1 Individual rights cases *Marshal-very into property rights *Taney-balancing property rights w/public interest I. Judicial Review of Legislation Marbury v. Madison (1803)-Marshal -Supreme court can review acts of Congress and declare them void if they go against the Constitution Martin v. Hunter’s Lessee (1816) -Supreme court has judicial power over state courts & federal courts Martin and Cohens settled the federal judicial power to determine the constitutionality of state law Contract Clause-The Protection of property rights Fletcher v. Peck (1810) –Marshal -states can not rescind private contracts -government protection of private property rights is a universally accepted founding principle -American Indians and Am. Political community Cherokee Nation v. Georgia (1831)-Marshal -majority: Indians had the right to occupy their land & were to be considered a domestic dependent nation rather than a foreign nation -dissent: by making treatises w/the US, Indians are a foreign nation Worcester v. Georgia (1832)-Marshal -laws of Georgia have no effect on Cherokee -dealings with the Cherokee nation by law & Const. are vested w/the federal gov. -Women’s Rights Shanks v. DuPont (1830) -women had political rights in the face of CL theories of marital status -Story-woman’s ability to chose her country of allegiance was not affected by her loss of indep. Property & k rights under rules of coverture II. Taney Court -Eminent Domain Under Taney Charles River Bridge v. Warren Bridge (1837)-Taney -public charters should be narrowly construed to protect the public interest -even if would wipe out original economic rights of original k-public more imp. West River Bridge Co. v. Dix (1848) – -all government grants are implicitly subject to the state power of eminent domain Gelpcke v. Dubuque (1864)-Taney -subsequent legislation or judicial interpretation could not retroactively apply to impair the obligations of contracts that were validly entered into before the legislation or judicial decision -this was an adoption of Marshal’s approach to k cases -reaffirmation of k clause before Blaisdell -Priveleges and Immunities (Art. 4) of State Citizenship and personal mobility among the states Paul v. Virginia (1869) -priv. & imm. Clause is meant to place the citizens of each state upon the same footing w/citizens of other states -doesn’t give citizens rights against their own state 2 Coryfield . Coryell (1823) -reach of P&I is only to rights that belong to citizens of all free governments Crandall v. Nevada (1868) -all citizens of the US have the right to pass through every part of the country -Slavery Groves v. Slaughter (1841) –Taney -court held that slaves are not commerce and thus the commerce clause is not invoked, so the states get to keep power over slavery -dissent-if states chose to have slavery, the slaves are interstate commerce courts bending over backward to protect slave owners -Fugitive Slaves Prigg v. Pennsylvania (1842) Taney -held that Art. IV, Sec. 2 was self executing and that it authorized a slave owner to use self help in capturing a fugitive slave -dissent: a slave owner cannot just chose to ignore statutory judicial processes and decide to use self help -Prelude to Succession Dred Scott v. Sanford (1857) Taney -blacks did not have the rights of privileges and immunity -court held Miss. Compromise to be unconstitutional b/c Congress did not have the power to outlaw slavery in the territories -Dissent: Taney’s historical analysis was patently false about black citizens, that blacks had P&Is of blacks in other states and that as a purely textual & historical matter the Miss. Compromise was totally constitutional The President as Commander in Chief Prize cases (1863) -president cannot declare war (only Congress can) but could respond accordingly when faced w/hostilities -in time of war-president has more leeway; balancing of pub. Safey & ind. Rights Ex parte Merryman (1861) Taney -power to suspend the writ of habeus corpus was vested in Congress & not the president…Lincoln ignored this ruling -ex. of president not following court during time of war Ex parte Milligan (1866) -after Lincoln’s assassination, Pres. Johnson still using military commissions -court kicks Johnson when he’s down-ex of weak pres., crt stops deferring III. Reconstruction to the New Deal -The Reconstruction Constitution-the 14th amendment limited The Slaughterhouse cases (1873) -private interest must give in to public interest -only federal rights protected under the privileges or immunities -strangled the meaning of the privileges or immunities clause Bradwell v. Illinois (1873) -equal protection of 14th amendment does not apply to women Early application of the 14th amendment to race discrimination Strauder . West Virginia (1880) 3 -14th amendment is supposed to be liberally construed to combat racial discrimination, with the common purpose to grant all of the civil rights to blacks -right to be on a jury -state cannot make jury selection on base of race, but on other reasons as long as not overt Establishment of the Separate but Equal Doctrine Plessy v. Ferguson (1896) -the enforced separation of the two races does not stamp the colored race w/inferiority -equal protection only requires tangible equality-very narrow construction of 14th amendment -Harlan dissent: under constitution all citizens are equal before the law; color-blind Creation of the State Action Doctrine The Civil Rights Cases (1883) -14th amendment-based on state and public infringement -private inns, theatres, etc. which were not even providing sep. but equal but completely denying blacks were allowed-court said private operators could do whatever they want -14th amendment no intended to protect individual rights against individual invasion -Harlan dissent: whole purpose fo the reconstruction amendments was to eliminate discrimination on account of race and these case have turned these amendments on their heads Protection of Economic Rights-the heyday of police power jurisprudence Lochner v. NY (1905) -state law regulating hours was not a valid exercise of the police power -the general right to make a k in relation to one’s business is part of the liberty of the individual protected by the 14th amendment this police power allowed in certain cases, ie w/mine workers, but had to be distinguished from Lochner WWI and the 1st amendment Debs v. US (1919) -standard used was whether his words would reasonably effect the obstruction of the recruiting service and th specific intent to do so Abrams v. NY (1919) -men must be accountable if their plan of action was to defeat the war program for the US -dissent: leaflets weren’t going to incites violence; there needs to be intent Brandenburg v. Ohio (1969) -cemented clear and present danger test IV. Modern Constitutional Adjudication -Evolution of the Bill of Rights and its Incorporation against the states Barron v. Baltimore (1833) -no incorporation, pre 14th amendment, Bill of rights does not apply to the states Palko, etc -selective incorporation of Bill of Rights against the states -most part of analysis on whether right deemed fundamental Blaisdell (1934) -police power-no state shall pass an unreasonable law impairing contracts West Cost Hotel (1937) -upheld a minimum wage law for women -Lochner is dead, states can regulate economic issues Carolene Products (1938) -rise of the rationale basis test 4 -famous footnote 4-is a warning to the government-court will roll over to economic legislation, but will apply heightened scrutiny in areas of individual constitutional rights and any law that targets a discrete and insular minority, or if it breaks down the insular democracy or democratic process -footnote 4 –becomes the bases for the Warren court -becomes the rationale for aggressive federal court review for noneconnomi regulation (social things) Lee Optical (1955)-MODERN LAW -the full extent of economic regulation is permitted -the court has generally withdrawn from review of economic legislation -Due Prcocess clause 14th amendment City of Boerne v. Flores (1997) -Congress under the 14th amendment can enact remedial, preventative legislation to deter violations -the law in this case was an attempt to redefine the scope of the Free Exercise Clause -Equal protection under the 14th amendment Brown v. Board of Education(1954) -a landmark case overruling Plessy w/regard to educational facilities on EPC grounds -5th amendment Bolling v. Sharpe (1954) -the 5th amendment (federal only), which is applicable in DC, does not contain an EPC as does the 14th amendment which applies only to the states. But the concept of equal protection and due process, both stemming from our ideals of fairness are not mutually exclusive -incorporated equal protection into 5th amendment through the 14th, so now applies to fed. gov. MODERN: extended to everything after Boeling v. Sharpe Missouri v. Jenkins (1995) -the nature and scope of the remedy must be fashioned to the nature of the violation -only can deal w/where the segregation occurred -Thomas concurrence-says if social circumstances lead to segregation there is nothing the court or government can do about it Race, National Origin and reasonableness Korematsu v. US (1944) -Japanese exportation order; legal restrictions curtailing a single racial group -the creation of strict scrutiny standard of review -race and national origin is made a suspect class under the EPC Statute case Griggs (1971) -Congressional statute holding that when dealing with private employers, an employee only needs to show a disparate impact to make a prima facie case and employer must rebut the presumption -lack of intent is insufficient Con law Washington v. Davis (1976) -when a law is neutral on its face, it does not automatically trigger strict scrutiny under the EPC and the plaintiff must sow not only a disparate impact but that the government intent to and designed the test to make sure there was a racially disparate impact Affirmative Action 5 Regents of the Univ. of CA v. Bakke (1978) -can’t have a quota system, can only be a plus factor -even friendly legislation on race gets strict scrutiny Grutter v. Bollinger (2003) -upheld as constitutional, because only trying to find a critical mass through individualized criteria -diversity of student body is a compelling state interest -dissent: critical mass is really a quota system Gratz v. Bollinger (2003) -cannot give a number for race, has to be individualized Women Bradwell(1873) -equal protection clause does not apply to women Reed v. Reed (1971) -watershed decision about gender discrimination under the EPC of the 14th -rational basis said was applied but not really-rational basis plus -first time EPC used to invalidate a statue on the ground it discriminated against women -gender is a suspect class, immutable characteristic…but more paternalistic than violent Frontiero (1973) -in the middle, some type of heightened scrutiny Craig v. Boren (1976) -intermediate scrutiny will now apply to gender -intermediate scrutiny=important government interest and significantly related VMI case-(1996)-MODERN LAW -apply intermediate scrutiny, but with a plus factor, burden lies entirely on the state and must be exceedingly persuasive Criteria for distinguishing gender-based and gender-neutral policies Feeney (1979) -there was no intent to exclude women fro significant public jobs in this law -used test in Wash. v. Davis of disparate impact and intent Cleburne Living Centers (1985) -the mentally handicap are not a suspect class; already protected under the political process -rational basis scrutiny was applied, but the crt found there was no rational basis Implied Fundamental Rights Pierce v. Society of Sisters (1925) -liberty rights of parents to direct the upbringing and education of kids under their control -Oregon statue requiring kids to go to public schools was overruled Skinner v. Oklahoma (1942) -one of the basic rights of man is to not be sterilized -marriage and procreation are fundamental rights Griswold v. Connecticut (1965) -right to privacy and sanctity in the marital bedroom includes right to use contraceptives -Dissent-state law area, they should be able to make silly laws if they want Einstadt v. Baird (1972)-Modern -this case upholds the right to have or not have a child as the protected interest rather than the sanctity and privacy of the marital relationship & bedroom. -the decision not based on marital relationship and bases it on private sex; Roe inevitable Abortion Roe v. Wade (1973) 6 -the right t o privacy includes abortion decisions, but this right is not unqualified and must be considered against important sate interests -essential holding is 3 parts; 1-woman has a right to have an abortion b4 fetal viability w/out undue interference 2-the state has the power to restrict abortions after viability, except for mom’s health 3-state has legitimate interest form the pregnancy’s outset in protecting the health of the woman ant the life of the fetus that may become a child Planned Parenthood v. Casey (1992) -sets a new abortion standard of review, where there is no longer a balancing test between individual liberties and state interest pre-viability -summarily, if here is an undue burden, the law is struck down -new bright line is viability, with exception for the mother’s life Sternberg v. Carhart (2000) -state can prohibit post viability abortion only -there must always be a physical safety of the mother’s life exception Hamdan-military tribunals -Ossama’s body guard -Bush wanted to try him in fornt of a military commission -b/c congress -president can’t make military tribunals whenever he wants, b/c violation of due process, but didn’t say military tribunals weren’t unconstitutional, congress has to authorize them Homdi -guy that caught and said was an enemy combatant -court said-due process needs to be heard if he contests his enemy combatant because he is an American citizen -under procedural due process-added must be in front of an impartial decision-maker 7 I. 1st amendment A. Freedom of Expression v. National Security Modern test: clear and present danger -directed to inciting or producing imminent lawless action -likely to incite or produce such action WWI and the 1st amendment Debs v. US (1919) -standard used was whether his words would reasonably effect the obstruction of the recruiting service and th specific intent to do so Abrams v. NY (1919) -men must be accountable if their plan of action was to defeat the war program for the US -dissent: leaflets weren’t going to incites violence; there needs to be intent Brandenburg v. Ohio (1969) -cemented clear and present danger test B. 1st amendment-establishment clause -out of this-Lemon v. Kurtzman test 1) secular purpose 2) it’s primary effect can neither advance nor inhibit religion 3) can’t foster an excessive entanglement w/religion -don’t want to provide excessive entanglement --court began with wall of separation-no government aid for schools run by churches --courts been moving toward an accomodationist view i -court looking at today-coercion-does parent have choice or coercion on where to send kids --court doesn’t like direct aid to churches -can secular gov. authorities work w/religious institutions when everyone providing same service of education -free exercise -Oregon v. Smith-modern law to apply -if a state has a neutral law of general applicability then it’s ok -only time court cares is when state targets a particular religion or group II. 5th amendment -takings clause -eminent domain -due process related to the federal government -equal protection read in through 5th amendment (Bolling v. sharp) 8 III. 14 amendment 1) privileges or immunities -right to egress and ingress -Priveleges and Immunities (Art. 4) of State Citizenship and personal mobility among the states Paul v. Virginia (1869) -priv. & imm. Clause is meant to place the citizens of each state upon the same footing w/citizens of other states -doesn’t give citizens rights against their own state Coryfield . Coryell (1823) -reach of P&I is only to rights that belong to citizens of all free governments Crandall v. Nevada (1868) -all citizens of the US have the right to pass through every part of the country The Slaughterhouse cases (1873) -private interest must give in to public interest -only federal rights protected under the privileges or immunities -strangled the meaning of the privileges or immunities clause 2) due process a. substantive due process-life, liberty, property Question: is it a fundamental liberty If yes=strict scrutiny If no=rationale basis test -abortion=liberty right -pre/post viability-Casey -as long as it doesn’t unreasonable impair the mother from getting an abortion b. procedural due process-right to a trial w/an impartial decision maker (Homdi) 3) equal protection Modern: under VMI: 1st ask was it intentional?-disparate impact and intent/purpose Then: -strict -intermediate -rationale basis -equal protection for voting-Baker v. Carr-one person one vote -equal protection clause applies to political and not just civil rights -race -including affirmative action -gender -sexual orientation