3rd Trimester: Gov’t may proscribe abortion, except where the procedure is necessary to protect the life or health of the mother o BUT companion case Doe v. Bolton gave a very broad view of the health exception, encompassing “physical, emotional, psychological, and familial” health issues as determined by the patient/doctor. That makes this restriction almost without substance. Casey v. Planned Parenthood (NOTE: this case is a substantial discussion of stare decisis) NOTE: Trimester analysis is gone – it was arbitrary anyway. Rule: Protected substantive due process liberty (under 14 th/9th?) to abortion is protected pre-viability from an undue burden and post viability from the state’s ability to ban it subject to broadly construed health/safety/welfare exception  Restated: the state may regulate abortion pre-viability as long as it imposes no undue burden and post-viability as long as it provides for a broad health/safety/welfare exception. Rule: An undue burden is a substantial obstacle in the path of a woman seeking a previability abortion. A substantial obstacle is one that is almost empirically proven – where it can be shown to curtail a significant number of abortions. Note that abortion may be limited somewhat, but not a lot. This is a numbers game. Rule: The spousal notification goes down because the woman does not lose her individual right to decide what to do with her own body merely because she is married. Rule: While facial challenge usually imposes the burden on plaintiff to show that no scenario is constitutional under a statute, in the abortion context a facial challenge will be sustained if a substantial fraction of scenarios can be shown unconstitutional under the statute because this would be an “undue burden” on the abortion right. NOTE: No regular con law rules apply in the abortion context  it generates its own rules and jurisprudence. Stenberg v. Carhart Rule: A health exception must be included in any ban on even post-viability abortions – almost regardless of any factual basis arguing against its necessity. Assisted Suicide Washington v. Glucksberg Rule: There is no fundamental right to commit suicide or find someone to help you do so. Rule: Thus, State needs only a rational basis to proscribe assisted suicide – among them are unqualified interest in the preservation of human life and the protection of classes susceptible to pressure to kill themselves. Also the integrity of the medical profession. Vacco v. Quill Rule: There is a rational basis for distinction by criminal law between actively killing someone and allowing them to die from some other cause. Souter in dissent is concerned with hard cases in which palliative care actually causes death.