CON LAW OUTLINE – INDIVIDUAL RIGHTS PUSHAW (I) JUDICIAL PERIODS a. Marshall 1801-1035 b. Taney 1836-1864 c. Warren 1953-1969 d. Renquist 1986-2005 (II) STANDARDS OF JUDICIAL REVIEW (i.e. burdens of proof) a. Strict Scrutiny (Burden on Gov’t to prove or it Loses) i. Substantially related to a compelling state interest and narrowly tailored to achieve such interest. ii. Inherently Suspect Classes Get Strict Scrutiny: 1. Race 2. National Origin 3. Non-Economic Social Regulation a. Religion (as long as non-economic) b. Intermediate Scrutiny (Could go either way) i. Must substantially relate to an important state objective 1. Important as opposed to compelling. ii. Quasi-Suspect Classes get Intermediate Scrutiny 1. Gender c. Rational Basis Plus (not formally recognized) i. Under Reed v. Reed. Court struck down probate law that put men first. Purported to apply rational basis, but looked stricter. d. Rational Basis (Burden on Plaintiff or Gov’t Wins) i. If congress could have had a rational basis that there was, is or will be a reasonable relation to a legitimate state objective. 1. Laws may be wasteful, that is not up to courts to decide 2. Burden of proof on challenger. (III) CONSTITUTION a. Article 1: Contracts Clause i. Fletcher v. Peck – Right to Contract (1810) 1. Facts: Land Sale Scam, 2. Rule: Marshall: Pre-14th Amendment: Constitution says a state cannot pass a law impairing the obligations of contract, whether executory or performed. a. Does not exempt state governments so presumption they are included. b. Constitution, unless limiting language used, shall apply as broadly as possible. c. Johnson: Used Natural law principles. ii. Gelpcke v. Dubueque (1864) 1. Rule: If a K, when made is valid per the laws of a state, its validity and obligation cannot be impaired by any subsequent action of legislation or change in judicial construction of the law. iii. Muller v. Oregon (1908) 1. Facts: Women made to work long hours in factories 2. Rule: Protected classes may have their contract rights limited to ensure equality at work. iv. Coppage v. Kansas (1915) 1. Face: Contracts forbidding joining a union. 2. Rule: Cannot contract to limit a persons substantive due process rights. (IV) 1st Amendment a. Free Exercise of Religion i. Level of Review: Strict Scrutiny ii. Rule: Neutral state laws of general applicability are valid. 1. Targeting particular groups is forbidden. (Oregon v. Smith) b. Establishment Clause i. (actually the “No-Establishment” Clause) ii. 14th Amendment incorporates against the states. iii. Modern Rule: i. Secular Purpose ii. Primary Effect must neither advance nor inhibit religion iii. Cannot foster an excessive entanglement with religion. iv. Therefore, governments can make exemptions to accommodate religious beliefs without establishing religion. 2. Example: Government Provided Aid a. Money to church run schools iv. Judicial History: 1. Everson (1947) a. Wall of separation. Did not work. 2. Lemon (1971) a. Test: i. Secular Purpose ii. Primary Effect must neither advance nor inhibit religion iii. Cannot foster an excessive entanglement with religion. b. Test is flexible and has been applied to get diametrically opposed results depending on the composition of the supreme court 3. Mueller (1983) 4. Agnostini (1997) c. Freedom of Expression i. Defamatory Speech 1. Rule: Prior Restraints on Expression Presumptively Invalid: a. Defamation and Public Figures: Require Actual Malice: Intentional falsehood or reckless disregard. 2. Valid Prior Restraints: a. Compelling State Interest such as: b. Clear and Present Danger (Brandenburg) i. Words of advocacy that intend to ii. Direct to imminent lawless action or injury to the state (Whitney 1925), with a iii. Likelihood of Success c. High Gravity of Evil (Dennis 1951) i. Discounted by its improbability d. National Security (Gitlow 1925) i. Courts deferential to executive branch. ii. Government has right to preserve itself. iii. May be prohibited under police power to preserve welfare of the people. e. Conspiracy to Commit a Crime i. No free speech right to publish secret government information. 1. Free speech has to be balanced against compelling government interests such as national security. 2. Can’t publish identities of spies. f. Gag Orders to keep a clean jury pool. ii. Vague and Over Broad Legislative Speech 1. Vagueness: a. When law contemplated outside of specific case in litigation, is it sufficiently clear that citizens know what’s being made a crime? b. If no, strike down. 2. Over Breadth a. Ex. City law banning nude live performances with intend to ban hard core porn shows. i. Also bans nude hamlet, may be over broad. 3. iii. Legislative & Judicial History: 1. Sedition Act of 1798 a. John Adams hated Democratic Republicans (Jefferson) so made it a crime to criticize the government. b. “intent to defame” the government. c. Presently a clear cut violation of the 1st Amendment. 2. Kentucky and Virginia Resolutions a. State laws that Declared the Sedition Act violated the 1st Amend. b. Done by Jefferson and Madison. Laid framework for later interpretations of the 1st. 3. Gitlow (1925) a. Clear and Present Danger to limit speech. (V) 3rd Amendment a. Federal Courts have original jurisdiction in all cases regarding the Constitution. (Marbury v. Madison) i. Ambassadors ii. Two or more states. 1. Constitutionality of state laws iii. Federal Question (arising under constitution) b. Political Questions will be left to the legislature. (VI) Article 4 a. Privileges and Immunities Clause i. Modern Law: Individual Rights Reciprocity: Citizens of State A are entitled to the same treatment of citizens of State B when in State B. 1. Applies only to fundamental rights: a. Security of your own person b. Right to own and transfer property c. Right to participate in court activities. 2. Exceptions: a. Can forbid a non-state corporation from doing business. i. A corporation is not a citizen (although it is a person). ii. Incorporation is a special privilege that is not required to be extended to foreign corps. b. State is not required to extend rights that apply exclusively to its residents. ii. Judicial History: 1. Corfield (1823) a. Facts: Statute forbidding anyone not an actual resident of the state to gather clams from state’s waters sustained. b. Rule: P&I is confined to those P&I that are fundamental i. Fundamental = belong to all free governments and which have at all times been enjoyed by citizens of the several states. 1. Right to Acquire property 2. Pursue happiness 3. Safety 2. Dred Scott (1857) Blacks not Citizens a. Facts: Miss. Compromise unconstitutional b/c Congress did not have the power to outlaw slavery in the territories. b. Rule: No former slave or descendants could ever be a CITIZEN. Therefore did not have privileges and immunities of a citizen. 3. Crandall (1868) a. Facts: Court struck own NV statute imposing tax on every person leaving state via commercial transit. b. Rule: Every Citizen has right to pass between every part of US without interruption. 4. Paul (1869) a. Rule: i. P&I does not give a citizen rights against their own state. ii. It entitles a citizen of one state who is present in another state to same treatment by that state as it accords its own citizens. 1. Rights of Ingress & Egress 2. Acquisition and Enjoyment of Property iii. (VII) 5th Amendment a. Due Process Clause Modern Law: 1. TEXT: No person shall be deprived of life, liberty, or property, without due process of law. 2. RULE: Provides Procedural and Substantive Due Process Rights identical to the 14h Amendment against the Federal Government. 3. APPLIES TO: All persons = US & non-US citizens and corporations domestically. a. EXCEPT: i. Non-Citizen Criminals (Courts have yet to determine if terrorism is a crime or a war). ii. Non-US Citizens Abroad (Covered only by Geneva convention). Judicial History: ii. Bolling v. Sharpe (1954) 5th incorps 14th against Feds. 1. Facts: School Segregation in Washington DC. 2. Rule: a. 5th Due Process clause incorporates the 14th equal protections clause against the Fed government. b. Discrimination by Feds is always a 5th amendment problem. Never a 14th problem as the 14th only applies to the states. 3. Based on analysis of the framers of 5th intent. 4. It has also brought in the intermediate scrutiny standard. (VIII) 13th Amendment a. -The End of Slavery (IX) 14th Amendment a. Privileges or Immunities Modern Law: i. TEXT: NO State shall abridge the PRIVILIGES or IMMUNITIES of US citizens. ii. RULE: A state can’t treat citizens domiciled in the state who are in the same class differently when it comes to fundamental civil rights. Judicial History: iii. Baker v. Carr: 1. 1 Person 1 vote. We are going to fix the democratic process. 2. Extends equal protection to political rights. iv. Slaughterhouse Cases: (1873) 1. Facts: Slaughterhouse regulation 2. Rule: States can abridge privileges or immunities of their own citizens. a. The only thing states are prohibited from doing is with regard to other states and the federal government. 3. Effect: Essentially reads the privileges or immunities clause out of the constitution. This was ok because of the equal protections clause a. Except for the Plessy period. b. Due Process i. TEXT: No State shall deprive any person of life, liberty, or property, without due process of law.. 1. Applies to States Not to Feds. ii. Procedural 1. Modern Law: a. Person = US Citizen home or abroad i. For non US citizens domiciled in US see 5th Amend. b. Deprive = without Notice and Opportunity to be heard (Goldberg) before an impartial decision maker (Hamdi). i. Balancing Test (Eldgridge) 1. How much Notice and Opportunity to be heard is required. 2. Cost Benefit Analysis. 3. Full fledged jury trial not required. ii. Impartial Decision Maker: Has yet to be defined. 2. Judicial History: a. Dread Scott (1857) Blacks not People i. “Persons” do not mean blacks. b. Ex Parte Merryman (1861) i. Rule: Writ of Habeus Corpus can only be suspended by Congress. c. Civil Rights Act of 1866 i. Rule: Overturned Dread Scott? d. Ex Parte Milligan (1866) Military Commissions i. Rule: Military Commissions struck down in times of peace. e. Strauder (1880) Blacks entitled to jury service i. Facts: Black convicted of homicide by jury pool that forbade blacks from service. ii. Rule: Violates Due Process. States cannot DIRECTLY abridge fundamental liberty rights. iii. Effect: Still could do so indirectly by putting land or literacy requirements on service. f. City of Boerne: (1997) i. Rule: Congress can only make preventative laws to enforce the constitution and the courts interpretation. g. Hamdan (2005) Military Commissions i. Hamdan, bodyguard to Saddam, tried in front of military commission. ii. Rule: Military commissions must be authorized by Congress. iii. Substantive: 1. Substantive Due Process = Life, Liberty and Property. a. Liberty = Freedom of i. Contract ii. Privacy iii. Marriage iv. Procreation b. Affirmatively limited by state’s Police Powers. PROPERTY Modern Law: 1. Eminent Domain with Just Compensation. 2. Rational Basis Review Judicial History: 2. Charles River Bridge (1837) a. Facts: Allowed public bridge to be built next to private bridge when private bridge had contract with state. b. Rule: i. Taney balances public needs and individual rights to property. ii. If a contract does not say exclusive it will be read as non-exclusive. iii. Construe Contracts Narrowly. 3. West River Bridge (1948) a. Rule: Government has implied power of eminent domain for just compensation. LIBERTY Modern Law: Rule: 4. Fundamental Liberty Interests are Protected a. Fundamental = Does the interest rise to the level of our history and traditions? If so, laws are reviewed under strict scrutiny. If not, b. Non-Fundamental = reviewed under rational basis. 5. Non-Fundamental Liberty Interests: Rational Basis. a. Right to Die: Not hallowed by history and traditions because every state has made a crime as well as UK. b. Homosexuality: 6. Fundamental Liberty Interests: Strict Scrutiny. a. Contract b. Marriage i. Contraception ii. Abortion iii. Sodomy iv. Liberty Judicial History LIBERTY OF LIFE: 1. Lawrence v. Texas: Homosexuality a. Rule: Homosexual sodomy is not fundamental because not hallowed in our nations history because it was a crime. We also don’t want to confuse doctors with anything put one direction. This looks like an actual rational basis plus something. 2. Griswald: Marriage a. Rule: Right to Marry and sanctity of bedroom. b. Right to Contraception (under right to engage in sex during marriage), became 3. Roe v. Wade (1973) Right to an Abortion a. Rule: Right to Privacy includes abortion decisions, but it is a qualified right. i. Woman has a right pre-viability to an abortion w/out undue burden ii. State has power to restrict abortions post viability, except for mothers health. iii. State has legitimate interest from the pregnancy’s outset in protecting the health of the woman and life of the fetus. 4. Casey: (1992) Abortion – No Undue Burden a. Rule: i. Viability is the line. ii. No more Strict Scrutiny iii. Statute can regulate up to and including prohibiting abortion so long as not an undue burden. iv. Must except the life of the mother. 5. Stenberg v. Carhard: (2000) Pre-Viability a. Rule: Partial Birth Abortion prohibited. i. Abortion only Ok pre-viability. ii. Must make a health of the mother exception. 6. Gonzalas (2007) a. Life threatening to give birth. b. Fact found that a partial birth abortion is never healthy for the mother. c. Court made an exception to protect mothers life when in danger post viability. d. Under separation of powers, will defer to congress. LIBERTY OF CONTRACT: Modern Law: e. Economic Regulations Subject to Rational Basis Review. f. Non-Economic Regulations: Subject to Heightened Scrutiny. Judicial History: 7. Fletcher v. Peck (1810) a. Facts: Land scandal law reverses state grants for brides. b. Rule: Contracts clause applies to states and individuals. Cannot unilaterally rescind a valid contract. 8. Gelpcke (1864) Sets up Right of Contract a. Facts: State wants to reverse a Municipal Bond b. Rule: A law cannot retroactively impair the rights of a valid contract entered into before the law. 9. Allgeyer (1897) Precursor to Substantive DP a. Facts: b. Rule: DP clause prohibits state violation of Liberty = free from incarceration & enjoyment of personal faculties & live & work where want & enter into all necessary and proper contracts. 10. Holden (1898) Limits DP by Police Power a. Facts: Upheld Utah statute limiting employment to 8 hours per day. b. Rule: DP Liberty right to Contract affirmatively limited by state’s Police Powers (Health /Welfare). 11. Jacobson (1905) Ties Police means to the end a. Rule: Means of Law must have substantial relation to the End of the law. 12. Lochner (1905) Expanded DP over PP in Economic areas a. Facts: Bakery work hour limitation had no health & welfare reason so was purely economic and therefore interference with liberty of contract. b. Rule: State police power does not extend to purely economic ends. Liberty Right to Contract trumps state economic regulation. 13. Coppage (1915) Limits DP a. Facts: State law prohibited employment contracts forbidding joining labor unions. b. Rule: Public Welfare is the only reason for which a state may limit liberty of contract. 14. Blaisdell (1934) Sets up a balancing test a. Facts: Minnesota mortgage foreclosure moratorium b. Rule: Balancing Test – no unreasonable law impairing contracts. i. Public Interest v. DP Liberty Right 15. West Coast Hotel (1937) PP extends to economic areas a. Facts: Upheld Minimum wages for women. b. Rule: State Police Powers overcome DP Liberty of Contract in economic & non-economic areas. 16. Caroline Products (1938) Rat. Basis /Height Scrutiny a. Facts: DP challenge to Filled Mil Act (econ reg). b. Rule: Established Rational Basis Test and applied it to Economic Regulations. Established Heightened Scrutiny on Non-Economic Regulations. 17. Lee Optical (1955) Modern Contract Law a. Facts: Upheld state law requiring license of eye doctors on basis of nominal “public health” (really economic). b. Rule: If legislature might have had a Rational Basis between the means (law) and the end (the objective of the law) then economic regulation OK. c. Equal Protections MODERN LAW: i. Two Prong: 1. Was there intent to discriminate? a. Statistics of disparate impact. b. Government designed the law to have a racially disparate impact. 2. If no intent to discriminate, then look no further (Washington case). ii. If intent, then go to level of review: iii. Strict Scrutiny: Race & Ethnicity. iv. Intermediate Scrutiny: Gender (I+) v. Rational Basis: Age GENDER MODERN LAW: Intermediate Scrutiny Judicial History: vi. Shanks (1830) Women have no rights 1. Women have no Property & COntract rights under rules of Coverture vii. Bradwell (1873) EP clause doesn’t apply to Women. 1. Facts: Woman denied license to practice law on basis of gender. 2. Rule: EP clause did not apply to women. Gives only civil rights, no political rights. viii. Reed (1971) EP clause applies to Women 1. Facts: ID law that preferred men over women as estate administrators was arbitrary. 2. Rule: Rational Basis Plus is applies to Gender as it is now a protected class. ix. Boren (1976) Intermediate Scrutiny for Gender x. VMI (1996) Intermediate Scrutiny Plus for Gender 1. Facts: Women not allowed into Virginia Military Institute 2. Rule: Gender discrimination gets intermediate plus scrutiny. “Exceedingly persuasive” sounds like compelling state interest and strict scrutiny, but there is no intermediate plus. 3. A State might have a compelling interest in having a same sex school, so court doesn’t want to rule out that possibility. 4. Compelling: i. Studies show same sex schools people perform better because not concerned about what looking like. ii. NY has pilot program in which people can volunteer to go to these schools. RACE MODERN LAW: 1. Strict Scrutiny if intent to discriminate, good or bad. Judicial History: xi. Groves (1841) Slaves Exclusively State Issue 1. Rule: Slaves are not commerce and thus commerce clause not invoked so only state issue. xii. The Civil Rights Cases (1883) 14th Not apply to Individual Acts 1. Rule: 14th DP /EP /P&I does not apply to individual actors. xiii. Plessy (1896) Separate but Equal (Public & Private) 1. Facts: Railroad separate but equal accommodations. 2. Rule: Separate but Equal a valid exercise of state police power to preserve order. xiv. Korematsu (1944) Strict Scrutiny for Race 1. Rule: Race and national origin are a suspect class, therefore subject to strict scrutiny. xv. Brown v Board (1954) Separate is not Equal 1. Facts: Intent of the 14th was to extend civil rights to blacks and schooling is a fundamental right. 2. Rule: Segregation of Schools violates Equal Protections xvi. Griggs: (1971) Disparate Impact 1. Rule: An employee only needs to show a disparate impact to make its prima facie case of discrimination. xvii. Washington v. Davis: (1976) Strict Scrutiny 1. Rule: When a law is neutral on its face it does not auto trigger strict scrutiny. a. Plaintiff must show governmental intent xviii. Regents of Univ CA: (1978) No Affirmative Action 1. Rule: Can’t have a racial quota system. xix. Missouri v. Jenkins (1995) xx. Rule: The remedy under EP clause must be fashioned to the nation of the violation. xxi. Grutter (2003) Individualized Consideration Compelling 1. Rule: Diversity of student body is a compelling state interest. (X) 15th Amendment a. Voting Rights for all races.