Pushaw-Con Law-Individual Rights 1/9/07 -current court-deciding decisions as narrowly as possible -Supreme Court-cares most about its own precedent, especially fairly recent past -Renquist-conservative, kept a lot of the Warren court -preserved existing rights -not creating new rights -Roberts court similar -Americans and framers obsessed with liberties 13, 14,15-newly freed slaves civil & political rights -redeemed in 1954 Brown v. Board -more recent movements-equality, not liberty -ie gay rights movement -liberty now the dominant movement of individual rights -structure of government dividing powers and providing checks and balances, so busy competing with each other, don't have time violate personal liberties -drafters didn't think you needed a Bill of rights, structure of government would be enough -battlegrounds during our life time -federal government keeps taking over areas formerly left to the states -supreme courts -have also taken over issues formerly left to the state -morals-marriage, abortion, etc. -beginning in 1954-reinterpreted constitution to create new rights to take away former rights left to the states, especially 14-equal protection -affirmative action--Univ. of Michigan-close, barely held up affirmative action -but 5th vote, just taken over by Alito, could change -matters greatly who is on the supreme court -war on terrorism and affect on individual rights and liberties -across so many areas in constitutional laws -what are the president's powers under section 2 -what is congress's role -must have due process of law -hearing -cannot be seized on the say so of one individual -Bush administration--in war this is exactly what happens -are allowed to capture enemy and detain them indefinitely -Congress-military commission act of 2006 -great writ -limited habeus corpus -president -usually act strongly during times of crisis -often make a limiting decision regarding a few to protect many -has to be some limit on what he can do -torture memo-John Yu -under certain circumstances it would be legitimate to torture people -should torture be allowed -individual rights balanced against state interest -habeus corpus-one right enshrined in the original constitution -considered the single most important procedure, freedom from imprisonment -states cannot impair the rights in contracts -framers thought that it was important to protect financial and property rights -read constitution, bill of rights, first 8, especially 1, reconstruction amendment -13-freed slaves -14-due process -15-all citizens given right to vote -almost all important cases we cover deal with the 14th amendment -abortion-single most polarizing issue -read Stenberg v. Carhart -distinguish between policy issues and constitutional law Stenberg v. Carhart Should the supreme court have interpreted the Nebraska statute before Nebraska did -Nebraska's law-prohibited partial birth abortions -was it intended to reach pre viability abortion -court tends to defer to state decisions, except in this case -what provision gives the su. Court the power to invalidate state laws -article 3 -what part of the constitution did Nebraska's law violate -if the law didn't violate any party of the Constitution itself, what is going on? -who is better suited to deal with issues -elected officials or court? -how come there are 8 opinions in this case? -what is going on? -usually all in agreement-symbolizes the power of the court, all in agreement -after Stenberg v. Carhart Congress then banned partial birth abortions -tried to pass federal partial birth abortion act-vetoed by Clinton, now law under Bush, now is a federal crime -then Carhart-same doctor brought a suit that says this is unconstitutional under Stenberg v. Carhart -Roberts or Alito-probably would not strike down Congress's ----1/11/07 Stenberg v. Carhart p. 1457 -state of Nebraska banned partial birth abortion -Nebraska was definitely trying to ban D&X abortions -dispute of whether the statute was trying to prohibit D&E abortions, which is done during 2nd trimester, before viability -Majority-S. Court-held the statute was unconstitutional 8 decisions -Ginsberg & Stevens-extreme left position -violates woman's right to abortion -any distinction between the 2 types of abortion is irrational -this is incrementally chipping away at roe v. wad -Breyer-opinion of the court -majority: statute violates Casey -Roe & casey said-women have a right to abortion pre-viability -hard to determine time of viability -it contains no exception for the health of the mother -problem with deferring to doctors-doctors regulated by the government -undue burden on a woman's right to abortion because possible applies to previabbilit procedures -if the statute were clearer and only put a limit on D&X abortions, leaving an exception for women's health, it would be constitutional (drafting problem) -Scalia and Thomas (typically agrees) -even if Casey was correct -Thomas accuses colleagues of lying, -after Stenberg it's a free for all, can have an abortion up to the time of birth -this case goes far beyond Casey -Rhenquist -Casey and Roe were wrong, but even if correct, were wrongly applied -Kennedy--says his opinion in Casey-not what he meant -Roe went too far--this is an obvious place where the state has a right to step in -things other justices are traders, abandoning limits -if the Constitution the supreme law of the land, how can you have 8 opinions about what it means? -should the su. Court have determined the Nebraska statute in the first place? -proper procedure 1-certify the question to the state supreme court 2-deny review all together-tell federal court to abstain from deciding until the state has decided -thus the S. Court should not have done this, basic ideal of federalism -state courts have the definitive interpretation on a state law -S. court ignores this long standing practice here-why? -reason-in a rush to get to the merits and struck down the statute, shouldn't have done this -long standing principle-US v. Moore-1805-Marshall, always interpret legal docket to avoid Constitutional issues -thrown aside in this case -Article 3-gives federal courts jurisdiction all statute/cases regarding Constitution -clause 6-supremacy clause -judicial review as originally conceived-Hamilton-only when law at issue when law clearly and unmistakably violates the Constitution -critical question: what provision of the Constitution did the Nebraska law violate? -14th amendment-state can't deprive you of life, liberty -Court claims this limit on abortion quashes women's liberty to abortion -Scalia-since there is no Constitutional right to decide abortion, it's supposed to be left to the state, it's a moral social issue (like gambling) -due process clause-originally about process -framers of the 14 amendment-liberty meant jail-notice, hearing, etc -no one thought liberty had a substantive meaning -S. Court-has used liberty in substantive rights-privacy, contraception, abortion, etc. -Scalia, Rhenquist & Thomas-if 14th amendment created a right to abortion, had could so many states criminalize a right to abortion -state legislatures who voted in bans on abortion-passed during a time when women didn't have rights in the political process -if you focus on the process of when laws are made-Nebraska law voted in 1991-women involved in voting and on the legislature-impossible to make the due process argument -thus Stenberg v. Carhart-disturbing -14th amendment-equal protection clause -What is the argument for saying that the US Supreme Court's should be final and binding on everyone in the country? -judicial supremacy -benefit-if final and binding-consistency, uniformity, you know what your right is -independence of the judiciary -problem with Su. Court-stuck with their decision, as opposed to Congress -independence is a two edged sword -S. court –has the power and duty to decide the decision in front of them, decision is binding on the parties in that case and the judgment in the case must be approved and carried out by the president -idea of judicial supremacy-su. Crt is the final and ultimate determination of the Constitution -Koramatsu v. US -equal protection clause argument -Supreme court rule it doesn't violate the equal protection, wrong -Supreme Court has gone horribly wrong in certain time in history -as an institution, who is better suited to deal with controversial matters-S. Court or elected officials? -elitism and arrogance of supreme court -framers of Constitution knew the Constitution would change -article 5-ability to amend the Constitution -people of the US can amend the Constitution-but very difficult -Supreme Court-not in a particularly good position to judge what is actually going on with the rest of the country -democratic process has produced a law, supreme court decides if they want to strike down the law -each case, discuss whether the S. Court actually had the right to decide CHAPTER 1 1st Amendment: Right to Free Speech: (1) Originally, Bill of Rights (first 10 constitutional amendments) did not apply to the states. 1st Amendment states, “Congress shall make no law abridging freedom of speech or the press”. 14th Amendment, as interpreted by supreme court makes the bill of rights apply to the states. (2) Certain types of speech have been criminalized. a. Threatening the President b. Conspiracy to commit a crime c. Perjury (3) Argued: 1st Amendment designed to stop government from enacting prior restraints on expression (censorship). Said differently, can’t stop the speech. But can then proceed against the speaker if the speech is defamatory. (4) Seditious Libel: criticizing the government is sedition. a. This is required to put a check on government power. b. Sedition Act of 1798: i. Would be struck down today. ii. Presently a clear cut violation of 1st Amendment. iii. John Adams hated the Democratic Republicans (Jefferson and Madison), so made it a crime to criticize the government. iv. Madison and Jefferson respond by writing the Virginia and Kentucky resolutions and argue that Adams violated the 1st Amendment. 1. They note that congress has no right to abridge free speech, although states (at that time) can. CHAPTER 2: THE MARSHALL COURT (1) Marshall was a last minute appointment by John Adams. Prior to this there were a bunch of chief justices that did not last very long. (2) Supreme Court at that time had to preside all over the country. (3) Marburry v. Madison – JUDICIAL REVIEW a. John Adams lost the election and in his 2 month lame duck period he appointed as many judges and others as he could. b. John Marshall was Adams secretary of state. He delegated delivery of commissions to his little brother. There was an appointment of Marburry as a justice of the peace, it was signed and sealed, but was never delivered. c. Marburry sues Madison (the new president) to get the supreme court to issues a writ of mandamus ordering the delivery of the appointment. d. Court determined that even though Marburry right, the supreme court didn’t have jurisdiction. Only has jurisdiction in two cases: i. Cases involving Ambassadors ii. Cases involving parties from different states. e. Court holds that the act of congress giving original jurisdiction to the Supreme Court violates the constitution article three which affirmatively limits the supreme courts jurisdiction to the two scenarios above. f. Marburry should be in NY state court. g. What is the LEGAL Source of Marbury’s Right? i. Private – Property 1. Getting paid to be justice of the peace so like a contract right because it is of value to him. ii. Public – Mandamus 1. Right ultimately derives from an Act of Congress 2. d h. Is Question: i. Legal or Political? ii. Political Questions cannot be reviewed by the court. However can review the performance of ministerial duties specified in a statute when individual rights are at stake. iii. Regardless, 5 supreme court justices can strike down a law that the representatives of 300M people put in place because it was the will of the people. i. Legal Texts: i. Supreme Court Original Jurisdiction under Article III of the Constitution. ii. Writs available to court: 1. Writ of Habeas Corpus 2. Writ of Mandamus 3. Writ of Certiorari 4. Writ of Prohibition j. Hold: Delivering the commission is a ministerial act therefore it is justicable by the court. Court does not issue the writ of mandamus however. Judiciary Act of 1789, Section 13 grants trial court jurisdiction in cases involving foreign ministers and state parties. If the court has such jurisdiction it is empowered to issue writs. Judiciary Act setup the federal court system. Court in this case interpreted the Act to give jurisdiction over cases involving issues of writs. This is new. But court goes on to say that congress cannot add to supreme courts article III original jurisdiction, so jurisdiction over cases involving mandamus writs cannot exist? k. IMPORTANT: The outcome of this case is “Judicial Review”: Federal Courts can review acts of Congress and Executive Acts to determine their constitutionality. l. This is the first case in which the judicial branch strikes down an action of a coordinate branch. i. Constitution: Does Not explicitly provide for judicial review. ii. Marshall View: No judicial review in UK, but US different. We have the constitution that is supreme. Then we have federal statutes, executive actions, state laws, city ordinances. Federal Courts have the power to strike down state laws (??). Per this decision, the supremacy clause has not only vertical power down to federal and state courts and laws, but horizontal power over other branches of the government. 1. It makes no sense to have a constitution if people can or will just ignore it. iii. Marburry View: In order for courts to perform their constitutional duty to decide cases they have to decide whether the constitutional provision governs a particular case and they have to apply that law. No power to invalidate law if just disagree with them. How do we reconcile judicial review with democracy. A majority of Americans elect representatives to make laws, what give 5 people sitting on a court the power to strike those laws. Some people argue this is anti-democratic. There is no judicial review in England, parliament is sovereign. iv. In a moment of sober reflection the founders of the constitution put limits that are not purely democratic on the government because they realize that the majority could not always be trusted. v. Can Congress & the president act on their own interpretation of the constitution, even if it is at odds with the interpretation of the Supreme Court? The Court does issue bad decisions on occasion. The supreme court has life tenure, which may cut both ways in terms of decisions – they do not have to worry about being voted out of office, so they can be objective, but not necessarily democratic, or opinionated and minimalist, and not democratic. By the same token, judges resources are determined by congress appropriation, such as furniture, buildings, staff. No money equals no resources. So the shots can fire both ways. (4) Fletcher v Peck: THE CONTRACTS CLAUSE a. State legislature passes law to sell land cheap to people, who turn around and sell to bona fide purchasers. Later newly elected legislature repeals law. Are the BFP’s protected? Is there title good? b. This case is under diversity jurisdiction between two private parties. c. Hold: State Legislature did not have the power to revoke the grant of land after legal rights in and to the land had vested. d. Fletcher is important because it demonstrates the early justices believed in un-codified natural law. Property is a fundamental right under the constitution. Consituttion Contracts Clause Article 1 § 10: Sates cannot pass a law the impairs the right to contract.\ e. Matshall: protection extends to executory and all performed contracts. f. How does the constitutuion protect certain groups? i. Should law promote morality? Con law is intimately bound up in morality. Modernly it is not traditional religious morality. Out of this comes different levels of scrutiny. 1. Low, Intermediate, Strict. The higher we go the more compelling the reason must be and the more narrowly & specifically the law must be written. g. The Contracts clause was more important prior to the 14th amendment. (5) Chapter 3: TANEY COURT i. Roger Taney appointed by Andrew Jackson ii. Jackson a back woodsman from Tennessee. iii. Ushered in an area called “Jacksonian” democracy. Favored states rights. iv. Slavery was the big issue, and Jackson left it to states to determine. v. Slaves had no constitutional status, not persons insofar as the constitution was concerned. a. Contracts Clause: a. Charles River Bridge Case: John Marshall has a protégé named Justice Story. Exclusive use to build bridge contract. Massachusetts can’t change the rules of the game later by building a second bridge after guaranteeing the developer exclusive use. b. Takings don’t have to be actual taking, it could be harming a property interest by reducing its value substantially. b. Privileges and Immunities Clause: a. If a citizen from one state is in another state he or she gets the same treatment as that state gives to won citizens. b. Not to be confused with privileges or immunities clause of 14th amend. c. Crandall v. Nevada a. Nevada put a tax on everyone leaving via commercial transportation. $1 to get out. b. Court looks to whole constitution says that the spirit behind the privileges and immunities clause is not violated because instate and out of state citizens are treated the same, BUT can’t affect interstate commerce d. Background a. The original framers of the constitution were not sure what to do about slavery. b. Virginia –Washington c. Series of compromises made in “Missouri Compromise” admitting one free state and one slave state to try and keep a balance. d. Question: Should congress ban slavery in the territories? e. Groves v. Slaughter (P.213) a. Mississippi constitution prohibited importing of slaves. b. For the reason wanted to protect MI slave traders from constitution. c. Supreme Court rules MI constitution is not self executing. I.e. it does not become law until the legislature enacts enabling legislation. d. Prof. Says this is a bogus holding. Constitution is the supreme law. e. Says slaves are not commodities, they are persons, but the US Constitution does not address slaves, it leaves it to the states so MI can regulate them. f. Justice Baldwin: (P. 214) – f. Prig v. Pennsylvania a. Slave and her children have run away and went to Maryland. b. Owner dragged them back home. c. Fugitive Slave Act of 1793 – would go before a judge and he would decide if slave was in fact a slave and belonged to the claimant. d. Pennsylvania judge decides that the Maryland slave owner does not have proper ownership of the slave. e. Prig, the slave owners agent is then convicted because there is a no self help law. f. Supreme Court of US reverses the conviction. g. Author is Justice Story, who is not a redneck southerner and is morally opposed to slavery. h. Federal Law needs to be uniformly applied because slaves are crossing states lines. However constitution does recognize state property rights. i. Pennsylvania law unconstitutional because it punishes an action constitution authorizes (master seizing his slaves). States cannot override that. j. Dissent: McClain – Probably Correct. The remedy has been prescribed by Congress as through judicial means, so self help is illegal. (6) President as Commander in Chief a. Civil Libertarian Approach: i. Marburry vs. Madison, courts have power of judicial review. ii. There are not two constitutions, one in war and one in peace, there is one and courts uphold constitution come hell or high water. b. President is the Commander in Chief and is solely responsible for protecting Americans life and limb and has discretion to act based on what he thinks is right. c. Middle Ground: Congress and president have cast war powers, and those decisions are reserved to Congress and Executive branch. However, when a decision is made that may violate individual rights, courts will hear the claim, but will be highly deferential to the choices of the executive branch. d. All current debates about presidential power are just replays of the same debate held back during the civil war. i. Abe Lincoln suspended writ of habeus corpus, imprisoned people who talked against him, shooting army deserters. ii. Unilaterally calling up troops, grabbed money to pay them. iii. Issued Emancipation Proclamation. e. However these precedents may not be very valid because Lincoln did it for the civil war, which is different from an external war. f. Lincoln was elected by a very thin margin (thinnest in history). i. Lincoln’s election inflamed the south. ii. His platform was: Dred Scott was wrong. Will stop spread of slavery into the territories. g. After southern states started succeeding, Lincoln ordered blockade of southern ports. He took over any ships that tried to enter the ports. h. Ship owners filed suit in the supreme court claiming violation of the Due Process Clause, taking if property without due process. This became the Prize Cases. i. At this time information traveled slow, so the ship captains didn’t know there was a blockade. i. Prize Cases i. A Declaration of War has serious legal consequences. 1. The minute before president can’t grab and say you look like an enemy you’re going to jail. 2. The minute after he does. 3. Article 2 Gives President power as commander in chief of the armed forces and militia. 4. DISSENT: In an Emergency president can freezed status quo. BUT, president cannot then take further affirmative war measures, until he gets congressional authorization. Dissent also said that an action is unlawful at the time taken, and therefore cannot be ratified later. 5. MAJORITY: President did have power. He is the only one there. He is the only one in session all the time. Therefore he can claim emergency, I have to act. This is contrasted with 2006 Hamdan and Hamdi in which Congress is always reachable and can be convened within 24 hours. At most President would have about 24 hours to act without congressional approval. After 9/11 Congress assembled, deliberated and passed a war resolution within one week. 6. Even in a non-emergency situation, does the president have the inherent power to make judgments based on secret information that are immune from review by federal courts? 7. Lincoln was slammed by the court in earlier cases and he brushed them off. Here, Lincolns actions had been ratified by Congress. Majority of the court did not want to undermine the president or the war effort. This was the same rational when the supreme court allowed Woodrow Wilson to suspend the 1st amendment in WWI and Roosevelt in WWII. 8. Rule: POLITICAL QUESTION DOCTRINE: Court will not exercise judicial review if it is a political question and the political process is the recourse. j. MERRYMAN CASE i. Lincoln somehow read that even though Article 1 says no suspension of Habeus Corpus to allow him to do that in the Merryman Case in cases of civil war. k. EMANCIPATION PROCLAMATION i. Lincoln did not free the slaves or oppose slavery. ii. Only frees slaves in states that are in rebellion. iii. Why is it that Lincoln has a unique place in history? 1. Because he was willing to achieve the most important goal which was vindicating his vision of America and the constitution. (7) Hamdi a. Citizen, therefore has all due process rights. (8) Rasool v. Bush a. Non-citizen enemy combatants don’t have due process rights b. Do have a right of habeus corpus. (9) Hamdan (10) POST CIVIL WAR ERA RECONSTRUCTION 1866-1934 a. After the civil war the question was: what do we do now with the southern states? b. How do you integrate them back into the union? c. North passes constitutional amendments before Southern states are reintegrated. 13th, 14th, and 15th Amendments. (1860’s – not enforced for 100 years). i. In Order for the southern states to be re-integrated, they had to accept the amendments. d. 13th Abolishes Slavery e. 14th Guarantees Civil Rights i. Privileges or Immunities Clause (as different from P and I clause) 1. No states shall abridge the privileges or immunities of a US citizen. 2. Fundamental Rights a. Enforcement of Laws b. Property Rights c. See Slaughterhouse 3. Privileges and Immunities Clause is Article 4 prevents one state from discriminating against the citizens of another state. a. ii. Due Process Clause 1. No state shall deprive of life, liberty or property without certain procedures. 2. 5th Amend is about the Federal Government. 14th is directed at the states. iii. Equal Protections Clause 1. Plessy v. Fergessun 2. Plessy overrulled by Brown v. Board of Education iv. The United States Supreme court guts these provisions in: 1. Slaughterhouse Cases a. A-Ok for states to violate the privileges and immunities of their own citizens as long as only has an intrastate effect. 2. Plessy v. Fergessun a. It is ok to have separate but equal. Racial segregation is fine. 3. Due Process Clause a. Lockner – Due Process clause was only enabling for rich white people to have b. Later Cases: 5 substantive rights created by Supreme Court. i. Called “un-enumerated fundamental rights” f. 15th Amendments: No discrimination in politics or voting. i. South had devices that on their face looked equal, but were designed to keep blacks from voting. g. Slaughterhouse Case i. State has police power to regulate for the benefit of its citizens to ensure health, safety and convenience. ii. Louisiana passes law saying slaughterhouses can only be in a certain area. iii. Slaughterhouses saw this as a violation of there privileges and immunities clause fundamental right to earn a living. iv. Moving so far in the day of no cars makes difficult to practice the living and may make take out of the sphere of customer goodwill. v. Rule: Reason for the 14th amend was with regard to blacks. Should we extend it to butchers? Presumption is against the extension of this amendment. vi. Definition of Citizen: Can be a citizen of a state and of the US. Most people are citizens of both. 1. US citizenship requires born in US. 2. State Citizenship requires residing in that state. vii. Court says that states can abridge the rights of state citizens, which seems to have gutted the intent of the 14th amendment. 1. This precedent can be then applied to black citizens. 2. US supreme court drug up the dred scott opinion and plunked it down here. viii. Court construes the 14th to make blacks citizens, but they don’t have the same rights in the states if the states. ix. Second Argument: Violation of Due Process Clause, court needs to give substance to Liberty and Property. This abridges liberty in freedom to choose one’s calling and where to use property (practice business). 1. Court throws out saying it is a process clause and not a substance clause. x. Set Basis for challenging…based on Priveleges or Immunities/????? (11) 14th Amendment: equal protection of the law a. Equal Protections Clause i. Women: Does not apply to: Bradwell Case 1. Men have duty to provide for women. 2. Men own all the property and even stand in for women in court. ii. Racial Discrimination 1. 14th Amend codified to protect the civil rights of blacks. a. So they can: i. Deal in property (and inherit) ii. Equal Protection of the Laws iii. Be a party to the lawsuit. iii. Blacks: Yes, Strauder 1. Except, “Separate but Equal” Ok under Plessy v. Fergessun. 2. Strauder Case: Strauder is black and convicted of murder. Argues it was not a jury of his peers. a. Court says 14th amend meant to make sure states provide for the equal treatment of blacks with respect to rights. b. Issue: Is serving on a jury a legal right under the 14th amendment or a political right under the 15th amendment? c. Analysis: Court gives the 14th amendment a liberal construction, because it is remedial. d. Rule: When a law is remedial in nature, construe it in favor of the intended beneficiary. e. Hold: Each person has a right to trial by jury without racial discrimination in selection. i. Because it impedes the ability to give blacks the equal protections of the laws. ii. This means that blacks have the right to sit on a jury, and defendants have the right to a nonraciiall discriminatory jury selection process. iii. States can however make reasonable regulations about jury service. 1. Historically reserved to; a. Property Owning b. Educated Citizens (literacy) 2. This looks ok, but systematically discriminated against blacks who while enslaved didn’t have chance to be educated or gain property. 3. This was the intent. They were not neutral passages. 3. Plessy v. Fergessun a. Black train cars and White train cars. b. This is in Louisiana. c. Law singles out blacks and keeps them from using public accommodations with whites. d. Court says that the 14th amendment concerns civil rights, 15th is political rights, says that the Louisiana law is just regarding social interaction. e. Analysis: Court postulates that law can’t overcome social prejudice. This may not be true though. If people are governed certain ways, they begin to change their thinking. It becomes unacceptable to express discriminatory views. f. Court says it is not up to them to determine what is reasonable. That is up to the voters in the state. g. Hold: Racial Discrimination is not a violation of the constitution if they get equal treatment, doesn’t matter is separate. h. Hold: State has to be acting in a way that violates the clauses of the 14th Amend (DP, EP, PI). i. Justice Harlan Dissent: How this case offends the constitution. No caste system. Constitution is color blind. b. 14th Amend. § 1 No State can Deprive of Due Process, Equal Protections, Priveleges or Immunities i. Eviscerated by Slaughterhouse cases ii. Limited to State Action (i.e. not private actors) c. 15th Amend. § 5 Congress Can engorce § 1 by Appropriate Legislation. i. Drafters created this section, because they knew states would not be equal to blacks so it would be left up to Congress. 1. Article 3 setup independent federal courts with life tenure because the founders didn’t trust the states. ii. Civil Rights Act of 1875 1. Equal Rights to Public Accommodation, Public Transportation, Places of Public Amusement. 2. A bunch of civil and voting rights acts between 1866 and 1876. iii. Civil Rights Cases (1883) 1. Mere discriminations on account of race are not regarded as badges of slavery. 2. Court s Interpretation of the 13th and 14th Amendment inverts the original purpose of those amendments, and the purpose of giving congress the power to enforce them. 3. All of a sudden it is ok for states to license public accommodations, transportation, and amusement, and if an individual doesn’t like it, too bad, it is part of a states police power. 4. Plessy v. Fergessun just required that it is equal. (but these cases are 13 years before Plessy). 5. 13th Amendment does not have a state action requirement. a. Bans Slavery b. But does not ban the “Badges and Incidents” of slavery, i.e. the lingering effect of slavery or discrimination. c. Court cites Prigg v. Pennsylvania i. The court had to imply that court had powers. ii. Now in civil rights cases no implication required because of § 5 of 14th amend. 6. 14th Does?? a. When a restaurant says whites only, and the restaurant is state licensed, it is essentially state endorsement that whites are superior. 7. Modernly, Congress can correct state violations of the 14th Amendment. a. So if a pattern of state discrimination in a certain area, congress can pass remedial legislation. i. Have to have evidence it is a systematic problem. Must document with facts and findings. b. However, congress may not be able to take the initiative to prevent discrimination. iv. Strauder Case: Held cannot be Race discrimination in Jury Selection. v. Plessy v. Fergesun: The hope of Strauder fades. Separate but equal ok. If take offense, you are overly sensitive. d. There is no possibility that congress, the states, or any government official can tell you how to run your life. i. Government cannot regulate private relations. (One end of the spectrum) ii. Conversely, government actors have to follow the law and cannot discriminate. (Opposite end of the spectrum). iii. Public Accommodations, Actors, Places of Amusement 1. Owned by Private Actors 2. But subject to regulation by public government. 3. Remedies: a. Must use all state avenues of state action i. Tort, Contract or Property Actions. ii. Political Process in State b. Then if exhausted can go to congress e. State Action Doctrine i. Equal Protections Doctrine protects women. ii. When states don’t take this seriously, so federal government looks for ways to step in and regulate. iii. However, may need a state action under 14th in order to regulate (12) SUBSTANTIVE DUE PROCESS a. State cannot deprive of life, liberty or property without due process. i. Due Process = (Goes back to the magna carta) you have a right to a hearing before an impartial decision maker. 1. Procedural Right 2. Definition of impartial decision maker? a. Goldberg -b. Hamdi – Military Courts need to be authorized by congress. Did not decide is they are impartial. Congress later authorized. 3. Who has rights: a. US Citizen home or abroad b. Non-US Citizen abroad – no, only Geneva Convention. c. Non-US Citizen domestic – 5th amendment references ‘Person’ not citizen, so all people have Due Process rights. There is an exception for criminals (??). i. Have to determine if terrorism is a crime or a war. d. But under 14th Amend, only citizens have privileges and immunities. (Corporations have been held to be Persons). i. Dread Scott shows that Persons was not necessarily intended to mean black people. So who else was not intended in Persons. e. Hamdi was cut a deal to renounce his citizenship move to Saudi Arabia and never come back because they didn’t have enough evidence. f. Hamdan has said, if you have enough evidence to convict me, try me in a federal court. Makes it seem like there is not enough evidence because gov’t won’t. ii. Courts have held Due Process has a ‘Substantive’ component 1. Seems like an oxymoron. 2. Warren Court: Defined to achieve liberal goals. 3. Question is; is it appropriate for supreme court to decide what life, liberty and property are? a. Courts have begun to review the substance of all laws, to see if comport with the justices perception of life, liberty and property. b. Liberty = Freedom of contract (Lockner) c. Freedom of Choice /Privacy = Griswald, ROE, Lawrence cases. 4. Slaughterhouse Case reads out privileges and immunities. 5. Plessey v. Fergessun reads out equal protections clause 6. Section 5 of 14th reserves the power to congress to enforce by appropriate legislation. a. Congress cannot cut the salaries of supreme court justices, but can cut budget for services and building upkeep. 7. Lockner Case: (1870-1936 period) a. Background: P. 412 b. NY Law that prohibits employing bakers for more than 60 hours a week. c. 8 of 9 Justices recognize freedom to enter into contract. i. Comes not from Article 1, but from the 14th amendment due process clause. ii. Court says that states can regulate only under police power when doing so in a reasonable manner. iii. d. Gradually the supreme court justices read the due process clause e. Dissent: Maybe we should define what liberty and property mean and should recognize those interests where they may appear. This later becomes the law. f. Justices generally thought congress should economically regulate into the states. g. Stands for the era in which courts will examine states exercise of their police power. h. States have to justify their laws to the supreme court (have ot be reasonable). i. Dissent: Said that this is a made up right according to the other judges social wishes. Claims this is lawlessness. 8. Lockner Overrulled in 1937 by Warren Court Parish Case. a. Based on their views of the day: b. Liberty means “freedom of choice” also known as the right to privacy. c. Freedom to have an abortion d. Freedom to engage in homosexual sodomy e. They struck down all state laws to the contrary. f. *Is it legitimate for the supreme court to give substance to the due process clause? i. If it is invalid in Lockner, then Griswald, Roe and Lawrence are invalid. ii. The inverse is also true. 9. Bailey (431) – I promise I’ll put a roof on your house, I need money up front, then I skip out. It is breach of contract and fraud, a crime. a. 13th Amendment – freedom of contract is civil law with a civil remedy. b. Justice Homes: 13th Amendment doesn’t say a state can’t make certain breaches of contract a crime. 10. (1870-1880) a. Munn Case b. Rule: State Government can regulate private property affected with a public interest. i. i.e. Railroad is a public carrier. ii. To the extent the rate is unreasonable, that is a legislative question. iii. States however can’t use police power to take property without due process iv. A corporation is a person within the meaning of the 14th amendment. v. We want to prevent governments from seizing private property on a pre-text. 11. One Constitution in War and In Peace a. Demonstratively Wrong b. If you look at the Supreme Court decisions and executive actions, rights are abridged in times of war. 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. ii. 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. Can’t challenge the exercise of war powers because no standing and it is a political question. 4. Plaintiff’s have said they have a due process right to publish and then litigate. 5. Woodrow Wilson effectively suspended 1st Amendment. a. Sedition was defined as criticizing the government and the war and urging people to oppose the war. b. This makes it a crime to criticize the executive branch’s war policies. c. Debs Case: (1919) (Justice Holmes) i. Says war is business. People make money on it. Says, if you are a worker, don’t be an idiot and don’t accept the draft. ii. Court created the “Clear and Present Danger” test. If the words used under the circumstances create a clear and present danger. If the advocacy is intended to create lawlessness and subversive action and is likely to have that result. iii. Basically: Speech that leads to illegal action. iv. Debs makes anti-WWI speech intended to make people not comply with the draft. Because debs is a presidential candidate he is more likely to incite people to action than someone less prominent. Debs was sent to prison. d. Abrams Case: i. Upholds conspiracy convition for avoiding the draft and handling out leaflets against the war effort. ii. Here Justice Holmes dissents. Saying no Clear and Present Danger. e. Gitlo Case: i. All these people are doing is expressing hope a communist government will arise in the future. ii. Not the same as inciting. iii. Holmes says must tolerare under free speech clause beacuase can criticize gov’t and propose alternatives. f. Bramdenberg Case: i. Key Distinction: US gov’t stinks if different than inciting. ii. Test: Whether the language you are using under the facts and circumstances of the case create a clear and present danger. If yes, government can step in. iii. Question is when is the Affirmative Act taken? (13) MODERN CONSTITUTIONAL LAW a. OUTLINE i. 14th Amendment “Incorporation” of Bill of Rights Against States ii. Contracts clause – Blaisdell iii. Substantive Due Process 1. Economic – Rational Basis Test – Lee Case 2. Non-Economic – Carolyn Products Case b. 14th Amendment “Incorporation Doctrine” 1. Court upholds massive government regulation, and thereafter creates new individual constitutional rights (A quid pro quo of sorts): a. Privacy b. Freedom of Expression c. Freedom of Religion 2. Justices during the reconstruction /new deal said legislature can regulate pretty much anywhere, but we are going to carve out a few places that you can’t regulate in. 3. Blazedale Case: a. States can in fact impair the right to contract as long as reasonable. 4. Griswald v. Connecticut a. Strikes state ban on contraceptives. b. Infringes on right to privacy ii. How do we get the 1st, 4th and 5th amendments to apply to the states? 1. Under the federal constitution as originally drafted, didn’t apply to states. a. Constitution said “congress” shall make no law establishing official religion. b. Marshall Court held in Barron case that it didn’t apply to states. 2. Maryland could have had an official church. 3. Why didn’t they then? Because most states themselves had constitutions with provisions equivalent to the bill of rights. 4. Incorporation Doctrine: Supreme Court said the 14th amendment incorporates the bill of rights against the states. a. If it did indeed intend this, would have said it blatantly. b. Some of the folks who sponsored it in congress did say the ‘privileges or immunities’ should apply to states. i. i.e. fundamental civil right to be free against civil and criminal wrongs. ii. Right to own and transfer property iii. Right to sign contracts iv. Right to participate in court processes c. Slaughterhouse eviscerated these ideas, said only have rights guaranteed in treaties, otherwise subject to state privileges and immunities only. Pushaw thinks this is erroneous. d. Supreme court could have overruled slaughterhouse cases to put the incorporation doctrine in place, but instead based in on due process clause. i. Due process language of 5th and 14th amendment. 5. Just about every provision of the bill of rights has now been incorporated against the states. a. It was incrementally done, case by case mostly by the warren court. b. Analysis, first step is 14th incorporates other amendments against states. i. 3rd amendment has not been incorporated. States don’t quarter soldiers. (14) CHAPTER 5 a. Lockner: Due process clause allowed freedom of K, so max hour or min wage laws violated the constitution, except, for coal and silver miners, women, children. b. Nevea Case i. Roosevelt and democtraic congress are passing all new regulations to deal with depression. ii. Supreme court doesn’t know what to do because it is faced with precedent such as lockner, but has counter precedent with rail roads. iii. This goes on 3-4 years before court decides to really stop judicial review of congressional legislation. c. Blazedale Case: people started defaulting on mortgages, banks wanted to foreclose, but Minnesota passed a moratorium on this. i. States passing laws impairing obligations of contract ii. This stops the lending market. iii. Supreme court says not bound by precedent in determining if this is ok.If you study history of 1st amendd, drafters understood that in rare instances, free speech is not allowd, such as perjury. iv. Cout held Minnesota unreasonable, but temporary ok. v. No evidence that framers and ratifiers intended exceptions to contracts clause. vi. Analysis procedure: Text. Meaning of text, understanding, early implementation, precedent. vii. Contracts Clause: NO state SHALL pass ANY [unreasonable] law impairing the obligation of Contracts. d. 1936 FDR Electec by landslide i. Clear to supreme court that majority of Americans want FDR’s new deal. 1. Regulation of Banks ii. Roosevelt appointed politicians to the supreme court, not sitting Federal judges. iii. The existing court (four original crotchety judges). iv. FDR proposes that for every judge over 70, we add a judge up to 15 judges. This is a direct assault on the independence of the Supreme Court. v. This shows how Roosevelt looked at law as politics. He didn’t support the law itself. Law was an instrument. vi. Luckily for him, he had an overwhelming popular support. vii. Court develops: viii. Modern Doctrine of Economic Due Process 1. Due Process clause of 14th applies to states a. West Coast Hotel Case i. This is the landmark case. ii. Minimum Wage case. State was singling out groups and applying minimum wage max hour laws. iii. Justice Hughes – was governor of NY and candidate for president: Constitution does not grant unregulated license. It is ordered liberty. Liberty within a social order prescribed by the government that provides minimum standards because gov’t has an obligation to protect health, safety and welfare. iv. This is a paradigm shift in state regulation. Going from aggressive review to passive review (i.e. no political questions, no second guessing the legislature). b. Lee Optical Case i. Objective of Oklahoma Statute is to protect citizens health by ensuring professional eyecare. States reserve police power to protect public safety and welfare. That’s why state issues licenses. ii. Issue is: Are these statutory provisions reasonably related to that objective? iii. Facts: Opticians must get prescriptions from Optometrist (an MD). iv. Hold: District Court struck down saying an unreasonable law with no rational relation to the objective or protecting eye health. v. Hold: Supreme Court said legislature MIGHT has had a rational basis, and legislature can make a broad black letter law, and can apply it evenly across the board, even if inefficient or unfair because overly broad. 2. Due process clause of 5th applies to feds a. Carolene Products (very important) i. Footnote 4: Basis for all Modern Constitutional law. Court is going to be real deferential to all legislation having to do with economic activity, but court will not be so passage about noneconnomi legislation (i.e. social and moral legislation). Court will engage in heightened scrutiny when a law interferes with individual rights. ii. NO court can order a legislature to make findings of fact to support a law, that is a violation of separation of powers. iii. BUT, if the court is reviewing a law, findings help the court understand the relation between the means and the end. iv. The rational basis test was modified in this case to be not DID the legislature have a rational basis, it is COULD they have had a rational basis. v. Third Exception: Where a Law discriminates against a distinct and insular group. I.e. when a state picks out a group that is vulnerable, court is going to look at it, because it may be politically popular to pass laws discriminating against these groups. Court will apply judicial review and rational basis test (which has never succeeded). vi. b. Baker Case?? (1960’s) i. District apportionment in States? ii. Supreme Court said they defer to democratic process, but it is broken, so small towns have disproportionate representation. Court orders a re-apportionment. 3. Rational Basis Test: Courts going to ask whether the legislature had a rational basis for making a law. Is there a rational basis between the law (the means) and the objective (the end). This test is a joke. It is a very low standard. a. If court says a law is not rational, that is to say the legislature is not rational, which is to impute that the people of that state are not rational. b. When does a regulation go over the line? Our modern society allows extensive regulation, such as zoning. c. Euclid Case: Upheld zoning laws in recognition of increasing populations. Related to public health and safety. 4. Three types of scrutiny a. Ration Basis b. Intermediate c. Heightened Scrutiny e. 14th Amendment i. § 1 States Can’t Deprive Persons of due process or equal protection of the laws. 1. Applies to state, not private action ii. § 5 Congress can enforce by Appropriate Legislation 1. .Enforce, not create con law. iii. Kelo Case: Eminent Domain 1. City gave citizens the boot from their homes to give the land to private corporations like Marriott. 2. This is taking from a private party and giving to a public party. But the majority said that there was a public purpose. a. Had to give just compensation. b. Hotels, restaurants and shops bring jobs which helps the community, and the businesses and people will pay taxes, and that’s a public purpose. c. Constitution says “public use” not “public purpose” d. But somehow it was ruled this is ok. (how????) 3. Rule for a taking (either or test) a. If the regulation doesn’t substantially promote a state interest, b. Or it deprives owner of substantial use of land. c. If a taking, must give just compensation. 4. Legislation has been proposed in congress that would neutralize Kelo. Still a work in progress. iv. Voting Rights Act of 1965: invalidated literacy tests and poll taxes that were being used to keep (15) EQUAL PROTECTIONS a. WWI Era: i. Eugene Debs, a man who got 1M votes for president was put in jail for speaking out against the war. b. WWII Era: c. Plessy v. Fergessun: i. Separate but Equal 1. Equal = You say it is equal. d. Korematsu – i. Facts: Feds put people of Japanese descent into interment camps during WWII. 1. 1/3 were Japanese aliens. 2. 1/3 born in the US ii. Issue: National Origin Discrimination. Arguably a type of immigration law. Prior to 1965 there were quotas on immigration. 1. That law overruled, but there still are political asylum rules about national origin. iii. Arguments: 1. What about Italians and Germans? 2. Answer: Italians and Germans more well integrated /assimilated + Japanese actually attacked American soil. 3. Drafting people is a form of discrimination that takes their freedom and may cost them their lives. Some people’s liberty must be infringed on to protect everyone’s liberty. a. However pay people who are drafted and treat them with Honor. 4. We have a constitution so that we can fight wars. iv. Holds: Upholds order that a class of people can be ordered not to be in an area and a curfew can be implemented. Doesn’t actually uphold or strike down the internment camps. v. Practically: More free of people who are drafted and have to act on behalf of government. vi. Reality: President, even if there is not threat, still wants to do this to show he has the power and that he is doing everything possible to eliminate threats. People won’t volunteer to serve if they think there is a threat to the home front. 1. Earl Warren, as attorney general of CA was pushing for this, a decade prior to writing Brown v. Board of Education. 2. People would not have believed the president, because they were seeing factories being disguised from aerial bombing, shelling by Japanese submarines, and would have cited Pearl Harbor where the US was caught with its pants down. e. Equal Protections clause of the 14th Amendment applies only against the State Governments discrimination, not against Feds. f. Bowling v. Sharp (a decade after Korematsu) says (SOMETHING IMPORTANT). g. Instances of Courts Striking down discriminatory laws. i. 1965 First time Court struck down law based on civil liberties. ii. 1798 (Revolutionary War) Sedition Act: Made it a crime to criticize the president or members of congress. 1. Crime for challengers to criticize incumbents. 2. Courts Upheld this law. iii. Civil War: Habeus Corpus Suspended unilaterally by president. Speech is suppressed. iv. WWI – New Sedition Law. v. WWII – Korematsu vi. Korean War: Supreme Court striked down the laws of president Truman in Youngstown Steele. (16) Ex Parte Endo a. Decided same day as Korematsu. Freed a person of Japanese descent from the internment camps. b. Court delayed its decision however until the camps were going to be shut down, not very courageous. c. Held: That congress by statute had authorized the detention of disloyal people, and gov’t offered no evidence Endo was disloyal, and therefore congress had no authorized her detention. d. Problem with the holding was, the ‘war relocation authority’ was foolishly imprisoning Japanese who were loyal, Congress funded the prison camps, so the court didn’t address the real issue of saying that the overall law was unconstitutional. Shifted the blame to obscure governmental agency. Powerful president is untouchable. (17) Wars that had to be won: a. Revolutionary War b. War of 1812 (Sequal to Revolutionary War) c. Civil War – Tears constitution apart because people who don’t respect an election can overcome it by arms. d. WWII – Hitler, Mussolini, Japanese with an alliance with Stalin would control the world. (18) Civil Liberties a. 15th Amend gave blacks right to vote, but as practical matter only 2% qualified. It took until “1965 Voting Rights Act” to give them all rights to vote. i. See Denzel in Glory. Blacks were the margin of victory in the civil war. Black men voting was a war measure. ii. 18 year old men get to vote because they may have to serve and die. b. “1965 Immigration Reform Act” abolishes national origin quotas. i. Cold War, battle for the hearts and minds of people in countries around the world. It’s an ideological battle and segregation doesn’t go very well with people ideologically around the world. (19) Washington v. Davis a. Holds: Unanimously that mere disparate impact alone is in itself not an equal protection violation. A law that on its face discriminates (has a racial words or categories in the statute or government designed it to be discriminatory) triggers strict scrutiny and is presumptively unconstitutional. b. Mere numbers alone cannot usually invalidate a law. All laws discriminate in some ways. c. Tax laws allow home owners preferred treatment. Race connects with class which connects with economics, so tax code provisions will have differential effects on different races. d. Sometimes the government will be much more skeptical when there is a bottom line difference. In juries, racial minorities should be proportionately represented and women and men should be split even. Not this way in Physics departments. The pool for Physics departments is different. How important is it that the Supreme Court as a panel reflect the US demographics? (20) EQUAL PROTECTIONS a. Racial /Ethnic Classification Affirmative Action i. Case: undergraduate ‘quotas’ unconstitutional. Graduate ok?? 1. b. Strict Scrutiny i. Compelling Gov’t Interest? 1. Diversity – not a compelling interest, and even if it were, would fail because not narrowly tailored. ii. Narrowly Tailored? 1. 4 Judges are maj in Gratz and same 4 Judges dissent in Grutter. The inverse is true too. O’connor swings as a political move. 2. Gratz = Number /Quota 3. Grutter = a. Michigan State Affirmative Action Case b. White kid says choosing based on racial quotas unconstittutional c. Apply Strict Scrutiny d. No real practical difference between quotas and … e. Ginsberg /Brier /Soutter Dissenting Opinion: Enormous difference between benign and invidious racial preferences. Judges should look more carefully when a law or practice is hurting minority groups rather than helping them. f. Congress obviously thought preferential treatment to blacks was ok if you look at reconstruction era social program laws. i. Not every racial influence is equally objectionable. ii. Perhaps the correct level of scrutiny is intermediate and not strict because it is benign. iii. Ginsberg: Legally authorized systematic discrimination has had effects that have lingered. iv. g. Majority: Drawing a line based on race is suspicious and warrants strict scrutiny. h. Practicality: University told admissions you can get the same result by calling it individual consideration. i. What about historically black colleges? i. Moorhouse & Howard – private universities. ii. Private universities can do things state universities can’t do. 14th amend applies only against states. iii. Congress also passed title 9 banning discrimination. iii. Civil Rights Act of 1964 passed under commerce clause, even though it is an equal protections law. iv. Summary: 1940’s on the court held that the constitution forbid race disc in voting under voting rights act. Brown in 1954. Civil Righs act gives brown teeth in the 1964..1965 voting rights act and enforcement at gunpoint. v. Baker v. Carr 1962 Holding that the equal protections clause applies to apportionment of state legislatures. 1. Court effectively reverses its previous stances saying it violated the EQ clause -1 person 1 vote. a. This is non-sense though as EQ 14th applies to civil rights. b. 15th Applies to political rights. vi. Shaw v. Reno: O’connor struck down redistricting plan because it looked backwards. (21) FEMINISM AND SEX EQUALITY a. First Wave of American Feminism i. Seneca Falls Declaration in 1848 ii. Ultimately Culminated in the passage of the 19th mendment giving women the right to vote in 1920. iii. Some states had given the right before that (Wyoming) b. Second Wave of Feminism i. Late ‘50’s through Early 70’s. ii. Relationships between these two movements iii. Application of Strict Scrutiny to laws that classify based on race. c. Unmarried wonmen not living in someone elses household had civil rights as a hold over of English law. d. Main debate is whether the 14th Amendment can be interpreted to apply to marital relationships??? e. Legally if a woman got married the law treated her as falling under her husband and therefore forfeiting her rights. Known as ‘Coverture’ and the husband is responsible for the wife’s debts and liabilities. No civil liabilities, and no rights. So equal. f. There is evidence that the 14th amendment framers thought about women and didn’t want to include them and give them rights. g. There was a proposed amendment to make the 14th amendment excplicit as to women, but it did not pass. h. However the US supreme court responded as the world changed to broaden the interpretation of the language. i. CASE: Reed i. Court provided rational basis review to gender classification. j. Case: Frontiero v. US i. 14th amendment does not apply to US, rather only to states. ii. According to brown and bolling v. sharpe, the 5th amendment magically incorporates the 14th amendment. iii. Law with regard to military folks. iv. Can claim wife as a dependent to get more benefits. v. In the reverse scenario female employees have to prove husbands dependent. vi. Liberal Justices: Brennan /Marshall /White /One other = Court aught to apply strict scrutiny (as opposed to intermediate or rational basis) because it is an immutable characteristic from birth. 1. This would strike down statute because it is … 2. Feds claim efficiency. vii. For 100 years court used rational basis. viii. Conservative Justices: Reed Rational Basis Scrutiny. ix. Outcome: don’t settle on anything. k. Case: Craig v. Warren (?) i. Settles on intermediate scrutiny. ii. Need an important interest for this type of discrimination. iii. Doesn’t have to be narrowly tailored, just substantially related. l. Justification for special scrutiny in Gender 1229-1262. i. Government has to intend to discriminate, happenstance is not enough. (22) 14th Amendment a. Equal Protection i. Gender Classification 1. Intent to Discriminate (Feeney Case) a. Facts: Feeney wants to work in civil service in Mass, and scored 2nd highest on test, but she didn’t get the job because deference given to veterans, and the army refused to let her enlist. b. Analysis: If classification is neutral on its face, have to say here is the impact, 98% male, and that reflects some policy decision. i. Disproportionate Impact may show causation. c. Rule: Must show state intended to discriminate against women. Otherwise, most laws would be found to be discriminatory just based on their effect. 2. If Yes, Intermediate Scrutiny (Strict with Racial Classification) a. Important State Interest etc b. Supreme Court deferential to state and local policies. c. ii. Other Classifications 1. Retarded: a. Only Rational Basis Test 2. Zoning a. Rational Basis Test CON LAW THURSDAY 4.5.07 Implied Fundamental Rights continued… PRIVACY State and local govts began regulating almost everything SC created a monster where the states were regulating anything and everything-So to compensate for that, the SC carved out certain zones of privacy that the law could not get into The constitution was not amended to create a right to privacy, etc. There are legitimacy problems with what the Court is doing-they are creating rights that aren’t actually in the Constitution Lockner v. NY-the Court said that the 14th liberty meant economic freedom, freedom of contract, etc.-but there is no evidence that the drafters intended liberty to mean any such thing—but the Court implied these meanings—this case was a precursor to what was to come in cases such as Griswold and Roe Lockner-in 1937-was overruled as to economic legislation-keep this distinction in mind After Lockner, there were some cases that recognized rights not specifically spelled out in the constitution Court held that parents had a right to raise their children as they saw fit Parents wanted to send their kids to catholic school Oregon law was unconstitutional because the parents had a right to pass on their religious beliefs to their children-and states could not require children to attend public schools (abolishing all private schools) Warren Court in a short 15 years decided many landmark cases in the area of individual rights Revolutionary opinions that transformed the landscape in America What is the Court trying to do in these cases? There are zones that the government cannot get into Griswold v. Connecticut Right to contraception This case is interesting, and a tough case because it is applied to married couples This fact troubles the Court-CT has not enforced this law banning contraception in a long time, the attorney general still could not promise that it will never be enforced The court worries that if it is enforced-this is going to cause problems for doctors and for married couples The precise holding is that the CT law violates the right to privacy of married couples The Court constantly talks about marriage as a sacred institution Where does the Court derive this right to privacy? The bill of rights--4th amendment protects the home-it is private 5th amendment right against incrimination also has an undertone of privacy But CT gov’t was not coming into the home or forcing to testify against oneself-Stewart’s dissentsaai that this law is silly, but it does not violate any constitutional individual right Stewart asserts that it is up to the states to decide what laws they want on the books, and not for the SC to imply all kinds of individual rights Under natural law, there is an argument that within marriage there is a certain zone of privacy Why did Justice Douglas come up with this “Penumbras” from the bill of rights concept? Why not just point to the due process clause? By referring back to the due process clause, this would have been reminiscent of Lockner-and Lockner was overturned Liberals hated Lockner because the Court was striking down progressive gov’t regulation that helped workers Justice Douglas wrote extensively about how all gov’t regulation was not bad-and was in fact constitutional-so, basically, Lockner was a symbol of what he despised So in Griswold, he wanted to avoid substantive due process arguments because this would look like Lockner Douglas argued that they were preserving rights that were already in the bill of rights (the privacy undertone throughout-it is a penumbra from the bill of rights) However, the problem here is that it is not concrete – does not give judges anything substantial to hang on to Douglas says that this case does not revive Lockner; this CT statute operates directly in the private realm of the marriage-he draws a distinction between this invasion of private rights, and economic regulation as in Lockner Warren, Goldberg, and Brennan-agree that privacy is a part of due process right to liberty There are natural law rights The framers thought contraception was a natural right? NO-there is no evidence for this proposition The key natural law right was the right to property Dissenters say that the 9th and 10th amendments protect states against federal invasion and interference-it is not a provision that gives the federal gov’t a right to create un-enumerated rights Because of the criticism by the people of the majority’s penumbras argument, they rally around the 14th amendment substantive due process reasoning of the concurrence The Court was aware that this was reminiscent of Lockner, but they argued that that was bad substantive due process, and this is good due process because it promotes liberal social policy As a legal matter, this is shaky-the rights of the people are up to the nine justices on the SC 14th amendment due process clause inquiry--ask— Protected liberty interest? Is it fundamental? Must be a liberty interest; it is questionable how the Court draws a distinction between fundamental and non-fundamental rights Notion is the concept of ordered liberty; freedom, but within a social order-so, what rights are fundamental within our social order-freedom of speech, freedom from unreasonable searches and seizures, etc. What is the problem with talking about history and tradition to determine whether the law is fundamental? The history is that the states have consistently banned used of contraceptives-so, they cannot use this as a justification for saying it is a fundamental right If it is fundamental—then ask, does the law interfere so as to unduly burden that liberty, so as to trigger strict scrutiny? Next ask, does the state have a compelling interest? And, is this the least restrictive means? For abortion, if it is an undue burden-it ends there, you do not go into undue burden or compelling interest (pg 1345) In deeming something a liberty interest, deciding that it is an undue burden, etc.-each inquiry is extremely complex and vague-and it is impossible to tell what the Court is going to do The precedent suggested that homosexual sodomy was not a fundamental liberty interest, and even if it was-there was a compelling interest, but the Court decided differently in Lawrence v. Texas After Griswold-there were cases dealing with contraception-the Court states that under the due process clause, there is a privacy right to decide whether or not to have a child— This is the link to Roe If there is a right to use or not use contraception, then there is a right to decide if you are going to have a child-so, that right to privacy also extends to a right to abortion (according to Roe) Griswold says: right to privacy, married couple in bedroom-cannot have state officials breaking down bedroom door of married couples How did this translate into abortion? An abortion is not in the bedroom-it is in the doctor’s office (23) (24) Chapter 8: Implied Fundamental Rights a. 14th Amendment (Incorporates the 5th Amend) i. Due Process Clause 1. Procedural Right a. Hearing before an impartial decision maker (a jury) b. Goldberg Case c. Hamdi Case 2. Substantive Right a. Fundamental Rights i. i.e. Freedom of Contract ii. Privacy (25) 14th Amendment – Implied Fundamental Rights a. Essence is providing due process b. Court has been taking word Liberty and giving it substantive meaning. i. It means freedom to do whatever 5 justices say. ii. Late 1900’s = freedom of contract 1. Seemed natural to the justices that Laizes Faire economics built into the constitution. 2. Bad Supreme Court Decisions: Plessy, Lockner, Dread Scott, Korematsu iii. 1937, court reversed course and said not built into the constitution. (Lockner?) 1. Court began to defer to economic regulation passed by federal and state governments. a. Any government regulation will deprive of property and liberty without due process. iv. .Warren Court then decided must carve out certain areas to protect from government regulation by interpreting the constitution to imply a right of privacy. 1. There were antecedents in the 1920’s involving state laws the kept people from sending their children to religiously affiliated schools. 2. Privacy a. Contraception – Griswald i. Concocted case brought by Yale and Princeton law school professors so the fact pattern is right. ii. Majority Opinion Written by Douglas. iii. Did not want to admit making up a right under substantive due process. iv. Justices did not want to say they were reviving Lockner. v. Said it is due process, but not like Lockner because Lockner bad, this good. vi. IMPORTANT: All these regulations in the lockner era were economic regulations, covering such items as employment, and when you are talking about economic regulations it’s fine that there is no substantive due process for economic regulation. vii. Economic Regulations are on a rational basis test and the reg always wins. viii. However, non-economic regulations… ix. Douglas was ridiculed, so Court ended up adopting the reasoning in the concurring opinion saying it is a substantive right under the 14th amend due process clause. x. Factual Hold: Liberty Interest of Married Couples to use birth control and to be free of government interference. xi. b. Isenstat v. Bear i. States that the fundamental right is: whether or not to have a child. ii. This makes it the right of anyone to use contraception. c. Abortion – Roe v. Wade i. Blackman Writes Opinion. Chief Justice is Berger, who replaced Warren. Best writer is Brennan, but he’s a catholic, so didn’t want to write the opinion. ii. Facts: Law out of Texas making abortion illegal except to protect the life of the mother. iii. Analysis: iv. Practice of medicine historically regulated by states. v. Abortion not in Constitution. vi. Right to Privacy not in Constitution. vii. Must interpret the text using present understanding of the living constitution? viii. Everything is against Roe: Text, Structure, Precedent. 1. Blackman has 1 precedent to bring up, which is Griswald v. Connecticut. 2. ix. Hold: Undue Burden on fundamental protected liberty interest in abortion. x. Dissent: Griswald talked about government invading sanctity of home. Here it is a medical procedure performed in a hospital, therefore privacy in the home does not apply. xi. What Court should have done is use the equal protections clause and craft an argument. The wealthy have better access, and other states have better access, therefore protection varies based on economic status. But economic status is not a protected class. But this could be done under a gender equal protections argument because this only affects women. Modernly, Gender gets heightened intermediate scrutiny (BMI case). Therefore laws criminalizing abortion could be struck down as having a burden falling unequally on women, so an exceedingly persuasive justification and the law must be substantially related to achieving a compelling government interest to withstand heightened intermediate scrutiny. xii. However, in 1973 Roe is still in rational basis land. Equal protections clause as applied to women still up in the air. xiii. Rule: State has two compelling interests, (1) to protect internal health, so can regulate abortion as can every other medical procedure, and (2) protecting the potential life of the baby. Court through setting up a balancing test, women’s liberty interest vs. states compelling interest in health and protecting the life of a baby. Balance it in the trimester framework. In the first three months the woman’s right trumps. In second trimester states interest becomes compelling, therefore state can impose restriction to make sure abortion procedure safe. In third trimester, states interest becomes compelling because only then is fetus viable, so state can prohibit abortion. This is how late term abortions are prohibited in some states. xiv. Trimester Framework: Is not becoming dated as fetuses are viable in earlier trimesters thanks to technology. xv. Rehnquist Argument: We live in a democracy. What does the constitution do with social issues? It says nothing. It leaves those decisions to the states. It’s called federalism. xvi. Counter Argument: The framers of any constitutional amendment are prisoners of their time. So what do you do? You draft fairly generally. You have something specific in mind, such as the slaves will need help, but choose general language to apply to all citizens, therefore, the court as a textual matter needs to be able to interpret general words in light of changing social and cultural norms. xvii. Analysis for Test: Is it a protected liberty interest under the 14th amend due process clause: xviii. If yes, is the Liberty fundamental? xix. If yes, Does the law interfere with the fundamental liberties so as to unduly burden the liberty? xx. If Yes, Strike down? 3. Iat v. New Hampshire a. Upholds parental consent laws. b. Most states have bypass procedures, can go straight to judge in a closed hearing. c. Kennedy and O’connor are very uneasy with Roe v. Wade. They think it was wrongly decided and has led to an unstable jurisprudence. Reagon was looking to reverse Roe v. Wade. Therefore most people assumed court would reverse it. d. White, Scalia, Thomas, vote to over rule. e. Kennedy, O’Connor, Stevens, and Souter 4. Casey a. Pre-Viability i. A women has a right to choose an abortion without undue interference b. Post-Viability i. … ii. Concurance: New Test: In the area of abortion, undue burden in enough tot strike down. = Substantial Obstacle. Substantial = Calculated to Hinder. Ok though if purpose is merely to persuade women to choose birth over abortion. iii. A state can characterize a law as persuasive almost anytime. 5. Stenberg v. Carhard – Other Privacy Case a. First Case of the year. b. Illustrative of modern constitutional law. c. 8 separate opinions. There is no organized law. d. Protected “Liberty” Interest in Abortion Pre-Viability. e. Analysis: If you are a doctor, and you are reading this Nebraska law, you are probably going to air on the side of caution, therefore bans on partial birth abortion are vague and overbroad. i. These bans being based by overwhelming legislative majorities. In every other issue surrounding the constitutionality of state law, the supreme court usually remands to state supreme court or certifies one particular question. f. Rule and Hold: Women have a fundamental liberty interest pre-viability, therefore violates Roe v. Wade as articulated in Casey. i. Said Differently: It’s an undue burden on a woman’s pre-viability interest, because the law as interpreted could sweep in to affect previabbilit abortions. ii. However, A government has to have an exception for the life and health of the mother. Congress made an exception for the physical health, but not the psychological health, because the exception swallows the rule. g. A bedrock principle of federalism is that states are the final word on state law, except in Stenberg. i. Rehnquist Court wanted to return power to states. h. Special Rule of Stare Decisis in Abortion that does not apply in Sexual Orientation? 6. New Case: 5-4 to Uphold Congress’s ban on partial birth abortion. Narrow opinion, not overruling Stenberg. a. If the decision if 5-4, someone will say in dissent something about the physical health vs. psychological health. We don’t defer to judgment of Medical Doctors when society says what they are doing is wrong. 7. Sexual Orientation (Chapter 8 § 6 P. 1465) a. This is not a purely legal analysis, Rx people hold opposing views. The analysis takes place in a broader social context. Notions of sexual orientation have undergone a dramatic transformation. b. Lawrence – Privacy Right in Home i. Follows directly from Griswald.Case. ii. Has a right to do whatever in the privacy of your home between consenting adults. c. Prostitution in Lawrence i. State arguments to Regulate: 1. Public Health (communicable diseases) 2. Commerce a. There is consideration exchanged. b. Counter: There is always consideration – guy pays for a date. 3. Organized Crime a. Sex, Drugs and Crime are bread and butter. Organized crime crosses states, so Feds can regulate. 4. Morality ii. Requirement to Regulate: 1. Question is what level of scrutiny do we apply? 2. Rational Basis? Could legislature have had a rational basis? Of course. a. Nearly every class gets this. i. Wealth ii. Homo’s iii. Disabled 3. Rational Basis Plus a. Between Rat. Basis and Intermediate Scrutiny. 4. Strict Scrutiny: Fundamental Liberty Interests subjected to this. a. Scholars say this should have been applied because of Griswald decision. b. However court says nonfundaamenta liberty interest (a right rooted in the nations histories and traditions) i. This is because states have had laws against this for a long time, so to hold this would be hypocritical. iii. Analyze under equal protections clause 1. Is there a compelling state interest. 2. States interest in morality, traditionally defined might be broad enough to encompass any sex outside marriage. iv. A lot of rhetoric in Lawrence v. Texas and Romeo. In prof’s opinion, breaking down a bedroom door and arresting someone is an affront to their dignity as human beings. This is what is driving the opinion. v. When dealing with un-enumerated rights, must have some sort of grounding, and court has chosen tradition and history. vi. If tradition and history is wrong or not strong enough, can go to the declaration of independence and look at certain unalienable fundamental rights that are self evidence based on the natural order of things. vii. Or could go to evolving contemporary standards of decency among civilized people. Contextual interpretation. viii. Stare Decisis: It has become meaningless. The court uses it when useful and ignores when not. If look at way Lawrence contradicts Bowers v. hardwick ix. This case is classicly Scalia. Does not have effect Scalia says it does. x. xi. Hold: Prostitution should not be criminalized.. d. Romer i. Equal Protection ii. There are two clauses in 14th we should care about. Due Process and equal protections. iii. Generally the court looks to a result and then tries to find a clause to hook onto to rationalize. iv. Facts: States passing anti-discrimination laws protecting gays and lesbians. Colorado legislature passed a law prohibiting municipalities from giving gays special rights not available to other groups. v. Court says: This law does not discriminate against gays, it only keeps them from getting special rights. But does single out a class – just like brown v. board. Amendment poses a “special disability” on gays and lesbians that is not put on other groups. Keeps them from lobbying to pass a law stopping discrimination against them. Purpose of law is to harm a group. vi. This is a highly unusual application of rational basis. Look at west coast hotel and lee optical and other cases. Rational Basis is easy for governments to reach. vii. Therefore: What is going on is not really rational basis. It is intermediate scrutiny. (26) Final Notes a. Speech: CLearn and Present Danger balancing test. If state has a compelling interest to protect property or life and limb of public then can’t speak. b. Multiple Choice + Essay c. Apply the Current Law, unless a question calls for the law at a certain time. d. Essay: i. Give a bunch of facts, you’re a clerk for a judge, write a memo applying current law (first), then in one of the sub-parts give me your opinion on what the law should be. ii. Discrimination based on sexual orientation: tell me what the law is, then what you think the law should be. 1. Use intermediate scrutiny because it is like gender discrimination because… iii. Sample Essay Question and Answer in Faculty Secretaries. e. Know legal arguments on both side of the Right to Privacy /Roe v. wade issues. (27) Further Final a. Review May 2 4:30pm to 6:30pm b. Office Wed – Thurs 10-12. c. Procedural Due Process: i. Notice (Goldberg) ii. Opportunity to Be Heard (Goldberg) iii. Impartial Decision maker (Hamdi) d. First Amendment i. Free Exercise of Religion (Strict Scrutiny) 1. Thomas v. Review Board. a. Worker’s schedule violates his religions beliefs so he wants unemployment benefits. b. Neutral Law of General Applicability. c. Dissent i. If gov’t passes a law to get at jehovah’s witnesses that’s bad. But when state passes laws it is generally religiously agnostic. States can make a religious exception, but free exercise clause does not require them to do so. 2. Smith Case a. Oregon passes a statute criminalizing the possession of peyote. b. Stipulated: Native Americans use peyote sacramentally. c. Stipulated: Law was not written to target the religion. i. Precedent: Neutral law of general applicability – as applied to a sincerely held religious belief triggers the free exercise clause. 1. Precedent: Sherbert v. Berner & Thomas v. Review Board – Oregon needs a compelling interest to show it is the least restrictive means. ii. Hold: "free exercise" of religion does not allow a person to use a religious motivation as a reason not to obey such generally applicable laws. iii. Dissent: State can infringe free exercise rights if has a compelling interest in doing so. A mind altering drug will have negative health effects, so it falls under the police power of the state. d. By contrast, the cases in which the Court had allowed a religious motivation to exempt a person from a neutral, generally applicable law involved the assertion of both the right of free exercise along with some other right. See Yoder Case where Amish are allowed to not educate in public schools because there is a religious reason + the parents right to educate children. 3. Current Law: States can pass and enforce neutral laws of general applicability. ii. Establishment Clause 1. Starting in the 1960’s many cases prohibiting prayer and religiouns in school. These cases have been very durable through the years 2. The 14th amend due process clause incorporated the 1st amendment freedom of religion clause against the states. 3. Establishment clause was originally a jurisdictional clause, saying CONGRESS couldn’t establish religion. The states could and did deal in religions. The original meaning of the establishment clause has been completely lost by the court. 4. There is no legal basis for any of the establishment standards (just like none for the due process implied rights). a. That means that it is all case law in this area. 5. Landmark Case: Eversin: State could never support or prohibit religion. There is a wall between church and state. Ignores precedent. We have in god we trust on our money. Chaplains in the armed services. We have financial support to church organization including schools. a. Court took absolute approach and it didn’t work. People sued. 6. Lemon v. Kurtzman a. Created a multi-factor Balancing Test: i. Law must have a secular purpose ii. Primary effect can’t either advance or inhibit religion. If doesn’t go to: iii. Can’t foster an excessive entanglement of religion. 7. Nyqist Case (1747) a. Strikes down NY law to give funding to private schools because most of them were religious because. b. Government can’t give church money for repair and maintenance because it might be used for a chapel and that would be establishing religion. c. If a state gave money for textbooks, then maybe. d. Dissent: i. Perfectly rx that parents who pay taxes for public schools and don’t use them should get a benefit. ii. However, doing that would make the public school system worse. Once taxes paid, 8. Court Moves towards neutrality between religious and nonreliigiou institutions: (1765 on) a. Meuller – Court backs away from Nyqist and allows state income tax deduction for cost of private school. b. iii. Freedom of Expression 1. Alien Sedition Acts During WWI 2. Rationals for freedom of expression a. Protects representative government i. Bedrock is political speech. b. Advance knowledge and promote truth: the notion of a marketplace of ideas. c. Protecting Individual Automomy. Self worth is based on self determination. d. SCOPE :1st Amend was intended to prohibit congress from imposing prior restraints. i. State may have a compelling Interest and could pass general regulations that may have incidental effects on speech. ii. SYMBOLIC ACTS: Speech can include symbolic acts like burning a flag. e.