CON LAW OUTLINE – INDIVIDUAL RIGHTS PUSHAW (I) 1st Amendment a. Free Exercise of Religion i. Suspect Class – Strict Scrutiny ii. Thomas v Review Board. iii. Oregon v. Smith is the Rule 1. If a state has a neutral law of general applicability it is upheld. 2. Only time a court will care is if a state targets a particular group. b. Establishment Clause i. No-Establishment Clause ii. Whether Gov’t Can Provide Aid 1. Money to church run schools 2. Prayers in Schools 3. Case: Lemon v. Kurtzman Test a. Started with a Wall of separation. Not satisfying result. So court modified and is moving to an accomadationist view and not a seperationist view. Court today realy looks to coercion b. A series of judgment calls on what government is trying to do. c. Entanglement Ok d. Excessive Entanglement not OK. e. Test is flexible and has been applied to get diametrically opposed results depending on the composition of the supreme court 4. Recent Case (BMI?): a. If gets money from government, can choose where to send to school, religious or not. b. When governments want to provide social services, and people want to choose where to get it, it is fine. 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. iii. Governments can make exemptions to accommodate religious beliefs without establishing religion 1. Accommodate by leaving alone. iv. c. Freedom of Expression (II) 4th Amendment a. Privileges and Immunities Clause i. State to State Rights. 1. Can’t have different standards for in state and out of state people, 2. Unless: a. Inherent in state rights? (III) 5th Amendment a. Due Process Clause i. Applies to the Federal Government. ii. Court has held that the 5th Due Process clause incorporates the 14th equal protections clause against the Feds. 1. Based on analysis of the framers of 5th intent. 2. It has also brought in the intermediate scrutiny standard. iii. Discrimination by Feds is always a 5th amendment problem. Never a 14th problem as the 14th only applies to the states. iv. Bolling v. Sharpe (segregation in a Washington school?) v. Slaughterhouse Cases: 1. Hold: States can abridge privileges and immunities of their own citizens. The only thing states are prohibited to do is with regard to other states and the federal government. 2. Essentially reads the privileges or immunities clause out of the constitution. 3. This was ok because of the equal protections clause a. Except for the Plessy period. (IV) 13th Amendment a. The End of Slavery (V) 14th Amendment a. Privileges or Immunities i. A state can’t treat it’s own citizens differently when it comes to fundamental civil rights. ii. Caroline Products: Economic Regulations: Rational Basis. 1. Except if: a. violate some individual non-economic constitutional right. b. Such as minority c. Or where democratic process has been broken down. iii. Baker v. Carr: 1. 1 Person 1 vote. We are going to fix the democratic process. b. Due Process – Applies to State Governments and Not to Feds. i. Procedural 1. Deprivation of Life, Liberty or Property without Notice and Opportunity to be heard. 2. Notice and Opportunity to be Heard. (Goldberg) 3. Balancing Test (Eldgridge) a. How much Notice and Opportunity to be heard is required. b. Cost Benefit Analysis. c. Full fledged jury trial not required. 4. Before an Impartial Decision Maker (Hamdi) ii. Substantive: iii. Liberty Interests: 1. Is it a fundamental Liberty Interest? a. Test #1: Rise to the level of are history and traditions? b. Lawrence v. Texas 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. c. Griswald: Right to Marry i. Right to Contraception (under right to engage in sex during marriage), became ii. Right to have an Abortion 1. Stemberg v. Carhard a. Partial Birth Abortion prohibited. Have child outside wound and crush skull, or chop up in womb. b. Nebraska does not make a health of the mother exception. c. Rule is ok Pre-Viability. Partial birth abortion not Ok. 2. Gonzalas Case 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. 3. Casey a. State or Local regulation that creates an undue burden on the right shall be struck down b. Viability is the line. Statute can regulate up to and including prohibiting abortion. c. Must except the life of the mother. d. If wants to regulate prior to viability, test is: i. Does the law cause an undue burden? iii. Became a right to have sodomy d. If Fundamental: Strict Scrutiny (Must have a compelling state interest executed in the least restrictive means). 2. If not, it is Non-Fundamental Liberty Interest a. Right to Die – Not hallowed by history and traditions because every state has made a crime as well as UK. b. Homosexuality c. Standard of Review: Strict Scrutiny and Rational Basis (there is no intermediate review in due process). iv. c. Equal Protections i. Intent if the first question. If not intent to discriminate, then look no further (Washington case). 1. Show by: Statistics. 2. States can get away with discrimination so long as not on the face of the statute. 3. Some argue disparate impact should be the standard – is it going to have a disproportionate impact on a protected class? ii. Suspect Classes: Race & Ethnicity. iii. Gender Discrimination: 1. (VMI) “Exceedingly persuasive” sounds like compelling state interest and strict scrutiny, but there is no intermediate plus. iv. A State might have a compelling interest in having a same sex school, so court doesn’t want to rule out that possibility. 1. 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. v. Standard of Review: Strict (Race /Ethncity), Intermediate (Gender), Rational Basis (Age). d. Clause 1: Incorporates the bill of rights against the states. e. Clause 5: Congress can enforce by appropriate legislation. i. Allows government to create new laws /rights that reinforce the big rights under the 14th. ii. (VI) 15th Amendment a. Voting Rights for all races. (VII) TIMELINE OF MAJOR COURTS a. Marshall Court b. Taney Court c. Reconstruction to the New Deal d. Modern Court (VIII) JURISDICTION OF FEDERAL COURTS a. _ Article 3: Orig. juris. In all cases regarding Constitution i. Marburry v. Madison (Marshall Court): 1. Supreme Court has Appellate Jurisdiction, except a. Art. 3 trial Jurisdiction in cases involving: i. ambassadors ii. Two or more states. 1. Constitutionality of state laws iii. Federal Question (arising under constitution) 2. Political Questions may not be judicially reviewed. a. Where a law gives someone a specific duty, anyone who has their individual rights breached by a failure of such duty may resort to judicial review. b. Marbury has a right to the commission and Madison’s refusal to deliver it was a violation of that right. 3. Judicial Branch can review acts of Executive or Legislative Branch where a right has been violated. ii. Writs Available to Fed. Courts 1. Writ of Habeas Corpus a. Writ alleging that an individual has been unlawfully detained and ordering the official having custody of the individual to bring the person before a court for the purpose of determining whether the imprisonment was legal. 2. Writ of Mandamus a. Order of Specific Performance b. To other courts, or c. Persons in office under US authority. 3. Writ of Certiorari a. Appellate Court agrees to take a case. 4. Writ of Prohibition a. An order to a lower court ordering that court not to exercise jurisdiction. b. _ Article 6: Federal law is supreme over state law if i. State law contradictory, or ii. Feds intend to preempt state laws in the area. c. _ Bill of Rights, Amend 1-10: Apply to Feds only. Not to States. Art. 1 says Congress shall make no law.. d. _ 14th Amendment: Sup. Ct. Interprets makes the bill of rights apply to the states. (IX) STANDARDS OF JUDICIAL REVIEW (i.e. burdens of proof) a. _ Strict Scrutiny (Burden on Gov’t or Loses) i. Substantially related to an important state interest and narrowly tailored to achieve such interest. ii. Inherently Suspect Classes Get Strict Scrutiny: 1. Race 2. National Origin 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 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 id not up to courts to decide 2. Burden of proof on challenger. (X) _ FREEDOM OF EXPRESSION & SPEECH a. Free Speech i. Defamatory Speech ii. Prior Restraints Presumptively Invalid: 1st Amend designed to stop government from enacting prior restraints on expression (i.e. censorship). iii. Rational: Don’t stop the speech, but if defamatory then can proceed against the speaker. This puts a check on governmental power. 1. Defamation and Public Figures: Require Actual Malice. a. Intentional falsehood or reckless disregard. iv. Valid Prior Restraints: 1. Clear and Present Danger 2. Gag Orders to keep a clean jury pool. v. Content Based Speech vi. Symbolic Speech vii. 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. b. Scrutinized Speech i. Radical Political Speech (Debs v. US) 1. Can’t be punished or prohibited unless: a. Clear and Present Danger i. Words of advocacy that intend to ii. Direct to imminent lawless action, with a iii. Likelihood of Success 2. Non-Party to a Case cannot be punished for statements made outside the court unless presents a clear and present danger to administering justice – which ahs never been found. i. What happens when a person or media outlet gets information not so sensitive and the executive branch asserts national security issues. 1. Court will apply a different standard of review in a time of war. 2. Court will be deferential to the executive or legislative branch (look to Lincoln in the Prize cases). 3. ii. Vague and Over Broad Legislative Speech 1. Use only as an alternative 2. 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. 3. 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. iii. Sexually Explicit Speech c. Prohibited Speech i. Threatening the President ii. Advocating violent overthrow of the government (Gitlow 1925) 1. Government has right to preserve itself. 2. May be prohibited under police power to preserve welfare of the people. iii. Conspiracy to Commit a Crime 1. No free speech right to publish secret government information. a. Free speech has to be balanced against compelling government interests such as national security. b. Can’t publish identities of spies. 2. iv. Perjury (XI) INDIVIDUAL PROPERTY RIGHTS a. Marshall Court: b. Fletcher v. Peck – Right to Contract (1810) i. Facts: A bribed Legislature allows cheap sale of 35M acres of land. ii. Issue: Can a State, having passed a law which is in its nature a contract, later divest those absolute rights that have vested under the contract by repealing the law? iii. Hold: No. A land grand is an executed contract and cannot be rescinded unless violated the constitution. iv. Rule: 1. Marshall: Pre-14th Amendment: Article 1 § 10 Contracts Clause in Constitution says a state cannot pass a law impairing the obligations of contract, whether executory or performed. Does not exempt state governments so presumption they are included. 2. Johnson: c. Taney Court i. Charles River Bridge v. Warren Bridge (1837) 1. Rule: A public entity cannot repeal their side of a contract (in this case for exclusive use).. ii. Gelpcke v. Dubueque 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. (XII) _ PRIVILEGES AND IMMUNITIES OF STATE CITIZENSHIP a. Article IV § 2 i. 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 in these categories: 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. Interstate Mobility 1. Crandall v. Nevada a. All citizens of the U.S. have the right to freely pass and repass through every part of the country. (XIII) INDIVIDUAL RIGHTS IN TIME OF WAR a. President is the Commander in Chief i. What the president gets away with depends on: 1. Strength of the president 2. The Magnitude of the military crisis 3. President’s relationship to Congress 4. The Strength and Calculus of the Supreme Court 5. The Constitutional Rights that are at Stake b. Freedom from Torture c. Habeas Corpus i. Article I § 9 authorizes suspension, by Congress, to protect the public safety. (does not expressly say congress) ii. Merryman Case (Lincoln era) 1. _ Taney asserted that Lincoln’s detention of Merryman was illegal on two counts: a. Constitution does not authorize President to suspend habeas. b. A military officer has no right to arrest a person not subject to the rules of war, except in and of judicial authority. 2. Lincoln ignored Taney and said president may ignore provisions of the constitution to uphold the constitution as a hole. Can’t expect that the framers expected the president to wait until congress was assembled before reacting to an emergency. iii. Hamdi v. Bush iv. Rasool v. Bush v. Hamdan v. Bush (XIV) _ GENDER EQUALITY a. _ WOMEN’S CITIZENSHIP i. Original thought was that the man represented the woman as part of the household. (XV) RACE EQUALITY SLAVERY a. Marshall Court: i. Groves v. Slaughter (1841) 1. Holding (incorrect) State Constitution was not self executing, required passing activating legislation. 2. Concurrence (Taney) – Slavery is a states rights issue. 3. Concurrence (Baldwin) – Issue of definition of property. If slave property, and cross between states then Congress can regulate. ii. Prigg v. Pennsylvania (1842) 1. Issue: Does Congress have exclusive power to legislate regarding a slave owner’s right to reclaim a slave (who runs to a non-slave state)? 2. Rule: a. Fugitive Slave Act provided for a slave owner to prove ownership court of slaves current jurisdiction. b. Con. Art. 4 § 2 gave slaveholders absolute rights to slaves as property. c. State and Federal Power are Concurrent unless expressly stated otherwise and here it is a national matter to be uniformly regulated so states preempted. 3. Hold: State Courts precluded from becoming involved in slave recapture. b. Taney Court i. Dread Scott v. Sandford (1857) (Wrong) 1. Issue: Can a former slave be a citizen so as to qualify to bring an action in federal court? Majority: (Taney) 2. Hold (Taney): That the original intent of the constitution was that slaves and descendents of slaves where not considered ‘persons’ in the eyes of the constitution so could not maintain a cause of action in federal courts. 3. Rule: Only way to modify constitution is by amendment, if none, then document stands as read. Framers knew could not see the future so provided for people, not the courts, to modify constitution from time to time. Dissent (Curtis) 4. Several states recognized former slaves and their progeny as citizens, and therefore the US. Citizens of states are entitled to privileges and immunities in reciprocity with other states. 5. This seems to be an issue of federalism. c. Reconstruction to the New Deal i. 13th Amendment: Abolished Slavery at the end of the civil war. 1. Purpose was to over rule Dread Scott. 2. Applies to public and private action. 3. Prohibits badges and incidents of slavery. ii. _ The Black Codes (State laws?) 1. Applied unequal penalties for blacks on offenses. 2. Specified offenses for blacks only. 3. Indentured servitude was allowed. iii. _ The Civil Rights Act of 1866 1. No discrimination in civil rights or immunities among the inhabitants of any state of the US on account of race, color or previous condition of slavery or involuntary servitude. 2. Everyone has same rights to make and enforce contracts. iv. _ 14th Amendment (1868) 1. Only Applies to State Action. a. No state shall abridge the privileges or immunities of US citizens.1 b. Can’t Deprive persons of life, liberty or property without Due Process. c. Can’t deny persons equal protection under the law. i. Including right to an impartial jury of peers (black). (Strauder) d. Congress can enforce by appropriate legislation. i. Scope limited to public action however. No right to limit private action. e. Did not confer political rights. 2. Changed the balance of power to the Federal Government from the states. 3. Strauder a. No racial discrimination on juries. 1 What is the difference between the 14th’s privileges OR immunities clause and the 4th’s privileges AND immunities clause. b. However, can have reasonable regulations about who qualifies to be a juror, such as land owner or literacy, which is practically discriminatory against recently de-slaved blacks. v. Civil Rights Act of 1875 1. All persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accommodations advantages, facilities, and privileges of inns, public conveyances on land or water, theatres and other places of public amusement.2 2. Plessy v. Ferguson (1896) a. Rule: Separate but Equal was a rx exercise of the state’s police power based on custom, usage and traditions in the state. i. Police Power = power of a state to regulate private conduct for the health, safety and welfare of the general public. vi. Bailey v. Alabama (1911) 1. Laws that required performance when monetary consideration given creates an involuntary servitude and are void under the 13th amendment. vii. 15th Amendment 1. No Discrimination in politics or voting. viii. Brown v. Board of Education 1. No separate but equal? d. d (XVI) _ FREEDOM OF RELIGION (XVII) _ IMPLIED FUNDAMENTAL RIGHTS a. _ DUE PROCESS i. 14th Amendment (1868) 1. Only Applies to State Action: 2. No state shall abridge the PRIVILEGES or IMMUNITIES of US citizens.3 3. States cannot deprive a PERSON of life, liberty or property without DUE PROCESS. a. Who is a Person? i. US Citizen home or abroad 1. Dread Scott shows that Persons was not necessarily intended to mean 2 Why does Plessy not violate the Civil Rights Act of 1875? 3 What is the difference between the 14th’s privileges OR immunities clause and the 4th’s privileges AND immunities clause. black people. So who else was not intended in Perons? ii. Non-US citizen domestic (under 5th Amend). 1. Exception for Criminals. a. Have to determine if terrorism is a crime or a war (Geneva convention). iii. Non-US Citizen Abroad – No. Only Geneva convention. iv. Corporation = Person b. Due Process = Procedural Due Process + Substantive Due Process i. Procedural Due Process = Right to a hearing before an impartial decision maker. 1. Impartial Decision Maker = ?? ii. Substantive Due Process 1. Justices perception of life liberty and property 2. Liberty = a. Freedom of Contract (Lockner Baker Case) b. Freedom of Choice (aka right to Privacy) (Griswald, Roe, Lawrence) i. Freedom to have an abortion ii. Freedom to engage in homosexual sodomy iii. Standard of Due Process Review: 1. Economic Law: Rational Basis Test (carolene products) 2. Non-Economic:?? iv. EXCEPTION: Police Powers to ensure health, safety and welfare of the community trump Due Process when exercised reasonably. (Hence eminent Domain power.) 1. Only those means appropriate to accomplish the goals can be used. 2. WHAT LEVEL OF SCRUTINY?? 4. Can’t deny persons equal protection under the law. a. For governmental action to be invalid, it must be an intentional discrimination, not just discriminatory impact. b. Standards of Review: i. Strict Scrutiny – Race ii. Intermediate – Gender iii. Rational Basis – Property /Contract /Commerce c. Including right to an impartial jury of peers (black). (Strauder) 5. Congress can enforce by appropriate legislation. a. Scope limited to public action however. No right to limit private action. 6. Did not confer political rights. ii. Cases: 1. Lockner 2. Griswald 3. Roe 4. Lawrence 5. Hamdi 6. Rasool 7. Hamdan b. _ ABORTION i. _ Stenberg v. Carhart – Bans on Abortion must only be post viability. 1. Facts: State of Nebraska banned partial birth abortion. 2. Issue: Did Nebraska partial birth abortion ban violate the constitutional? 3. Analysis: A woman has a right pre-viability to have an abortion. Nebraska law didn’t include a definition of viability, so the law could be infringing on that implied right, therefore strike down. 4. Hold: 8 Concurring Opinions. 5. Meaning: Supreme Court ignored long held procedural practices: a. First question goes to State Supreme Court b. State Courts have definitive interpretation on state law. c. Avoid Constitutional Issues c. _ SEXUALITY AND SEXUAL ORIENTATION d. FREEDOM OF LABOR and CONTRACT i. Every human has a natural right to pursue his trade and reap the fruits of his labor. 1. Slaughter-House Cases (1873) a. Butchers required to work in the only licensed slaughterhouse. Butchers contended that had a due process property right to practice their jobs where wanted to. b. Rule: Private interests must be made subservient to the general interest of the public, especially in interests of health and harm to others property. 2. Lochner v. NY(1905) a. Baker convicted of working an employee more than 10 hrs a day in violation of wage & hour law. b. Rx exercises of state police power do not offend due process under the 14th amend so long as: i. The law is a rx means to the end of public health. 3. Blaisdell (1932) a. Rule: 14th Amend provides that no state shall pass a law abridging due process. Due Process = Life, Liberty and Property. Property = Contract. However, Police Powers to ensure health, safety and welfare of the community trump Property Rights when exercised reasonably. (Hence eminent Domain power.) b. Only those means appropriate to accomplish the goals can be used. 4 4. Carolene Products (1938) a. Established economic due process = b. In cases of constitutionality of commercial transactions rational basis test will apply. c. Rational Basis = If congress could have had a rational basis that there was, is or will be a substantial effect on interstate commerce 4 Is this case one of strict scrutiny.