CON LAW – I.R. STUDY SHEET I. II. NATURAL LAW V. POSITIVE LAW ESTABLISHMENT CLAUSE a. Competing Approaches i. Everson - Exclusionary View – No gov’t support of religion in general/need not exclude it from gov’t services like fire, police, etc. ii. Lee - No Coercion View – No gov’t pressure to accept/support religion in general or specific iii. Capitol Square - No Endorsement View – No gov’t action that would allow a reasonably intelligent & informed individual to think the gov’t was endorsing religion in general or particular iv. Rosenburger - Equal Protection View – No gov’t support of any particular religion (neutrality), but religion is free to participate in society on equal footing with nonreligion b. Areas i. School Funding 1. Lemon – 3 part test for use when gov’t directly funds religion a. Legislation must be for a legitimate secular purpose b. Legislation must neither advance nor inhibit religion c. Legislation must not create excessive entanglement b/t church & state 2. Zelman – Broadly available and neutrally disseminated gov’t aid may directly and disproportionately benefit religious groups as long as there is intervening private choice ii. School Prayer 1. Engel – State composed prayers for school use violate the EC 2. Schempp – Public school teachers reading 10 Bible verses every morning violates the EC 3. Wallace – Legislative modification of statute specifically to allow religious practice in school violates the EC intent to further religion implicates psychological coercion 4. Santa Fe – School administrative deference to students to determine whether to speak of religion violates EC intent to further religion implicates psychological coercion FREE EXERCISE a. Belief i. Reynolds – Government may not regulate belief ii. Ballard – Government may not determine the truth of belief iii. Seeger – Religious belief = sincerely held/occupies place of orthodox religion b. Conduct i. Reynolds – Can regulate conduct to protect public order ii. Smith/Lukumi – Neutral, generally applicable laws may regulate religious conduct if rationally related to a legitimate governmental end c. Locke – Funding allowed by the EC is not required by the FE – “play in the joints” ECONOMIC LIBERTY a. Impairment of K i. Past: public/private, retro/pro clashes w/ reserved police powers ii. Current Analysis retroactive impairment of K 1. Is there a substantial retroactive impairment? a. Blaisdell – Does the core of the K remain? b. GM – Law must affect the “validity, construction, & enforcement” of K c. Energy Reserves – More impairment allowed in “heavily regulated area” 2. Is there a public need? (Blaisdell)
III.
IV.
a. b. c. d. e.
Emergency properly met by police power? Law aimed at broad societal interest? Remedy proportionate to emergency? Temporary remedy? Core of K remains?
V.
b. Takings i. Per se takings 1. Penn Central – physical invasion 2. Lukas – “substantially all value” is removed ii. General balancing test – Penn Central 1. Economic viability – primary purpose/reasonable return 2. Investment intention – intent to profit from denied use 3. Government invasion – less than physical invasion iii. Modified balancing test – Nollan/Dolan 1. Regulation is not a taking IF a. Nexus b/t desired gov’t end and means of regulation AND b. Nexus b/t means of regulation and landowner’s desired use st iv. 1 English Evangelical Church – Once regulation is invalidated, gov’t must either 1. repeal the regulation AND pay just compensation for period of regulation OR 2. keep the regulation AND pay just compensation for the full value of property v. Tahoe – A total moratorium is NOT a categorical taking vi. Palazollo – Regulation before ownership is NOT dispositive c. Substantive economic due process – dead since Lochner DUE PROCESS a. Procedural due process – Civil Rights Cases: Congress’ power is remedial, not prospective i. State actor? 1. Traditional gov’t function delegated to a private party a. Edmonson – Jury selection by a private attorney b. Marsh – All gov’t services by private town 2. Shelley - Judiciary when enforcing racially discriminatory contracts 3. Brentwood Academy – Private regulatory body composed of and regulating many public entities 4. Funding, licensing, or regulatory approval is not enough ii. Deprivation? 1. DeShaney – Deprivation requires an affirmative act; not mere negligence iii. Life, liberty, or property? 1. Property a. Roth – Must have more than a need/desire or unilateral expectation; must have a “legitimate” claim of entitlement to the thing common law 2. Liberty a. Roth – Right to enjoy privileges essential to the orderly pursuit of liberty, as recognized by the common law and the judiciary 3. Life a. Defined indirectly by what does not count as life abortion iv. Adequate process? 1. Many features, to be determined ad hoc a. Notice – reasonably calculated under all circumstances to apprise the party of the proceeding b. Hearing – at a meaningful time and in a meaningful manner i. Impartial factfinder ii. Access to counsel iii. Right to interrogate witnesses
VI.
iv. Right to advocate c. Evidentiary Standards – heightened where fundamental right is implicated d. Right of appeal – usually limited to criminal context e. Effectiveness of remedy 2. Matthews – 3-factor test for what process is due a. Nature of the private interest that will be affected by the official action b. Risk of deprivation of that interest through the procedures used and additional value, if any, of additional or substitute procedural safeguards c. Gov’t/public interest – function involved and fiscal/administrative burdens of additional/substitute procedures b. Substantive due process limit on punitive damages i. Gore – 3 part test for unconstitutional punitive damages 1. Reprehensibility of D’s conduct 2. Ratio of punitive to compensatory damages 3. Ratio of punitives to relevant criminal/regulatory fines ii. State Farm – 2 modifications to Gore factors 1. Extraterritorial conduct may not be used to prove reprehensibility of D’s conduct UNLESS it has a nexus with conduct at issue 2. Constitutional ratio of punitives to compensatories probably does not exceed 4:1 c. Art. IV P&I Protection of Economic Livelihood i. Piper - State cannot regulate livelihood pursuits of out-of-staters differently than instaters UNLESS 1. There is a substantial reason for the difference in treatment 2. The discrimination against non-residents bears a substantial relation to the State’s objective 3. There are no significantly less restrictive alternatives d. 14th P&I Protection of Right to Travel i. Saenz - 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 – move/pass/settle. 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 FREEDOM OF EXPRESSION a. Prior restraint - New York Times v. U.S. – Prior restraints on speech are virtually per se invalid UNLESS the harm to be prevented is immediate or imminent or perhaps overwhelmingly grave b. Vagueness – Morales – A law is unconstitutionally vague if a person of ordinary intelligence would be unable to understand what the law proscribed c. Overbreadth – Schaad – A law is unconstitutionally overbroad if it prohibits a substantial amount of protected speech d. Gov’t regulation of fully protected speech i. Traditional/Designated Public Forum 1. Definition – Areas traditionally open to or intentionally designated for public discourse and debate a. Rosenburger – may be a funding forum 2. Scrutiny a. If content neutral regulation – intermediate scrutiny i. Content neutral TPM regulation must be pursuant to a substantial gov’t interest and leave ample alternative avenues of communication open - ISKCON b. If content specific – strict scrutiny i. Content specific regulation must be narrowly tailored to serve a compelling gov’t interest
ii. Limited Designated Public Forum 1. Definition – Area opened for public discourse on a particular subject matter 2. Scrutiny – Content regulations in formation are allowed if they have a rational basis; viewpoint regulations are not allowed unless they pass strict scrutiny iii. Nonpublic Forum 1. Definition – Public property not open by tradition or designation to public discourse 2. Scrutiny - Content regulations in formation are allowed if they have a rational basis; viewpoint regulations are not allowed unless they pass strict scrutiny e. Random fully protected speech doctrines i. Government Speaker - Rust – The gov’t as speaker may choose a particular subject matter or viewpoint ALA: internet filters in libraries OK b/c of spending power ii. Public Employee – Churchill – Gov’t may regulate a public employee’s speech UNLESS 1. The speech is on a matter of public concern AND 2. The speech does not disrupt the gov’t’s interest in an efficient workplace 3. BUT the gov’t must prove that the factfinding as to the nature and potential disruption of the employee’s speech is reasonable iii. Benefit to Speaker - Regan – Gov’t may bestow tax exempt statute on the basis of speaker (veterans’ groups), not speech iv. Student Fees - Southworth – Students may be forced to pay activity fees if they are allocated in a “viewpoint neutral” manner v. Public Figure Libel – N.Y. Times - 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 vi. Illegally Intercepted Communications – Bartnicki – Statutes banning publication of illegally intercepted speech of public concern fail strict scrutiny because “free exchange of ideas” interest outweighs right of privacy vii. Judicial “No Announce” Rule – White – Judicial “no announce” rule fails strict scrutiny because people’s intent in judicial elections cannot be frustrated by gagging judges on matters of public concern f. Low value speech classifications i. Commercial speech 1. Central Hudson – Commercial speech may be regulated if it is misleading or related to unlawful activity 2. Central Hudson – Nonmisleading commercial speech unrelated to unlawful activity may be regulated IF a. The gov’t interest in regulation is substantial b. The regulation directly advances the substantial gov’t interest c. The regulation is no more extensive than necessary to serve the gov’t interest ii. Expressive conduct 1. O’Brien – Conduct may be speech IF a. The actor had the intent to convey a message by his action b. That message is reasonably likely to be understood 2. O’Brien – Expressive conduct may be regulated IF a. Regulation is within the constitutional power of the gov’t b. Regulation furthers an important or substantial gov’t interest c. Gov’t purpose in regulating is not the suppression of speech d. The incidental restriction is no greater than necessary to further the gov’t interest 3. TX v. Johnson – Content specific restriction on expressive conduct is subject to strict scrutiny
VII.
iii. Adult Entertainment 1. Barnes – Nude dancing may be banned under the O’Brien standard IF the statute is not intended to suppress expression a. Within the gov’t’s constitutional power – public welfare police power b. Statute furthers substantial gov’t interest – no public nudity preserves public morals c. Statute furthers gov’t interest unrelated to suppression of expression – eroticism may be conveyed, just not naked d. Statute must be no more restrictive than necessary to meet gov’t interest – only required to put pasties and g-string on 2. Renton – Adult uses may be zoned so as to combat secondary effects 3. Pap’s – Adult uses may be zoned to combat secondary effects without specific evidence that it is necessary in that particular city 4. Schaad – Adult uses may NOT be zoned out of existence entirely iv. Obscenity 1. Miller – Obscenity may be banned, as defined as a. Under community standards, average person would find the material appeals to the prurient interest b. Under community standards, average person would find the material depicts conduct in a patently offensive way c. Under national reasonable person standard, average person would find the material lacks serious literary, artistic, political, or scientific value v. Hate Speech 1. Mitchell – Gov’t may use a D’s speech to enhance his sentence for an underlying crime 2. RAV/Black – While hate speech is nominally unprotected, it is not invisible. Gov’t cannot selectively advance certain views by punishing some hate speech more than others. g. Freedom of Association i. 2 associational rights 1. “Right of privacy” association right to enter into and maintain certain intimate human relationships apart from gov’t interference 2. “Free speech” association right to associate with likeminded individuals AND exclude non-likeminded individuals ii. REMEMBER: Law can only reach public accomodations iii. Jaycees – Infringement on 1A association right is allowed where: 1. Adopted to serve compelling state interests 2. That interest is unrelated to the suppression of ideas 3. That interest cannot be achieved through means significantly less restrictive of associational freedom iv. Jaycees – Categories of people may only be excluded from association where their inclusion will impede the ability of the association to engage in protected activities or disseminate its views v. Dale – BSA could exclude homosexuals while Jaycees could not exclude women b/c 1. BSA had a tightly organized structure 2. BSA had a distinct anti-homosexual message 3. BSA excluded homosexuals, which are not a suspect class EQUAL PROTECTION a. Overarching Rule: The EP clause prohibits dissimilar treatment of people situated similarly under the law b. Overarching Rule: EP is an individual right c. NOTE this may well implicate SDP as well WHAT the gov’t is trying to do to WHOM
d. Classifications i. Suspect – these are defined by an immutable characteristic 1. Race is a suspect class under fn 4 of Carolene Products a. Brown – Separate treatment of races is inherently unequal in the educational context (didn’t explicitly overrule Plessy) i. Remedy is to cease segregation and undertake to remove all vestiges of segregation b. Freeman – EP only reaches racial imbalances intentionally caused by the state c. NOTE: Congress reaches equal protection under a disparate impact standard through the commerce clause power – which impinges on rights of those required under this standard to change its practices w/out having violated the constitution d. Davis – Intentional state action is required to prove an EP violation e. Arlington Heights – Proof of discriminatory purpose is required to prove an EP violation i. Discriminatory purpose is proven 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 ii. Once race is proven as a factor, burden shifts to state to provide race-neutral rationale for action (“harmless error standard” in reality, proof of use of race kills the state’s case) f. Adarand – All racial classifications (fed/state/local) are subject to strict scrutiny and must be narrowly tailored to meet a compelling gov’t interest i. 3 factor test 1. Skepticism – all classifications get strict scrutiny 2. Continuity – EP means the same thing whether implementing a benefit or a burden 3. Congruence – same scrutiny for fed or state/local g. Gratz/Grutter – Diversity in the educational context is a compelling gov’t interest that can meet strict scrutiny i. BUT outright racial balancing is unconstitutional ii. Race is only one of a number of factors a university may consider in achieving the goal of diversity 2. Voting is a fundamental right the differential treatment of which draws strict scrutiny a. Miller – The use of race in drawing voting districts may be included, but may not subordinate, other considerations (compactness, contiguity, respect for political subdivisions, or communities defined by actual shared interests). i. Voting districts will be subject to strict scrutiny IF 1. They are alleged and proven to have used race as the predominant factor EVEN IF done under DOJ guidelines 2. They are highly bizarre (i.e., 18’ wide district in Shaw) b. Reynolds – The EP clause requires that all state legislatures be elected by roughly proportionate districts by population “one person, one vote” i. i.e., can’t have L.A. and Modesto with 1 state senator each ii. Quasisuspect 1. Gender is a quasisuspect class under VMI a. VMI – Gender distinctions are subject to a heightened intermediate scrutiny that requires an “exceedingly persuasive” justification
b. Illegitimacy is subject to intermediate scrutiny iii. Nonsuspect 1. Nordlinger – Regulations affecting nonsuspect classifications need only be justified by any conceivable rational basis 2. Age, wealth, and disability are not suspect classifications because they are not immutable 3. Romer – Majority moral disapproval is NOT a rational basis for limiting the right of homosexuals to petition their gov’t to constitutional amendment 4. Lawrence – Majority moral disapproval is NOT a rational basis for intruding on the fundamental right of all citizens (including homosexuals) to privacy in one’s own home VIII. FUNDAMENTAL RIGHTS a. Troxel - Parental right to raise children i. There is a constitutional presumption that fit parents act in the best interests of their children ii. The Court has never held this right to implicate strict scrutiny b. Loving – Right to marry i. Any law that gets in the way of marriage is unconstitutional 1. Boddie – Fees for divorce 2. Zablocki – Denial of remarriage until up to date on child support c. Skinner – Right to procreate i. Where a fundamental right is at issue, ANY distinctions among citizens is suspect asset requirement for voting; money requirement for criminal lawyer d. Moore – Right of family living arrangements i. The right of families to live together is fundamental and cannot be cut off at parent/child level extended families are ingrained in our traditions and experiences e. Michael H. – Parental right of association i. 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” ii. Inquiries into history and tradition to support substantive due process rights are to be done at their most specific level of abstraction f. Griswold – Right to marital privacy i. Government may not regulate the intimate details of the marital relationship because it intrudes too heavily on the constitutional right to privacy g. Eisenstadt – Right to contraceptive privacy i. 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 h. Casey – Right to abortion free of undue burdens i. Overarching: Abortion creates its own jurisprudence see facial challenge standard ii. 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 iii. An undue burden is a substantial obstacle in the path of a woman seeking a pre-viability abortion. A substantial obstacle is one that is almost empirically proven – where it can be shown to curtail a significant number of abortions iv. 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 i. Stenberg – Right to abortion for any health reason
i. A statute limiting abortion is unconstitutionally vague if even one doctor can be produced indicating that he is confused by it ii. There must be a health exception for ANY limitation on abortion – even a post-viability procedure that the AMA claims is unnecessary j. Glucksburg – Right to assisted suicide i. There is no fundamental right to commit suicide or find someone to help you do so. ii. 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 k. Vacco – Right to assisted suicide i. There is a rational basis for distinction by criminal law between actively killing someone and allowing them to die from some other cause